Deadly Justice – Part 1

Very few social issues galvanize people irrespective of their geographies. Abortions. Gay Rights. Prostitution. Drugs. The Death Penalty. If people could be roughly grouped into “Conservatives”,  “Liberals” and “Moderates”, their views on the 1st 4 issues would neatly fall into “No Way, No How!”, “Why not?” and “That Depends”. But, Capital Punishment is different. Its a cause that cleaves the Overtly Pious with the Bohemian. This leaves many conservatives sputtering and purple-faced.

I’ll acknowledge the elephant in the room & state my position. I support the Death Penalty, as long as certain conditions are met. This stance of mine confounds many academics who count me among their ranks. While I have a preponderance of liberal views, I’m too brutal & pragmatic to be a quintessential bleeding-heart.

Let’s weigh the relative merits and demerits of the arguments on both sides.

Most Civil Liberty activists ask me, “What if we kill an innocent person? Can you live with that?”. Yes, many an innocent person awaits execution on Death Row. Advances in Forensic Science – such as DNA Finger-printing – have exonerated many inmates from prisons.

I’m not flippant about life, that too, human life. Can we improve the technology used to convict defendants so that the error rate comes down drastically? Nothing works 100% of the time. Let’s pick a % of error in Death Penalty convictions we can live with: 0.01%? 0.001%? If you think that’s too high, let me offer a counter-example: Mortality rates for an Appendectomy. It is 0.2% – 0.8%. Most of us won’t bat an eyelid to get such a seemingly simple surgery done. Now, there’s nothing political about an abscessed appendix, so you don’t see people waving placards before the Operation Theater!

“What if a person killed in the heat of the moment?” I’m asked. “Do you want to fry their brains in an electric chair?”. I’m surprised at how common this misconception is. The law in most civilized countries differentiates between Murder and Manslaughter.

“First Degree Murder” is a cold-blooded murder, where the killing is premeditated, planned willfully and executed by the accused. In a “Second Degree Murder”, the accused nurses a grouse and kills the victim vindictively, but there is no premeditation – the murder was not planned. “Voluntary Manslaughter” is a classic “Heat of Passion” killing, where the accused did not plan the murder – but committed the crime in an emotionally distraught state. In an “Involuntary Manslaughter”, the accused shows criminal negligence of human life – for example, s/he may kill someone by recklessly driving a car.

Out of all these categories, only Murder-1 (First Degree Murder) is punishable by the Death Penalty. Where motive, intent to kill, opportunity and premeditation can be clearly determined.

Why does this topic garner so much press? Why does this raise the hackles of the left & right wings? For that, we must look at the origins & evolution of Criminal Justice.

The earliest laws followed the principle of lex talionis – or, Proportional Punishment. Roughly stated, “Eye for an Eye, Tooth for a Tooth”. The Codex of Hammurabi, a Babylonian king, is the earliest written law that dates back to 1760 BC. In that Stele, Hammurabi laid down a precursor of today’s Constitution along with his Punishment system based on lex talionis. Since the Old Testament draws heavily from Babylon, the Jewish Torah mentions “An Eye for an Eye” – equitable punishment – in the book “Exodus”. That this conflicts with God’s Commandment to Moses – “Thou Shall Not Kill” – is a cause of much debate among Rabbis.

Christianity and Islam, the later Abrahamic religions, urge its followers to forgive. Islamic Sharia however, also permits “Mirror Punishment” – AKA, Similar Punishment. The punishment may be milder or harsher than the original offense. For example, someone that caused bodily harm to others may be whipped, stoned or roughed up in a similar manner. Or, the organ that caused the offense maybe punished – Cutting off a thief’s hand, for instance.

It is interesting to note that much of the West’s adverse reaction to Capital Punishment can be traced to the New Testament. It all boils down to a fundamental tenet of Christianity – Confess your sins and the Lord forgives. Jesus Christ being the role model for devout Christians, the pious are urged to do what JC would do – Turn the Other Cheek.

Proportional and Mirror Punishments and their derivatives can be classified into “Retributive Justice”. They are Criminal Justice systems based on vengeance. As such, they’ve been criticized as being too rudimentary. A widely implemented alternative is “Utilitarian Justice”. Modern Justice systems are largely derivatives of Utilitarianism.

