Should The Death Penalty Be Eliminated? Part II

Should The Death Penalty Be Eliminated? Part II

iv. Prejudice, Whim, Mistake and Presentation by Attorney

One of the weak points while eliminating the death penalty is that there is always apprehension available that the person caught under the charge of murder may not be the original accused and or may be falsely accused in this charge. Simultaneously, there is fake and un-rebutted evidence available against the accused and he or she is executed due to the weakness of case and executed in the honor of so called administration of justice. Similarly, there are so many cases in the history of America where criminals were caught, tried and executed but actually were innocent. In 1994, the Federal Govt. USA passed a Federal Death Penalty Act to provide guidelines which also enumerate offences for which death penalty is appropriate and mitigating and also provides standards for judicial review and classes of persons who are ineligible for death penalty. It was upheld despite of the challenges on the basis of constitutional grounds sorting from arguments that innocent people are convicted and finally put to death. In “Furman Vs. Georgia ”, it was held that the death penalty in such cases is cruel and an unusual punishment in violation of the 8th and 14th amendment. In this case, by giving concurrent opinion, Justice Marshall held that, there is no clear and exact origin of capital punishment but it can be said that it is the tribes’ or its members’ aggressive and brutal revenge against a person who committed an intimidating act toward a group. In this way, the death penalty takes the shape of private vengeance. With the passage of time, such authority of retaliation transferred to the state and the state being a sovereign power used this way to penalize, as “divine right” to rule, and thus, this became state’s public function .

Often, it was observed that Americans knows nothing about capital punishment; they have no idea about the effectiveness of life imprisonment compared to the death penalty; they know nothing about rare execution of convicted criminals charged with murder, similarly they don’t know that when a criminal is released after imprisonment, he or she almost behave like a law abiding citizen, they have no idea that awarding death penalty is likely to motivate further criminal acts and they don’t know that capital punishment is more expensive than life imprisonment.

Similarly, another point of discussion is that, where there is a wealthy criminal charged with murderand is well represented by a good and well-known attorney, the chances of the conviction are low. It is the poor and badly represented persons, whose chances of being sentenced and executed are higher. Justice Ruth Bader Ginsberg severely condemned the death penalty in each of his judgment as he believed:

    “If I had my way there would be no death penalty. But the death penalty for now is the law, and I could say ‘Well, I won’t participate in those cases,’ but then I can’t be an influence. Every time I have to participate in a case where someone has been sentenced to death, I feel that same conflict.”

Another statement by Justice Ginsberg:

    “People who are well represented at trial do not get the death penalty. . . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

v. Innocence

It is believed that the “risk of executing innocent” is the one and only basic and valid ground for abolition of death penalty as there is apprehension about executing innocent people. This argument as well as reality, is sufficient for the abolition of the death penalty. Later on, we will also discuss how innocent people are falsely executed, under the “Religious Ground for Death Penalty” section.

Although there is no sufficient evidence regarding execution of innocent persons (apart from blasphemy issues), there is plenty of research which shows strong evidence of the fact that many innocent people are executed falsely. In 1987, a research was conducted for the years 1900-1985, which showed that there were 23 (twenty three) prisoners executed in the USA, who were actually innocent of crimes against which they were charged. Abolitionists of death penalty urge this sole ground to condemn death penalty and see this as a logically acceptable ground.

vi. Slow Criminal Justice System and the Concept of Double Jeopardy

All over the world, there is no way to a speedy trial of a murderer, and if there is no time limit for a trial of an accused then the question arises: how can a murderer be charged with double jeopardy for one offence? For example, if a person is charged for a murder and the while the trial is on-going, the accused spends fourteen years in prison only to be executed at the end of the trial.

Abolitionist argued that due to slow criminal justice processes in many states including some African states, inmates sometimes wait as long as ten (10) years to complete the appeal process.

Similarly, in Pakistan, there is a very slow criminal justice system and during trial proceedings in Supreme Court of Pakistan, it may take upto 10 years and in some cases, more than fifteen years and at the end, the accused is sentenced to death. Apart from this, there is the punishment of life imprisonment also provided for murder under section 302 PPC. A very serious question arises at this stage: if the accused is executed for a murder offence, then what about that period which is spent by the accused in prison under the threat of death sentence on a daily basis and the mental torture suffered?

vii. Public Opinion and Death Penalty

While studying the history of different countries and their policies regarding retention and abolition of the death penalty, it transpired that the public opinion has a great factor for the retention or the abolition of the death penalty for crimes. Even otherwise, there are countries which abolished the death penalty despite the forced public opinion in favour of it. In Germany, Constitution of 1949 forbid the death penalty despite the fact that two-thirds of the public supported it. In France in 1981, when 73% of the French public supported the retention of death penalty for terrible and dreadful crimes, the socialist government of President Mitterand’s abolished capital punishment. In 1995, despite 76% support for death penalty punishment for ordinary crimes, the British Parliament abolished capital punishment. Similarly in 1995, a poll in Canada (which has already abolished death penalty) showed that 65% of the general public asked for re-enforcement of death penalty.

viii. Opinions of Judges of The Supreme Court Regarding Death Penalty

Justice Marshall in a judgment for Presnell v. Georgia, believed that the death penalty in any proceeding was unconstitutional.

