ABSTRACT

This paper analyses the penal provision of capital punishment in two of the most prominent
leading countries of the world at present, i.e. the USA and India. The theory of punishment has
evolved over a period of time with the elevation in the intensity of commission of a crime against
the society. The author has emphasized the provisions of capital punishment laid down in U.S.A
and India autarkically. The comparative study between the sentencing policy in India and U.S.A
have been duly noted in the next part of this chapter. There is an ongoing debate on the matter of
capital punishment, and due to these differential opinion people have been divided into two
groups, one group lays down the positive aspects of capital punishment, and the other
emphasizes over the negative aspect. The emerging concept of plea bargaining has been
explicated in this paper. In the end, the author has given its own analysis over the current
sentencing policy prevailing in India and the USA.

Keywords- Capital Punishment, India, U.S.A, judiciary, legislature, the culprit.

 I. INTRODUCTION

There is a proverb which says that punishment governs all mankind; Punishment alone preserves
them; Punishment awakes while their guards are asleep; the wise consider the punishment as the
perfection of justice.1 Recent years have witnessed endeavours by legislatures and courts across
various common law jurisdictions "to structure judicial discretion at sentencing". 2 Theory of
Punishment or sentencing has gone through an evolutionary process from instinctive form,
exercised by the primitive men to rational form practised in today's society.

Punishment, thus, cannot be regarded as an act of wrath or vengeance against a guilty who has
given way to mischievous inclinations but as an indispensable sacrifice to common safety.
During ancient times it was believed that if people would be freed crimes will be multiplied. The
most prominent way to get rid of criminals was to execute them. Its acceptance, in ancient
societies, seems to have depended on three principles: firstly, the insignificant value attached to
human life, or at least to the life of any particular individual. Secondly, the death of these people
was considered to be just as they committed wrong against society and hence should be
subjected to cruelty. Thirdly, the death penalty was to find natural support by the arrival or
gradual establishment of an all-powerful state. These three reasons made the recourse to the
death penalty necessary. But over a period of time group of people began raising their voice
against the death penalty. The last century, this punishment has become a very hot and debatable
matter in the legal world. The classical theory posits that the "punishments should be swift,
certain, and proportionate to the crime in order to appropriately deter individuals from violating
the law."3 But as society is developing, there seems to be an urgent need to make strict and
stricter provisions eventually.
Capital punishment is considered to be one of the most extreme forms of penal provision as it
deals with the life and death of a person. The discharge of this punishment put a great deal of
pressure on the judiciary as the wrong decision would end the life of an innocent. The

1 Translated by Haughton, (G.C. 1835)Ch 7, para 18 p. 189.

2Andrew Ashworth & Julian V Roberts, “The Origins and Nature of Sentencing Guidelines in England and Wales”
in Sentencing Guidelines: Exploring the English Model (Andrew Ashworth & Julian V Roberts eds) (Oxford
University Press, 2013) at p. 1.
3 Kelli. D Tomlinson, An examination of Deterrence Theory: Where do we stand? (last visited on 9th July 2019).
punishment of execution is irreversible and must be given in a situation where an extreme,
grievous, anti-social, heinous crime has been committed against society or an individual 4. The
punishment of execution has a different interpretation in different parts of the world. Each and
every country in the world must have given the death penalty at some of the other points in their
history as the death penalty exists in society since time immemorial.

The motive behind giving Capital Punishment is to ensure that the society is secured on the one
hand and on the other hand, it also gives a level of sense of compensatory relief to the victim5.
The U.S is a superpower and India is emerging as one of the leading nations in the world, and
there are expectations that India has the potential to be the next hegemony. Thus the plenary
provision of both countries are taken as an inspiration and are looked upon when any other
country decides to make laws. Both U.S.A and India are democracies, so while dealing with the
strict provisions like capital punishment, they have to be considerate towards the impact of such
capital punishment on the whole society. There are many similarities between the U.S.A and
India when it comes to the manner in which they deal with sensitive issues like capital
punishment, but there are huge gaps as well in the implementation of the sentencing policies
despite being federal structure.

