By Karan Dhall and Anmol Jassal
“The least offences deserve death, and I can impose no worse for higher crimes” — Draco, The first Compiler of the Penal Code of Greece
The abovementioned quote can quite easily imply that where exactly the phrase “Draconian Laws and Methods” originated. Barbarism has always been the root of ancient man and some even argue that somehow, somewhere, that still has not been lost, evidently on account of the death penalty.
Under the Mosaic Code, the law of vengeance was personified into a simple doctrine called “An eye for an eye, a tooth for a tooth and a limb for a limb” and this was followed and developed into the retributive theory of punishment followed by the United Kingdom and many other countries/colonies.
The death penalty was commonplace until the 17 century where it was reserved for a wide variety of offences, which today would be regarded as misdemeanors. Death was the penalty for minor offences, for example, the cutting of trees or poaching deer. In 1800, there were over 20 capital crimes in Great Britain and 180 in 1819, while the learned clergy and statesmen looked on with approval and applause. During the reign of Henry the VIII, 72,000 persons had been executed.
Over 60% of the world’s population live in countries where executions take place by decreeing a sentence of death. To give a simple box score here, the legal arguments have been made since decades now to abolish the death penalty completely. This paper, however, seeks to focus on the arguments favoring Capital Punishment. Should we really abolish it? Is it really a barbaric, cruel, inhumane act on behalf of the state? The Socio-Psychological aspects will be dealt with that support the concept of Capital Punishment.
Psychological Arguments In Favor of Death Penalty
The Deterrent theory of punishment seeks to not only prevent the criminal from committing the act but also to set an example towards the rest of the society (specifically those who have criminal tendencies). The retributive theory of punishment is emphasized to the victims of the crime. Let us examine the psyche of the Society, Criminal and the Victim.
Society and Criminal
It is common parlance to say that a crime is said to be committed against the state and it is the state that is duty bound to prosecute. The fear of death is such that many think twice before committing an act that would lead to such punishment. The deterrent theory was the basis of punishment in England in the medieval period, the most common example of which is High Treason. Even in the Mughal rule in countries such as India, the deterrent theory was the basis for giving such punishments.
What is quite evident from various psychological studies is that the deterrent effect exists and it does have an effect on the society, as well as the people who may have criminal tendencies. It is essentially a psychological effect that strikes a common feeling of horror and shock amongst the people. This argument regarding deterrence is highly disputed. However, what cannot be done directly, can be done appropriately for the purposes of creating a deterrent effect.
The mind of man is a mold created by the society and the minds of men create society, it is true to note that both have an effect on each other. It has been argued multiple times that there is no empirical/statistical evidence to prove that there is, in fact a deterrent effect but then again the death penalty is not awarded every other day. It is awarded very rarely. So there haven’t been enough incidents to derive such an argument of non deterrence from which we can affirmatively come to a conclusion.
The Japanese Argument
This is a rather quirky argument, and not normally put forward. Japan uses the death penalty sparingly, executing approximately 3 prisoners per year. A unique justification for keeping capital punishment has been put forward by some Japanese psychologists who argue that it has an important psychological part to play in the life of the Japanese, who live under severe stress and pressure in the workplace.
The argument goes that the death penalty reinforces the belief that bad things happen to those who deserve it. This reinforces the contrary belief; that good things will happen to those who are ‘good’. In this way, the existence of capital punishment provides a psychological release from conformity and overwork by reinforcing the hope that there will be a reward in due time.
Oddly, this argument seems to be backed up by Japanese public opinion. Those who are in favor currently comprise 81% of the population, or that is the official statistic. Nonetheless there is also a small but increasingly vociferous abolitionist movement in Japan.
From an ethical point of view this is a totally consequentialist argument that if executing a few people will lead to an aggregate increase in happiness then that is a good thing.
Victim
The Retributive theory of punishment was followed in primitive societies and to a certain extent it is followed even today, but even so, victims of crime rarely find it in their hearts to forgive someone for a criminal injury caused to their family.
Quite obviously, the trends in awarding the death sentence have changed over the years. Countries such as India award the death sentence by applying the doctrine of “Rarest of Rare Cases” as held in Bachan Singh v. State of Punjab where the death penalty is reserved for the worse of the worst.
Studies show that a majority of victims demand that the criminal to suffer and bereavement studies show that the bereaved of victims who were killed in crimes are especially in deep sorrow and tend to be occupied with strong retributive feelings. In addition to direct damages by the crime itself, insensitive intrusion by media-persons, people involved in the judicial procedure and by some members of the public may hurt them.
Furthermore, it is possible that given the lack of victim support net, a sense of isolation made worse by the government and society ignoring them, the bereaved are further damaged, turning their feelings into yet more hatred.
The issue of death penalty
From the viewpoint of retributive feelings and wishes to impose the ultimate penalty on criminals held by the bereaved of victims, especially those killed, it is not easy to discuss and review the capital punishment system. However, this important viewpoint should not be disregarded. It’s also important to note that offenders of crimes to which capital punishment can be applied are not always sentenced to death.
Merely retaining capital punishment does not solve the problems of the victims. Efforts to prevent recurrences by studying the causes and background of crimes and preventive measures as well as supporting victims by giving economic assistance, mental care and appropriate involvement in criminal justice procedures will possibly mitigate the sufferings of the bereaved and open a way to ease their feelings, including retributive and revengeful feelings.
It will not be wrong to say that the issue of death penalty is indeed one of the most debated issues all over the world from quite some time. It is also noticeable that not only different countries have different stands on this issue legally, very often different sections of society within a very limited geographical radius also hold varied views regarding its legality, conceivability and to what extent is it actually capable of achieving a peaceful society.
It is this very incubation in which different views of different sections melt up and result in what we see today as a dimension; a very important one although; of the socio-political scenario of capital punishment.
Henceforth, it is quite clearly visible that there is a striking imbalance between the societies and countries that support death penalty and those, which are against it. The top four most populous countries have capital punishment as a legal form of punishment, which testifies the discord between number and people of those countries which are two sides apart on this glaring issue.
However, this should not prompt us to dream of a kind of world these disparities no longer exist, but what is noteworthy is that the variation of opinion and its subsequent materialization into a majority of the world that indeed legalizes death penalty; if not frequently practices it to deal with crimes, to say the least.
This, knowingly or unknowingly, crystallizes into a proposition that death penalty is actually an effective means to curb serious crimes in society. Not that there are no serious crimes committed in countries with less population which as a matter of implication by now on do not have the provision of death penalty in their constitutions; but, since there is naturally a higher probability of crimes being committed in countries like China, India and Indonesia which are extremely populous, are in a stage of economic upsurge and on the verge of social emancipation more than anytime in their history.
Therefore, the jurists of these countries have found it appropriate to at least incorporate the provision on death penalty with a view to exploit it according to the circumstances as and when social peace seems under threat. It can be used as a tool of social welfare whenever the judiciary deems it appropriate.
The Death Penalty is necessary to retain in the legal system, regardless of the “Humanist” approach. It is, however, to be noted that the Death Penalty cannot be given by the state where the act is not proportional to the sentence. The Death Penalty should be given only in the rarest of the rare cases where the criminal act is so heinous, brutal, it shocks the conscience of the society.