30 July 2015

Death Penalty, Justice and Ethics

Is death penalty just?
It is a difficult question. The answer would be unambiguous if we are clear and unanimous in our notion of justice.  Alas, that is not to be so! Justice can be subjective.

You and I, as lay individuals, will have our own notions of justice that need not always match with each other. In fact, the need for a just and fair outcome arises because there are differences to begin with. It is this that forces the two warring cats to seek the help from the 'unbiased' monkey.  

One should note that formal systems of adjudication through legal channels are not based on individual notions. They are based on existing laws of the land. In such a situation, the justness of a death penalty or for that matter any other matter would depend on two things. The relevant laws and their interpretations are unambiguous, and unbiased.

The legal laws and their judicial interpretations, unfortunately, are not about the physical world. They are about people and their social and economic context. Like life, they are not straightforward.  Thus, for the time being, the question of whether death penalty is just or not remains unanswered. Instead, we dwell into one powerful argument in support and another against.

A powerful justification for the death penalty is the blood-for-blood argument. This is best explained by many a individual's instinctive reaction to a mosquito. Swash and clasp! Many a mosquitoes are killed by human beings in response to an internalized fear against mosquito-inflicted diseases.

Many a communities or individuals follow a more nuanced blood-for-blood system of adjudication while dealing with human beings. At an individual level this has led to feud between families that goes on for generations. Such conflicts are also witnessed between communities. In subtle forms, it is also observed between countries; for instance, the cold war (between the United States and its allies and the erstwhile Soviet bloc), the West Asia (Middle East) imbroglio, or the India-Pakistan 'bonhomie'.

A way out of this blood-for-blood, at least in situations when the killing of an individual was unintentional, is to reconcile the revengeful provision with a compensatory money-for-blood situation. Once introduced, this compensatory system can be extended to intentional but momentary actions that one later regrets and is remorseful of. As regret and remorse is difficult to evaluate, this could get extended to all situations and it is easy to see that people with money can get away with murder.

Just because some people are getting away with murder does not mean that the system should allow everybody to get away with murder. Instead, it should improve the rules and procedures that reduces the possibility of people getting away with murder.

Opponent of death penalty are not against punishing the guilty. They take an ethical position against the death penalty.

The ethical imperative
The ethical imperative is that human beings do not have the right to take another individual's life. Thus, they argue against death penalty in general. Besides, it is also argued that death penalty is not a deterrent against crime, and it is possible that there could have been errors in judgement. It is for this that more and more countries are taking away death penalty from their statute books. According to Amnesty International, there are 140 countries that have banned death penalty. Some countries have restricted it to few crimes, and in India it is reserved for 'rarest of rare' cases.

"An eye for an eye will make the whole world blind," said Mahatma Gandhi. Instead of blood-for-blood, his suggestion for reconciliation to perpetrators of crime during communal riots was to atone for their sins by adopting an orphaned child from the other community and bringing up the child in the culture and tradition of the other community. This not only ensures atonement of regret/remorse for an entire life, but also does away with a situation where money can buy justice.

The preaching's of the Buddha and the Jain Tirthankara's among many others restrain us from killing a mosquito. Live, and let live! A tall order!

[Update: 31 July 2015]
A recent case
Yesterday, one of the convicts in the 1993 Mumbai serial bomb blasts where more than 250 people died and thousands were injured, was sent to the gallows in India after a protracted legal battle. Proponents are of the view that this falls under the 'rarest of rare' cases while opponents against death penalty are of the view that some benefit of doubt could have been shown in the case because the major perpetrator of the crime are some others.

I applaud the opponents in trying all possible available legal channels to this specific case. Nevertheless, the argument is weak from the larger perspective because it agrees that the major perpetrators of the crime should be sent to the gallows and it is only a matter of interpretation of who is one of the major perpetrators.

The legal system in India also needs to be applauded for the fact that many perpetrators of the 1993 Mumbai serial blasts including some who were involved in planting the bombs have not been given the death sentence because they were not identified as the major perpetrators. It has shown restraint in ordering the death sentence.

As indicated earlier, interpretation of law can differ from situation to situation and from individual positions. This, however, does not mean that opponents of death penalty are taking a position in support of a perpetrator of crime. They are arguing from an ethical prism in support of life when opposing death penalty.

Final points
Laws and their interpretations can have some grey area. Agreement is not possible between the proponents and opponents of death penalty. But, in the comity of nations, from a rights perspective, the balance of arguments are in favour of the ethical imperative.

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