Similarly, in another judgment for Satterwhite v. Texas Justice Marshall held that:

    “I agree with the Court that the psychiatric examination on which [the psychiatrist] testified at the capital sentencing proceeding was in bald violation of Estelle v. Smith, and that [the defendant’s] death sentence should be vacated. I write separately because I believe the Court errs in applying harmless-error analysis to this Sixth Amendment violation. It is my view that the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings, and even if certain constitutional errors might properly be subject to such harmless-error analysis…In deciding to apply harmless-error analysis to the Sixth Amendment violation in this case, I believe the Court fails to adequately consider the unique nature of a capital sentencing proceeding and a sentencer’s decision whether a defendant should live or die. The Court’s analysis is also flawed in that it fails to accord any noticeable weight to the qualitative difference of death from all other punishments. . . .Because of the moral character of a capital sentencing determination and the substantial discretion placed in the hands of the sentencer, predicting the reaction of a sentencer to a proceeding untainted by constitutional error on the basis of a cold record is a dangerously speculative enterprise…. The threat of an erroneous harmless-error determination thus looms much larger in the capital sentencing context than elsewhere.

Likewise, in a case reported as Adams v. Texas, Justice Marshall among others, supported the opinion that death penalty under all circumstances is cruel, inhuman, degrading, brutal and prohibited by the Constitution of USA.

ix. Race, Ethnicity and Capital Punishment

One of the historical condemnations of capital punishment in the United States is that the death penalty is unreasonably inflicted upon minority groups on based on race. The dominant factor behind the decision to invalidate capital punishment statutes in Furman v. Georgia was evidence which showed that minorities, particularly African Americans, were disproportionately represented in the execution chamber. After the Furman case, capital punishment is being challenged by abolitionist on the grounds that the death penalty continues to be administered in a racially discriminatory manner. For example, between 1976 and October 2006, minorities made up 42.9 percent of all executed prisoners. A cursory view of the death row population of July 1, 2006, revealed that 54.7 percent of the prisoners on death row were belonged to minorities. One capital punishment jurisdiction has taken the project to prevent racial discrimination in death sentencing cases. In 1998, the State of Kentucky passed legislation allowing death sentences to be challenged on racial grounds through the use of evidence.

It is evident that over the long flounce of American history, racial and ethnic difference and inequality, in the use of the death penalty, has been of substantial magnitude. Except for the periods of Revolution, the War of 1812, and the Civil War, people of the white races were executed more than African Americans, and if the other ethnic groups are counted along with African Americans, then the group constitutes a clear majority from the early eighteenth century.

In the USA, it is an admitted fact that even in the 21st century,

    “We simply cannot say we live in a country that offers equal justice to all Americans when racial disparities plague the system by which our society imposes the ultimate punishment,”

believes America’s Senator.

Amnesty International prepared a report on this specific issue on 23rd April, 2003 and exposed the factor that there are too many cases which were decided on racial basis and race (black and white) plays an important role in death penalty cases.

In a landmark judgment for Patton v. Mississippi, the factually defendant, Patton, was convicted of murder and sentenced to death by the State of Mississippi. The Mississippi Supreme Court affirmed the judgment. In doing so, the appellate court rejected the defendant’s contention that his conviction and sentence were invalid because blacks were systematically excluded from the grand jury that indicted him and the petit jury that convicted him.

Justice Blackmun opined that,

    “Sixty-seven years ago, this Court held that state exclusion of Negroes from grand and petit juries solely because of their race denied Negro defendants in criminal cases the equal protection of the laws required by the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303. A long and unbroken line of our decisions since then has reiterated this principle, regardless of whether the discrimination was embodied in statute or was apparent from the administrative practices of state jury selection officials, and regardless of whether the system.”

    “It is to be noted at once that the indisputable fact that no Negro had served on a criminal court grand or petit jury for a period of thirty years created a very strong showing that, during that period, Negroes were systematically excluded from jury service because of race. When such a showing was made, it became a duty of the State to try to justify such an exclusion as having been brought about for some reason other than racial discrimination.”


x. Religious Grounds

One of the most persuasive grounds for death penalty is religion. Not only in Islam but almost in every religion, punishment of death penalty is available for some crimes. Although the Jew-Christian scriptures specifically supports death penalty for offenses like murder, adultery, blasphemy, sodomy, idolization and incest, many associations and individuals use religion as the basis for opposing the capital punishment. Opponents of the death penalty point to the story of Habeel & Qabeel as narrated in the Jewish religion as Cain & Abel. This is the story in which, the first biblical murderer in the history of mankind, Qabeel was punished with expulsion and not death. They also adheres strongly to biblical teachings on salvation and forgiveness and the biblical caution, “Thou shalt not kill,” as keystones that make capital punishment inconsistent with their understanding of religious thought. As also mentioned in Quran:

    “But if any one remits the retaliation by way of charity, it is an act of atonement for himself. And if any fail to judge by (the light of) what Allah hath revealed, they are (No better than) wrong-doers.”

