Abstract

The capital punishment has probably been the most debated of the
penological measures in the modern criminal justice systems. In terms of a
widespread public discourse, India has however relatively remained aloof
from the western world in this regard, however certain recent events such
as the execution of Yakub Memon, the publication of the Law Commission’s
262nd Report on the Death Penalty in August 2015 et cetera, have triggered
a healthy debate in the country on the validity of the ultimate sentence,
even if not a discourse on it.

The debate on the capital punishment being retained in the criminal justice
system has long been a point of fascination for the author, and apart from
the varied ‘principled’ stances taken in this debate, the question of
deterrence is what the debate ultimately boils down to. The author has
further been intrigued by the arguments on the economic unviability of the
capital punishment. Although this is a more advanced argument in western
countries, the author has tried to explicate it further in the Indian context.
The points of analysis from a legal-cum economic perspective include the
cost-benefit analysis of the spending in a capital case, the (dis)utility
derived therefrom, the opportunity costs of the death penalty, etc.

It has further been realised that the arguments on the economic viability of
the capital punishment are also inevitably linked with, like all other stances
in the death penalty debate, with the intended utility of deterrence. Hence
the argument has been analysed in that regard too.

The author has accordingly attempted to undertake a multidisciplinary

economic cum legal analysis of the capital punishment debate in this piece.

DEATH PENALTY – A COST-BENEFIT ANALYSIS

In this section an attempt will be made at arriving at an economic analysis
of the death penalty. In that light it shall be seen whether carrying out of a
sentence of capital punishment is in any terms different from other
sentences (including a sentence of life imprisonment, in terms of the costs
involved in a death penalty case) and if so, whether those costs are justified
by the utility that is sought to be achieved out of maintaining and executing
a death penalty case. The ‘utility’ to be achieved in the context of a death
sentence is unquestionably, the sought deterrence to the crime for which
the sentence has been carried out.

It may further be noted that the question of ‘deterrence’ is the focal point in
any debate surrounding the capital punishment, and while scholars and
jurists across the fields may differ on the intended deterrence arising out of
capital punishment, they nevertheless revolve their theorisations around it.

• The cost of a death penalty case

It may be clarified here that ‘cost’ of a death penalty case includes more
than the mere costs of carrying out an execution. It must necessarily
include the costs incurred by the State in all stages of a case where the
maximum sentence is the death penalty. Therefore it is not necessary here
that the act of carrying out the sentence (the mode of execution,
arrangements for it, etc.) itself involve huge expenditure, but rather the fact
that a case involving the maximum sentence of death penalty is bound to
cost much more than any other case in which the death sentence is not the
consequence under criminal laws, with costs being computed right from the
point a counsel is appointed in a potential death penalty case.

There are two primary reasons to arrive at the above understanding of the
‘cost’ of a death penalty case:
1. It is known that legal systems across the world provide for certain
additional procedural safeguards in case of a death penalty trial, since a
sentence of death is distinguishable from other sentences in terms of its
sheer irrevocability. It is the life of a person which is at stake, and it is for
these considerations that legal systems throughout the world attach riders
to pronouncing a death sentence. For instance, after the ratio in Bachhan
Singh v. State of Punjab, it has been laid down as a norm in India, that a
death sentence should be pronounced only in the “rarest of rare cases”
where other alternatives have become “unquestionably foreclosed”. For
similar reasons, the US Supreme Court has observed in Gregg v. Georgia
that “penalty of death is different in kind from any other punishment”.
Thus additional procedural safeguards necessarily distinguish a death
penalty trial from other criminal trials in terms of how much the former
costs the state, and this shall be detailed out in the later sections. The fact
that it is economically unviable to bear these costs is reflected from the
point that the death penalty also fails in achieving the intended utility of
deterrence, which has also been expounded upon later in this piece.
2. Furthermore, these costs matter because not all cases in which death
penalty is involved, actually result in a pronouncement to that effect by the
courts, and further not all death sentences pronounced by courts actually
result in executions. However, as remarked earlier, regardless of these
consequential contingencies, the extra expenses start mounting right from
the stage a death penalty trial begins.

