Years of data show that the death penalty does not lower violent crime, including rape or terrorism. Yet, hundreds of innocent people are sentenced to die, and many more are stuck waiting in a process paralysed by delay. Far too many of them are poor. All of this contradicts some of the most enduring and accepted notions about capital punishment in India. These are the seven biggest myths.
No, it’s not. No research has been able to prove that the death penalty deters violent crimes such as murder. The United Nations has even referred to it as a “myth.”
In 1975, Isaac Ehrlich, an American economist, claimed that each execution could “save eight innocent lives.” But his theory, based on 43 years of US data, has been widely discredited because it falls apart if you remove just six years (1963-69) from the larger data set. There are still some scholars who stand by Ehrlich’s research, but many reject it.
We have used data from the US because there are no similar studies on India.
The latter group have found no correlation between executions and homicide rates in the US. If you compare states that have the death penalty and those that don’t, you will find that they have similar homicide rates.
The US is also instructive because it has a long history of the death penalty and a control group: some states have capital punishment on their books, while others do not.
Comparisons between the US and Canada show the same result. After the Canadian criminal code dropped the death penalty in 1976, homicide rates plunged in the country over the next two decades. During that time, they surged in the US.
To put it simply, economists argue that the data show that the death penalty doesn’t cause or reduce homicides. Its impact on the incidence of violent crime, if anything, is insignificant. And it’s certainly not enough to inform any policy on the death penalty, including the decision to retain it.
That’s not true. In fact, trial courts hand out death sentences so often that many of them are eventually commuted to life imprisonment by appellate courts. But that doesn’t solve the bigger problem: “rarest of the rare” is such an imprecise category that it has turned the death penalty into a lottery. The phrase — the accepted legal standard for imposing the death penalty — comes from a judgment in 1980 which said judges must use capital punishment sparingly. It urged them to consider factors like age, income, premeditation, mental illness, and prior criminal history, reserving the penalty for the most heinous crimes. The idea is that everything that plays a crucial role in shaping the person must be examined in any decision that could result in his or her execution.
So “rarest of the rare” is a legal yardstick not just for the crime, but also for the criminal. However brutal the crime, sentencing guidelines also require proof that the accused is beyond reform. But overburdened trial courts cannot afford to spend days deliberating on the sentence. So it’s up to higher courts, whose decisions are often arbitrary.
Why does this happen? For one, it’s hard to define what makes a crime (or criminal) the “rarest of the rare.” Child murderers, mass murderers, and rapists who have killed their victims have all been spared the gallows in some cases and executed in others. So it’s really up to the judge.
Take the Supreme Court for instance. Yug Chaudhry, a criminal lawyer with several clients on death row, analysed Supreme Court judgments in death penalty cases between 2000 and 2015. He found that the identity of the judge determines whether the death sentence is upheld or commuted.
It becomes clearer if you you compare the records of three judges — Arijit Pasayat, K. G. Balakrishnan and S.B. Sinha — who were at the Supreme Court roughly around the same time, between 2000 and 2010. Pasayat imposed the death sentence in 14 of the 30 cases that appeared before him, and Balakrishnan did it in just 5 of the 15 cases he presided over. Sinha judged 16 death penalty cases but applied the sentence in none of them. Pasayat’s rate of imposing the death penalty is double the court’s average: 23.3 percent.
While a case has an equal chance of being heard by any judge in the Supreme Court, its outcome is heavily affected by who that might be. Think about it this way: if a prisoner on death row faced Sinha in court his chances of living were nearly 100 percent. If he faced Pasayat, his chances are cut by half.
It’s not for us to say whether the judges are “right” or “wrong” — sentencing is a discretionary power. But should prisoners live or die depending on which judge decides their case? The data suggest that justice in death penalty cases is neither exact nor consistent. It’s arbitrary. This applies elsewhere in the criminal justice system too — such as bail. But the stakes in capital cases are much higher. They are literally matters of life and death.
Yes, they do. The Supreme Court and the high courts acquitted a quarter of those sentenced to death by trial courts between 2000 and 2014. That’s 443 people who were sentenced to death but found to be innocent of all charges years after being sentenced. Some of them had spent nearly a decade on death row.
The US-based National Registry of Exonerations has counted 1,339 people who have been cleared of charges since 1989, including 116 who were sentenced to death. A recent study of death row prisoners in the US estimated that, on average, four percent of those sentenced to die are innocent.
It’s impossible to attempt similar studies in India because such data is either not accessible or just doesn’t exist. Most states in the country don’t count the people they execute, let alone maintain records that could lead to cases being re-examined for error or miscarriage.
