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.

Blood-for-blood

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.

Remembering Angulimala, Buddha and Ignorance

Today, I recall the story of Angulimala, a dreaded bandit who killed people and cut their fingers (anguli) and formed a garland (mala) that he wore around his neck. In the past, the society had been unkind to him by disowning him for no fault of his and as a vengeance he showed no mercy. When Buddha heard about Angulimala, he went to meet him. Angulimala, as was his wont, intended to kill the Buddha and cut his fingers, but ended up being his disciple. As a monk, Angulimala went to villages for alms, but on one occasion he was beaten up and left for dead. By this time, Angulimala had already overcome his remorse over his past misdeeds and also did not show any anger and retaliation. When asked, he said that "the people did not know what they were doing in the same way that he did not know what he did." These are acts of ignorance. I was reminded of the story because of a happening during the day (Friday, 13 September 2013). 

A special court gave the verdict of death sentence to four perpetrators of a heinous gang rape that took place on 16 December 2012 at the national capital region of Delhi in India. I must confess, with whatever little knowledge of criminology I have, that the brutality and ease with which the perpetrator committed the crime suggests that at least some of them would be repeat offenders. The prosecution has failed to unravel this and the popular discourse has also missed this.

While there would be no two opinion on the crime being rarest-of-rare, but then does this mean that as a society we bring in typologies of rape and as an extension end up being immune to or legitimise certain kinds of rape. In particular, those that do not appeal to our public consciousness.

The special court and prosecution need to be appreciated for taking only nine months from the date of crime to arrive at a verdict. However, we should not loose sight that there are umpteen cases that have been languishing for years. This certainly is an area of reform that the courts should undertake.

It is also quite well-known that a large number of rapes (that are largely not reported) take place by known individuals - family members, neighbours, and colleagues among others. There are instances where a compromise is arrived at a social level when the rapist ends up marrying the survivor - what a travesty of justice.  And then there is the case of marital rape, which is not acknowledged under the Indian system. We need to come up with social and legal measures to address these.

One really does not understand why an equal (rather, more than equal) perpetrator in crime can be reformed in three-years time because he was of 17 years while committing the crime while those who are 19 and 20 years cannot be reformed. Assuming that the former can be reformed, what are the steps taken to ensure that such a thing happens by the time the individual is freed.

In the euphoria, we are forgetting that as per the principles of jurisprudence, the convicts have a right to appeal in the higher courts. A right that the surviving perpetrator of terrorist attack (of Mumbai in November 2008) also had.

One should also know that in the comity of nations, India is among the few, that is against banning capital punishment. I want to desist from getting into a discussion on this because the real issues in the current context, as indicated above, are something else.

Well, I do agree that we do not have the Buddha in our midst to change the multitude of Angulimalas roaming around freely. However, as a society, it is a challenge for us to come up with systems that change these Angulimalas while not giving any preferential treatment to some of them over the others.

Monkeying with Brain Activity Data

In The Art of Living: Vipassana Meditation as taught by S N Goenka, William Hart discusses Lord Budddha's observation 2500 years ago of how in a body (including the brain) "Particles continuously arise and vanish, passing into and out of existence, like a flow of vibrations." Thus, the body as also the brain is always in a state of activity. Modern scientists agree to this. That this has not led them to get out of suffering is another matter. What is more, an experiment on brain activity in Monkeys has led to a debate on usage, interpretation and ownership rights of data.

The experiment was carried out in the Max Planc Institute for Biological Cybernatics (MPIBC) at the Physiology of Cognitive Processes Department headed by Professor Nikos K. Logothetis. Amir Shmuel (who was associated with the project as a post-doctoral scholar) and David A. Leopold (who was also earlier associated with the department/institute as a post-doctoral but not as part of this project) came together to write a paper Neuronal correlates of spontaneous fluctuations in fMRI signals in monkey visual cortex: Implications for functional connectivity at rest, Human Brain Mapping, 29 (7): 751-761 (2008).

In fact, the earlier abstract version which was orally presented in a conference did not have Leoplod as a co-author but included Logothetis and two of his other colleagues. Based on the presentation, the editor of Human Brain Mapping invited a paper for consideration in the special issue on 'Endogenous Brain Oscillations and Networks in Functional MRI'. At this stage, Logothetis was of the view that the data collected were not appropriate for this kind of work - the monkeys were exposed to a flickering screen and one cannot consider them to be at rest.

Meanwhile Shmuel got in touch with Leopold and they both wrote the paper. After six weeks of acceptance, Shmuel got in touch with Logothetis who declined to be associated with the work but also raised questions on the methodological aspects and propriety of data usage. On writing to the Max Plank Society (MPS), Professor Herbert Jäckle, a development biologist, acted as a mediator with both parties agreeing that Shmuel can use data for a project that he was associated with.

Logothetis, was however, of the view that the paper should not have been published and should be retracted because of methodological difficulties. See the response How not to study spontaneous activity, NeuroImage, 45 (4): 1080-1089 (2009).

The differences led the editors of Human Brain Mapping to come up with a policy on data usage and post a paper Protecting peer review: Correspondence chronology and ethical analysis regarding Logothetis vs. Shmuel and Leopold, Human Brain Mapping, 30 (2): 347-354 (2009).

Max Plank Society thought that the institute has not been appropriately portrayed and their right to respond has been unfairly delayed. Thus they have uploaded to MPIBC site the one-page Preface - Letter to the Editors, a supporting document The other side of the coin: A factual analysis of the HBM editorial, and communications leading to The history of publication of the one-page letter. The editors of Human Brain Mapping (HBM) would be responding as indicated in the Nature News Society sues journal over right to reply.

This debate has raised a number of issues. The hierarchy between Principal Investigators and other younger colleagues. Data collection should follow certain accepted norms and this may require appropriate institutional set up. Once collected, researchers should have access to it. And, of course, the methodological issues.

There are instances in social sciences as well as health sciences where international agencies or well-endowed researchers in the developed countries take the help of colleagues in developing countries but do not involve them in the post-collection analysis and publication process. These have serious consequences on limiting career opportunities for those who collect data and as a result on the reliability of data. Creating a divide between those who collect data and those who interpret data (based on statistical tools and techniques) has another serious implication. The analysis of data may be superficial in terms of ground level understanding.

Recently I came across a very interesting anecdote. A researcher who had purchased some unit level secondary data and used it for some collaborative exercise with other colleagues. When the other colleagues used the data for a different purpose (which was illegal) the owner of the data (purchaser) considered it to be his/her right to demand and get authorship. Wait a minute, someone said that conflict of interest led to a co-operative outcome. Wow!

Gandhiji's Monkeys convey: "Please do not mess around with our data. It will lead to seeing evil, hearing evil and speaking evil." The 21st Century Monkeys of Gandhiji.