Deterrent value claim hollow

“…the law’s interest in a monopoly of violence vis –a-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself.”

When Walter Benjamin wrote those lines in his Critique of Violence, he was stating the obvious. That the state reserves for itself the exclusive use of violence in a society with the exception of self- defence where you can use force when there is no opportunity to take recourse to law. One can argue that it is the state monopoly of legitimate use of violence that preserves life, liberty and property of individual citizens and when this is breached, the state is under an obligation to punish the transgression- yes- through the use of violence. 

How then does one oppose the imposition of capital punishment? The death penalty debates centre around two polarised positions- those for it (retentionists) and those against it (abolitionists). The Supreme Court of India’s view that death penalty be imposed only on the “rarest of rare” cases may appear to be treading the middle path, but the fact is that it ultimately is a retentionist view. And finally the rarest of the rare is decided by few men (and women) sitting in the highest courts of this country. It is their subjective opinion that finally decides whether a human life is saved or not. Judges like everyone else may have their own personal views and an abolitionist judge will find reasons to take the case out of the “rarest of rare” doctrine while a retentionist judge will find otherwise.

Why do people hold (and social science validate) the view that no matter how heinous the crime, no matter how depraved the criminal, one is opposed to taking of a human life for he/she taking one or several human lives. Foremost is the argument (and empirical evidence) that all judgments are prone to human subjectivity of appreciation of evidence and worse still of human error which, in the case of capital punishment, is irreversible.  This is seen to be counter-productive as the state ends up losing its legitimacy instead of gaining it. This of course, does not include cases of misuse or even abuse of power. Realities such as high cost of legal services, contracting out of crime, ability to buy, threaten and manipulate witnesses and the system are instances where the rich are able to subvert the legal process while the poor are not. Most studies on death penalty show that it is largely the poor who are executed. The criminal legal system is loaded favourably towards the propertied and against the poor. The assumption that only the guilty get punished and innocents are let off by a foolproof system is a myth that no one really believes in. Lastly, there is no evidence to show that death penalty has any deterrent value on crime. Studies show otherwise. The United Nations has noted that abolition of death penalty by 77 countries has not led to any increase in crime rates.  

Most rape cases are by perpetrators known to the victim (over 98 per cent) and imposition of death penalty will lead to greater pressure on the victim to not report the crime or worse, lead the perpetrator to kill the victim to obliterate the evidence. In 1983, rape laws were made more stringent and the burden of proof was shifted to the accused in some cases. But ironically this led to the decline in the conviction rate – from almost 38 per cent in 1983 to 24 in 2012. Rape also happens to be the fastest growing crime in India. According to Crimes in India Report, 2012, it has grown by over 900 per cent since 1971. Thus, stricter laws do not mean better justice or decrease in crime.  

 Death penalty appears to be pragmatic in a poor country with surplus labour and a dismal human rights record, where the state can shoot and kill under a law. In a country like India, where the poor lead subhuman life, imprisonment doesn’t seem sufficiently harsh and there is manufactured consent regarding its cost as a burden on the economy. 

But is this really justice? Marxist and critical criminology have exposed the class character of definitions of crime and punishment- wrongs normally committed by the poor are dealt with more severely than wrongs committed by the rich. Though more people die due to industrial accidents that are foreseen and are easily avoidable than murder, these deaths are dealt with lightly by law. The Accidental Deaths and Suicides Report, 2012 brought out by the National Crimes Record Bureau tells us that in 2012, the number of deaths caused by traffic accidents was 1,68,301 and suicides 1,20,488, majority of which were due to social and economic reasons. As against this, the number of murders during the same period were 34,434. Yet murder is seen as the most heinous of crimes and punishable with death penalty while the loss of lives in other cases meets with little or no state response.

(The author is chairperson, Centre for Social Justice and Governance, Tata Institute of Social Sciences, Mumbai)

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