It may be clarified here that the scope of an economic analysis of the death
penalty arises not merely on account of the costs involved, but because of
the fact that in most of the cases these expenditures (detailed in succeeding
paragraphs) become futile since only a miniscule minority of the actual
death penalty cases end up resulting in executions.
It may further be mentioned here as a disclaimer that any arguments on the
costs involved in the death penalty can be easily overcome if the desired
deterrence is achieved by incurring these costs. It is in that regard that the
next section of the paper deals with the question of intended deterrence (if
any). Therefore while this section seeks to understand why does the death
penalty cost so much, the next section highlights that these costs are
essentially wasteful expenditures given that no desired utility in terms of
the deterrence to be derived, is achieved. It thus puts the debate into
perspective by raising an important question – is the capital punishment
worth retaining, both, from an economic angle, apart from the legal or
principled angle?

• What is the nature of these costs?

Before we may attempt to discuss the wasteful nature and the disutility of
the costs incurred in a capital punishment case, it may be useful to briefly
examine the nature of the costs, and in doing so we may look into the
functioning of the criminal justice systems generally, and also focus on the
Indian position specifically.

The capital punishment carries along with it as a necessary corollary, an

enhanced set of procedural cum substantive safeguards, setting it apart
from ordinary criminal trials. The Law Commission of India in its latest
report on the death penalty has described the Indian standard of capital
punishment being pronounced only in the ‘rarest of rare’ cases as “one of
the most demanding and compelling standards in the law of crimes …
very much the beginning of the constitutional regulation of the death
penalty in India.” Similarly, in the context of the United States of America,
it has been remarked that the principal reason why capital punishment is so
expensive can be summed up in the line “death is different”. It is for this
reason, that a death penalty case, everywhere involves a more detailed and
elaborated procedural compliance to be met.

In the Indian context, after the death penalty is awarded by the court of
sessions, proceedings begin before the High Court, and are followed by
proceedings before the Supreme Court of India (either by way of appeal
under Article 134, or via a certificate of appeal under 134A, or by way of a
special leave petition under Article 136 of the Indian Constitution). There is
a further scope for entertaining review and curative petitions. Till this
stage, the death penalty trial may not be markedly different from other
serious criminal offences. However, additional safeguards in the form of the
President or the Governor’s discretion to pardon the sentence, and an even
further scope of the SC entertaining a writ petition to review the exercise of
the pardoning power by the executive. It is further submitted that even
after this protracted procedure, there are further safeguards laid down for a
death row convict by way of “Procedure Regarding Petitions for Mercy in
Death Sentence Cases” drafted by the Home Ministry, involving, inter alia,
a convict to make a fresh mercy petition application in light of a ‘change of
circumstance or availability of new material in respect of rejection of the
early mercy petition’. These safeguard intend to lend a sufficient degree of
cautious accuracy to the death penalty trials, and reflect a recognition of the
irrevocable nature of the penalty.

An atypical death penalty trial, further involves incurring of expenditures

on engaging experts to examine the forensic evidence, explore the mental
health of the defendant etc. While these expenses are not exclusive to a
death penalty trial, to come up with a thorough defence in a death penalty
trial, mitigating and aggravating evidence needs to be examined and
compiled and mitigation experts are required to probe aspects of
defendant’s life, right from birth, the process involves interviewing
relatives, co-workers, teachers, doctors etc. Further a judge needs to
independently examine these and match these testimonies with aggravating
factors, which also require expert testimonies. The defendant’s mental
health at the time of the crime is a relevant factor requiring testimonies
from psychiatrist and this determination may alone result in considerable
expense, and a successful determination to that effect constitutes a
mitigating factor. It must not be lost sight of that most of the preparation
for this presentation needs to be done in advance, whether or not a
sentencing trial actually turns out to be necessary, and for states that are
not so thorough, the costs arise later when verdicts are overturned and
trials have to be done over again.

It is further highlighted that the time spent by an inmate on a death row

also adds up to the costs of a death penalty case, because of various factors
like extra security, especially in cases of crimes against the state. For
example, a legislative commission in California noted that it costs the state
‘an extra $90,000 for each death row inmate per year compared to the
costs of the same inmate housed in general population, and with over 670
inmates on death row, that amounts to an additional cost of $60 million per
year, solely attributable to the death penalty.’

