by Praveen Swami Sep 13, 2013, First Post


Mangalal Barela placed their necks over the wood chopping block outside their one-room home, one by one. His oldest daughter Phool Kanwar, she was six; her sisters, Savita, was five, Aarta, four, and Leela three. Little Jamuna, the youngest, was just one year old. Santo and Basanti, Barela’s wives, had refused to let him sell their land, saying they’d need the money to have the girls married. He solved the problem one June day in 2010, the blood of his children splashing over his clothes as he sliced through their necks with his axe. His three sons: them, he let live. Hours before he walked up to the gallows, the Supreme Court stayed Barela’s execution, ordering it to be heard with a set of petitions claiming clemency on the grounds the President inordinately delayed decisions on convicts’ lives.

The decision comes among a mounting debate over the death sentence in India—led by former judges like Ajit Shah, who are saying the Supreme Court has made gross errors in the application of precedents, and delivered inconsistent judgments. Inevitably, the December 16 rape-murder verdict will join the growing stack of contested death penalty cases which have piled up in the Supreme Court. The Supreme Court itself hasn’t helped matters with grossly inconsistent decisions on who deserves the death penalty: Rabindra Pal, who burned alive Graham Staines and his two infant sons, was given a life sentence after judges held that the missionary’s proselytising were a mitigating circumstance. The issue, though, is too important to be left to judges alone: we need a wider debate on our society’s values on the death penalty.

It’s important, up front, to acknowledge that science can’t settle this debate: we simply have no way of knowing, the United States’ National Academy of Sciences concluded in the most thoroughgoing meta-study to date, “whether capital punishment decreases, increases, or has no effect on homicide rates”. There are simple social-science research for this: the sample sizes are inadequate, for example, and it’s obviously impossible to test two identical populations of criminals to see how their behaviours are impacted upon by varying kinds of sentencing. It’s also important to rid ourselves of other preconceptions. Key among them is that nations beset by crimes like terrorism necessarily need the death penalty.

Reuters The Academy did find, though, that homicide rates in different states of the United States, and in Canada, moved in lock-step—even as they experimented with very different death-penalty regimes. This much is clear: death sentences alone don’t deter murder. It’s also important to rid ourselves of other preconceptions. Key among them is that nations beset by crimes like terrorism necessarily need the death penalty. Israel hasn’t executed anyone since 1962, when it hanged the war criminal Adolf Eichmann. Its only other application of the sentence was in the case of Meir Tobianski, a soldier executed on treason charges in 1948. He was established, a year later, to have been innocent. Each society has made very different kinds of choices on executions.

Russia has a death penalty moratorium in place; Japan seems headed the other way. Though the global trend is against the death penalty—58 countries retain it, against 140 which don’t—it’s still on the statute in most major nations, including China and the United States. None of this, of course, settles the question of whether the death penalty is just. In its study, the Academy of Sciences emphasized that data “should not influence policy judgments about capital punishment”. They’re right: this is fundamnetally is a metaphysical debate, to do with our values about life and death. For centuries now, philosophers have debated these questions — as, indeed, they have the idea of punishment itself. In crude terms, there are two positions.

There are consequentialists, who argue that punishment is justified by the ends it serves—for example, the public interest, howsoever it might be defined. Then, there’s the deontological view, which proposes that punishment must be seen as a good thing in itself, serving to foster our common allegiance to law. The consequentialist argument was stated thus by the medieval philosopher Thomas Aquinas: “if any man is dangerous to the community and is subverting it by some sin, the treatment to be commended is his execution in order to preserve the common good”. Mosheh ben Maimon, Aquinas’ Jewish near-contemporary, disagreed: to execute anyone on less than complete certainly of their guilt, he wrote, would reduce justice “to the judge’s caprice”. Every judge confronts ben Maimon’s dilemma, in every judgment.

No-one, for example, actually saw Barela murder his children. Santo, Basanti, and Barela’s brothers Jagan and Agan, backed his claim that he’d been tied to a tree by some mysterious perpetrators, who killed his children. The forensic evidence was, at best, crude, showing only that blood of the same group as Roop Kanwar was found on her father’s clothes and under his nails—far from conclusive. Yet, the judgment, leaves little room for reasonable doubt that Barela killed his children. Three courts carefully appraised the circumstantial evidence, each piece in itself inconclusive—but all of it together pointing in just one direction. It’s just as true, though, that there’s no knowing what more sophisticated forensic testing might show in the Barela case.

In the United States, which has a far more sophisticated criminal investigation system than India, modern DNA tests showed at least eighteen people served years on death row for crimes they did not commit. Even eyewitness testimony, the kinds of purportedly-unimpeachable “I saw it” truths our criminal justice system relies on, isn’t always reliable. Forensic psychiatrists and psychologists have been telling us for years, that our minds deceive us routinely. Gary Wells and Elizabeth Olsen have, among others, shown that a welter of factors, from age and race to lighting conditions can lead to false results. They note that double-blind tests—the gold-standard in science—are unknown in eyewitness credibility studies. In many cases, it would appear that there can be no reasonable doubt at all—among them, the Delhi rape-murder or Muhammad Ajmal Kasaab’s murderous journey through Mumbai on 26/11. Yet, the history of capital punishment is full of examples demonstrating that what seems open-and-shut today doesn’t always seem so a decade later. Every kind of justice leaves open the prospect of a wrong being corrected—except the final verdict of the hangman. It isn’t, of course, that the decision not to kill is without moral hazard.

The harm caused to the rights of individual by executing them, for example, must be weighed against the possible risk to innocent citizens. No reasonable person, after all, would want their children to be at risk of a late-night encounter with the Delhi juvenile perpetrator who will be released in the not-distant future. There’s no reason, either, other than arbitrary value-judgments, why vengeance is a priori a bad thing–and it’s also true both nation-states and individuals are entirely justified in taking life, under some circumstances. Yet, we must also ask questions about precisely what legitimate punishment actually is.

Few would doubt that punishment ought be proportional to the crime—in other words, that criminals should get what they deserve. Few, though, would also disagree that there’s no non-arbitrary norm to decide what is deserved. In some societies, it might seem that witches deserve to burned; in most cultures, this probably isn’t a view that will gain widespread acceptance. Put bluntly, the questions we ought be asking ourselves are these: how do we decide that we should jail thieves, rather than cut off their hands; how do we decide we ought hang people instead of burning them alive?

The bottom line is this: we can no longer put off fundamental decisions when we should kill, and, more important, if we should kill. We have been sadly casual about this most important of choices—and that demeans us all.

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