Not really. The system is heavily in favor of those who are rich and/or educated. Nearly three-quarters of those on death row are poor: they are daily wage workers who own few assets, be it land or savings.
They cannot afford good lawyers. And that means everything in capital cases, where a strong defense can save the client from a death sentence. As US Supreme Court Justice Ruth Bader Ginsburg put it, “I have yet to see a death case among the dozens coming to the Supreme Court….in which the defendant was well represented at trial.”
While legal aid could be a solution, these lawyers are likely overworked and underpaid. Poor families also cannot spend on the things that contribute towards lesser sentences: expert witnesses, medical reports, or any other evidence that weighs in favor of the accused.
But poverty is not merely the inability pay for a good defense. It also affects your ability to access your rights or play a role at your own trial. One death row prisoner who spoke to a group of lawyers on the condition of anonymity said his lawyer had interacted with him only once during a 13-month trial. Two said they represented themselves because they didn’t think they could do worse. One said he could never understand the court proceedings; he didn’t even realise he had been sentenced to death until someone explained it to him later. Yet another said, “we cannot speak a word in our defence.”
"These are pita hua (beaten) people,” said Siddharth Sharma, a criminal lawyer with several clients on death row. “They have nobody.” By the time their case gets to the Supreme Court for the final appeal, he added, even their families have given up on them.
“After that you expect that a prisoner will be able to marshal resources to mount a challenge in the Supreme Court?” Sharma added. “It’s a joke.”
Hardly. First, the death penalty is not on the table for every rape case. It’s only a sentencing option for rape with murder or for cases involving repeat offenders. Second, even if the law allowed it, the courts can’t possibly sentence every rapist to death, much less execute them all. A woman is raped in India every 20 to 30 minutes, by some estimates. That’s a lot of men to put on death row.
Third, capital punishment does not deter gender-based violence. Rights groups and researchers have long argued that such violence is part of a patriarchy that runs deep in India. The country has a skewed sex ratio — far fewer women to men — and a criminal code that doesn’t recognise marital rape as an offence.
What’s more alarming is the dismal rate of convictions in rape cases across India, largely the result of shoddy police investigations. Even those charges that stick are a mere fraction of the total reported cases.
Or, as some have argued, it’s about politics.
Afzal Guru, convicted for his role in the attack on the Indian parliament in 2001, was secretly executed, despite several concerns about the fairness of his trial. It had been seven-and-half years since the Supreme Court had confirmed Guru’s death sentence. But several others convicted of terror offenses, including the three men who had assassinated Rajiv Gandhi in 1991, were still on death row (they were eventually pardoned by President Pratibha Patil). Some of them had been on death row far longer than Guru.
Yakub Memon’s case is more startling. In 2007, he was convicted for his role in the 1993 bombings in Mumbai that killed over 200 people. Days later, Balwant Singh Rajoana was convicted as a conspirator in the assassination of former Punjab Chief Minister Beant Singh. The attack killed 17 others as well.
Both were convicted as conspirators. Rajoana, who admitted to his role in the attack, has declared that he will not appeal his sentence or seek mercy from the government. Memon, meanwhile, insisted that he was innocent. While a Sikh group backed by the Punjab government filed a petition for mercy on Rajoana’s behalf, several people, including retired judges, sought mercy for Memon. B. Raman, a former Indian intelligence officer, is also believed to have opposed Memon’s execution on the grounds that he had cooperated with the Indian government.
Memon was executed on July 30, 2015. Rajoana is still awaiting a decision on his mercy petition.
Yes, only four men have been executed since 2000, although hundreds more have been sentenced to die in that time. But what sort of a life do they live on death row?
Lawyers who have visited jails across the country will tell you that death row prisoners live alone in a narrow room with barely any natural light. The “death barracks” are often separated from the gallows by a single wall. The prisoners can hear the gate being yanked open and the lever creaking to life every time the gallows are cleaned.
Many prisoners lose their mind within those walls; some have committed suicide. This is according to a recent study by the National Law University’s Centre on the Death Penalty. It’s hard to know how common this is because there is no regular public survey of mental illness or depression in India’s prisons.
Whether or not they are eventually acquitted, their sentences commuted, or their pleas for mercy granted, these prisoners are waiting for years. Delay has become so common, and the wait so long and harrowing, that the Supreme Court has said it amounts to torture.
“Waiting every second is a big sentence,” a prisoner who had been on death row for 14 years told the centre's researchers. “My soul is being pricked from the inside.”