'Humane' death penalty is an oxymoron: SC should focus on improving quality of investigation, trials instead

An essential component of the theory of a modern nation is the State’s power to discipline its citizens so as to maintain some sort of societal order. These punishments vary across jurisdictions. This is why stealing could mean the loss of your limbs in Mali, but only merit a short sentence in a “cushy” prison in Norway.

In some countries, however, the worst crimes attract the ultimate punishment: the death penalty. India finds itself in the company of countries like China, Iran, Iraq, Pakistan and Saudi Arabia as one of the countries to retain the death penalty as a punishment for crimes.

India currently uses hanging to administer the death penalty. However, on Friday, the Supreme Court asked the Centre to respond to a plea challenging the legal provision that a death row convict would be hanged to death. Noting that science has progressed dynamically, the court observed that the legislature could look at other ways to administer the death penalty.

The court also said that the condemned should die in peace and not in pain. It observed that a human being is entitled to dignity, even in death.

These observations give rise to the obvious question: is it even possible for the State to ensure a peaceful and dignified death for criminals?

Not all deaths are equal

There are various ways in which the death penalty is administered. In 2016, countries used beheading, hanging, lethal injection and shooting to kill criminals, as per Amnesty International. Contrary to popular belief, there were no reports of judicial executions by stoning. Here is a look at these methods and how they work in the real world.

File photo of Supreme Court. Reuters

File photo of Supreme Court. Reuters

Hanging

Hanging is the preferred mode of execution in countries like Afghanistan, Malaysia, Pakistan, Sudan and, of course, India.

The basic problem with hanging is that it needs precision. If the rope is too long, the criminal could be decapitated, and if it is too short, they would die by asphyxiation which could take as long as 45 minutes. Neither of these are remotely humane methods.

There is a history of botched hangings to support the argument against it. A famous case is that of former Iraqi dictator Saddam Hussein’s half-brother Barzan Ibrahim al-Tikriti. Al-Takriti was decapitated after the hangman used a rope that was too long. This provoked widespread outrage and prompted Amnesty International to point out that the execution emphasised the brutality of a cruel, inhuman and degrading punishment.

There was also the case of Eddie Ives, the burglar who was convicted of killing a police officer. At just 36 kilos, Ives was too light for the rope and it took three attempts before he was strangled for 23 minutes and pronounced dead.

Even apart from the examples, the fact that the Supreme Court is considering abandoning it means that hanging is not quite acceptable as a death penalty method.

Beheading


Only Saudi Arabia used beheading as a form of punishment in 2016. A decidedly medieval form of punishment, this method barely deserves consideration but in case one needs convincing, consider the number of things that can cause a botched beheading, from a blunt sword/axe to a physically weak executioner.

One can be fairly sure that the Supreme Court was not thinking about beheadings when it asked the Centre to move away from hangings.

Shooting

Used by nations like China, Indonesia and North Korea among others, this method uses the invention whose sole purpose is to kill. In this method, the criminal is typically bound to a chair surrounded by sandbags to absorb their blood. A white cloth target is pinned over their heart and shots are fired. Death is a result of a heart rupture or tearing of the lungs. If the shooters miss the heart, the prisoner bleeds to death slowly.

While it might sound regressive, shooting could actually be the most humane method of administering the death penalty. In Arthur v. Dunn, Justice Sonia Sotomayor of the US Supreme Court observed that “in addition to being near instant, death by shooting may also be comparatively painless…. And historically, the firing squad has yielded significantly fewer botched executions.”

There are however records of these being botched as well, with an 1879 execution going wrong after the shooters missed their target which resulted in the criminal staying alive for 27 minutes after being shot.


Lethal injection

Then there is the ostensibly safe option of the lethal injection which is used by USA, Vietnam and in certain cases, China. Using modern medicine to kill people was touted to be the answer to allegations of barbarism associated with the death penalty. Even the 187th report of the Law Commission of India recommended replacing hanging with the lethal injection in the Criminal Procedure Code, 1973.

The trouble with this line of thought is that there is a long history of botched executions using the lethal injection as well. The one in recent public consciousness is the 2014 execution of Clayton Lockett in the US state of Oklahoma. In an agonising experience which went on for 43 minutes, Lockett writhed, groaned and convulsed and it was later discovered that his vein had collapsed. He finally died of a heart attack instead of the drugs administered to him.

There are multiple other cases where the criminals have suffered tremendously after the injection was administered. While some doctors do take part in executions, they are generally prohibited by ethical concerns from doing so.

Another issue is that if the lethal injection is not delivered correctly, the criminal could be paralysed but still be able to feel tremendous pain, according to The New York Times. Thus they might be unable to move or cry out but be in terrible agony. Further, the makers of the drugs which go in the lethal injection have stopped selling them for this purpose, resulting in executioners experimenting and making dangerous drug cocktails.

Other methods

Other than the methods mentioned above, there is also the electric chair and the gas chamber, each of which has seen a decline in use due to — you guessed it — botched executions. They have resulted in excruciating deaths over protracted periods of time, and using them amounts to nothing less than torture.

Further, as the BBC found out in an episode of Horizon called How to Kill a Human Being, even when presented with a painless way to kill people (using Nitrogen which first makes them euphoric, then unconscious after which they die painlessly), pro-death penalty advocates were not satisfied. They pointed that few of us die painlessly and affording such treatment to the 'worst human beings amongst us' is hardly justice.

There is no good option

The Supreme Court is looking to reform a law which is extremely contentious. However, it has waded into an extremely unproductive debate as there is overwhelming evidence on hand to suggest that there is no good way of executing people.

The court’s intervention is especially jarring as even apart from the obvious question of whether the death penalty should be allowed or not, there are other aspects which merit discussion. Research conducted by the Death Penalty Research Project at the National Law University, Delhi suggests that the prisoners on death row are generally those who are extremely marginalised and belong to very poor backgrounds and have had no means of defending themselves properly. The court could look into why these people are represented on the death row in a number which is disproportionate to their share of the population. It could look at the sort of the legal representation they get and why they fall victim to procedural violations.

The Supreme Court is tasked with an enormous array of responsibilities which it needs to fulfil. At a time where there is such a staggering backlog of cases before it and allegations have been made of the court ducking certain cases, it seems like a cruel waste of time and resources for the court to take up an issue with no good answer.

Let’s fix what we can

If we as a country are ready to kill human beings as part of our justice system, then we should accept that we are handing out retributive justice as research has shown that the death penalty is not a good deterrent to crime.

Instead of wasting time looking for good ways to kill people, we should instead look to deal with the most common argument against the death penalty, which is that innocent people are sometimes executed. That is something which the court can try to fix by giving better guidelines on investigation and trials, and trying to firm up the judicial system in general.

Otherwise we are just scaling new heights of irony as we look for ‘humane’ ways of killing people.


Published Date: Oct 07, 2017 03:07 pm | Updated Date: Oct 07, 2017 03:13 pm



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