Both countries have a unique way to deal with the sentencing policy. The present method of
implementation of the sentencing policy was made possible after decades of debates in the
judiciary and among the legislature, human-activists, scholars and many other. It's important to
study the analysis of the system of execution in both the countries so that the amendments could
be made accordingly.

Amnesty International is an organization which deals with the campaigns against the death
penalty given as a penal provision in many countries. In 2018, 80% of the executions were
calculated from four countries; namely, Vietnam, Saudi Arabia, Iran and Iraq 6 This data shows
that there is an increasing trend of punishing people with capital sentence though India and USA
are far behind in this race.

4 Shodhganga, Crime and Punishment.

5 Id at note 5.
6 BBC News, Why is India passing more Death Sentences?
 II. DEATH PENALTY IN INDIA

Capital (Death) punishment has been defined as 'the execution of a condemned criminal under a
death sentence imposed by a competent authority'. The word 'Capital' is derived from the Latin
word 'capitalis', which means of the head. In ancient times the death penalty was carried out by
beheading a person and so it was called capital punishment. Capital punishment is a long-
established element of the criminal justice system of most of the countries of the world. Since the
beginning of civilization, capital (death) punishment is being used for punishing the individuals
for various kinds of wrongs committed by them. Although its exact origin is still undetermined,
it is believed that the root of capital punishment lies in violent retaliation by members of a tribe
or a group against those committing hostility against the other members of the group. Gradually
when individual and group ceded its personal prerogative to the sovereign authority, the power to
punish the wrongdoer became part of the "sovereign's divine authority" to rule. Thus the award
of capital punishment became a public function as the State assumed the responsibility for
redressing private vengeance
The number of executions carried out has also been reduced in India. The Indian judiciary has
ruled out that the death penalty for murder should be restricted to the "rarest of the rare"
cases.7 But sometimes these decisions are subjected to arbitrariness and discrimination, which
create a sense of concern and trauma in mind of the general public. Such factors would render
India's use of the death penalty. Government of India is being supported by Amnesty
International to announce an immediate moratorium on executions with a view to abolishing the
death penalty.8
A bill was introduced in the Lok-Sabha in 1956, to abolish the death punishment which was
rejected by the House. Efforts made in the Rajya-Sabha in 1958 and in 1962 were also
fruitless.9The Law Commission of India released its 35th report on "Capital Punishment" in
1967, recommending that the death penalty be retained in India. The aforesaid report also
recommended retaining Section 303 of the Indian Penal Code, which provides for the mandatory
death penalty. However, the has been held unconstitutional by the Supreme Court in Mithu v.

7 Bachchan Singh v. State of Punjab, AIR 1980 SC 898; Machhi Singh v. State of Punjab, (1983) 3 SCC 470
8 Amnesty international, Death Sentences and Executions in 2014, ACT 50/001/2015.
9 Praveen Kumar Jain, “Should Capital Punishment be given Capital Punishment? – A Capital Question”,retrieved
from (rsdr.ro/art-1-3-42008).
State of Punjab10 revising and re-acting the Code of Criminal Procedure 1898 reiterated the
recommendation.11 The 187th report on "Mode of Execution of Death and Incidental Matters"
was released by the commission in the year 200312 The commission had taken up this matter suo
motu because of the "technological advances in the field of science, technology, medicine,
anaesthetics" since its 41st report. The desirability of the death penalty was not laid down in the
present report. The commission also suggested that the causes leading to the death penalty must
be heard by at least a 5- judge bench of the Supreme Court. 13 Again in 2015, the Law
Commission of India issued its 262 Report titled, "The Death Penalty".14
 The constitutional validity of the imposition of the death sentence has challenged at many times.
First time in 1973, the constitutional validity of capital punishment was challenged in the case of
Jagmohan Singh. In this case, the petitioner challenged the death sentence on the ground that it
was violative of Article 19 and 21 because it did not provide any procedure. The five Judge
Bench of the Hon'ble Supreme Court held that the choice of awarding death sentence is made in
accordance with the procedure established by law. The Judge makes a choice between the capital
punishment and imprisonment of life on the basis of circumstances; facts and nature of the crime
being on record during a trial. So capital punishment is not violative of Articles 14, 19 and 21 of
the Constitution, hence, it is constitutionally valid. After this discussion, the constitutional
validity of the death sentence was not open to doubt.
There is a view in India which thinks that if the Constitution has provided Right to Life under
Article 21, then it has right to take life of the same person as well in situations where the person
has committed a crime against the whole society and the harm caused cannot be revived.

