I'm With Charles Dickens On Death Penalty
~~Dipankar Gupta
 |
| The Gujarat court's decision to award the death penalty to 11 of the accused in the Godhra train massacre has ignited the capital punishment debate once again |
The Gujarat court's decision to award the death penalty to 11 of the accused in the Godhra train massacre has ignited the capital punishment debate once again. Officially 52 people have been executed so far in Independent India, but some democratic rights activists think it is much more.
Though India is not a signatory to the UN resolution banning the death sentence, we are still assailed by ambivalence on this subject. Why else should there be such a large number of mercy petitions pending before the President? Those in favour of death penalty put forward their case either on moral grounds or because they believe that it acts as a deterrent against murder. The other side too has moral reasons for objecting to capital punishment as well as researched data against the deterrent argument.
So far it is rather a fair fight between the two till we introduce the Charles Dickens factor. Dickens's campaign against capital punishment is neither moral nor based on numbers. It is premised on the view that human beings, even those from whom we have the greatest expectations, can be deeply flawed.
Arguments:
One version of the moral argument in favour of death penalty is based on the principle of equal retribution - an eye for an eye, a tooth for a tooth; very Old Testament style thinking. Arraigned against this is another moral position, championed most notably by high Enlightenment philosophers like Voltaire and Victor Hugo.
In their view the death penalty is wrong for who are we to take somebody else's life and ( for Hugo particularly) cause unmitigated fear in the condemned person.
This right they assert lies with God and with nature.
The capital punishment as deterrent argument is also closely contested. There are no moral arguments here, but statistics.
Those in favour of capital punishment argue that without it society would descend into chaos, or something just short of it. They claim they have numbers to show that only the death sentence effectively kills the appetite to murder. Important research papers attesting to this fact have been produced by Professors Naci Mocan, Paul Rubin, Isaac Ehrlich and Paul Zimmerman. It is probably just a coincidence that all of them are economists in American universities.
Notwithstanding the intellectual charisma of such scholars, there are many who remain unimpressed.
They have raised doubts on the veracity of the facts put out by their opponents, even claiming that they have " abused" the evidence. This spirited counter- attack has been conducted by eminent legal experts like John Donohue, Justin Wolfers, Steven Shavell and Cass Sunstein. For the record, and for whatever it is worth, none of them are economists! Then we have the Charles Dickens factor. In 1846 he wrote a series of letters in The Daily News arguing what if after the execution new facts come to life that prove the dead person was innocent? He also went on to say that as humans are fallible, justice is not always race, class or sect blind. Under these conditions, to inflict capital punishment is a dangerous thing.
For example, it has been recorded that between 1973 and 2005, as many as 123 prisoners were let out of death row in America for new evidence showed that they were not guilty. Professor Roy Paternoster has also argued, quite persuasively, that the death sentence falls unequally on Blacks in America? One can take this a step further and ask if it is alright to execute people for crimes they committed when they were minors. Indeed, this has happened numerous times in countries as disparate as America, Yemen, Iraq and Nigeria.
Voltaire and Victor Hugo opposed the death penalty over two hundred years before it became law in France. In Britain, the death sentence was abolished in 1969, more than a hundred years after Charles Dickens began his battle against it in the pages of The Daily News . Today 95 nations have abolished the death penalty while only 58 practice it. From this we can conclude that the drift is clearly against the death penalty the world over.
Countries:
In all likelihood, there would have been fewer countries in favour of the death penalty had America not been on the other side. Lest we forget, in 1972, in the famous Furman vs. George verdict, the US Supreme Court declared the death penalty to be illegal. In 1976 it was brought back and Gary Gilmour was the first to die under this revised law.
It is said that strong public opinion in favour of the death penalty, cutting across party lines, is responsible for the reinstating capital punishment in America.
In France, and in most of Europe for that matter, the death sentence was abolished even though the majority, at that time, wanted it to be retained. When death by guillotine was finally history in 1981, it was done by administrative fiat for as many as 62% of France was in favour of capital punishment.
If the many Presidents of that country, from Charles de Gaulle to Georges Pompidou to Valerie Giscard d'Estaing, had listened to their people, the death penalty would still have been effective in France. Only now has majority public opinion in Europe swung against capital punishment, but this has happened well after it was already abolished in law. The American argument that death penalty survives because the people want it is, therefore, not a very sound one.
Europe has moved a continent away from America on this. To be a member of the European Union today it is a requirement to abolish the death penalty. This is probably why Turkey did away with the death sentence in 2004.
In Russia the matter is on hold. A moratorium was placed on capital punishment in 1996 when Russia joined the EU. President Dmitry Medvedev was not happy about it, but he said he had little choice. That is how unrelenting the Europeans are on this subject.
In India, it is not clear which way the political wind is blowing on the death penalty. The BJP is in favour of it especially when it comes to sentencing of terrorists.
They do not seem to be disturbed by the fact that a person could be wrongly condemned on this ground. In this they are one with Dmitry Medvedev. It is not easy to go against public passions especially in the context of terrorism and violent antinational activities. But that too has happened. Klaus Barbie, the hated Nazi war criminal, did not die for by the time his trial was over the death penalty had been abolished in France. The guillotine was not brought back for this one last chop.
India:
Indian courts have taken the predictable middle of the road stance. Justice Sinha seems to have set the tone for judges in this country when he argued that the death penalty was permissible only in the " rarest of rare cases." This leads to arbitrary valuations for it is not easy to decide how " rare" a case must be to attract the death penalty.
Even if the deterrence argument were incontrovertible, even if one believed or did not believe in The Old Testament or Enlightenment humanism, the Charles Dickens factor remains firm.
