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Published : March 30, 2017 | Author : Piyush Mishra
Category : Criminal law | Total Views : 1241 | Unrated

Piyush Mishra
currently pursuing BA LLB from Damodaram Sanjivayya National Law University


Death row is a nightmare to serial killers and axe murderers. For an innocent man, it’s a life of, mental torture that the human spirit is not equipped to survive. - John Grisham, The confession.

The blessings of a god i do not ask to receive, but the death penalty is murder that is what i believe, and those who believe every murderer should be made to die, without saying so are saying Moses fifth commandment is a lie.

I am against this brutal act, a physical or psychological form of torture that has not worked as a deterrent against heinous crimes and that infringes human rights and brutalizes the core of humanity. Capital punishment is most premeditated of murders. To take life when a life has been lost is revenge not justice. What says the law? You will not kill. How does it say it? By killing, is it justified? - Victor Hugo les miserables. It cannot be argued that rapists deserved to be raped, that mutilators deserve to be mutilated. Most societies, however refrain from responding in this way because the punishment is not only degrading to those on whom it is imposed, but it is also degrading to the societies that engages in the same behaviour as the criminals.

Roger Hood, in his book about world developments in the death penalty, noted that: "The annual average rate at which countries have abolished the death penalty has increased from 1.5 (1965-1988) to 4 per year (1989-1995), or nearly three times as many. International law expert, William Schabas, noted that fifty years ago this topic did not even exist because there were virtually no abolitionist countries.

Rights And Powers: What Are They?

There comes a time when one must take a position that is neither safe nor politic, nor popular, but he must take it because conscience tells him what is right. So basically what rights are: In general, rights involve an ability to act free from coercion. From another perspective, rights are transactional, implying an object to be satisfied. Rights, in other words, are always "in relation to." Some philosophers define rights as those areas in which a person is endowed with crying needs, which no one may hear without acting. A right implies more than a claim to justified effort and implies success in the effort. Sometime rights vary from rich to poor. Sometimes right is denied to those who need and sometimes it wrongfully embraces the money minters. Rights and powers have physical no existence but they are considered as important things for lawyers. They are not merely class of words. Even though it has no physical existence it can be thingified, like tangible things it can exist and endure. A right can be bought, sold, inherited and taxed. The word right is used when the concept intended is power and privilege. It has, however, two aspects-one from the point of view of the dominant party and one from the point of view of the serving party. A "power liability," for instance, describes a single relationship. But it is between two persons. The dominant person has a power. The serving person has a liability. The power and the liability are concepts.

International Human Rights In Contrast With The Death Penalty:

First, international human rights law says the state must not execute arbitrarily. The death penalty is arbitrary. It represents a denial of fundamental justice and substantial due process. In 1972 the United States Supreme Court, in Furman v. Georgia, struck down the death penalty because it was arbitrary. Second, the death penalty is racist. In a sense, this is just one aspect of arbitrariness. Arbitrary does not just mean random. It also means imposition of the death penalty for reasons that have nothing to do with the crime. Another set of international standards that come into play here are standards that guarantee equality. The death penalty violates these standards as we .There are two set of international standard which talks about death penalty. The first is state can sign the treaties to abolish death penalty and the second is basic human rights that are essential to human dignity. They are universal and non-derogable. The fundamental minimum standard, jus cogens are binding on all states by the virtue of membership in the community of nations. If we consider these two sets of standard, keeping death penalty in the same hand the abolition of death penalty is an optional standard. At international law for those who have opted into this standard, the imposition of death penalty is violation of human rights. It is not merely that the death penalty will at some time in the future become a violation of international human rights law-when every state signs the Sixth Protocol to the European Convention on Human Rights, or the Second Optional Protocol to the International Covenant on Civil and Political Rights, or the Protocol to the American Convention on Human Rights to Abolish the Death Penalty-the death penalty right now is a violation of basic, fundamental, and non-derogable international human rights law binding on all states. The death penalty by its very nature is arbitrary, discriminatory, and racist. The death penalty will always and everywhere lead to the execution of innocent persons. Once a state has the death penalty, it will also end up with a non-functional clemency process. To talk of a death penalty that is not cruel and unusual is an oxymoron, a self-contradiction. The proof is the United States of America. It is easy to imagine an ideal world where the death penalty would work better than it is working now in the United States But in an ideal world there would be no crime, no murder, no need for criminal courts, and no call for the death penalty.

