Why capital punishment is the least effective solution

Today, the iconoclastic lawyer Ram Jethmalani appealed to the Madras High Court for a stay on the execution of the three accused in Rajiv Gandhi’s murder. He received an eight week long stay, presumably to argue the merits of commuting their sentence, or to appeal higher. I rarely agree with that great lawyer’s politics, but on this one he and I are on the same side. I hope, as I am sure most of the legal community does, that he succeeds on his mission for mercy.Bertrand Russell observed, in 1932, that criminal law is least effective when it's motivated by anger against its defendants. Anyone who has witnessed the hazardous effects of rage in a courtroom, whether in India or elsewhere, can only nod in agreement. It's not that I want to see Rajiv Gandhi's killers exonerated, but it is when faced with such high profile cases that we introspect upon our society and the values we uphold.The death penalty is probably the most divisive subject within criminal law. Of all the theories of criminal jurisprudence — punishment as reform, as redressal, as deterrence — it is the notion of punishment as vengeance that is the most famous and (arguably) the most dated. The Indian Penal Code, especially as interpreted by the courts, reveals this hesitance. Of the various kinds of homicide it stipulates — by negligence, by intent, by conspiracy — it is only in the "rarest of rare cases" that the death penalty is permissible. As Mahatma Gandhi once noted, an eye for an eye makes the whole world blind.[caption id="attachment_73445" align="alignleft" width="380" caption="Nalini (R), one of the accused in the Rajiv Gandhi assassination case, seen in a court in this file photo. Reuters."][/caption]Unpopular as the idea is within legal circles, it is easily the face of criminal law in civil society. What else do we do with criminals, after all, except pay them back in the same coin as they dealt to others? If they have killed, especially in cold blood, how can we not execute them? Why should the state have to bear the costs of indefinitely incarcerating those who have committed heinous crimes? Can you truly reform those who have shown themselves to be outside the pale of humanity?It was to answer such questions — as moral as they are legal— that the Supreme Court was asked to confer on the constitutionality of the death sentence in the case of Bachan Singh vs The State of Punjab. They affirmed its validity, with the exception of Justice Bhagwati, who held that the criteria provided on when such a sentence might be passed were too vague and discretionary to be constitutional. One cannot violate a person's fundamental right to life, he argued, without sterner guidelines that rely less on the judge's personal opinion of the criminal and his circumstances. Justice Bhagwati also questioned the method of execution of prisoners in India, calling hanging an inhumane practice that has been replaced elsewhere by the lethal injection. He describes the brutality of it in gruesome detail in his dissent:

The day before an execution the prisoner goes through a harrowing experience of being weighed, measured for length of the drop to assure breaking of the neck, the size of the neck, body measurements et cetera. When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness-room. The prisoner remains dangling from the end of the rope from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his heartbeat with a stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerable struggling in an effort to breathe.

There is a distinguished jurisprudence on the death penalty in India, and it would take a far longer essay to recount it in full. I chose a passage that spoke to me, an advocate for abolition, and undoubtedly those of other opinions can find alternates that suit them. That said, if hanging is a venal practice — as I believe it is—  it is superseded by the years of mental torture that precede it. Imagine, as another lawyer from NLS asked his readers, waking up each morning unsure if its your last. It is a state of mind comparable to those living in countries tarnished by daily terror, where each day you are left alive is an unlikely gift.To conclude, I borrow a quote from Dostoevsky I read on my senior's blog, which might, just perhaps, change someone's mind:

 I believe that to execute a man for murder is to punish him immeasurably more dreadfully than is equivalent to his crime. A murder by sentence is far more dreadful than a murder committed by a criminal. The man who is attacked by robbers at night, in a dark wood, or anywhere, undoubtedly hopes and hopes that he may yet escape until the very moment of his death… But in the case of an execution, that last hope — having which it is so immeasurably less dreadful to die — is taken away from the wretch and certainty substituted in its place!… You may place a soldier before a cannon's mouth in battle, and fire upon him — and he will still hope. But read to that same soldier his death-sentence, and he will either go mad or burst into tears. Who dares to say that any man can suffer this without going mad? No, no! it is an abuse, a shame, it is unnecessary—why should such a thing exist?