COSTS WITH LITTLE OR NO RETURNS OR UTILITY,

WASTEFUL EXPENDITURES, AND THE OPPORTUNITY COSTS
OF THE DEATH PENALTY

• Little likelihood of death penalty trials getting transformed into

death sentences, and that of death sentences getting transformed
into executions

In light of the preceding section, it is submitted that the relevant point here
is not the incurring of these expenditures in the first place, but that of
rendering these costs incurred as futile, when these cases don’t materialize
into executions. This is on account of the possibilities of not only the
sentences and convictions being reversed, but many other contingencies
such as – granting of executive pardon, overturning of laws by courts,
overturning of the sentence itself in a judicial review of the exercise of
pardoning power etc., i.e., assuming that the cases have managed to clear
the stringent and supposed non-porous filter of the ‘rarest of rare’
standard at the trial stage itself. In such a case these costs then end up as
nothing but wasteful expenditures.

In the above context, the author’s submission may be taken into perspective
in light of some relevant factual data in this regard from India (updated till
July 25, 2012). In the combined tenures of all of India’s thirteen Presidents
since independence, a total of 437 mercy petitions had been filed by
convicts on death row, out of which a total of 306 had been accepted, while
the remaining 131 being rejected. This points out to the fact that even after
going through extensive trials on which huge costs are incurred by the
State, approximately 70% of the cases in which the death sentence had been
pronounced by the Supreme Court, were commuted by the President of
India, while only in 30% of the cases the mercy petitions were rejected and
thereby death sentences were upheld. This is a clear illustration of the costs
which were incurred by the State in vain, money which could have
otherwise been directed towards other prison reform or welfare schemes of
the Government, affording an enviable opportunity cost to the death
penalty.

• The (dis)utility of capital punishment – the question of

deterrence

It has been remarked above that one of the factors which set the capital
punishment apart from other crimes in terms of its costs, is the additional
due process considerations which accompany this extreme form of penalty,
which necessarily prolongs a capital punishment trial in an already slow-
paced judicial system. It is at the same time absolutely essential to argue in
favour of these safeguards given the irrevocable nature of the penalty. The
only argument in favour of retention of capital punishment could then be in
terms of the desired utility being derived from it, i.e. deterrence towards
commission of crimes. If it can be established that the death penalty has not
brought us any closer to that desired goal, then all that is left of the capital
punishment from an economic perspective, is the wasteful expenditure
involved in retaining the system of death penalty that results in no utility to
the taxpayer’s feeling of security and safety in the society. However to arrive
at this conclusion the deterrence argument needs to be separately
examined, and this is what this section aims to do.

An India specific enquiry into the question of deterrence shall remain

incomplete without reverting to the ‘rarest of rare’ standard. There are two
relevant points here that merit attention:
First, It is submitted that it is only common logic to argue that an effective
deterrence may be achieved only when people committing a particularly
heinous crime have knowledge that the same may swiftly be followed by
execution. In this light noted economist Gary S. Becker has remarked that
deterrence can only be achieved when the death sentence follows ‘swiftly
and with considerable certainty post the commission of the crime’.
Second, that if the death sentence is handed down only to a miniscule
minority of the death row convicts, as compared to those who are tried for
it, then little deterrence can be expected; and this is precisely what the
‘rarest of rare’ standard ends up doing. For instance even in the context of
the U.S., it has been observed that “ironically, a death penalty that is
rarely used raises its own concerns … Do the rationales of deterrence and
retribution make sense in a system where only a tiny fraction of eligible
criminals in only a few states receive the ultimate punishment?”.
Hence, the above submissions highlight a logical incoherence in the call for
retribution and the ‘rarest of rare’ criteria, especially since the latter only
narrows down the probability that death sentence will follow for all those
committing a capital crime, apart from failing to convey the certainty of the
potential punishment that might follow to the offender, while committing
the crime (both being important factors in achieving deterrence), since the
criteria itself is applied in a subjective and sporadic fashion.

It is interesting to note here that the evolution of the ‘rarest of rare’ criterial
reflects the Indian judiciary’s unwillingness to entirely do away with the
capital punishment, backed by its belief in the deterrence logic, however, it
at the same reflects the realization of the extreme and irrevocably severe
nature of the penalty. Thus the said criterion is more of a balancing act.
However the above submission reflects that the criterion itself has become
inconsistent with the deterrence logic, and the Indian legal system stands in
unfortunate doldrums as far as its stance on the death penalty is concerned.
It may thus been inferred from preceding arguments that this standard
itself acts as an obstacle in achieving the desired deterrence.