10 Mithu v. State of Punjab, (1983) 2 SCC 277, 1983 AIR 473, 1983 SCR (2) 690.
11 Law Commission of India, 41st Report, 1969 at para 26.9, retrieved from (http://lawcommissionofindia.nic.in/1-
50/Report41.pdf p.20).
12 4 Law Commission of India, 187th Report, 2003, retrieved from
(http://lawcommissionofindia.nic.in/report/187th%20report.pdf)
13 id at note 10.
14 id at note 10.
 III. CAPITAL PUNISHMENT IN U.S

There have been many controversies over the punishment of the death penalty all over the world,
and America is no exception. Series of protests and movements have led to the current system of
penal provisions in the U.S in regard to capital punishment specifically. The death penalty in the
United States has increasingly come to symbolize a disturbing tolerance for error and injustice
that has undermined the integrity of criminal justice administration and America's commitment
to human rights15. The Eighth Amendment included in Bills of Rights, 1789, prohibited cruel and
unusual punishment.16 Subsequently, a majority of states passed new death penalty statutes in the
case of a heinous crime.

The court affirmed the legality of capital punishment in the 1976 case Gregg v. Georgia17 , but
no proper statute was laid down. After the lapse of nearly two decades finally in 2019, Attorney
General William P, Barr presented an addendum to Federal Bureau of Prisons (BPO) and
directed towards clearing the way to allow federal bodies to resume capital punishment and bring
justice to the victims who suffered from the brunt of most heinous crimes 18. After introducing
this addendum, five convicts were executed with the permission of both the houses of
representatives as they were found guilty in most extreme crimes.

In the U.S.A federal government and U.S Military has authorized capital punishment in 28 states
across the country.19 There are in total 22 states, including Columbia and Puerto Rico who have
abolished the death penalty for any crime including20. States in America hold different opinions
with respect to capital punishment, and due to the prevalence of these differences, some states

15 Hugo Bedau and Paul Cassell, Debating the Death Penalty, Should America have Capital Punishment?
16 Baze v. Rees (No. 07-5439).
17 Gregg v. Georgia, 428 U.S. 153 (1976)
18The United States Department of Justice, Federal Government to resume capital Punishment after Nearly two
decades Lapse.
19 Death Penalty Information Centre, DPIC Analysis: Exoneration Data Suggests Non-Unanimous Death-
Sentencing Statutes Heighten Risk of Wrongful Convictions.

20 "31 States with the Death Penalty and 21 States with Death Penalty Bans - Death Penalty ( ProCon.org).
have validated the existence of capital punishment and some not. There is an extremely powerful
and influential lobby in America which believes that the prevailing laws are not strict enough
and harsher punishment like sentencing must be brought in the picture as culprits are getting free
very easily. A minimum requirement in a rational system is that there should be some degree of
correspondence between the crime committed and crime for which the defendant is convicted 21.
Since 2015, 25 states across the country went through 65 amendments with respect to the laws
related to capital punishment. Trends include expanding or limiting aggravating factors,
modifying execution methods and procedures, changing trial and appellate proceedings,
modifying laws to comply with litigation outcomes and repealing the practice altogether22

After the lapse of nearly two decades Attorney General William P, Barr presented an addendum
to Federal Bureau of Prisons (BPO) an directed towards clearing the way to allow federal bodies
to resume capital punishment. There are mainly two methods of executing capital punishment,
the first one and the most widely used process is lethal injection. Most of the 25 states follow the
method of injecting, but some of the states have the second option as well. The secondary
process of executing capital punishment includes electrocution, lethal gas, hanging nitrogen
hypoxia and firing squad23. States like Ohio, Pennsylvania, Indiana etc. only has a single
approach towards the death penalty, whereas states like Arizona, California, Alabama etc. have a
dual mode of execution. The culprit is generally awarded death punishment with the lethal
injection, but before the introduction of lethal injection, the criminals were executed through
different methods. In a certain circumstance where the criminal himself or herself asks for an
alternative way of execution, then the culprit can be executed otherwise.

