8 Arguments of Abolitionists against Capital Punishment

Arguments of Abolitionists against Capital Punishment

1. The retributive philosophy of eye for eye and tooth for tooth cannot be accepted in civilised and advanced society of today. No wonder, the number of capital crimes is being reduced and the methods of execution are becoming more painless. The approach to offenders is more humanitarian than punitive.

2. The argument of deterring people by setting an example through fear of capital punishment is also not based on any hard evidence. Three methods may be used for determining the deterrent value of death penalty: One, by comparing the homicide rates in countries which have abolished death penalty with the countries which retain it; two, by comparing homicide rates in the countries which have abolished death penalty before and after the abolition.

We do find differences in homicide rates. For example, in the United States, homicide rate in the states which have abolished capital punishment is 30 to 50 per cent higher than those states which continue to have capital punishment (Sutherland, 1965: 292).

In Travancore, the number of murders reduced during the abolition period (between 1944 and 1950) but increased after its reintroduction from 159 in 1950 to 170 in 1952.

Italy also showed the same pattern between 1930 and 1947. Norway and Sweden which have abolished death penalty have homicide rates about one-half as high as England which had retained it till 1969. In Australia, the homicide rate was slightly higher after abolition than before abolition.

The difference in the rate of homicides is due to things other than death penalty. The composition of the population and the general culture of the country are much more important than the presence or absence of death penalty in determining homicide rates. All this data do not justify an absolute conclusion regarding the value of death penalty as a deterrent.

It is true that human behaviour is influenced through fear but it is not always true that all individuals think of death penalty before committing murder. In India, it is estimated that three-fourths of murders are emotional and only one-fourth are premeditated.

Selling (1932: 12) has stated: “Death penalty can never be made deterrent. It’s very life seems to depend on its rarity and therefore on its ineffectiveness as a deterrent.”

John Lawrence writes in his book, A History of Capital Punishment: “Executions in the times when they were universally public were occasions for rioting, revelry and ribaldry (using indecent language) and seldom was the demeanor of the crowd decorous in the face of death, and seldom too did a public execution act as a deterrent.”

Further challenging the view whether capital punishment really has deterrent value, references are made to people’s reactions to persons being executed in some countries. In Saudi Arabia, even today huge crowds gather at public beheading. In Afghanistan also, thousands of people are encouraged to witness executions.

In America, there is a scramble among media persons to witness executions. In April 1990, when Robert Harris, the prisoner who got reprieve three days before his execution in California, the press people, for whom sixteen spectators’ seats were reserved out of a total of forty-two seats, were reported to be very disappointed.

Balconies overlooking the prison were rented to reporters. One resident even asked for 250 dollars for the use of his lawns by television crews. A woman sold space in her front window for 400 dollars (The Hindustan Times, August 5, 1994). Do such instances indicate that people do not want capital punishment or that people really abhor it?

3. The object of protecting society from dangerous offenders can be achieved by long imprisonment and also by improving conditions in prisons. Besides, it is now scientifically established that crime is not the result of personality deficiencies but is caused by unfavourable environment and interaction of many factors.

4. The argument that capital punishment unifies society against crime is not supported by evidence. Offenders today are not executed in the presence of the public and no efforts are made to give publicity to executions.

Besides, social relationships have become impersonal today and people pay little attention to the punishment of offenders. At most, the victims remain interested in compensation for the loss suffered by them.

5. Savings to be achieved by awarding death penalty to murderers instead of putting them in jail for life are paltry indeed. If we take the case of our country, assuming that we hang 100 persons a year, and also assuming that we spend Rs. 500 per month at present (in 1996) on each prisoner and that a murderer will live in prison for 14 years, we save hardly 84 lakh rupees a year.

This is surely not a significant amount. More importantly is it logical and sane to link economy with hanging human beings? Is it proper and civilised to argue that since it would be cheaper to kill mentally and physically ill persons than to treat them, we should hang all such persons?

Besides, the introduction of wage system in prisons will make it possible for prisoners to earn money and support their families. Some of the open jails in India permit prisoners to live with their families in prison, take loans from banks and establish themselves in business.

6. Owing to defects in the judicial system, sometimes innocent persons are given death penalty for crimes which they did not commit and the truth comes to be revealed after the persons are hanged. Who will compensate the families of such persons? A learned judge has observed:

Our ‘beyond-a-reasonable doubt’ burden of proof in criminal cases is intended to protect the innocent, but we know, it is not foolproof. Various studies have shown that people whose innocence is later convincingly established are convicted and sentenced to death.”