The essence of Utilitarianism can be condensed thus: Human beings attempt to eliminate suffering and maximize pleasure. It has a disturbing corollary though: It strives to increase the greater good of the society, sometimes at the expense of the individual. A detailed analysis of the ramifications of the Utilitarian ethic is tangential to the scope of the current post, so I’ll briefly touch upon the cankers as needed.

Utilitarians argue that punishment is negative and that we accomplish nothing by punitive measures. Instead, punishments are used primarily to deter potential offenders from committing the crime. An example could be the much-criticized Draconian laws for drug (Marijuana) possession. Individuals may be penalized steeply & harshly, to make an example of them. If this deters future offenders, the society at large has been protected – though by following an “Ends Justify Means” approach.

Where deterrents fail, the offender is incarcerated. The offender is incapacitated temporarily or permanently from doing harm. If a doctor is caught for malpractice, his/her license could be revoked. Or the convicts are rehabilitated – medical help is provided for the mentally unstable or the offenders are given vocational training, so they can earn a livelihood without resorting to crime. Execution is often the last trick in their play-book, as a means of incapacitation.

Coming back to the point, I think Utilitarianism and Abrahamic religions have overtaken Retributive Justice to the point where the merits of the Death Penalty – which has its origins in revenge – are questioned. Utilitarians focus on reducing suffering even when a perpetrator is punished. And the pious want to forgive sins.

“How can we conclude that these people are not fit to live?” they ask. “Killing them is too much!”. I believe certain crimes are unacceptable. We cannot pardon everyone. The International War Crimes Tribunal prosecutes tyrants and dictators for genocides as crimes against humanity. Should we forgive them of the heinous crimes they committed? If you think they should be executed, where do we draw the line?

Who should be killed? What are the harsh realities of implementing capital punishment? And what is my single most important reason for retaining capital punishment? Let’s see that in the next post.


Comments

  1. Quote

    Great post and took some time to digest. My take on Capital Punishment as follows,

    1. Killing a human based his/her actions are gauche and not advance civilization. As you said, as long as certain condition met then Capital Punishment is okay. Can you define the conditions?

    2. First we need to understand why a human killing a human, there are several study concluded that a human might kill other human under extra circumstance or self defense or mentally ill.
    (Source : http://www.aclu.org)

    3. There is no advance technology available now to find out exactly, why one committed a murder (even first degree)? Since we can’t determine the exact reasoning of murder, we can’t sentence to death someone based on events, witness and pseudoscience.

    4. Nowadays most of the death sentence prosecuted based on witness, there are millions of chances that a human witness is manipulating, confused or biased.

    5. As per ACLU, there were 135 inmates released from jail in last 35 years because they didn’t commit any crime. They were prosecuted based on science (but pseudo), solid witness (but racially biased).

    6. Life term sentence is good alternative to Capital Punishment A) this would give lead time for convict to prove their innocence. B) Convict can take his/her own time to change and realize the mistake he/she did in past. We can give them second chance.

    7. Since you mentioned Abortion here, I believe abortion is also a Capital Punishment unless abortion is performed for A) to save a life or to avoid a life long disability B) unplanned teen Pregnancy. Other than these two reasons, abortion is equal to capital punishment.

    8. The argument of Appendicitis death rate Vs Capital Punishment is totally unacceptable because the former is natural cause.

    9. A war is a big crime, genocides are cruel but we can give those criminal a second chance. During cold war, US and Russia contacted several wars at foreign land and so many lives dead. Do we need to punish US and Russia presidents who ordered those wars?

    10. Draconian laws for Marijuana, why we need to punish a person who possessed it, how much effect and resource it required to abolish these drugs from world? Instead of spending time with catching small culprits, why can’t they make effect to abolish it. This is same as cigarettes, every body knows the drawbacks of cigarette but we don’t make any effect to abolish it rather we want the tax money from smokers.

  2. Quote

    Subba – Thanks for your comment.

    1 & 5. These will be handled in my follow-up post, as I have mentioned in the last para of this post.

    2. Anyone who kills is mentally ill? This kind of sweeping generalization is not scientific. The underlying assumption seems to be, killing is abnormal. Some killers are mentally ill. Others are not. Killing can be very, very normal. Otherwise we wouldn’t have wars, cannibals & human sacrifice, would we? Those are just a few examples.

