Sunday, August 2, 2015

Thoughts on the gallows

I am opposed to the death penalty. But I have some strong disagreements with many of my liberal friends who commented when Yakub Memon was hanged a few days ago. That I also don’t agree with the views of conservatives on this subject goes without saying, but I’ll say it at more length below.

The death penalty is a stage in the progress of ideas about justice. There have been more barbaric things in the past, such as mob lynching, which is now treated as unacceptable wherever there is a developed legal system. A mob can neither verify the guilt of the accused nor decide what punishment should be imposed. These conclusions must be reached by attention to hard facts, careful investigation and a calm dispassionate approach – in other words, a legal and penal system. An important part of such a system is a range of punishments that can be calibrated to fit the degree of the crime.

In the evolution of legal systems, the death penalty was present just about everywhere, from the Christian to the Islamic to the Chinese world. Wikipedia tells us that “By 1820 in Britain, there were 160 crimes that were punishable by death, including crimes such as shoplifting, petty theft, stealing cattle, or cutting down trees in a public place.” Meanwhile back home, the Agni Purana recommends the death penalty for “polluting ponds and temples” according to the book “Crime and Punishment in Ancient India, C. A.D. 300 to A.D. 1100” by Sukla Das (see page 72). By the above rules, a good fraction of the British and pretty much everyone in India would be dead by now. Executions were frequently public and people would come to watch - along with their children - and even applaud. This is understandable: if a picnicker throwing a plastic bottle into a lake in India were publicly hanged today, I too would come and applaud! But at least I understand that I'm joking. Reality used to be much less funny,  and it hasn't changed much in some places.
  
During the 20th century two important developments took place across the world. One is that courts started not to impose the death penalty even when the offense was severe and execution was an available option in law. We can assume that in doing so, they were guided by an evolution of public beliefs. Public executions were also deemed unseemly and largely stopped. The second development is that, also keeping up with public opinion, parliaments started to abolish the penalty completely or make it so extremely rare that in practice it would never be used. As a result, today 159 countries have actually or virtually abolished the death penalty, while only 36 countries actively practise it. The situation  by country is summarised here and there is an illuminating colour-coded world map. I found it intriguing that Gabon, Latvia, Benin, Mongolia and Madagascar have recently abolished the death penalty, and considerably less surprising that Iran, North Korea, Saudi Arabia and Somalia still carry out public executions. Capital punishment is banned by the Council of Europe, and the United Nations General Assembly tried to ban it a few years ago but were opposed by many countries, notably China, India, the United States and Indonesia.

What was the evolution of public opinion and belief that led to a slowdown in executions and eventually an outright ban in so many parts of the world?  This stemmed from a growing ethical discomfort with the fact that anyone should take it upon themselves to execute another person, no matter what that other person may have done. If murder is abhorrent in the first place, civilised society harms itself and its own level of civilisation if it carries out an act of the same level of abhorrence. One of the most influential writers on the subject was the 18th century Italian jurist and philosopher, Cesare Beccaria, who according to Wikipedia:

"openly condemned the death penalty on two grounds: first, because the state does not possess the right to take lives; and secondly, because capital punishment is neither a useful nor a necessary form of punishment"

The article goes on to say:

"Beccaria developed in his treatise a number of innovative and influential principles: 
  • punishment had a preventive (deterrent), not a retributive, function; 
  • punishment should be proportionate to the crime committed; 
  • the probability of punishment, not its severity, would achieve the preventive effect; 
  • procedures of criminal convictions should be public; and finally, 
  • in order to be effective, punishment should be prompt"
I have not read Beccaria in any detail, but I strongly agree with these observations. The third point in the above list is something I've been saying for many years, even when I deal with penalties for academic ethics violations (sadly capital punishment is not an option in this context!! Sorry, joke over.). Namely, what prevents crimes is a relatively milder punishment that is applied on transgressors with certainty, rather than a harsh punishment that may totally ruin the lives of some while letting others go free.

I fear that few in India, even among the highly educated, have reflected on principles of natural justice or tried to understand penology. Indeed, as a society we are not really past the mob lynching stage. With the most minimal factual information, people will recommend the death penalty for anything that makes their blood boil. I've had the unpleasant experience of arguing at length with Facebook friends who feel that rapists, for example, should be hanged. I understand their anger but they rarely seem to understand that justice delivered in anger is not justice. They also don't understand that the principles one is arguing over do not imply any particular "sympathy for the accused", they are principles and have nothing to do with any specific accused.

I would suggest (to whom?) that in India we have more well-informed discussions and debates on justice and on penology, and slowly try to move our society in the direction of abolishing capital punishment. But let's not have these discussions in the context of a horrific case like the 1993 blasts or the Delhi gang-rape. The discussions need to be rational and free of an emotional background.

