By Ashna D.
Introduction
Most societies perceive the rights of accused persons as diametrically opposite to the rights of their victims, and our society is no different. In January 2020, the central government urged the Supreme Court to issue ‘victim-centric’ guidelines in death penalty cases, suggesting that the present framework adopts an overly ‘accused-centric’ approach. While it is true that existing death penalty cases prolong for unreasonable durations and affect the lives of victims and their families alike, this certainly does not mean that the rights of death row prisoners are being excessively, or even adequately protected. This article argues that society’s repeated demands for ‘instant’ capital punishment should have no place within the legal framework. Such demands arise, not because the death penalty is any more effective as a form of punishment, but rather from a general lack of trust in our broken criminal justice system.
Analysing reformation as a mitigating factor in death penalty jurisprudence
In Bachan Singh v. Union of India, the majority while laying down the ‘rarest of rare’ framework held that every judge is duty-bound to consider the probability that an accused person can be reformed and rehabilitated, while deciding whether any alternative punishment is ‘unquestionably foreclosed.’ It is the burden of the State to prove by evidence that the accused is beyond reformation. Over the last four decades, this discretionary exercise of identifying the ‘possibility of reform’ has been highly problematic. In a shocking number of cases, judges do not even discuss reformation, by repeatedly focussing on the heinous and gruesome nature of the crime. The Supreme Court itself has noted that prosecutors do not sufficiently lead evidence to prove the inability to reform, and often rely on their own impressions of the accused. An analysis of judgments would further indicate that the standard of judging the extent to which an accused person has reformed himself is highly subjective. Such a standard seems to be based on a judge’s individual preferences rather than on any sound reasoning. Interviews with former Supreme Court judges are a testimony to this claim as many of them have admitted to deciding upon the probability of reformation by looking at aggravating factors alone. Others did not see the point of even considering reformation in death penalty cases. Irrespective of their views on the purpose of reformation, there seemed to be a general agreement among judges about the vagueness surrounding its constituent elements, with one judge even calling it a ‘gut conclusion.’
Courts have identified the lack of remorse displayed by the accused during the trial as a relevant factor in determining his inability to reform. In Bablu @ Mubarik Hussain v. State of Rajasthan, the Supreme Court used a mere declaration by the accused admitting to his act of abusing his wife and children as an indicator of no remorse. When courts read into the behavioural traits or inadvertent depositions made by accused persons during a trial, they overlook the unique ways in which different individuals respond to a crime or display a sense of shame or contrition. Such varying responses are also true in the case of victims’ families. While some families seek closure by reconciling with the accused, others choose to internalise the process of recovery. Yet, courts seem to standardise these responses while imposing death sentences. Research from other jurisdictions has similarly concluded that while a positive display of remorse has helped some accused persons avoid the death penalty, a lack of remorse has been ominously equated with the viciousness of the crime and the accused person, thereby directly affecting sentencing outcomes.
The purpose of reformation is to give every offender a chance to undo his wrongs after he has committed a crime. Nevertheless, judges continue to dismiss such a possibility by analysing pre-crime actions such as criminal antecedents, the viciousness of the crime and other indeterminate yardsticks such as the accused being a ‘menace to society.’ In some cases, long periods of incarceration have helped prisoners escape the gallows by enabling defence lawyers to lead evidence of reform of accused persons pursuing an education or writing poetry while in prison. Commutation of the death penalty to life imprisonment after having spent inconceivably long periods of time in prison is no consolation for a violation of an accused person’s right to a speedy trial. The de-prioritisation and whimsical consideration of reformation as a mitigating factor in capital sentencing strikes at the very root of the right of an accused to a fair trial. Thus, we must seriously ask ourselves whether it is even possible for reformation to be an objective of punishment within this framework.
The theory of reformation assumes that offenders are capable of change and if reformed, can be reintegrated into society and lead fulfilling lives. In prisons, crucial determinants of reformation include a choice to educate oneself; be rewarded for good behaviour; take part in some form of work; communicate with loved ones; have wholesome meals; and a healthy living environment. Despite this, death row inmates in many Indian prisons are not permitted to work and are segregated from the rest of the prison population. The Death Penalty India Report, 2016 found that the death penalty is disproportionately awarded to the most impoverished and most marginalised individuals in society who suffer not just from economic vulnerability but also social exclusion. Rarely do courts analyse the range of physiological, psychological or emotional factors that may have impacted the development of the individual before them. The report also suggests that prisoners on death row are kept in solitary confinement for long durations, ignoring their mental health or suffering. Prisons in India are known to be overcrowded, with little to no ventilation, deplorable health and hygiene standards and sub-standard quality food. Torture and abuse of prisoners by prison authorities is highly prevalent. Therefore, in reality, these prisoners are victims of their circumstances.