    3. Why is the reason all important? And how will technology help us unravel the “why”? I fail to see the logic here. If there are circumstances, the perpetrator can explain that to his/her lawyer & the police. What prevents them from explaining their “why”?

    4. Death penalty is given only when there is no reasonable doubt. The judges are smart enough to know most of the times when a witness is confused or suborned to perjury.

    6. I’ll explain why in some cases people don’t deserve another chance.

    7. You won’t permit an abortion for victims of rape or incest? A punishment is a consequence of an action. So, I don’t understand how an abortion is a death penalty. Do you mean to say needless abortions is tantamount to murder?

    This is tangential to our discussion on the death penalty. In some cases, abortions are a woman’s choice. What those are, is probably a separate post.

    8. I used Appendectomy as an example for what we consider a safe procedure. Sometimes, for people to see the light, we have to think outside the box. What unnatural cause can be used as a comparison point with death penalty? War? Genocide? Famine is a natural cause, so that can’t be used.

    9. A war is very different from a genocide. Genocides are ethnic cleansing techniques, usually perpetrated by a country on its citizens. So, your question on punishing the presidents of US & Russia is not relevant.

    When we say people deserve a 2nd chance, we usually say that after their 1st crime. Let me ask you a question. How many people did Adolf Hitler kill? What is a 2nd chance to Hitler?

    10. Laws for Marijuana – This is not relevant to the post. I had used the laws on Marijuana as an example for Utilitarian Justice. I have not explained whether I support or oppose it.

  3. Quote

    I don’t think there should be a problem as long as the system in for handling capital punishment is not flawed. 🙂

    P.S: What if i am framed with the charge of first degree murder? :O Given that the good chance of being offered a bunch of fools as the jury , my mind is selfishly prompting me to switch my stance. So well i don’t really have a stance 😉 😛

  4. Quote

    Jass – Thanks for your comment.

    So, what you mean to say is, people can be framed. And if they are framed, is the justice system smart enough to detect that?

    A good lawyer will be able to save the accused most of the time. Its not easy to frame someone for 1st degree murder, considering the amount of evidence needed to convict someone these days. Its easier to frame someone of lesser crimes.

    In any case, I’ll touch upon this in my next post.

  5. Quote
    pk.karthik said September 26, 2008, 6:20 am:

    Priya,

    Good post….But I dont agree with you on this ..But I will wait for your next post before i comment in favour or against the capital punishment.
    But I would like to add one more thing,Just as people are able to justify abortions ,i feel all murders including first degree murder can be justified in some way or the other
    I can give one example.
    When General Dyer opened fire in Jallianwala Bagh he did it for his country(it was tyrannical but still it was included in the guise of patriotism).Wasnt it 1st degree murder of hundreds of people(This was not genocide).
    Udham Singh killled the architect of Jallianwala Bagh Micheal Dwyer in England,but was handged for the incident.
    Now what Udham singh did was equivalent to what a court has done i.e punish the culprit by giving captial punishment? Was his hanging justified?or was Udham Singh’s action justified?

  6. Quote

    Good post Priya. You are tacking quite a difficult and polarizing topic. I was not aware of the origins of the punishment schemes – utilitarian and retributive.

    In my view, Capital Punishment should be reserved for the most heinous and extremely-hard-to-make-a-mistake type of convictions. Therefore, Murder One for a first time offender is clearly off the capital punishment scheme.

    As i thought about this, i realized maybe retributive justice or vengeance based schemes start to make sense when the degree of monstrosity of the crime becomes higher and higher?

  7. Quote

    Karthik – Thanks for your comment.

    Yes, anything can be justified. But, a discerning person who has a fine grasp of the law or ethics can spot lame excuses in most of the cases.

    The Jallianwala Bagh Massacre happened in 1919. Since then, humanity has moved forward in its way of thinking – though not in all countries, but that’s a different matter. What General Dyer did would be classified as a Crime Against Humanity now, should news about it come out.

    I wouldn’t call the massacre as a justification for what Udam Singh did. Taking the law into our own hands is a big no-no. While he can’t be exonerated, what he did does not warrant capital punishment. If he got even a halfway decent trial – like many people get now – he wouldn’t get the death penalty.

  8. Quote

    Sukumar – Thanks for your comment.