Over a period of decades, the courts in different states have expanded the circumstances in which
the death penalty can not be rendered. In Atkins v. Virginia 24 state has given judgement that the
culprit won't be subjected to the death penalty if the person is suffering from a mental disability.
Juvenile offenders have been excluded by the court's verdict in Roper v. Simmons25 Juvenile
Rape Convicts would also not be subjected to the death penalty where death was not intended,

21 A. Lakshminath, Criminal Justice in India: Primitivism to Post-Modernism, 48 JILI (2006) 26.

22 National Conference of State Legislatures, States and Capital Punishment.
23 ibid.
24 Atkins v. Virginia (00-8452) 536 U.S. 304 (2002).
25 Roper v. Simons (03-633) 543 U.S. 551 (2005).
according to the judgement laid in Kennedy v. Louisiana. In-Ring v. Arizona26, the duty to
declare the death penalty for a person, was given to judges and the jurists based on facts of the
cases.

In the U.S, states have laid specific offences which will be punishable by death. In Alabama
commission of rape, robbery, sodomy, the murder of a peace officer, kidnapping, burglary etc.
offences could be punishable by death depending upon the grave nature of the offence. In
California treason, first-degree murder, train wrecking could be charged with the death penalty.
In states like Indiana, the scope of punishment of the death penalty could only be given if murder
in 13 circumstances. Tenessee, Pennsylvania, Nebraska, and some other countries had the
provision of the death penalty only in case of first-degree murder27.

There has been a long-standing controversy over capital punishment in America. America has a
history of brutal racial discrimination, and the death penalty was seen as a method by which the
State would oppress the voice of black who will raise the voice against injustice. The death
penalty is a direct descendant of lynching and other forms of racial violence and racial
oppression in America28."

There is a mixed point of views among people in regard to the provisions of capital punishment
in America. There are a group of people that think, America is very lenient in dealing with the
heinous crimes and they also think that there is no need of even having provisions for the death
penalty when the states are not ready to give punishment to anybody, on the other hand, there are
a group of people who think that America is the hegemon thus to show it's vitality it is bringing
strict provisions like that of the death penalty even for those crimes which don't need capital
punishment.

As the U.S is a federal republic, many times states ideology clashes with that of the centre which
creates problems in formulating laws in respect to serious issues like death penalty another. Oer a
period of time judiciary has played a great role in combating the differences between the centre
and State in Us in cases like that of capital punishment.

26 Ring v. Arizona (01-488) 536 U.S. 584 (2002).

27 Hugo Adan Bedan, The death penalty in India, State Jurisdictions, 1993.
28Charles J. Ogletree Jr. and Austin Sarat, From Lynch Mobs Killing State.
 IV. COMPARITIVE STUDY OF INDIA AND USA

This comparative study aims at covering those loopholes which are present in the sentencing
policy in India so that the changes and amendments could be introduced. There are many
provisions in the U.S. model which can be seen as pertinent for the Indian sentencing policy. In
the resolution presented by United Nation General Assembly, 29 no capital punishment or harsh
punishment should be given in any country, but India and USA seem to be among two of those
countries which still consider capital punishment as an important mode of punishment. A
comparative study with other countries make us realize that other countries also faced similar
problems; thus, the shortcomings can be coped up with.

Hindu law has never supported the act of the death penalty, but it has never even openly
condemned the use of the death penalty as a medium to enforce peace justice in society. If we
read the ancient texts of Christian, i.e. Bible, there is no dismissal of the death penalty as a
method of penalizing.

No due process of law or any Article has been laid down by the Indian Constitution like the one
laid in the U.S Constitution's Eighth Amendment, for the protection from heinous and bizarre
crimes. It is often said that American capital punishment fulfils no purposes, serves no functions and
possesses no coherent rationale 30. Article 72 of The Indian Constitution has laid down the power of
the president to Moreover, Article 72 of the Indian Constitution gives India's President the power
to grant pardons "in all cases where the sentence is a sentence of death," as well as among other
cases. By the bare reading of Article 21 and 72, it can be ascertained that the death penalty is not
unconstitutional in India if the due procedure of law is followed accordingly.

