The Death Penalty: Is It A Fitting Punishment In “Rarest Of The Rare” Cases?
Yet another article on the death penalty? Well, as long as the death penalty exists, there is a need for advocacy against it (notwithstanding the “Rarest of the Rare” standard). Former United Nations Secretary General Ban Ki-Moon writes,“The death penalty has no place in the 21st century. Leaders across the globe must boldly step forward in favor of abolition.”  This article analyzes the merits of various arguments for retention and abolition. It also discusses the ‘Rarest of the Rare’ standard in the Indian context, and its fallacies. After such analysis, it firmly seconds the opinion voiced by Ban Ki-Moon, and that of at least 170 nations that have abolished capital punishment, in principle or in practice.
Abolition of death penalty, over the years, has been recognized as a sensitive issue, and has formed the core of several debates, both at national and international levels. Retentionists have sought to justify this practice by arguing that death penalty serves the purpose of not just deterrence, but incapacitation as well as retribution. They assert that maintaining secure prison systems for high-risk, violent offenders for their lifetime, acts as a drain on government resources and that condemning such criminals to death is a ‘cheaper’ alternative. Public or majoritarian opinion and ‘will of citizens’ in democracies have also contributed to the retentionist mindset of states and societies. Despite the lack of basis of certain claims, retentionists’ arguments can be articulated and are indeed perceived by some as moral ones. When discussing the death penalty from the perspective of values, it is critical to bring the victims’ perspectives into the debate. Their position certainly carries not just moral but also political leverage. Victims and their family members remain amongst the strongest proponents of the death penalty, as it inherently quenches their craving for vengeance (as opposed to justice), by providing some form of closure.
However, on the other end of the spectrum, wrongful convictions and incorrect guilt determination due to faulty trials or legal procedures are important counterarguments. Case in point, the irrevocability of this form of punishment. For instance, in India, in the period 2000-2013, 18 persons who were awarded the death penalty by both the lower courts were finally acquitted by the Supreme Court. An additional 67 persons had been awarded the death penalty by at least one court and acquitted by another. Or in the case of the US, since 1973, 150 US prisoners sent to death row were later exonerated. Others have been executed despite serious doubts about their guilt.
The deterrent effect has attracted scholarly and political attention for centuries. However, the UN acknowledges in its Resolutions, that there exists no ‘conclusive empirical evidence’ about the deterrence effect of capital punishment. Most justice systems, accept and invoke the ethical principle ‘in dubio pro reo’ (Latin for when in doubt, for the accused), in determining guilt. By way of analogy, if there is no proof that the death penalty deters crime, then why should it still be applied? Besides, there is plenty of evidence that shows that rotting in prison until the natural end of your life is a fate worse than death, and many states in USA have abolished capital punishment with this in mind.
Further, capital punishment is cheap only if it is carried out quickly. Conversely, lengthy legal procedure to prevent wrongful conviction ensures that it is much costlier than the longest prison sentence.
The death penalty has also been known to disproportionately affect socially marginalized groups: migrants, racial and ethnic minorities, the poor and people with mental disabilities, some of them victims of compounded discrimination (substantiated by evidence in Law Commission Report for India), not only in India but all over the world. In several legal systems, financial resources determine quality of legal representation.
Rarest of the Rare Standard:
The Supreme Court, in the Machhi Singh And Others vs State of Punjab, stated in its judgment, invoking the rarest of the rare formula, that- “…community may well withdraw the protection by sanctioning the death penalty… It may do so (in the rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime…”
What a maturing democracy like ours, needs to understand is that the law and the judicial process is not solely a reflection of public emotion or opinion. It is for the leaders and intellectuals to shape, and in such cases change public opinion.
Ambiguity, subjectivity, discrimination, procedural fallacies and emotion have no place in matters of life and death, all of which are prominent in the ‘Rarest of the Rare’ formula. The point of all judicial punishment is threefold- deterrence, retribution and rehabilitation/reformation. The death penalty as a punishment, fails all three.
A practice such as this shakes the very foundation of an evolved society such as ours and renders the system guilty of the same crimes that it seeks to prevent. Revenge is not a worthy motive for state’s actions. 
No human, in my opinion, is qualified enough to curtail someone’s liberty to live, while also violating and depriving the punished, of Article 6 of the International Covenant on Civil and Political Rights and numerous other conventions. Even the Law Commission of India Report states that “…the administration of death penalty even within the restrictive environment of ‘rarest of rare’ doctrine is constitutionally unsustainable.” Moral perspectives of the death penalty being a just punishment in the most serious of crimes are acknowledged. However, the social, political and economic costs of such retribution are too high, even in the rarest of the rare cases. Louis Fischer in his works on Mahatma Gandhi, observed that “an eye for an eye makes the whole world blind…”. I hope retentionist states see the light in case of abolishment of the death penalty soon; for otherwise, the day isn’t far when their capital convictions would be bereft of much reason.
Ivan Simonvic, Moving Away from the Death Penalty 6 (Ivan Simonvic ed., United Nations Publications 2015).
United Nations, Secretary-General's remarks at Panel on “Transparency and the death penalty”, (United Nations Secretary General Statements (Oct. 10, 2017). <https://www.un.org/sg/en/content/sg/statement/2017-10-10/secretary-generals-remarks-panel-%E2%80%9Ctransparency-and-death-penalty%E2%80%9D>
Law Commission of India, Government of India, The Death Penalty (Rep. No. 262, Aug. 2015).
Amnesty International, ‘Death Penalty’, AMNESTY INTERNATIONAL U.K. ISSUES (Jan.12, 2018). <https://www.amnesty.org.uk/death-penalty-amnesty-campaign-1977>
G.A. Res. 65/206 (Mar. 28, 2011).
International Commission Against the Death Penalty, Why the Death Penalty should be Abolished, I.C.D.P. Rev. (2013). <http://www.icomdp.org/arguments-against-the-death-penalty/>
Machhi Singh & Others v. State of Punjab, (1983) 3 S.C.C. 470 (India).
Shashi Tharoor, ‘A Hanging in India’ PROJECT SYNDICATE (Aug.12, 2015). <https://www.project-syndicate.org/commentary/death-penalty-india-hanging-by-shashi-tharoor-2015-08?barrier=accesspaylog>
Press Trust of India, ‘Law Commission recommends abolition of death penalty, except in terror cases’ THE HINDU (Aug. 31, 2015). <https://www.thehindu.com/news/national/law-commission-recommends-abolition-of-death-penalty-except-in-terror-cases/article10344061.ece>
B.A. L.L.B (Hons.)
Rajiv Gandhi National University of Law, Punjab.
(Image used for representative purpose only)