    You make some very interesting observations. I’ll cover some of these points in my next post.

  9. Quote

    Ok..I will wait for next post…But here are some clarification

    quote;Why is the reason all important? And how will technology help us unravel the “why”? I fail to see the logic here. If there are circumstances, the perpetrator can explain that to his/her lawyer & the police. What prevents them from explaining their “why”? ;quote

    I mean motive is really important. The reason for killing has to prove without any doubt to send a person to death chamber. For example, Scott Peterson case, he is waiting for his injection. Did DA proved any reason or motive for murder? No, all are circumstance and witness. Since it was the high profile case, judge ordered direct capital punishment. I think he deserve a life term just to prove himself, just in case he was not a murderer. Do you know the main evidence against him? a hydrologist, he calculated unproven wave directions science and some confused words to prove that the body movement is exactly matched Scott Peterson’s fishing spot where he could have dumped the body. Jury got confused, direct guilty.
    http://en.wikipedia.org/wiki/Scott_Peterson

    quote;The judges are smart enough to know most of the times when a witness is confused or suborned to perjury”;quote

    Actually judges are also a human being, a judge let go OJ free, 35 innocents were convicted by some judges in last 35 years, 3-4 years ago a judge signed Mahatma Gandhi’s bail order/or arrest warrant in India 🙂

    quote;Do you mean to say needless abortions is tantamount to murder?;quote

    Since abortion is out of scope for this post, i take a pass on this question.

    quote;How many people did Adolf Hitler kill? What is a 2nd chance to Hitler?;quote

    We can’t compare Hilter’s crime with current issues. Hilter was a mission to capturing world. He was not a human being at all. What he did was Brobdingnagian crime. He deserve more than death sentence without hesitant.

  10. Quote

    Subba – Motive is needed, but what kind of technology can help you uncover motive? That was your original comment.

    When there is overwhelming evidence, the jury may overlook motive – it is up to the defendant’s attorney to press the point that there no motive was shown by the prosecution. That’s how the judicial system operates. And that’s why we have judges – people trained in their country’s criminal justice system. They can set aside a jury’s verdict if needed. That’s why we have appeals & appellate courts.

    Of course judges make mistakes like everyone else. Which is why I mentioned in my post that any human process will have errors. But, the media tends to publicize their errors more, so we think they are bungling idiots. My point is, we need to minimize errors, instead if throwing away the death penalty.

    Scott Petersen – The jury would have convicted without the hydrology evidence! The circumstantial evidence is staggering.

    I made the point about Hitler because you equated war & genocide. I had to say no, they were not. I’m glad you agree that perpetrators of genocides don’t deserve another chance & can be executed.

  11. Quote
    Dudley Sharp (subscribed) said September 27, 2008, 4:39 pm:

    The Death Penalty: More Protection for Innocents
    Dudley Sharp, Justice Matters, contact info below
     
    Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
     
    To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.
     
    Although an obvious truism, it is surprising how often  folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.
     
    No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.
     
    Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
     
    That is. logically, conclusive.
     
    16 recent studies, inclusive of their defenses, find for death penalty deterrence.
     
    A surprise? No.
     
    Life is preferred over death. Death is feared more than life.
     
    Some believe that all studies with contrary findings negate those 16 studies. They don’t. Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.
     
    What prospect of a negative outcome doesn’t deter some? There isn’t one . . . although committed anti death penalty folk may say the death penalty is the only one.
     
    However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is compelling and un refuted that death is feared more than life.
     
    Some death penalty opponents argue against death penalty deterrence, stating that it’s a harsher penalty to be locked up without any possibility of getting out.
     
    Reality paints a very different picture.
     
    What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
     
    What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
     
    What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
     
    This is not, even remotely, in dispute.
     
    Life is preferred over death. Death is feared more than life.
     
    Furthermore, history tells us that lifers have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.
     
    In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
     
    Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.
     
    6 inmates have been released from death row because of DNA evidence. An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.
     
    The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers, The New York Times,  has recognized that deception.
     
    To be sure, 30 or 40 categorically innocent people have been released from death row . . . (1) This when death penalty opponents were claiming the release of 119 “innocents” from death row. Death penalty opponents never required actual innocence in order for cases to be added to their “exonerated” or “innocents” list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions – something easily discovered with fact checking.
     