Earlier, there were mandatory provisions with respect to the death penalty for specific crimes.
But most of the commonwealth countries, including the United States, rejected the concept of
mandatory provision of capital punishment. In the same way, India also does not follow the
mandatory provision of the death penalty, and it was reiterated in proceedings like Mithu v. State

29 Death Penalty (https://www.ohchr.org/EN/Issues/DeathPenalty/Pages/DPIndex.aspx).

30 Professor Pip Nicholson, The Death Penalty and Its Reduction in Asia: An Overview
(law.unimelb.edu.au/data/assets/pdf_file/0010/2675386/Nicholson-EN_final.pdf)
of Punjab.31 This concept has emerged as a "global common law" and is seen as a way to ensure
human rights32.

It is very shocking to note the fact that despite being such a diverse culture in India and USA, the
laws relating to capital punishment is similar in both the countries. There are some basic
differences in the system of execution. The criminal law and the government structures of these
two countries may suggest that it is possible to build an international standard governing the use
of the capital sentence worldwide.

V. DEBATE OVER CAPITAL PUNISHMENT

31 Mithu v. State of Punjab , 1983 AIR 473, 1983 SCR (2) 690.
32 Adv. Rajeev S. Jadav, Critical Analysis and Comparitive Study on existence of Death Penalty in Inida and United
Sttaes.
The quarrel between the ones who are in support of capital punishment and the ones who are
opposing it is rather than merely comparing it to other debates. The ones who are in favour of
capital punishment believe that it deters crimes and, more often than not, believe that specific
crimes eliminate one's right to life. The ones who oppose capital punishment believe, first and
foremost, that any person, which also include the government of State, has no right to take
someone life for any reason. They are likely to believe that living with one's committed crimes is
a worse punishment than dying for sin and that the threat of getting a capital punishment will not
deter a person from committing a crime. Also, they believe that the risk of executing an innocent
person is too high. The debate between these two sides is often get heated, with both sides
protesting outside courthouses and jails during high profile cases.
Constitutional, legal and policy issues cannot be determined by the victim's understandable
hunger for revenge without leading to a frenzy where the death penalty is demanded, as it often
is, for wholly inappropriate cases (accidental deaths, cheating, etc.). If life imprisonment sufficed
for the 99.99% of victims' families, why not for the minuscule fraction in whose name the death
penalty is demanded?
Punish, yes, but why in the same cold-blooded, premeditated and brutal manner as the prisoner
killed his or her victim? Punishment should not imitate crime. We do not rape rapists, or maim
and disfigure those who have done this to others. Why do we have to kill killers?

Should the death penalty be banned as a form of punishment?

The various reason in support of capital punishment are as follow:

1.     Financial costs to taxpayers of capital punishment are many times more than that of keeping
someone in prison for life. Most of the people don't even realize that carrying out one death
sentence can cost 2-5 times more than keeping the same criminals in prison for the rest of his
life. How can this be? It has to do with the endless appeals; further, it requires procedures and
legal wrangling that drag the process out. It's no different for a prisoner to be on death row for
15-20 years. Judges, attorneys, clerks, court reporters, and other court facilities, all of them need
a substantial investment by the taxpayers. Do we really have sufficient resources to waste?
2.     It is vicious and violates the "cruel and exceptional" clause in the Bill of Rights. Whether
it's a, electric chair, hanging, lethal injection, it's vicious to allow state-sanctioned murder in
front of a crowd of people. We condemn people like Qaddafi, Ahmadinejad, and Kim Jong Il
when these people like them murder their own people while we still continue to do the same act.
The use of "cruel and unusual punishment" is being prevented by the 8th Amendment of the U.S.
Constitution prevents. Many would also interpret the death penalty as violating this restriction.
3.     We as a society also have to move away from the "eye for an eye" revenge mentality if the
civilization is to carried forward peacefully. 
5.     It also sends the wrong messages: why kill the people who kill other people just to prove
killing is illegal. 
6.     Life in prison is a much worse punishment and a more effective deterrent. 
7.     Some jury members are also reluctant to convict if it means putting someone to death.
8.     The prisoner's family should suffer from seeing their loved one put to death by the State,
along with going through the emotionally-draining appeals process.
9.     The possibility exists that an innocent men as well as women may be put to death. There are
various recorded cases where the DNA testing showed that even the innocent people were put to
capital punishment by the government of the State. We have a flawed justice system where
indigent defendants are given negligible legal attention by a lot of lesser qualified individuals.
Certain would blame the court system, not that death penalty itself for the problems, but we can't
risk mistakes.
10. Mentally ill patients could be put to death. A lot of people are simply born with defects to
their brain that may cause them to act in a different way. No amount of schooling, drugs
.rehabilitation, or any other positive reinforcement will change them. would it be fair enough that
someone should be murdered just because they were unlucky enough to be born with a brain
defect. Technically it is unconstitutional to put any mentally ill patient to capital punishment, the
rules can be vague, and you still need to be able to convince a judge and jury that the defendant
is in fact, mentally ill.
11. It may create sympathy for the monstrous perpetrators of the crimes as well as It is pointless
in that it doesn't bring the victim back to a healthy life. Perhaps the primary reason to prohibit the
death penalty is that it doesn't help to change the fact that the victim is already gone and will
never be able to come back to normal. Revenge, hate, and anger will never be a cure to the
emptiness of the lost loved ones. Forgiveness can be considered as the only way to start the
process of healing.
 