So, back to the late Yakub Memon. If anyone simply says that whatever he may be guilty of, they don’t believe in capital punishment and therefore he shouldn't have been hanged, then I fully agree. Indeed this is my precise view. But some very strange things have been said about this case on social media. First of all, a view has circulated that he was hanged merely for being the brother of a criminal. However the charges against him are rather explicit according to this article in the Hindustan Times:

"According to the charges, key conspirators Tiger Memon, along with Dawood Ibrahim and his brother Anees Ibrahim, had called some of their trusted men, including Yakub, to Dubai between December 1992 and January 1993 to chalk out a plan to execute the serial blasts in Mumbai. It was alleged that Memon had played a key role in the execution of the conspiracy. He was also accused of giving financial assistance to the terrorist activity. It was alleged that Memon had, through his contacts, arranged Rs 21.90 lakh for the execution of the plan. The prosecution had alleged that the Memon family played an active role in the blasts and that their own vehicles were used to plant bombs. Yakub was also accused of distribution of arms and ammunition, detonators and explosives to other accused." 

I cannot verify that these are the exact charges, nor can I be certain that he was indeed guilty of them. And I sense that among many liberal thinkers there is a suspicion the courts were biased in condemning him to death, or that they did so based on insufficient evidence. But (given that we are not party to additional information) we must also contemplate the possibility that he really did everything listed above. If so, he was aware that large numbers of innocent people were going to die in bomb blasts and he materially conspired to make this happen. For this, it seems quite clear he would be deserving of the highest punishment in the land. In this context I disagree with a lot of the whataboutism going on these days: what about Maya Kodnani? what about the Staines killers? what about anti-Sikh riots and Gujarat riots? Well what about them indeed. If anyone implicated in those events was wrongly acquitted, bailed or whatever, that would be a miscarriage or delay of justice and it should certainly be talked about or challenged. But this is no reason to deny Yakub Memon the maximum punishment for knowingly conspiring in a truly awful crime.

The maximum punishment today in India is capital punishment and this is what he got. I've already mentioned that in itself this punishment is morally repugnant to me, and now I would like to bring up one more of its limitations: if evidence were to emerge tomorrow that he is not guilty of the charges (and we have no basis to argue whether that can happen or not) it would be too late to do anything about it. Significant numbers of people executed, typically for murder, have been found innocent after they were dead -- a famous case is that of Timothy Evans. This is another very powerful argument against the death penalty.

5 comments:

Chittaranjan Gauba said...
This comment has been removed by the author.
Gautam Menon said...

For me, a powerful argument against the death penalty is the last argument you gave. Given power relationships in this country and the asymmetry between rich and poor in terms of justice delivered, public pressure on police to find a culprit fast especially in the case of high-profile cases, the low quality of forensics (think of the Aarushi case) and the fact that police still use torture and similar third-degree methods to 'extract' confessions, my feeling is that it is impossible to truly ensure that a person found guilty is guilty beyond all possible doubt.

তন্ময় ভট্টাচার্য্য said...

Beautifully stated moral position against death penalty.

As to the second part, I think the confusion arises because one aspect of the position against death penalty has been insufficiently discussed in your piece. I am surprised about that, because you make special mention of it, even joke about it, but do not discuss its consequences.

I am against death penalty except in hypothetical cases where it is the least morally offensive way of preventing collapse of civil society, for all the reasons you stated. But, I am also against extreme punishments, even when reserved for extreme crimes. The reason is that justice is ultimately meted out by humans, and our human brains already seem to make categorical differentiations of tail (i.e., low probability) events of a continuous distribution, and uses extraneous arguments to justify such categorization. A penal system that encourages such categorical separation, exaggerates this tendency and leads to an almost inevitably biased application of the extreme punishment. Given that we are talking about universals of human social behavior, a penal system cannot claim ignorant misapplication when the predictable happens. In your discussion, you bring up the issue of random application of extreme punishments, but do not discuss that randomness is the sieve that has always allowed biases to percolate.

It is in this context that one brings up related cases to show that the extreme punishments are being delivered in a sufficiently biased way to systemically undermine the very notion of justice. As you point out in your discussion, the first changes against death penalty have usually not been legislative: even the fraction of society that does not believe in the fundamentally reformative value on justice has to recognize that extreme punishments may serve merely a retributory cause without ever having even the facade of being justice.

I do not discuss also whether the fact that a very carefully argued judicial memo from people likely to be knowledgeable about the law argued for a pardon in this particular case, nor whether possibly trapping a person under false assurances is morally justifiable, and certainly not whether the fundamental mistrust in a social understanding wielding public authority against free dissemination of news leading to increasing polarization of views can also contribute to dissatisfaction in this particular case. I do not discuss them because, though relevant to the particular case, they do not impinge on your central argument.

Pallab Basu said...

I was reading Casanova's memoir about public execution of Robert-François Damiens who was convicted for attempted regicide. Even as late as 1757, people cheered and finely dressed mouse-fearing aristocratic women had great fun watching the gruesome practice of drawing and quartering.

ghonada said...

There is one particular aspect of death-penaly for terrorists that I would like to point out. Assume Yakub Menon is not given death penalty but kept in jail. Then in future the terrorists can again try to hijack a plane and get him ransomed. This is exactly what happened with Masud Azhar.

On a different note, my main reason for opposing death penalty is the following. We know that every judicial process is prone to mistake. In the case of death penalty the mistake can never be corrected.