Avoidance of Arbitrariness:

The capital verdict has consequences beyond resource allocation and producing justice. In adjudicating who should receive the death penalty, both the procedures used and the results produced should advance our moral values. Even if capital punishment verdicts cannot be said to be wrong, they should not be arbitrary either. Arbitrariness, in the sense of inequality, is a serious problem in the administration of capital punishment. Part of the problem arises because recommending the death penalty is fundamentally different from usual decisions the jury must make. Generally, the finder of fact is asked to decide questions such as "was it the defendant who killed" and "what was his state of mind at the time." In capital cases, however, conviction of murder does not end the matter. The finder of fact must then decide not only whether there are aggravating and mitigating circumstances, but whether, on balance, the former outweigh the latter." This is really asking the jury for its opinion, rather than for a decision as to facts. In other words, the jury is asked to decide whether this person deserves to die for his crime.

Speedy Routes To Abolition:

When one examines the paths taken by the 54 nations that first abolished the death penalty either for ordinary crime in peacetime or for all crimes since the end of 1988, 55 one finds that by the end of June 2009, 51 of them (94 per cent) had abolished it for all crimes completely and another three countries solely for murder and other ordinary crimes.56 Forty-three of the 51 had gone straight from retaining the death penalty to complete abolition, without first abolishing it for 'ordinary' crimes only. In other words, 84 per cent moved straight from retention of the death penalty for murder and sometimes other 'ordinary' crimes as well as military crimes and crimes against the state to complete abolition 'in one go'. Taking into account those countries that first abolished capital punishment by legislation and later introduced it into the constitution, over half of the countries that have joined the abolitionist movement and abolished capital punishment completely since 1988 have also ensured through their own constitutions, usually related to the article specifying the right to life and/or freedom from cruel and inhuman punishment or treatment, or through interpretation of the constitution by the courts, as for example in Hungary and South Africa,57 that the death penalty cannot be reintroduced.

How swiftly did abolition follow from the last execution? According to Marc Ancel, writing in the early 1960s, many countries that abolished capital punishment had first suspended executions for a considerable period of time and become abolitionist de facto before abolishing it in law.58 The theory was that the public had to get used to the law not being enforced in practice before they would accept that executions were not necessary. Yet in the last 20 years, only a minority, 21 (39 per cent) of the 54 countries that first abolished the death penalty since the beginning of 1989 (including the three that abolished it for ordinary crimes only) had been through a 10-year abolitionist de facto stage. The majority moved much faster to remove capital punishment by law. For example, Turkmenistan abolished capital punishment in 1999, just two years after the last execution; South Africa in 1995 just four years after. Thus, the pattern of a long drawn-out process leading to abolition was not observed in well over half of those countries that have embraced abolition in the last 20 years.

Justice Denied:

Of course, the dimension of the law is not the same as that of religion. According to common understanding, the ideal of law is justice. But what is justice? We know that there are various categories of justice, for example: abstract and formal justice as opposed to concrete and material justice, distributive justice in contrast to commutative justice, and so on. In my view, the criminal law is to be governed basically by distributive, material justice, whereas in the law of contract, for example, the basic principle may be the commutative justice of equivalence. In the field of criminal law, the relationship between the State and an offender is not that of equivalence, such as "give and take." Here, the State should not stand on the same level as that of the criminal. It should stand on a higher level than the latter by regarding the latter not as an opponent but as a component member. Therefore, the State should regard the offender from a much more comprehensive and inclusive aspect, taking into consideration not only the offender-victim relationship but all the factors conceivable, including, for example, the possibility of resocialization of the criminal. Of course, such matters as the sentiments and damages of the victims and their relatives, as well as the measures, remedial or otherwise, to be taken in this regard, are among the most important to be considered. In this connection, it may be interesting to notice that in The Merchant of Venice Portia remarked, "And earthly power doth then show likes’ God's/ when mercy seasons justice."' According to Professor Henkel, a German legal philosopher, Saint Thomas Aquinas said: "iustitia sine misericordia crudelitas est," though "misericordia sine iustitia materest dissolutionis. This may be roughly translated, "justice without compassion is cruelty," though "compassion without justice is the mother of dissolution."

Human Dignity At The Verge Of Extinction:

The inherent dignity of the human person is the foundation of human rights, as is expressed by the Universal Declaration4 as well as by the International Covenant. 2" Everyone as a human being has, in the innermost, one's own existential self-the entity of the highest and absolute value, human dignity, not only inviolable by anyone else but impossible to be abandoned even by oneself. Surely one may sacrifice even one's own life in certain extraordinary cases. This will be regarded as a heroic act. But that does not mean the abandonment of one's dignity. Human dignity is essentially more valuable than one's life. I would like to call this the existential self or existential subjectivity, inherent in everyone's personality. The concept of human dignity leads us to many important conclusions. I will raise here some of them. In the first place, human dignity is in itself inconsistent with the death penalty in practice, which, as stated above, involves the possibility, though very slight, of resulting in what Dostoyevsky called "an outrage on the soul." Secondly, with human dignity borne in mind, we must consider that everyone's personality is able to develop infinitely at any stage of one's life. The "right to seek pardon or commutation of anyone sentenced to death," as guaranteed by the International Covenant, 26 presupposes the ability of anyone to infinitely develop one's own personality. Any criminal, however cruel and wrong his or her act may have been, can possibly be rehabilitated, either on the criminal's own initiative or by aid from somebody else such as chaplains, volunteers, friends, relatives, or otherwise. I knew a certain murderer sentenced to death, who was a typical psychopath lacking moral sentiments or emotion.

