In Opposition to the Death Penalty

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(First published on NewYaps a day before the four accused were sentenced to death)

As I write this, the fast track court set up to try the 2012 Delhi Gang Rape Case has found the four adult defendants guilty of rape as well as murder. Their sentence is awaited on Friday.

As all this goes on, most of India is up in arms to procure the death sentence for the accused. From placards at India Gate to rabid comment sections on websites, Indians, or at least those who are bothered enough to comment on this incident, have overwhelmingly spoken out in favour of killing the accused in return for their brutal behaviour on the night of 16 December. In fact, for some, even death is not enough; descending into a medieval eye for an eye form of justice, they demand the accused be tortured in the same way as they did Nirbhaya. I’ve even seen Afghanistan (!) and their mode of brutal, atavistic Sharia justice being held up as a model for India to follow.

All of this is in a way predictable. Our entire response to the rape has been far from enlightened. Most of the sound and fury, in the first place, was fired up by the characterisation of Nirbhaya as the “daughter of the nation” (desh ki beti), neatly slotting her into an acceptable role for a woman (other roles being ‘mother’ and, maybe, ‘wife’).  Not only that but most of the people protesting the rape have no views on, say, the mass gang rape conducted by the Indian Army in Kunan Poshpora, Kashmir or the organised state wide campaign of sexual violence carried out in Gujarat in 2002. Even opposition to something as horrible as rape is tempered by nationalistic and political considerations, it seems. Given these limitations in the reaction, the fact that most of us have a medieval urge to seek retribution (as opposed to justice) by murdering the perpetrators outright is hardly surprising. In spite of this popular support that the death penalty seems to have, the fact of the matter remains that this mode of justice is not something that should exist in any country that calls itself civilised and both morality as well as utility demand that it be removed.

Since most calls for the death penalty are always predicated on the brutality of the crime, let me start off by stating the obvious: my opposition to the death penalty does not mean I do not oppose the crime itself. What happened on the night of 16 December was and is horrible and there needs to be punishment for the perpetrators as well as justice overall. That said, however, the death penalty is not the way to do it.

The moral opposition to the death penalty is largely based on the fact that killing—any killing—is wrong. The State has no right to take what it cannot confer. And to do this in an organised way, using its full might is nothing short of barbaric. The death penalty also encourages a very grisly form of eye-for-an-eye justice that we should have done away with centuries back. If you think it’s logical for death to act as a punishment in return for murder, do you also think the State should set up a rape squad in order to rape rapists or beat people who have been convicted for assault?

The biggest moral opposition to the death penalty, though, is that our systems are imperfect and, sooner or later, you are going to kill an innocent man.  In the US itself, as per Amnesty International, 130 people sentenced to death have been found innocent since 1973; this in a rich, industrialised nation. Now imagine the number of mistakes India’s dilapidated, overworked and overburdened judicial system would make. Of course, mistakes can be made with other systems of justice as well; being imprisoned for life for a crime you did not commit is extremely bad. Unlike imprisonment, however, death is a mistake that cannot be rectified and is thus an extremely costly, unforgiveable error to make.

Moving on from out and out retribution, though, some supporters have a more refined argument: they claim that their support is based on the fact that  the death penalty acts as an effective deterrent towards future crime. This, if true, would certainly be a strong point. After all, who wouldn’t want fewer violent rapes in India? Unfortunately, it’s a big ‘if’. This conjecture, that the death penalty acts as deterrent, has no basis whatsoever in fact. The available data paints a rather different picture: the death penalty does not deter people from violent crime; the likelihood of being caught and punished does. So, if anything, better policing, not harsher sentencing acts as an effective deterrent. To quote from Amnesty International: “...research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis. The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction. The death penalty is a harsh punishment, but it is not harsh on crime.”.

From a 2009 study of criminologists in the US conducted by the National Research Council, over 88% believe that the death penalty was NOT a deterrent to murder. Even more compelling data is provided by comparing murder rates in US states with and without the death penalty

As can be clearly seen, murder rates are lower in states without the death penalty, effectively destroying the death-penalty-as-a-deterrent argument.

In fact, the perpetrators in the bus that night did try to kill the victim—a crime for which most certainly there is already the death penalty. As is obvious, the threat of this maximum punishment was not an effective enough deterrent to stop them from committing their horrible crimes.

Come Friday though, most of these arguments are going to not even figure as, in all probability, the accused will be sentenced to be murdered. It will be immoral and it will be ineffective but it will still be done. And on top of the ghastly crimes that were committed by these four on 16 December is going to be added one more, this time committed by the Government of India.