Penological Justifications for the Death Penalty

 Main aim: to examine whether there are any penological purposes for imposing death
penalty – whether death penalty is a deterrent punishment or retributive justice or does
it serve an incapacitative goal?
 The alternative to death penalty that is being proposed is life imprisonment and not freely
releasing the offender into society without punishment.
 Shankar Kisanrao Khade v. State of Maharashtra – the marginal benefits being offered
by death penalty should be high enough to justify the taking of a life.
 Santhosh Kumar Bariyar v. State of Maharashtra - there needs to be a rational and
objective connection between capital punishment and the purpose for prescribing it.
 35th Report – gave the following purposes of death penalty, arguing in favour of retaining
the capital punishment:
a) Deterrence – the primary objective of punishment in general – people tend to
commit crimes only when they feel like the gain from the criminal act is
greater than the pain suffered from its penal consequences.
It serves a deterrent value because:
i. Every human being dreads death.
ii. Death penalty is on a different footing than just life imprisonment.
iii. Whether other forms of punishment possess the advantages of capital
punishment is a matter of doubt.
b) Retribution
c) Incapacitation – for those individuals not capable of reform

Deterrence

 The assumption behind deterrence theory is that all persons are rational individuals
and will commit a crime only if they perceive the gain from the act to be greater than
the pain they suffer from its penal consequences.
 Though several scholars have different opinions, the 35 th Law Commission Report
states that there is a considerable body of opinion to show that death penalty has a
deterrent effect
o Bachan Singh v. State of Punjab – the court observed that a large section of
the population still believes that death penalty acts as a greater deterrent than
 life imprisonment – post-Bachan Singh, deterrence has often been used as a
justification for the death penalty (see Mahesh v. State of Madhya Pradesh).

 Empirical evidence on the deterrent value of the death penalty

o No evidence to suggest that death penalty has a higher deterrent effect than its
alternative, life imprisonment.
o Isaac Ehrlich – came up with a study that showed the deterrent effect of death
penalty – relied upon in Bachan Singh but was later shown to have multiple
flaws in methodology and assumptions.
o Bachan Singh – the court said that it is near impossible to create a statistical
account of the number of homicides that have been deterred due to the death
penalty since they remain hidden in the innermost recesses of their mind –
thus, the sentencing policy should not be influenced and decided solely on the
basis of empirical analysis of the perceived deterrent effect of the death
penalty.

 Assumptions of deterrence
o It is assumed that the following pre-requisites are needed for deterrence to
work:
i. That potential offenders know which offences merit death penalty.
ii. That potential offenders conduct a cost-benefit analysis before or while
committing a crime and weigh the death penalty as a serious and
important cost.
iii. That potential offenders view death penalty as a probable consequence
of the crime.
iv. That potential offenders are not risk-seeking.
v. That potential offenders give more weight to costs that benefits and
choose not to perform the act.
o Two major fallacies to the above assumptions:
i. Knowledge fallacy – offenders do not know the penalties applicable to
the crimes they plan on committing and hence do not feel deterred by a
serious penalty.
 ii. Rationality fallacy – deterrence theory assumes offenders to be
rational decision makers but this is often not true as crimes may be
committed in a fit of rage or out of a motivation for revenge or
paranoia – in these cases, the offender does not even consider the
possibility of being imposed with a penalty and is purely motivated by
emotions.
o The very existence of a criminal justice system which punishes criminal
conduct acts as a sort of deterrent – it does not mean that the punishment
being imposed by this system has to be harsh or excessive – the assumption
that the harsher the punishment for a crime, the less likely it is to be
committed is not true.

 The Case of Terrorism

o Question as to whether death penalty should be retained for terrorism-related
crimes – because death penalty acts as an important tool for maintaining the
security of citizens and the integrity of the nation by deterring similar future
crimes.
o Argument against this – death penalty often encourages terrorists since it
further advances their political aims and many of these terrorists are often on
suicide missions – they gain public attention and even the support of
organizations and nations which discourage the death penalty.
o In the case of terrorists, death penalty often makes criminals martyrs – might
even incite more acts of terrorism which act as a further threat to national
security.
o Although there is no penological justification for treating terrorism differently
from other crimes, concern is often raised that abolition of death penalty for
terrorism-related offences will affect national security – because of two
conflicting views, the bottom-line is that terrorists should be executed at your
own risk.
 Thus, the Law Commission recommends the abolition of death penalty for all
offences other than terrorism-related offences.

Incapacitation
  Capital punishment is the most extreme form of punishment since it takes the life of
an offender to make sure he does not reoffend.
 In order to use the incapacitation rationale, the sentencing court has to make an
assessment of the dangerousness of the offender and the possibility that the person is
likely to reoffend.
 Objections to the incapacitation rationale:
o Almost impossible to predict whether a person is likely to reoffend or not
– any attempt at prediction will only add to the arbitrariness that already
plagues the death penalty.
o Completely negates any possibility of reform.
 It should only be applied in the “rarest of rare” cases to determine whether death
penalty is an appropriate response.
 Death penalty is extreme when it is used only for incapacitation since the same effect
is obtained even through life imprisonment.
 Thus, incapacitation is not a valid justification for the death penalty but can be used to
justify life imprisonment.