Some criminals whose death penalty was converted into life imprisonment later blossomed into eminent writers, botanists, wrestlers, etc. In some cases, thus, replacing capital punishment by incarceration can prove to be beneficial.

7. Capital punishment lessens people’s respect for human life. Law is expected to present the finest model of justice and reason to people bat if spill human blood, then these very laws alter the idea of justice and injustice in the hearts of citizens. Capital punishment causes anger and revenge among the citizens. Brutal public executions have demoralising effects on people.

8. Capital punishment has a negative effect on the system of criminal justice. On the one hand, judges take a lot of time in deciding cases which deserve capital punishment, and, on the other hand, the convicted offenders go in appeal to the higher courts, and finally to the highest court to avoid the imposition of death penalty.

The possibility of death penalty also sensationalises the entire trial and sentencing process. Many judges are not able to decide the vague distinction between first and second degree murder. If capital punishment is abolished, the system of criminal justice is likely to improve.

Another consequence of the existence of capital punishment is ‘panic’ legislation to include spectacular crimes not already covered by capital punishment in the existing list of capital crimes.

For example, in India, at the time when terrorists tried to damage railway lines for causing derailment of trains, and, thus, create panic in the public mind, the government seriously thought of providing death penalty for this offence.

Similar public and official reaction arose with regard to kidnapping for political reasons, rape, and forcing a woman to commit sati. Public emotionalism reaches such high level that rational debate on the issue becomes difficult. Enacting legislation and prescribing capital punishment for ‘fatal’ offences needs to be considered coolly and carefully.

In our opinion, the most important argument in favour of the abolition of capital punishment is the admission of the fact that human judgement is fallible. No system can ever be devised, given the limitations of human condition/existence that would be infallible.

Infallibility is not a human trait it is divine. Let not human beings abrogate to themselves the powers that are rightfully not theirs. Let us render to Caesar things that are Caesar’s, and, to god, things that are His.

It may be relevant here to recall the viewpoints of some judges and other eminent persons. Justice Krishna Ayer, former judge of the Supreme Court, is of the opinion that capital punishment must be abolished because it is a crime against criminals. He has said: “The flag of human justice should be hung half-mast everyday a human being is hanged.”

Justice Anand, former judge of the Supreme Court, has said: “Capital punishment is a legal injustice because justice is imparted on the basis of considerations other than moral or ethical.” He thinks, murder is the result of sick mind of a criminal.

If a criminal, not in his senses, commits a crime, he is mad, but if a judge who is in his senses, awards death penalty to a criminal, he is madder. Justice P. Bhagwati, former Chief Justice of the Supreme Court, is of the opinion that capital punishment must be abolished because it gives arbitrary discretionary powers to the courts.

Mahatma Gandhi, the spiritual leader of India, was of the opinion (Harijan, March 19, 1937): “I do regard death sentence as contrary to Ahimsa. Only HE takes life who gives it. All punishment is repugnant to Ahimsa. Under a state governed according to the principles of Ahimsa, therefore, a murderer would be sent to the penitentiary and there given the chance of reforming himself.

All crime is a disease and should be treated as such.” Beccaria has maintained: “The state has no right to put an individual to death because the life of an individual was not surrendered to it as part of consideration for the control.”

On the other hand, Justice Luthra justifies capital punishment. Justice A.P. Sen also says that capital punishment must be retained. When a person kills an innocent person in a pre-planned and cold-blooded manner, he has no right to live.

The United Nations Organisation in its Declaration of Human Rights on 10 December, 1948, declared: “Everyone has a right to life, liberty and security.” On 16 December, 1966, it adopted civil and political rights resolution and maintained that all persons who are given capital punishment must be given the right of pardon and sentence commutation.

Professor Gillin (1958) has said: “There seems very little reason why the state should keep the murderers alive in the face of the social resentment which their deed excites. No matter how well they work or how well they behave themselves in prison.

They can never repay society for the damages they cause, not only to the family of the victim but to the humanitarian sentiments which lie at the basis of our society.” Clarence Darrow is of the opinion: “God gave life and only God should take it away.”

Prof. Hentig has said: “I see in capital punishment a means of punishment whose advantages can be obtained by other means and whose disadvantages can be prevented in no other way than by abolishing it. It is socially insufficient means of punishment to which must be added the possibility of a judicial error which we cannot exclude.”

It may, thus, be concluded that opinion on capital punishment is divided. There are people who want to retain it for serious crimes, to be awarded in exceptional cases. On the contrary there are people who want n to be abolished altogether.

Legislative bodies and the courts talk of its need in the legal framework while liberal-minded people who talk of humanitarianism in punishment want to do away with it in the broader social context.