International Stand on Abolition of Death Penalty:

Since Amnesty International began its campaign to abolish the death penalty throughout the world, intergovernmental organizations have responded in a variety of positive ways. In Western Europe, the Sixth Protocol to the European Convention on Human Rights, abolishing the death penalty for all peacetime offenses, is now in force. In the Americas, the Inter-American Commission on Human Rights decided in 1984 to call on all countries in the hemisphere to abolish the death penalty. More recently, it found the United States to be in violation of its inter-American human rights obligations because of that country's execution of persons who were under eighteen at the time they committed their crimes. At the global level, the United Nations is now elaborating an optional protocol to the International Covenant on Civil and Political Rights aiming at abolition of the death penalty. The history and provisions of this instrument are of great interest in the general movement toward abolition.

Constitutional Validity of Death Penalty:

Capital punishment deprives an individual of a fundamental right (i.e., the right to life) the State needs a compelling interest to justify it. Punishment may not be more severe than is necessary to serve the legitimate interests of the State." The moral or ethical right even of the State to deprive the citizen of life is a matter largely of religious belief and individual opinion open to debate; but in essence the death penalty belies all hope of the regeneration of the individual and negates the very principles on which we base all education, philosophy, religion and the development of civilization itself. The story of human striving reveals some redemptive power in human beings which justifies the worth of all efforts not only to improve the individual but our way of life. It is axiomatic that no human being is beyond the reach of this redemptive power. Death penalty jeopardizes other interests; a more perfect method should be sought. a penalty that fails as a deterrent serves no other purpose than to confuse. And if the penalty serves well as a preventive, but jeopardizes other interests, a more perfect method should be sought. If the death penalty does not serve as a preventive for the lesser crimes, obviously it will not act as a deterrent for the more atrocious.

Deprive Their Liberty; Not Life:

granting that it would be just, so far as the prisoner himself is concerned, to convict of capital punishment in certain cases, it works a most cruel hardship upon his family, leaving them "with shame for a heritage," and in want. In this way a whole family of criminals, under the force of circumstances, may grow up. Punishment falls more heavily upon the innocent than the guilty. If a man is guilty of a crime, deprive him of his liberty, but not of his life. The right to life is natural and inalienable. The constitution of the united state declares so. If the right to life is natural, it cannot by any compact be given up. Man has not the right to divest himself of this inalienable right. This being true, has the State the right to say that life is a natural and inalienable right and then under certain conditions require it of her citizens, even though the individual himself cannot rightfully dispose of it? The taking of human life cannot have a wholesome influence upon society-it does not deter the criminal. On the other hand, the interest elicited in a trial for life or death serves as an incentive to excite the morbid vanity of criminals-the criminal on trial for life or death is a sort of a hero among them, the king of his kind, as it were. If the State hurries some poor wretch to death, can it then with consistency exclaim, "Oh life, thou priceless thing!" while its victim dangles from the scaffold, making the life of him who was created in the image of his Maker appear a worthless thing. With all confidence, I venture the expression that the end of the present century will not find the death penalty (except perhaps for treason or rape) upon the statute books of a single civilized country of the world. Deep-rooted prejudices and the morbid cry for revenge cannot stem the tide. Our methods will not always be old methods. We will rise above whatever taint of barbaric influences that now remains with us. The law-makers will learn to consider the preservation from guilt of the great majority who are as yet guiltless as of an importance infinitely higher. There is one undeviating rule taught by history with respect to punishments-let them not afford an example of cruelty to others.

Time On Death Row- Degradation As Animals:

In India, till the final execution of the inmate takes place he has to spend his time in 7 by 8 foot isolated cell, with a little opportunity for exercise, contact with other human beings and a very rare opportunity of having visitors. And moreover uncertainty over when his death sentence will be carried out. Such a type of psychological and physical treatment is equivalent to torture.

International courts have found such confinement while on death row as a form of cruel and inhuman punishment. One of the leading cases which was decided by the European Court of Human Rights, involving a concept known as “the death-row phenomenon” that is, the additional suffering undergone due to the years of solitary confinement in fulfilling the execution of death sentence.

The Privy Council in Pratt and Morgan case held that extensive detention on death row constitutes of degrading treatment which is cruel and inhuman and is in violation of Jamaican constitution. It also held that the imprisonment for more than five years on the death row is very much inhuman and shall be reduced to life imprisonment. This marked a new era for the countries which were subjected to the Privy Council.

