In 1988, U.S. presidential candidate Michael Dukakis’ failure to support the death penalty sealed his fate at the polls. Thirty years later, the political landscape in the United States and the world has changed. Politicians are openly declaring their opposition to the death penalty and moving to eradicate the practice.
While the overall picture is a positive one, especially with regard to abolition in sub-Saharan Africa, nations that still retain the death penalty are not executing the most egregious offenders. Iran, Saudi Arabia, Singapore and China are notorious for executing non-violent drug offenders. Even liberal democracies like Japan defy international norms by putting to death those with mental disabilities.
Despite being the world’s oldest democracy, the United States is the only western nation to retain the death penalty. Nonetheless, a decline in political and legal support for capital punishment is palpable. Prominent politicians like Senator Bernie Sanders openly oppose the death penalty. Other well-known Americans such as former Supreme Court Justice John Paul Stevens, who once supported the death penalty, have now opposed it. In fact, Justice Stevens has said that he regrets stepping down from the Supreme Court because of the lost opportunity to render the death penalty a cruel and unusual punishment, violating the 8th Amendment of the U.S. Constitution.
Such opposition has had an impact. Executions even in states which retain the death penalty are rare. Executions for “aggravated murderers” are also few and far between. Apart from the occasional invocation of the death penalty for mass murderers like Dylan Roof, capital punishment is dying a slow but sure death. The tide of public opinion has so radically changed course that Republicans are now rejecting the death penalty, a reversal that may be prompted by the number of well-publicized death row exonerations based on new DNA evidence.
Structural injustices continue to plague the administration of the death penalty. In his book, Peculiar Institution, author and sociologist David Garland reminds us of the regional complexion of the death penalty and the concomitant historical legacy of slavery and Jim Crow. The death penalty today is disproportionately a Southern phenomenon wherein African Americans who kill whites are most likely to be executed. In addition, murderers who are poor or are poorly represented by legal counsel are also more likely to be given the death penalty irrespective of the heinousness of their crimes.
The Innocence Project, a U.S. based entity that fights against such inequities, highlights the fact that this unfairness is in no small part a product of prosecutorial abuse of power. Such arbitrariness prompted the U.S. Supreme Court to act against the death penalty in the historic 1972 judgment of Furman v. Georgia, which triggered a four-year hiatus in the imposition of the death penalty.
There are important lessons for India from this survey of the international landscape. The nation’s appellate judiciary has repeatedly expressed skepticism about the efficacy of the death penalty. In 1980, India undertook a shift away from capital punishment via the landmark Bachan Singh case, which established that this most extreme measure should only be applied in “the rarest of the rare” cases. However, as recently retired Supreme Court Justice Kurian Joseph has pointed out, this attempt to minimize the use of the death penalty has not been implemented. The most vulnerable continue to suffer, a reality that is buttressed by the landmark report ‘Lethal Lottery: The Death Penalty in India.’
In a recent judgment, Chhannu Lal Verma v. State of Chattisgarh, Justice Joseph offered a way out of the death penalty morass. His roadmap for reform can help to prevent the weakest and most vulnerable from being unfairly put to death. He builds on the core principle of Bachan Singh which is to avoid the death penalty whenever possible. One way to do so is to secure the input of the jail superintendent – does he give a clean chit of good behavior to the death row inmate? If so, courts should refrain from imposing the death penalty, in the interest of rehabilitative justice. Another safeguard is to ensure that the prosecution meets its burden of proving that the convict is in fact irredeemable. Justice Joseph says this means making a mandatory psychiatric evaluation of the convict.
Justice Joseph also identifies the socio-economic barriers that prevent the marginalized from accessing quality counsel. Defense cases are often riddled with procedural and due process lapses. Justice Joseph reminds us that the disadvantaged must not be further oppressed by procedural irregularities. He argues that a death penalty conviction should be set aside if such irregularities come to light.
It is perhaps too much to hope for worldwide death penalty abolition. Still, all nations must at the very least do away with the death penalty for non-violent drug offences. Moreover, countries must be especially chary of imposing the death penalty on racial and religious minorities and the economically depressed. Justice Joseph has raised the alarm bells of reform. We should heed his call.
(The writers are on the faculty of the Jindal Global Law School, Sonipat)