It is imperative that the above submissions be backed by conclusive data.

The National Law University, Delhi maintains probably the most
comprehensive death penalty database in the country today, in the form of
its ‘Death Penalty Research Project’ and according to their data, there have
been a total of 755 executions in India since we achieved our independence.
Now, Bachhan Singh laid down the ‘rarest of rare’ criteria in 1980, and
since 1980 to 2015, there have been a total of somewhere between 64-70
executions . Hence, hypothetically speaking, an execution rate of 21
executions per year before the introduction of the ‘rarest of rare’ criteria
being drastically reduced to just 2 executions per year post Bachhan Singh’s
introduction of the ‘rarest of rare’ parameter, speaks volumes about the
miniscule fraction of cases in which the capital sentence is ultimately
handed down. Further we must not lose sight of the fact that these still are
cases which managed to reach courts, and there might still be millions of
unaccounted for crimes which when in courts, would be deemed fit for a
death penalty trial. In light of such facts, any talk of the deterrent effect of
the penalty seems to be a chimera.

On the question of deterrence, it may be relevant to quote here Richard

Posner, a renowned economist, who cites research studies done by Ehrlich
to support the deterrence argument, according to which one execution was
calculated to deter 18 murders. Posner’s main concern seems to resolve
around the possibility of errors in passing a death sentence, i.e., probability
of innocents being executed erroneously. He however believes that
imposition of the death penalty alongside allocation of more resources to
litigation of capital cases, can keep these error rates low. He further
believes that protracted length of death penalty trials themselves ensure
that the risk of error is brought down and innocence is established at some
point of time during the stage of the trial itself. Gary S. Becker, another
noted economist takes the argument forward where Posner left it. He
agrees with Posner but goes on to say that not only does the capital
punishment have an important deterrent effect, it has that effect even in its
present form where death sentences are handed down only in a tiny
fraction of cases. Becker in fact goes on to stretches his argument to the
extent of saying that “the government would indirectly be ‘taking’ many
lives if it did not use capital punishment” and that the State thus become
‘morally’ obligated to use capital punishment if such punishment
significantly reduces the number of murders and saves lives of innocent
victims.”

In light of the above observations made by Posner and Becker, it is

submitted that the said arguments in favour of deterrence-effect of the
capital punishment do not take into account two major factors (just as most
of those who favour the deterrence argument fail to account for):
First, that the studies the proponent of the deterrence argument rely upon
don’t consider the separability of the sub-set of murders that are eligible for
the death penalty, in the sense that each may vary in qualitative terms with
respect to the gravity of the offence, and that all the offences may not be
equally deterrable. Many of these offences may actually have been carried
out in the heat of the moment, in a spontaneous and unpredictable manner.
Therefore, it is a conceptual error to not account for the fact that
committing crimes is influenced not only by isolated factors of the existence
of the capital punishment in the statute books, but may other factors ; and,
Second, it must be shown that the execution would need to have to achieve
a “marginal cost beyond the threat of lifetime incarceration” for the
offender for it to be proclaimed as a better deterrent than life imprisonment
(the closest alternative to the capital punishment), and there is no evidence
that this is done.

In the above submission, an attempt has been made to theoretically

respond to the deterrence argument, while now we may pay heed to certain
statistics and allow the facts, backed by authorities, to speak for themselves.
According to the data available with the National Crimes Record Bureau
(NCRB) on convictions for murder from 2004 to 2012, convictions were
recorded in 1,80,439 cases involving murder, out of which death sentences
were imposed only in 1,178 cases, i.e., an approximate 0.65% of cases that
involved a murder conviction.

It is even more interesting to note that after a careful research, and relying
upon the NCRB data, the Law Commission of India concluded that murder
rates have seen a “continuous and uninterrupted decline” [since 1992,
when it was 4.6 per lakh of population and as per the latest figures for 2013,
the murder rate is 2.7 per lakh of population, after having fallen further
from 2012, when it was 2.8], which has in fact been accompanied by a
corresponding decline in the rate of executions, thus raising questions
about whether the death penalty has any greater deterrent effect than a
sentence for life imprisonment.