The fear of death penalty in itself is a punishment enough for the crime. A person living with the fear of execution at anytime or any moment for more than five to six years has suffered enough for the crime committed by him. He should not have to undergo any further punishment or it shall violate his right to live a life of dignity.

Executing The Innocence:

The concern towards mistake done in awarding death penalty serves as a driving force for the re-evaluation of the cases in any country today. Execution of the innocent person has played a major role in abolition of the death penalty in the countries till now. Guilt or innocence is the favoured outcome for all the criminal procedures. The defendants convicted challenge their conviction on the basis of unconstitutional or unfair procedures used in their case. The simple claim of innocence is a very rare one and disfavoured. The claim of innocence made by an individual is a factual issue whereas the risk of executing an innocent person is very broader issue; it consists of combination of both legal and human rights principle. The risk of executing an innocent person leaving him to have no recourse in the courts was the reason that a federal judge in New York declared that death penalty lacked due process.

This is the point where the reformist and the abolitionist come together to discuss whether the capital punishment could be sufficiently reformed or it should be abolished for the sake of the innocent defendants. In fact there is insufficient evidence to prove that the execution of innocent people has taken place. But in India if we come to an agreement to ensure that the risk of executing innocent people can be reduced the death penalty can be reformed to a certain extent and can serve as an aspiration for many countries.

Human Rights Vs. Death Penalty:

One is allowed to live only on the basis of the choices he has made using his mind and will. While considering the death penalty the human body can not only described in terms of biology but also has to be seen spiritually through the acts done. In this case, spiritual action decides the fate of the person. When we kill a person for his wrongdoing we stop his all future spiritual doings. Abolition of the death penalty shall be done not only because it denies a man his basic right, life’s mystery but when it is enforced for one action it can be enforced for any other action arbitrarily.

The present standards of deciding when the death penalty shall be awarded are difficult to apply. The harshness provided by the death penalty under the standards may not be proportionate to the crime committed. This lack of determining factor whether death penalty is an absolute answer for a crime creates injustice as a factor for the defendant who is to be convicted.

Another human right at stake is that human beings are priority setting beings. They set some priorities of life themselves or some other does that for them. Whatever the case, the priority setting is an important basis for human life. Capital punishment denies this basic necessity. Harold Laswell has said that it is the men who decides who gets what when and how. There is a need for a standard value to decide the measure of other values. If it is said that the man’s right to life is an absolute right and cannot be taken voluntarily by a state creates a firm basis. For providing a man his right to set priorities making right to life an absolute right is very important. It does not mean that society cannot defend the rights of an innocent person merely because right to life is an absolute right and is given to the criminals but other harsh methods can be used for the purpose of creating deterrence in the mind of the people. Taking a human life while self defence is a lesser evil as compared to the death penalty.

The right to life and dignity is the most basic human right and it shall be demonstrated by the state in everything it does even in the way it punishes it’s criminal. When in the year 1994, United Nations general assembly in the view of abolishing death penalty considered a resolution, Switzerland established that capital punishment was not a matter of concern for human rights leading to the failure of the resolution.

In the recent years the challenging death penalty is not an internal matter for the state. Many European countries including Mexico and Canada abstain from extraditing persons to the countries like US unless they are assured death penalty will not be the outcome. The council of Europe threatened the US to revoke the observer status if it does not abolish the death penalty.

Death penalty has become a major concern and a controversial debate over the period of time. This is the sole topic where the reformist and the abolitionist both come together to argue for the basic human right that is right to life to be made absolute. Right to life which is the basis of other human rights if suffers will take down the entire human rights. No crime can be this heinous that it may require this amount of mental and physical torture. In an attempt to provide justice to one party we deny the rights of another. Justice should be just, fair equal and proportionate to be aspired. Death penalty can never serve the purpose of the justice we aspire to claim.

We in this paper have tried to show that the right to life of a person is an absolute right. Since a man’s life is a mystery starting with the beginning, its duration and its ending, the definition of the life does not exist. Unless and until this moral and philosophical argument is accepted then there is no basis for the measurement of value of other rights and values. Society is made with the value they provide to a human’s life. From the very beginning of the world society has been formed on the basis of moral and philosophical grounds and right to life being a fundamental right which cannot be done away with.

From the recent trends toward the abolition of death penalty it can be concluded that the countries now have started recognizing death penalty as the violation of human rights unlike a few decades back. This awakening has brought a new era in the world empowering the human rights as a separate and absolute right. The number of countries employing the death penalty is declining at the fast rate and it is considered that worldwide opinion and pressure will gradually influence all countries to abandon this practice.

This paper has looked at the debate on abolition of death penalty as it has emerged over recent decade. In the context of capital punishment, develops a theory of man's absolute right to life. It is considered absolute because it maintains two essential characteristics of man, his mystery and priority-setting ability. Because capital punishment denies these, it is never justified.

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