How does one return a life that has been wrongly cut short because of human fallibility? Judges can and do make mistakes and as members of society, judges are not armoured against prejudice. Eventually it is up to the sagacity of our political leaders.
They must be fully aware of what the Dickens the death sentence is all about.
Though India is not a signatory to the UN resolution banning the death sentence, we are still assailed by ambivalence on this subject. Why else should there be such a large number of mercy petitions pending before the President? Those in favour of death penalty put forward their case either on moral grounds or because they believe that it acts as a deterrent against murder. The other side too has moral reasons for objecting to capital punishment as well as researched data against the deterrent argument.
So far it is rather a fair fight between the two till we introduce the Charles Dickens factor. Dickens's campaign against capital punishment is neither moral nor based on numbers. It is premised on the view that human beings, even those from whom we have the greatest expectations, can be deeply flawed.
Arguments:
One version of the moral argument in favour of death penalty is based on the principle of equal retribution - an eye for an eye, a tooth for a tooth; very Old Testament style thinking. Arraigned against this is another moral position, championed most notably by high Enlightenment philosophers like Voltaire and Victor Hugo.
In their view the death penalty is wrong for who are we to take somebody else's life and ( for Hugo particularly) cause unmitigated fear in the condemned person.
This right they assert lies with God and with nature.
The capital punishment as deterrent argument is also closely contested. There are no moral arguments here, but statistics.
Those in favour of capital punishment argue that without it society would descend into chaos, or something just short of it. They claim they have numbers to show that only the death sentence effectively kills the appetite to murder. Important research papers attesting to this fact have been produced by Professors Naci Mocan, Paul Rubin, Isaac Ehrlich and Paul Zimmerman. It is probably just a coincidence that all of them are economists in American universities.
Notwithstanding the intellectual charisma of such scholars, there are many who remain unimpressed.
They have raised doubts on the veracity of the facts put out by their opponents, even claiming that they have " abused" the evidence. This spirited counter- attack has been conducted by eminent legal experts like John Donohue, Justin Wolfers, Steven Shavell and Cass Sunstein. For the record, and for whatever it is worth, none of them are economists! Then we have the Charles Dickens factor. In 1846 he wrote a series of letters in The Daily News arguing what if after the execution new facts come to life that prove the dead person was innocent? He also went on to say that as humans are fallible, justice is not always race, class or sect blind. Under these conditions, to inflict capital punishment is a dangerous thing.
For example, it has been recorded that between 1973 and 2005, as many as 123 prisoners were let out of death row in America for new evidence showed that they were not guilty. Professor Roy Paternoster has also argued, quite persuasively, that the death sentence falls unequally on Blacks in America? One can take this a step further and ask if it is alright to execute people for crimes they committed when they were minors. Indeed, this has happened numerous times in countries as disparate as America, Yemen, Iraq and Nigeria.
Voltaire and Victor Hugo opposed the death penalty over two hundred years before it became law in France. In Britain, the death sentence was abolished in 1969, more than a hundred years after Charles Dickens began his battle against it in the pages of The Daily News . Today 95 nations have abolished the death penalty while only 58 practice it. From this we can conclude that the drift is clearly against the death penalty the world over.
Countries:
In all likelihood, there would have been fewer countries in favour of the death penalty had America not been on the other side. Lest we forget, in 1972, in the famous Furman vs. George verdict, the US Supreme Court declared the death penalty to be illegal. In 1976 it was brought back and Gary Gilmour was the first to die under this revised law.
It is said that strong public opinion in favour of the death penalty, cutting across party lines, is responsible for the reinstating capital punishment in America.
In France, and in most of Europe for that matter, the death sentence was abolished even though the majority, at that time, wanted it to be retained. When death by guillotine was finally history in 1981, it was done by administrative fiat for as many as 62% of France was in favour of capital punishment.
If the many Presidents of that country, from Charles de Gaulle to Georges Pompidou to Valerie Giscard d'Estaing, had listened to their people, the death penalty would still have been effective in France. Only now has majority public opinion in Europe swung against capital punishment, but this has happened well after it was already abolished in law. The American argument that death penalty survives because the people want it is, therefore, not a very sound one.
Europe has moved a continent away from America on this. To be a member of the European Union today it is a requirement to abolish the death penalty. This is probably why Turkey did away with the death sentence in 2004.
In Russia the matter is on hold. A moratorium was placed on capital punishment in 1996 when Russia joined the EU. President Dmitry Medvedev was not happy about it, but he said he had little choice. That is how unrelenting the Europeans are on this subject.
In India, it is not clear which way the political wind is blowing on the death penalty. The BJP is in favour of it especially when it comes to sentencing of terrorists.
They do not seem to be disturbed by the fact that a person could be wrongly condemned on this ground. In this they are one with Dmitry Medvedev. It is not easy to go against public passions especially in the context of terrorism and violent antinational activities. But that too has happened. Klaus Barbie, the hated Nazi war criminal, did not die for by the time his trial was over the death penalty had been abolished in France. The guillotine was not brought back for this one last chop.
India:
Indian courts have taken the predictable middle of the road stance. Justice Sinha seems to have set the tone for judges in this country when he argued that the death penalty was permissible only in the " rarest of rare cases." This leads to arbitrary valuations for it is not easy to decide how " rare" a case must be to attract the death penalty.
Even if the deterrence argument were incontrovertible, even if one believed or did not believe in The Old Testament or Enlightenment humanism, the Charles Dickens factor remains firm.
How does one return a life that has been wrongly cut short because of human fallibility? Judges can and do make mistakes and as members of society, judges are not armoured against prejudice. Eventually it is up to the sagacity of our political leaders.
They must be fully aware of what the Dickens the death sentence is all about.
Courtesy: India Today
