The oft-stated moral justification for punishment is that it makes the world a better place to live in. Leaving out all the nuanced details of approaches to morality, we can broadly divide the schools of morality into two: Utilitarianism and deontology, the former evaluates the moral worth of an action in terms of its consequences while the latter places emphasis on the rightness of the action itself. From the utilitarian point of view, punishing a criminal is right because it produces better consequences for the society in which we live; one such consequence is that it serves as a deterrence as a result of which the crime rate in a society will drastically decline. A punishment is considered just if it is effective. From the deontological point of view, the principle of retribution and respect seem to be the key in judging if a punishment is just. A deontologist views punishing a criminal as right because it is the only way in which we can respect him or her as rational autonomous agent. It must however be noted that the punishment must be proportionate to the offense committed, a principle which is known by its Latin expression lex talonis.
When it comes to death penalty, the utilitarian says that it must be done only to serve as an effective deterrent and for this purpose he or she lays out three conditions: it must be given only to very serious heinous acts that are premediated, it must be administered consistently to all groups of people without discrimination, and execution must be done as quickly as possible. This approach presupposes that the death penalty acts as a deterrent to violent crime and makes society safer. But the facts are quite contrary. It has never been proven that the death penalty has a more deterrent effect than other sentences. More than 30 years after the death penalty was abolished, the homicide rate in Canada remains over a third lower than it was in 1976. A 35-year study compared homicide rates in Hong Kong, where the death penalty is abolished, and Singapore, which has roughly the same population and has carried out executions on a regular basis. It turns out that the death penalty had little impact on the crime rate.
Based on the same idea of deterrence, another argument presented before us is that the threat of execution is an effective strategy to prevent terrorist attacks. But in reality, the prospect of execution is unlikely to have a deterrent effect on people willing to kill in the name of political or other ideology. Indeed, some officials responsible for the fight against terrorism have repeatedly stressed that those who are executed risk being subsequently considered as martyrs, whose memory is erected as a rallying point for their ideology or their organization. Armed opposition groups also invoke the use of the death penalty as a justification for reprisals, thus perpetuating the cycle of violence.
The three conditions that make death penalty an effective deterrent are themselves flawed in actual life. As regards the first condition, many criminologists tell us that a very rare cases of serious violence are premediated. Further, there is no unbiased criterion to ascertain if an act of violence is premediated or not. Though there no enough statistical evidence for this, the lack of clarity on this does not help to have a conclusive say on this condition. When it comes to the second condition it is important for us to remember that all societies have power dynamics and this leads to discriminating some people against others. Though in principle all are equal before the law, in reality this is not the case. The number of convicts among the lower social strata are very high compared to those from the privileged class. Discrimination based on race, social status and economic status are still operative in a subtle way. Hence the second condition fails. With regard to the third condition, we know that execution is an elaborate process and the procedures are very slow. Even with all these careful procedure, data indicates that there have been wrong convictions. Hundreds of prisoners around the world are executed after manifestly unfair trials: “confessions” extracted under torture are used as evidence, the accused cannot consult a lawyer and are not given a satisfactory legal assistance. The countries that execute the greatest number of prisoners are also those where the fairness of the justice system is highly questionable, such as China, Iran and Iraq. In the United States, since 1973, 144 death row inmates have been exonerated, showing that no matter what legal safeguards are in place, no court system is immune from error. As long as human justice remains fallible, the risk of executing an innocent cannot be ruled out. The third condition of quick execution is invalid because of the actual data on wrong convictions despite long and slow procedures. Bedau rightly says that because errors are inevitable, we should not apply any irreversible punishment.
Deontology is based on the moral idea of retribution which is commonly known as “an eye for an eye” and the idea of respect for the perpetrator of the crime as an autonomous agent. Retribution has to be proportionate and this principle is called lex talonis. There can be two interpretations of lex talonis: exact pay back or determining the scale of punishment corresponding to the scale of offenses. The first interpretation is quite unlikely because if taken seriously it would mean the rapist should be raped or the entire family of the murder should be killed if he had killed a family. This approach quickly degenerates into barbarianism. If we accept the second interpretation, it is again not clear what the upper limit of the scale should be. Should it involve death penalty? Would not life imprisonment be enough to be the upper limit of the scale. There is no clarity on this. We can at least say that it does not have clear argument as to why death penalty should be the upper limit of the scale.
The second argument based on respecting the offender as an autonomous agent is twisted. In the words of Van den Haag, “Execution, when deserved, is required for the sake of the convict’s dignity”. Strange as it may seem, this nicely presented idea denies dignity in life and exaggerates dignity in death. Human dignity cannot be upheld by violating fundamental rights. Right to live is a fundamental right. The Universal Declaration of Human Rights recognizes the right of everyone to life by stating that no one shall be subjected to torture or cruelty and to inhuman or degrading treatment or punishment. The death penalty violates these fundamental human rights. Killing is never justified, even when following the orders of a state. A State cannot at the same time prohibit killing while the State itself practices it in an institutionalized way.
The right to life of the poor and the marginalized are mostly at risk. According to reports, around 75 percent of those sentenced to death in India and almost 90 percent in Malaysia were from economically vulnerable groups. In Saudi Arabia, Iran and Pakistan, hundreds of people are executed each year, most of them poor or from minority communities. In the United States of America, even today, most people sentenced to death cannot afford the services of their own lawyer for their trial and most of the public defenders are overwhelmed, underpaid or lack the experience necessary to defend trials involving the death penalty. In addition, prosecutors tended to request the death penalty more often when the victim was Caucasian than when they were African-American or of other racial or ethnic origin. These factors contributed to the arbitrariness of the death penalty. In doing so, the death penalty violates the right to equal dignity and this discrimination condemns them to further marginalization. In China, the number of capital executions is a state secret. However, there are reports that those executed in China, feared to number in the thousands, include people from marginalized communities among whom there are unskilled workers who generally do not have defences. The death penalty is not a solution to ending crime. On the contrary, its use generally goes against the desired goal since it aggravates poverty, discrimination and inequality, while perpetuating the vicious circle of violence.
The right to life is a universal human right and the death penalty has no place in the 21st century. It is for this reason that the pope Francis approved the new formulation of n. 2267 of the Catechism of the Catholic Church on 01 August 2018 which reads as follows:
Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.
Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.
Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide
Pope Francis had to face several criticisms from different quarters for this amendment. Some critics evoke the argument based on the principle of democracy, namely if the death the death penalty is legitimate if the majority of the population supports it. History is littered with human rights violations that were supported by the majority, before being later viewed with horror. Slavery, racial segregation and lynching won support in the societies in which they existed, when they were gross violations of the human rights of the population. Governments have an obligation to protect the rights of all individuals, even if this sometimes means going against the majority opinion. In addition, public opinion often varies according to political leaders and when citizens obtain objective information about the death penalty. In India because of media sensitization, there is a clamour for death penalty among many which was triumphantly manifested during different executions of offenders including the convicts in the Nirbhaya case. We have become so sensitized that we even acclaim encounter without due legal process as was witnessed in the recent encounter of the alleged gang rapists in Hyderabad. It is time that we introspected ourselves: Are we not heirs of the culture of violence?
Prof Nishant A. Irudayadason, Professor of Philosophy and Ethics, Jnana-Deepa Vidyapeeth, Pune 411014