    There is no proof of an innocent executed in the US, at least since 1900.
     
    If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
     
    Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
     
    Unlikely.
     
    Full report -All Innocence Issues: The Death Penalty, upon request.
     
    Full report – The Death Penalty as a Deterrent, upon request
     
    (1) The Death of Innocents: A Reasonable Doubt,
    New York Times Book Review, p 29, 1/23/05, Adam Liptak,
    national legal correspondent for The NY Times

    copyright 2007-2008, Dudley Sharp
    Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
     
    Dudley Sharp, Justice Matters
    e-mail sharpjfa@aol.com 713-622-5491,
    Houston, Texas
     
    Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS, VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
     
    A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
     
    Pro death penalty sites 

     www.homicidesurvivors.com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

     www.dpinfo.com
    http://www.cjlf.org/deathpenalty/DPinformation.htm
    http://www.clarkprosecutor.org/html/links/dplinks.htm
    http://www.coastda.com/
    http://www.lexingtonprosecutor.com/death_penalty_debate.htm
    http://www.prodeathpenalty.com
    http://www.yesdeathpenalty.googlepages.com/home2   (Sweden)
    http://www.wesleylowe.com/cp.htm

  12. Quote
    vamsi (subscribed) said September 28, 2008, 10:56 am:

    Good post Priya. While there are many universal generalizations like environment, chemical weapons etc, that can be applied irrespective of the societies, some of them are best left to the local culture of the country. An eye for an eye, may sound so bad from democracies, I really doubt how many Saudi’s will feel bad about it, if they see they have better crime control and societal order than many other western democracies.

    Since the post is about capital punishment, I could not stop from remembering many scenes from the movie “The Green Mile”.

  13. Quote

    Very informative post Priya.

    Sometimes I feel death penalty is not required. Yet for some cases I feel death penalty is required(rapes, the 1st degree murder mentioned etc). Waiting for your next post.

  14. Quote

    Vamsi – Thanks for your comment.

    “The Green Mile” is an excellent movie. I was also thinking about “The Last Dance”, a not-so-great movie, but good nevertheless.

    You make an interesting point. The locals may not mind their Draconian laws, since they have better crime control. But, the punishment should fit the crime. China, for e.g., executed a former Food & Drug safety official for taking bribes. Many Han Chinese applauded the move. I felt queasy about it all.

  15. Quote

    Saraswathi – Thanks for your comment.

    Whoa, lady! You want the death penalty for a rape? That’s a very harsh punishment, don’t you think?

  16. Quote

    Priya,

    Hmph..on second thoughts death penalty does seem too harsh for a rape.

    But few days back, my friend(who’s father is a police officer) was narrating an incident of rape and the attitude of the person who committed the crime(the person was talking as if it was his birth right to rape a woman), I was really frustrated. In that frustration sometimes I feel they should be punished with a death penalty.

  17. Quote

    Priya,

    I am not convinced that one human being has the right to kill another. Based on this simple logic, I cannot support capital punishment. Permanent incarceration – yes, but not capital punishment.

    Ganesh

  18. Quote
    Abdul Fakhri said October 5, 2008, 2:57 am:

    Priya, great post! you have raised some very important questions of law and justice. I am not in favour of “mirror punishment” nor am I in favour of ‘capital punishment.’ I agree with what Ganesh has said in the preceding comment.

  19. Quote

    FYI:

    You’d might be surprised at the definition of premeditated murder. US laws vary in in their definitions of “premeditation.” In some states, premeditation may be seen as taking place a few seconds before the “murder.”

  20. Quote

    Saraswathi – We should lock the rapists up for 5-7 years. They’ll be serially raped by other inmates in jail. Then, let’s see what they think about raping & birth-right.

  21. Quote

    Ganesh – Thanks for your comment. Perhaps you’ll rethink your position after reading my long-pending next installment.

  22. Quote

    Abdul – Thanks for your comment.

    Let me articulate my position clearly in my next post. Then, perhaps people will understand why I support the death penalty.

  23. Quote

    Vegas – Thanks for your comment.

    Premeditation can’t really be a few seconds before the murder. In this case, I think the law is rigged to suit the hard-line proponents of the death penalty.

  24. Quote

    Will comment after I read all the 5 posts… 🙂

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