Not Mutually Exclusive Rights
Retentionists argue that the death penalty helps bring closure to crime victims and their families. However, studies have found that a common response from families after the accused has been sentenced or executed is that it did not turn out to be the kind of closure they were expecting; leaving many of them even feeling angrier[1]. Post sentencing, victims and their families are not provided with any victim support or rehabilitation schemes while prisoners continue to be trapped in legal proceedings for years, even decades. Legal proceedings leave the families of death row prisoners financially drained as they opt for private lawyers over legal aid representation, owing to its ineffective quality. Prisoners and their families are often ostracised by their communities, with many facing unemployment and diminished opportunities as a consequence of a conviction. Just like their victims, after the crime, they too suffer from withdrawal symptoms, damaged relationships, aversion and a lack of confidence in the justice system.
Advocates of the death penalty assert that elaborate legislative protections, both substantive and procedural, guaranteed to accused persons, are more than sufficient to uphold their rights. However, a shocking number of death penalty cases result in commutations or acquittals at the appellate court levels. Statistics from around the world indicate that death penalty adjudication is highly prone to errors due to inherent subjectivity within the sentencing framework. The argument that capital punishment has a deterrent effect is usually politically motivated and empirically misplaced. As recent research would reveal murder rates have in fact declined in eleven countries that have abolished the death penalty. Crimes are multidimensional and complex with causes ranging from greed, anger, neglect, socio-economic circumstances, cultural motivations such as honour killings, or even childhood abuse. Therefore, it is highly unlikely that people who commit crimes do so only after considering their consequences in a logical manner. Although it is nearly impossible to accurately draw a direct link between the frequency of death sentences and the occurrence of crime, at the very least, it is only rational to contend that it is the certainty of punishment, rather than its harshness that truly deters crime. Overstaying in prisons only drains the State’s financial resources that can otherwise be spent on rehabilitating both offenders and victims. Instead, victims and their families are re-traumatised at each stage of appeal. Thus, a ‘victim-centric’ approach must focus on ensuring proportional compensation schemes, speedy trials and a choice for victims to weigh in during the sentencing process.
Making a case for Restorative Justice
Most criminal justice systems excessively promote retributive or deterrent models and do not create awareness about restorative justice. These models turn a blind eye to the underlying reasons for the dissatisfaction among victims post-sentencing, and the impact of crime on ‘secondary victims’ namely, their families and communities. Restorative models of justice are being increasingly preferred because they adopt an individualistic bottom-up approach that focus on the needs and roles of all those affected. It recognises the far-reaching consequences of crime and aims at holding violators accountable to remedy the harm caused. In cases of capital punishment, victims and their families are usually forgotten after a sentence is pronounced or an execution is carried out. On the other hand, the restorative justice approach seeks to involve all stakeholders throughout the process of conflict resolution to build social capital, address the roots of crime and deter future occurrences. A common misconception is that such methods always involve some form of direct or indirect dialogue between victims and their offenders. While that is one of the options available, it also recognises the need for victims to be able to heal from crimes in their unique ways and provides them with the specific support they may need. A truly ‘victim-centric’ model is one that encourages the idea of seeking restorative justice.
In conclusion, capital punishment is degrading in several ways as it shuns death row prisoners as less than human – as members of a faceless, undifferentiated mass that deserves to be condemned to the gallows, never to be brought back into society. Current approaches that push forward a narrative that deliberately and necessarily takes away the rights of accused persons in order to protect victims’ rights are oblivious to the glaring flaws within the criminal justice system. The application of capital punishment in India fails to provide prisoners a fair and equal chance to redeem themselves. Concomitantly, it does little to ameliorate the lives of victims of crime and their families. For, when it comes to the death penalty, almost everyone loses.
[1] Nancy Berns, “Contesting the Victim Card: Closure Discourse and Emotion in Death Penalty Rhetoric” 50(3) The Sociological Quarterly 383-406 (2009).
[ The author is a penultimate year law student at the National University of Advanced Legal Studies, Kochi (NUALS) with a keen interest in criminal law and policy reform. ]
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