In the 1889 short story, The Bet, Anton Chekhov, a Russian writer, subtly raised one of those deeply divisive questions that has been plaguing humankind since the dawn of civilisation. Through the depiction of an altercation between a young lawyer and a banker, who engage in a fierce battle of wits, he brought forward the motion - whether a lifetime in prison is more befitting than the death penalty.

Both, the nature of criminal activities and the very foundational values of human society, have undergone a significant evolution since Chekhov’s time. It would be myopic to confine the debate to which form of punishment is better or worse. It is only appropriate to subject the variables underlying the statement- which criminal activities deserve the highest of all culpable punishment? The age old debate gained a fresh lease of life with the U.S. Attorney General, William P Barr, clearing way for the federal government of the United States to resume executions of death row convicts after a lapse of nearly two decades. .

The Debate raging Worldwide

The Oxford English dictionary defines death penalty as ‘the punishment of being killed that is used in some countries for very serious crimes’. Much to democrat Kamla Harris’s dismay, who regards death penalty as ‘immoral and deeply flawed’, the U.S. President Donald Trump had openly declared his support for capital punishment in 2018, at a rally in New Hampshire by stating that, “Drug dealers should be executed.”

One might perhaps recall what Clive Stafford Smith, author of The Injustice System, had portrayed, with conviction, of an American lawyer who spent 28 years of his legal career in a futile attempt to save Kris Maharaj from the gallows. Maharaj, a British national, was subjected to an unfair trial for the death row, in Florida. Smith, through this case, successfully portrayed how often the judicial hierarchy, beginning from law enforcement agencies, often determines the final fate of many cases. He drew upon his own experiences, when he stated that a lawyer representing a private corporation harboured the potential of charging $1000 for an hour while for a death penalty often some of the best criminal lawyers would be payed $1000 for the whole case. The wage disparity invariably tantamounts to the difference in outcomes when it comes to a matter of life and death.

Across the globe, 56 countries retain capital punishment and 106 countries have completely abolished it ‘de jure’. Article 2 of the Charter of Fundamental Rights of the European Union prohibits capital punishment. Incidentally (or rather ironically), 60% of the world’s population lives in countries where capital punishment still enjoys a legal stature. Most of the countries of the global south such as Saudi Arabia, Iran, Pakistan, Egypt, Sri Lanka and India fall under this category. With the exception of Belarus, all European countries have abolished the death penalty along with most of the Oceanian states.

Does death penalty really deter criminal instincts?

It is widely accepted that awarding a death penalty for the commission of a crime sets a precedence for criminal acts of similar nature. In other words, it will serve as a warning for to-be criminals. An idea that can be precipitated is that, in earlier times, public executions were the norm of the day. The complete essence of fear would trickle down to the last man in the crowd, and have a direct psychological impact upon anyone harbouring such criminal instincts. However, with closed-door executions being the norm of the day such impact is no longer exercised. Justice Marshall with regard to the Furman v. Georgia, in 1972, had clearly pronounced, “Capital punishment cannot be justified on the basis of its deterrent effect.” This was in direct contradiction to then US President Richard Nixon’s perception of capital punishment.

As statistical and hard core factual evidence are necessary for informed policy making, a survey conducted by Thornsten Sellin regarding death penalty in 1959, and later in the data from Ruth Peterson and William Bailey’s paper entitled Murder and Capital Punishment in the Evolving Context of the Post Furman Era, it was concluded that murder had been more common in states with capital punishment than in those where it’s not used.

Can death penalty be used solely as a tool of retribution?

The general notion harboured is “As you sow, so shall you reap.” The guilty deserve to be punished. The question that then arises is with respect to the severity of the punishment. It is absolutely in sync and coherent with our innate sense of morality and conscientious call for justice. However, the delay associated with the period of judicial trial leads to being kept in a condemned cell for a long span of time. This induces severe psychological trauma and stress, known as anticipatory suffering. Many argue life imprisonment truly succeeds in punishing an offender as death often comes as a welcome relief. The closure aspect to the victim’s kith and kin can’t be overlooked either.

Can the social security mechanism of law and police force be termed as infallible?

The most widely debated aspect remains whether the one who has extinguished another life deserves the right to live. And here comes the irreversible nature of death penalty. It was noted by former US Vice President, Joseph R Biden Jr, that since 1973, around 160 people who were sentenced to death were later exonerated. In India, a similar predicament was noted in September 2012 when 14 former judges of eminence had written to the then-Indian President Pranab Mukherjee. They had stated that seven of the judgements passed by the Supreme Court were rendered in curium. Back in 1996 and 1997, as a consequence of flawed judgement, two prisoners- Ravji Rao and Surja Ramhad, were exonerated. These can be termed as nothing less than the most severe of miscarriages of justice- where men who ought to live were ‘killed’. Such is the power of capital punishment, which proves that no human rationale lies beyond human fallibility, and there’s no space for repentence.

Is the verdict upon death penalty selective when it comes to final execution?

Another widely accepted argument remains that the death penalty is often biased towards individuals belonging to minority segments of the society. The racial, ethnic and geographical prejudice often plays the role of a triggering factor when it comes to ascertaining the final verdict. It usually comes down harsher upon the working class and marginalised groups, perhaps due to lack of resources, or rather to pander to majoritarian populism. In January 2008, the University of Maryland concluded in a study, commissioned by the Governor of Maryland, that defendants were at a greater risk to be sentenced to death if they had killed a white man.

The hugely controversial case revolving around Dhananjay Chatterjee V. The State of West Bengal (1994) widely spruced up a similar notion in India when the plaintiff himself reportedly stated “Since I’m poor, I’m being falsely accused.” Chatterjee had allegedly raped and murdered a teenager in Calcutta, in 1990. In October 2013, Patna High Court in Bihar, India acquitted 26 accused for the murder of 58 dalits (who in the Indian caste hierarchy are regarded as ‘lower castes’) in the Jehanabad district of Bihar in December, 2007. Thus the question of selective justice arises naturally.

The Future

In India, post the Bachan Singh v. State of Punjab (1980), the Supreme court clarified that the death penalty is to be awarded only in cases which could be termed as ‘rarest of rare’. Taking appropriate steps, like ensuring the death penalty clause is not used for political gains, death warrants are executed within a stipulated time limit and provision of equal legal aid to the accused regardless of socio-economic stature are some of the measures that will help ensure equity and justice to the charged persons.

Perhaps the title of Earnest Raymonds 1930’s seminal work, We, the Accused, surprises everyone with its underlying irony where the social political system is the real accused, which breeds a criminal. An Amnesty International report sums it up, “Since Canada stopped executing, the murder rate has dropped by 44%.” However, the geopolitical and socio-economic factors of specific countries too demand significant consideration before taking a radical step such as abolishing capital punishment all together.