The death penalty never ends

The death penalty never ends 

On March 5, 2019, a three-judge bench of the Supreme Court headed by Justice A.K. Sikri (now retired) found Khushwinder Singh guilty and befitting of the death sentence (Khushwinder Singh v. State of Punjab).

Though, in the past few months the Supreme Court has considered evidence about the criminal by calling for medical records, reports of prison conduct, including poetry written by a convict post-incarceration to ascertain the appropriate sentence. But the approach remains inconsistent.

The court needs to develop and guide the collection, presentation and consideration of mitigation factors.  

Jail Reforms

Mitigation factors are the factors, which are presented on behalf of death row prisoners; if they are, they are of poor quality. Judges are often left only with information concerning the crime to determine the punishment. That again causes ‘death penalty’.

The quality of legal representation continues to affect the administration of the death penalty, even when cases are decided by pro-active and sensitive judges.

What is the rarest of rarest doctrine?

The ‘rarest of the rare’ doctrine mandates a consideration of both the crime and the criminal to award the death penalty in India.

The Supreme Court should develop any requirements that guide the collection, presentation and consideration of mitigating factors.

Why does ‘death penalty’ still exist?

The collective realisation about death penalty does not agree with ‘the removal of death penalty’. However, it has influenced the fair criminal justice system.

 Till such time, the setting of established benchmarks for practice, and a system of oversight are necessary to ensure that the quality of legal representation does not become the death sentence supporter.

What does international law say about death penalty?

Although international law says that the use of the death penalty must be restricted to the most serious crimes, meaning intentional killing, Amnesty believes that the death penalty is never the answer.

The use of the death penalty for crimes committed by people younger than 18 is prohibited under international human rights law, yet some countries still sentence to death and execute juvenile defendants. Such executions are few compared to the total number of executions recorded by Amnesty International each year.

Since 1990 Amnesty International has documented 138 executions of child offenders in nine countries: China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, the USA and Yemen.

In 2017, most known executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan – in that order.

China remains the world’s top executioner – but the true extent of the use of the death penalty in China is unknown as this data is classified as a state secret; the global figure of at least 993 recorded in 2017 excludes the thousands of executions believed to have been carried out in China.

Excluding China, 84% of all reported executions took place in just four countries – Iran, Saudi Arabia, Iraq and Pakistan.

Reasons to abolish the death penalty

It is irreversible and mistakes happen. Execution is the ultimate, irrevocable punishment: the risk of executing an innocent person can never be eliminated. Since 1973, for example, more than 160 prisoners sent to death row in the USA have later been exonerated or released from death row on grounds of innocence. Others have been executed despite serious doubts about their guilt.

It does not deter crime. Countries who execute commonly cite the death penalty as a way to deter people from committing crime. This claim has been repeatedly discredited, and there is no evidence that the death penalty is any more effective in reducing crime than life imprisonment.

The Global Environment Outlook 2019

It is often used within skewed justice systems. In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. In some countries death sentences are imposed as the mandatory punishment for certain offences, meaning that judges are not able to consider the circumstances of the crime or of the defendant before sentencing.

It is discriminatory. The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. This includes having limited access to legal representation, for example, or being at greater disadvantage in their experience of the criminal justice system.

It is used as a political tool. The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.

The Words of Justice Kurian

Justice Kurian Joseph’s parting words in Chhannu Lal Verma v. State of Chhattisgarh, calling for the gradual abolition of the death penalty, require serious introspection from the court and the body politic, and for us to recognise that the efforts to make the administration of the death penalty fairer are like chasing the wind

Conclusion 

Grounds relating to the criminal such as his conduct in prison, his socio-economic and educational backgrounds, or the probability of reformation receive no comment from the court.

The truth should be given priority not the judgement. The irreversibility of the death penalty has fundamentally affected the jurisprudence around it. It is commonly accepted that a judge in adversarial proceedings cannot go on a ‘truth searching exploration’ beyond what is presented.

The Supreme Court should develop any requirements that guide the collection, presentation and consideration of mitigating factors.