It further seems that Posner’s and Becker’s postulations of little likelihood

of innocents getting executed, can be considerably doubted, at least so in
case of India. It may surprise one to be apprised of the fact that the Apex
Court in its three decisions in Sangeet v. State of Haryana , Shankar
Kisanrao Khade v. State of Maharashtra, and Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra taken together, doubted
the correctness of as many as sixteen of its own past judgments in which a
total of twenty convicts had been given a death sentence, and this fact was
heavily relied upon by the Law Commission while recommending the
abolition of the capital punishment (except for terror-related cases) in its
August 2015 Report.

• Even if these expenditures are wasteful, does the ‘rarest of rare’

criterion not reduce the extent of these wasteful expenditures?

It may be argued at this point that even if it is conceded that by its very
nature the capital punishment trial mandates safeguards in terms of
procedural law, and hence is bound to cost more than other ordinary
criminal trials (and assuming, although this is taken up in detail in the next
section, that the death penalty also fails at achieving the intended
deterrence effect), it is still open for one to argue that the extreme penalty is
only meted out in the ‘rarest of rare’ cases which ultimately narrows down
the category of convicts eligible to be sentenced to death.

It is submitted that this is a tempting, yet incorrect defence to take, not only
because of the fact that as already submitted, the costs start mounting from
the first instance of trial, but also primarily because of the absolute lack of
certainty in judicial opinions as to what constitutes ‘rarest of rare’, and the
same ultimately being determined by an extremely individualistic,
subjective and judge-centric analysis, not guided by any laid down objective
criteria. The Law Commission has submitted that the application of the said
standard has led to an “arbitrary and selective application of the death
penalty”. After examining a catena of SC decisions, the Commission has
observed that the Apex Court has itself, on multiple occasions,
acknowledged this subjective and arbitrary application of the death penalty
by holding that “principled sentencing” has been transformed into “judge-
centric sentencing”, being determined by the “personal predilection of the
judges constituting the Bench.” And therefore the fear of Justice Bhagwati,
who wrote the dissenting opinion in Bachhan Singh making the exact above
prognosis of the ‘rarest of rare’ criteria, has been proved to be well founded.

In light of the above submission, relevant data may be cited from the
‘Hanging in the Balance’ report relied upon by the Law Commission of
India in its latest report on the death penalty, according to which, in the
period 2000-2013, the cases of 281 persons came up before the Supreme
Court where at least one court had imposed the death sentence. Out of
these, for 205 persons, the imposition of the death sentence was in issue
before the Court. From these 205, the Supreme Court imposed the death
penalty on 69 people (i.e. 33.7%). Of this set, 5.8 % (i.e. 4 people) had been
acquitted by one (lower) court/ SC judge (in a dissenting or concurring
opinion). Another 23.2% (n= 16) had been given life sentence by at least
one court/SC judge. The data serves to highlight that “in 29% of cases
where the Supreme Court upheld or imposed the death penalty, there was
no unanimity between the judges themselves on whether the accused was
in fact guilty, and/or whether his case belonged to the rarest of rare
category, calling for the death sentence.”
If we are to revert to our economic perspective in the light of above
observations, it becomes clear that the ‘rarest of rare’ standard plays no
fruitful role in confining the exorbitant costs involved in death penalty to a
handful of cases, primarily because the standard itself finds no universal or
consistent application, and if not anything else, leaves open the room of
irrelevant considerations to find their ways in judicial imposition of a death
sentence. At an aside level, a reference here can be made to the State of
Kansas in the United States which follows the ‘worst of the worst criminals’
standard, something akin to the Indian parameter of ‘rarest of rare’,
however, capital punishment in Kansas nevertheless costs taxpayers a
whopping $1.2 million each by one tally.