The various reasons against the punishment are as follows as follow:

1. The death penalty may give closure to the families of the victim who have suffered so
much. Various family members of crime victims may take years to recover from the
shock and loss of their loved ones. Some may even never heal. One of the things that will
help hasten this recovery is to achieve some other kind of closure. Life in prison only
means that the criminal is still around to terrorize the victim. A death sentence can bring
finality to a horrible chapter in the lives of these family members.
2. It often creates another form of crime deterrent. Crime may run rampant like never before
as if there wasn't any way to deter people from doing sin. Prison time may be an effective
deterrent, but with some of the people, more is needed. Prosecutors also have the various
option of using a variety of punishments in order to minimize crime.
3. Justice is better served. The most important fundamental principle of justice is that the
punishment must fit the crime. When someone brutally murders another person, it doesn't
make any sense to the sentence for the perpetrator is also death only?
4. Our justice system offers more sympathy for criminals than it does to any victims. It's
time we put the concern of our criminal justice system back on safeguarding the victim
rather than than the accused. It is to be remembered that a person who's on death row has
nearly always committed crimes before this. There is a long line of victims who have
been waiting for justice. We need justice for past and current victims.
5. It offers a deterrent for prisoners already serving a life sentence. 
6.  The DNA testing and other different methods of modern crime scene science may now
effectively eliminate almost every uncertainty as to a person's guilt or innocence.  
7. Prisoner parole can give criminals a second chance to kill.
8. It is also responsible for the problem of overpopulation in the prison system. 
9.  It provides prosecutors with another bargaining chip in the process of a plea bargain,
which is essential in cutting costs in an overcrowded court system. 
 VI. CONCLUSION

Over a period of time, the purpose served by punishment has changed. Earlier the main purpose
of giving punishment was to seek vengeance, but one of the view which remained constant was
to serve the purpose of creating terror or deterrent in society in the mind of potential criminals.
Death Penalty is one such punishment which can have a great impact not only on the individual
and the family of the criminal but also on the society in general. The recent case of Nirbhaya has
shown that in India it has become the need of an hour to give capital punishment in rarest of a
rare case to create a mongering effect in society to prevent people from committing such
heinous crime against the whole mankind. The role of judiciary cannot be denied in these
circumstances as they have the responsibility to maintain justice and equity in society.

There are varied differences in the society of India and the USA in all the aspects, and the
manner in which the criminal offence is dealt with also differs. The provision of capital
punishment in both countries has evolved through various judgements of judiciary, case laws and
legislation, but the purpose remains the same that is to prevent further crimes and to establish
peace in the society. Death Penalty has become a matter of discussion over a significant number
of decades. It is being discussed at an international platform by great jurists, scholars and
scientific professionals, human right activists etc. In my view, the concept of a shift from a
retributive form of punishment to the restorative form of punishment can be achieved only in
those cases which are not of intense significance for society. But for heinous and brutal crimes
like gang rape, murder, arson restorative form of punishment will not be of major significance.