Why capital punishment still makes sense in rape cases

by Apurv Kumar Mishra In her article on the verdict in Shakti Mills gangrape trial, Surabhi Vaya argues that there are two primary reasons why death penalty is not the most appropriate verdict in this case: the uncertain deterrence impact of capital punishment and its brutality that is not befitting a civilised and conscientious society. Before going into the merits of her case, it is pertinent to highlight a small contradiction in her choice of these two arguments out of a much larger set of arguments against death penalty. You cannot on the one hand assert that a punishment is brutal, while arguing at the same time that it might not have a deterrence impact on rational human beings. Unless of course the criminal was a psychopath who was incapable of thinking about the consequences of his actions, in which case we are better off without him. [caption id=“attachment_1475825” align=“alignleft” width=“380”]  Is the death penalty justified in rape cases? AFP[/caption] I agree that there is no scientific way to measure whether death penalty acts as a deterrent. However, concrete proof of deterrence is not a prerequisite for any punishment, especially capital punishment. Making deterrence the bedrock of criminal jurisprudence betrays an incomplete, utilitarian understanding of why laws exist. As Immanuel Kant would argue, law codifies the civil and moral duties of citizens and penalizes their violations. Therefore, you punish someone because they deserve it- not because you want to prevent possible future crimes in society by making that individual a sacrificial lamb and punishing him more than what he deserves. In fact, punishing someone to simply deter others and not for the individual’s actions is the classic definition of cruelty. As author C.S. Lewis wrote, “If deterrence is all that matters, the execution of an innocent man, provided the public think him guilty, would be fully justified.” Like Pascal’s famous wager on the existence of God, if potential criminals are deterred by death penalty, it’s an added bonus for the public. However, if there is no deterrence, we have simply executed a criminal whose actions shocked the collective conscience of society. That’s not a hard choice to make. Although personally, I am inclined to side with those who believe that capital punishment has deterrence effect. Have you ever come across a defence lawyer who argued in favour of death penalty instead of a life sentence? That is because their clients value the sanctity of life and would rather stay in jail than meet their ,aker. Let me leave you with a final thought about deterrence. Since 9/11, passengers are not allowed to enter cockpits as a security measure. Now we don’t know how many potential hijackings have been prevented because of this restriction- there is no scientific way to calculate it. But do you want to take a chance and find out? Next, let us look at this question of brutality. Allow me to clear the misconception that we are a trigger-happy society that consigns criminals to death penalty at the drop of a hat. According to the National Crime Records Bureau, around 3,30,000 cases of murders have been reported in the last decade. This means that, on an average, around 33,000 murders are committed every year out of which the court hands a death sentence only in 132 cases (that is 0.003% of the total cases). Even in these 132 cases, the Supreme Court confirms only around 3-4 death sentences in a year. In other words, you are more likely to lose your life by joining the armed forces than murdering someone. All arguments about the inhuman nature of death penalty in which “brutality is countered with brutality” is based on the flawed assumption that mere equality of outcomes makes two acts morally equivalent. It is like saying that kidnapping and imprisonment are equally wrong because both entail a loss of personal freedom. Or charging a fine from a defaulter is equivalent to theft because both result in a loss of property. Capital punishment is awarded after a careful deliberation of the facts of the case and mitigating circumstances by impartial judges and their decision is further confirmed by higher courts of the country. It cannot be treated as being on all fours a criminal act of murder, simply because both result in a loss of life for the individual. Capital punishment ensures both justice for the victim and protection for the society. Our state and central governments have started the unhealthy culture of granting en-masse remissions under section 432 of the Criminal Procedure Code to people with life terms. Convicts started demanding release after 14 years almost as a matter of right and the state did oblige them with mass release on “festive occasions”. All this continued till the Supreme Court, our saviour of last resort, passed a judgment saying that life convicts don’t have an automatic right of remission after 14 years and the government must take precautions about the possible harm that the society might suffer if these hardened criminals are let loose. As a society, are we willing to take the risk that even one innocent life is endangered by an Indian equivalent of Scott Lehr or Arthur Shawcross? Vaya concludes her article with the assertion that “rapes haven’t stopped since amendments”. But poor enforcement is never a good reason to repeal a good law. Legal statutes are also an expression of societal values. Would you reconsider a ban on dowry just because its practise has not stopped in India? Or legalize murder simply because people continue to kill people despite a ban? Rapes haven’t stopped because we are not sentencing enough rapists and murderers to death. If the determination and efficiency that was shown by our criminal justice system in the Nirbhaya case and the Shakti Mills case became the norm instead of the exception, the number of rapes would come down in India. Strict, swift and guaranteed punishment is not just the best antidote to increasing criminality but also a moral imperative for a civilised and conscientious society.