• Opportunity Costs of the Capital Punishment – Understanding

Costs as the Value of the Next Best Alternative Foregone

It is also interesting to note that once we arrive at an estimate that death

penalty costs the state’s exchequer and that it does so without any returns,
we are also in a position to reflect upon the opportunity costs of retaining
the capital punishment. If the death penalty is eliminated, useful employee
hours can be directed towards more productive work, such as on structural
concerns within the legal system, for instance, modernizing our courts,
better equipping our police personnel in training, maintaining better
infrastructure in our prisons, or any other project of the state. It has
therefore been said that there are important financial aspects to all death
penalty cases and proper cost studies do take these opportunity costs into
account. If not anything else, these opportunity costs can be directed
towards finding ways to improvise our criminal justice system to
incorporate effective rehabilitative and reformative elements into it, which
may have a far long-standing impact than any purported deterrence arising
out of the capital punishment.
IMPACT OF THE COSTS ON THE EXECUTIONS – WHEN
ECONOMIC CONCERNS PREVENTED EXECUTIONS FROM
BEING CARRIED OUT

In this section an attempt has been made to analyse the actual impact of
costs of capital punishment upon the sentencing, and whether the former
have ever been a criteria in awarding death sentences. The impact of
recessions/economic crisis upon passing death sentences may also be
evaluated here. Death penalty in U.S., one of the leading countries that still
retain capital punishment, is an enormously expensive and wasteful
program. ‘Smart on Crime: Reconsidering the Death Penalty in a Time of
Economic Crisis’ is a comprehensive report published by the Death Penalty
Information Centre which highlights the economic costs states are facing
on account of capital punishment in the United States. For instance, as per
the Report, states like New York and New Jersey spent well over $100
million on a system that produced no executions and both have recently
abandoned the practice; and in 2009, eleven state legislatures considered
bills to end capital punishment and its high costs were part of these
debates. New Mexico abolished the death penalty and the Connecticut
legislature passed an abolition bill before the governor vetoed it. One house
of the legislatures in Montana and Colorado voted to end the death penalty,
and the Colorado bill would have directed the cost savings to solving cold
cases.

In a report released by the American Bar Associations, the excruciating

impact of the recession upon the criminal justice system is highlighted. The
report makes observations with respect to lack of funding available to
maintain prisons, leading to early releases of prisoners, laying-off of police
officers etc. It goes to the extent of stating that “the very notion of justice in
the United States is threatened by a lack of adequate resources to operate
the very system which has protected our rights for more than two
centuries”. In this context it has been noted that where in New Jersey, for
example, 500 police officers were laid in 1991 and an estimated $16 million
were spent per year in implementing the death penalty, the amount was
enough to hire the same number of officers at a salary of $30,000 per year,
an opportunity cost to be accounted for. In a similar vein the Report notes
that while in Florida, a mid-year budget cut of $45 million for the
Department of Corrections forced the early release of 3,000 inmates while
on the other hand, by 1988 the state had spent $57.2 million to accomplish
the execution of 18 people. Further, It has been estimated to costs six times
more to execute a person in Florida than to incarcerate a prisoner for life
with no parole. Similarly it has been estimated that the money it would take
to implement the death penalty in New York for just five years would be
enough to fund 250 additional police officers and build prisons for 6,000
inmates.

The above figures further illustrate the opportunity costs of the death
penalty and how the money spent on the capital punishment may be better
utilized if spent on other alternatives such as better training to police
personnel, reforming the prisons, employing more government staff where
there is shortage, reforming prison facilities et cetera.

CONCLUDING REMARKS: DOES AN ECONOMIC OR

UTILITARIAN ANALYSIS OF THE DEATH PENALTY AMOUNT
TO PUTTING A PRICE TAG ON JUSTICE?

It may very well be contended that such a purely economic and utilitarian
analysis seems to ‘priorities state spending over justice delivery’. However
in response to that it can only be reiterated that the economic analysis of
this ‘wasteful expenditure’ gains significance only in light of the fact that
the capital punishment fails to achieve its intended goals of deterrence, that
the expenditure is wasteful in the first instance.
From our preceding discussions it is clear that the death penalty is the most
expensive part of the criminal justice system on which millions may be
spent and yet an execution may very likely not take place on account of a
host of factors. Further, it is also a widely held view that the economic crisis
that began in 2008 continues to impact states and there is no reason why
should the death penalty remain immune from reconsideration in a time
where governments are reviewing all wasteful and expensive programs.
“The positive programs that can be funded once this economic burden is
lifted will be readily apparent.”

It is reiterated here that this piece might have resulted in a diametrically

opposite central argument had the death penalty proved to be an effective
deterrence measure. However, reliance upon both empirical and theoretical
formulations have only convincingly negated that hypothesis, and hence
leave a room to make a compelling utilitarian argument against the capital
punishment.