Retribution

 Focuses on the offence that has already been committed and how to deal with the
offender rather than with the prevention of crime.
 Retribution as revenge
o “An eye for an eye” logic – whatever gross harm was inflicted on the victim
should be matched in the punishment of the offender.
o SC disapproved of this approach in Deena v. Union of India – said that this
principle has no place in civilized jurisprudence.
o Shatrughan Chauhan v. Union of India – retribution has no constitutional
merit and is no longer valid.
 Retribution as punishment deserved by the offender
o A wrong action should be met by sanction appropriate to the action and
deserved by the offender.
 o Dhananjoy Chatterjee v. State of West Bengal – SC held that the imposition
of appropriate punishment is the way of responding to the society’s cry for
justice against criminals.
o However, using punishment as justification for “society’s cry for justice” is ill-
founded since it does not consider whether the criminal actually deserved that
punishment – generally does not consider the aggravating and mitigating
circumstances in each individual case.
o Retribution has calibration problems – does not prescribe how much to
punish or how approximate the punishment should be – one doe s not know
where to stop while comparing a scale of punishments and a scale of crimes.
 Thus, the use of capital punishment cannot be justified in a retributive system of
criminal justice.

Proportionality

 The society’s censure of the offender’s actions is communicated to him by imposing a

proportionate sentence – one that is not greater than what he deserves.
 The punishment imposed should not be out of proportion to the gravity of the crime
involved.
 Proportionality has even acted as a penological goal for the SC – the court has also
used proportionality as a justification for the imposition of the death penalty.
 Societal considerations also taken into account – the court has to examine what is just
but also as to what the accused deserves keeping in view the impact on the society at
large – not doing so is a futile exercise.
 Santosh Kumar Bariyar v. State of Maharashtra – guidelines for how a sentencing
exercise should go about in a death penalty case:
i. Compare the facts of the case with a pool of equally circumstanced capital
defendants.
ii. Gravity and nature of the crime and the motive of the offender to be
considered.
iii. Consider aggravating and mitigating circumstances and compare with other
similar cases – informs the court on how a similar case has been dealt with
earlier.
  However, the primary goal of censure and communicative aspect are better achieved
through life imprisonment rather than death penalty – life imprisonment gives the
offender the means to express his remorse and it also communicates the society’s
disapproval of his actions.
 Brutalization effect of death penalty – from the communicative aspect, the death
penalty essentially gives the message to the society that it is encouraging exactly what
it condemns (killing of another) – devalues life in the eyes of the common person
which further empowers offenders.

Reformation

 Assumes that offenders are capable of change and once the reasons for the
commission of the crime are removed, they can lead ordinary and fulfilling lives.
 Supreme Court on reformation:
o Reformation has always been given as much importance as deterrence by the
SC – Sunil Batra v. Delhi Administration – rehabilitation and reformation are
very much a part of the sentencing policy in our justice system – rehabilitation
purpose ought to be implicit in every sentence of an offender unless ordered
otherwise by the sentencing court.
o Bachan Singh – developed the “rarest of the rare case” test to incorporate the
reformatory aspect in death penalty adjudication.
 Death penalty to be imposed only when the alternative option is
unquestionably foreclosed.
o Hence, the first step is deciding whether the case falls within the rarest of
the rare category and the second step is to then decide whether the
alternative option of life imprisonment will not suffice in the case –
however, this has often been ignored in death penalty adjudication.
o Justice Bhagwati - it is impossible to know beforehand with any degree of
certainty that a murderer is beyond reformation.

Other Important Issues

 Public opinion – often cited as a reason for retaining death penalty (by government as
even the 35th Law Commission Report)
  Rather than the government being guided by public opinion, the government has a
duty to drive public opinion towards options which support fairness, dignity and
justice, which are constitutionally enshrined ideals – leaders need to show how
deeply incompatible the death penalty is with human dignity.
 In countries where it has already been abolished, the public opinion changed after the
legislation abolishing death penalty was passed.

The Move Towards Restorative Justice

 Reliance on death penalty only diverts attention from other problems that the criminal
justice system could be tackling – poor investigation, crime prevention and rights of
victims of crimes.
 Restorative justice, on the other hand, acts as a constructive and socially inclusive
way of responding to criminal behaviour and ensures justice to victims.
 Prakash Singh v. Union of India – suggested police reforms for better and more
effective investigation and prosecution.
 Also emphasises on the need for witness protections schemes and victim
compensation schemes (compensation for criminal acts under ss. 357 and 357A of
CrPC)
 Suresh v. State of Haryana – SC issued guidelines for victim compensation:
o Though the quantum of compensation has been left to State/District Legal
Authorities, the upper limit for compensation is arbitrarily low and interim
compensation is often not granted.
o Court to consider gravity of offence and need of victim as guiding factors
while determining the amount for compensation.
o Also recommended a revision in the scale of compensation, or upon failing to
do such a revision, adopt the scale notified by the State of Kerala.
 The present Law Commission Report recommended the adoption of the victim
compensation scheme as recommended in Suresh.