Blasphemy is one of most serious and heinous crimes which allows for capital punishment on religious grounds. However, the misuse of blasphemy cannot be overviewed. In this regard, in Pakistan, legislation provided a provision in the Pakistan Penal Code, 1860 known as 295-C PPC but often there are incidents where a person is executed for an offence of blasphemy and afterwards it is transpired that the person executed for blasphemy was innocent and was falsely accused. For example, on 28th Jan, 2009, the Punjab Police arrested a labourer and four students for blasphemy, all of whom were Ahmadis and were accused of writing the name of Prophet Muhammed (PBUH) on the wall of toilet in a Sunni Mosque. Investigations into the case revealed that the accusation was baseless. Similarly on 8th April, 2008, Jagdesh Kumar, a 27-year-old Hindu worker was beaten to death by fellow Muslim workers in his factory in Karachi on the charge of blasphemy, in front of a policeman. Some reports suggested that the victim was in love with a Muslim girl that angered the Muslim workers, who decided to teach him a lesson. There are so many stories regarding the misuse of this serious issue against private interest of some major groups against minority groups.

So in this view, the matter death penalty for blasphemy offence should be amended and be converted into life imprisonment until and unless proved on strong and un-rebuttable evidence.

xi. Philosophical Grounds

Every person has a right to life and it is a natural right which cannot be withdrawn on the state’s action in administration of justice.
Many of the most influential philosophers, such as John Locke, Immanuel Kant, and Jean-Jacques Rousseau, did not oppose capital punishment despite of their favour and faith in the principle that every human being has a right of “natural right to life” since birth. Many opponents of the death penalty, however, have taken the “natural right to life” principle as the basis for opposing capital punishment. They say that the state’s action of taking life as a punishment breaches the condemned person’s “natural right to life” although the condemned person deprived another person of the “natural right to life”.
One of the famous writers on capital punishment, Hugo Adam Bedau , has spoken about the utilitarian thinking against capital punishment. Bedau states that punishment should be administered with the most competent and proficient and socially benefiting sanction. As per his opinion, capital punishment is not the best way to punish as it is not, he believes, the best well-organized sanction as there is no benefit towards society by executing a murderer; rather, it is barbaric, cruel, humiliating and shameful for the society .

xii. Method of Execution

Death penalty is under criticism due to its method of executions. Previously, there were many modes adopted for the execution of death penalty and some of them are still intact e.g. Lethal Injection, Lethal gas chamber, Hanging, Electrocution, Stabbing, Fire Shot, Beheading, Stoning etc. Whatever the method, it is cruel, barbaric in nature, brutal and inhuman.

Conclusion

There is no doubt that the death penalty or the capital punishment is a point of great debate and can be considered by touching and discussing each and every aspect of its criticism and favourism. There are too many arguments in favour and against death penalty but the most valid argument for abolition of death penalty is the “risk of conviction of innocent person”, which cannot be overlooked due to existence of dishonesty, false accusation for retaliation, human error of judges and so on. Similarly, it cannot be overlooked that worldwide death penalty is awarded for different reasons but there is discrimination as per laws and factual situation of that state/country. For example, in Pakistan there is apprehension that non-Muslims may be put to death for misbehaving with Muslims or for raising a voice for their fundamental rights, etc. In this regard, blasphemy laws have been used many times, despite knowing that most of these accusations have been proved false in the past. Mostly in Hadood cases, girls often misuse this law against males for revenge. Likewise, in Pakistan, the procedure of administration of criminal justice is very slow and one must wait at least five to ten years, and in some cases, more than fifteen years to face trial of murder and other such heinous offences.

The basic purpose of administration of justice and legislation is to maintain peace and order in the society and it is certain that a normal person will never commit a crime under normal circumstances. These acts are done in extraordinary circumstances and chances are that these acts will not committed over and over again. On the other hand, there is a possibility of the accused becoming a good person and a reason to reform society if the person is not awarded irrecoverable loss of his life i.e. death penalty.

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2. Article 3 of Universal Declaration of Human Rights, 1948 adopted by UN General Assembly, 10.12.1948
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35. 18 U.S.C.A. §§ 3591 to 3598
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57. Who also ratified and endorsed ICCPR (International Covenant on Civil And Political Rights with some reservations
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70. Use of derogatory remarks, etc., in respect of the Holy Prophet (PBUH): Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.
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76. Hugo Adam Bedau (1926-2012) Austin B. Fletcher Professor of Philosophy, well known for his work on capital punishment
77. Louis J. Palmer, Encyclopedia of capital punishment in United States, See Chapter Opposition, at page-405

This paper, “Should The Death Penalty Be Eliminated?” consists of two parts. Part I can be found in the Commentary section of the website.

Moeen Ahmed

The writer is an Advocate of the High Court, holds a Bachelor of Science Degree in Double Mathematics and Stats and an LL.B. Degree. Currently, he is pursuing an LL.M. Degree from University of Lahore.



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