The Question of Life and Death

The debate over the death penalty is perhaps as ancient as the punishment itself. So, it is kind of strange that we are still unsure of the propriety of something so old.

Recently in India, the fault-lines over the issue came to the fore in the case of convicted terrorist Yakub Memon. As usual, Indian democracy’s high tolerance for conflicting and unpopular opinions was on full display on mainstream and social media. Although, a lot of argumentation was primarily based on the religion of the convict – an entirely misplaced line of arguments. Even more worrying was the show of solidarity for the convict – a terrorist for sure – during his funeral procession. It was more a display of anxiety by a small section of a religious minority than an R.I.P. kind of funeral.

Away from the clamor of social media, mainly in Op-Eds, there were more nuanced discussions sans the religious prejudice and bigotry. These arguments were on the usual grounds of morality, legality, and the effectiveness of the death penalty. A more valid line of argumentation, I guess. The disagreements over these points are legitimized by their longevity. Many philosophers, scholars, and public intellectuals have been debating these points for centuries. Without any resolution, of course.

On such a complex issue, I think it’s perfectly fine to take a principled stand and choose sides according to your own moral inclination. But once you take a stand, avoid being judgmental. The complexity of the problem simply doesn’t give you a solid ground to stand and call others as immoral or misguided.

We’ll also do ourselves some good if we stop confusing someone’s opposition to the death penalty with his/her feelings towards the crime or criminal in question. One can be against the capital punishment in principle, without condoning the crime. Labeling someone as being sympathetic to a criminal is highly unproductive. You have lost the argument as soon as you resort to such tactics.

I don’t have a strong opinion on the issue and would like to get more clarity. Hence, this post. For the sake of taking a side, I am not entirely convinced by those opposing death penalty. I, for one, think that death penalty serves a well-justified purpose in the current criminal justice system.

Before I proceed further, let us get a few things out of the way. I am in no way arguing for the middle-ages like brutality. Nor am I for the Saudi-style Sharia laws where state frequently carries out public executions and beheadings. Such states, in my opinion, are still living in the dark middle ages. Someone needs to inform them about the current status of human rights and societal sensibilities.

So when I say that I support the death penalty, it is essential to understand the right context. Trying to compare death penalty laws in most countries with laws in countries like Saudi Arabia is a futile exercise. They are not the same. It’s a false equivalence. Period.

What follows from here onward is just me thinking out loud about the main arguments against capital punishment.

First, let’s take the strongest (according to me) argument of wrongful execution. This is one argument that I find hard to counter. Opponents of capital punishment often argue with statistics of innocent people that have been wrongfully convicted, mainly because of the inefficiencies in the police and judiciary. Another layer in this argument is that of judicial bias against a particular class/religion/race/community. The problem is further compounded by the irreversibility of the death penalty. Once a wrongful execution is carried out, it’s done. There is no correction mechanism here. And that’s why I feel unsure while opposing this line of argument.

But then, these are the arguments for serious judicial reforms in a country, aren’t they? Why are we confusing them with arguments against the death penalty? You can’t argue to abolish a construct when the root cause of the problem lies somewhere else. These arguments would make an excellent case for judicial reforms, perhaps not for opposing the death penalty. Isn’t it the minimum responsibility of a judicial system that an innocent is never convicted in the first place? Not even for general imprisonment, let alone for a death sentence.

Furthermore, today most of the countries including India have the ‘rarest-of-rare’ condition for the crime to be punished with death penalty. The level of legal scrutiny for such cases makes the wrongful execution almost an impossibility. So, even with all the biases and prejudices in our society, we can safely discard the wrongful execution argument.

Morality and human rights are next on the list. These might perhaps be the most discussed oppositions to the issue of capital punishment. Even some great philosophers, like Albert Camus, have opposed capital punishment. Here is Camus on the issue –

An execution is not simply death. It is just as different from the privation of life as a concentration camp is from prison. […] For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

Others question both the morality and the right of the state in taking an individual’s life. The Right to Life is considered a sacred moral principle with a belief that a human being has a right to live, and no one should take that from him.

I am not qualified enough to counter sophisticated philosophical arguments, but I have my two-cents on the matter. I see morality, Law, and human rights as entirely human constructs. These were basically devised in order to make societies function in a non-violent manner. Their origin lies in the realization that continuous violence among the members of a group is entirely non-productive. These constructs were required to check the basic instincts of human nature. This might have been one of those evolutionary stable strategies that Richard Dawkins talks about in Selfish Gene.

The constructs of morality, human rights, and Law provided us the perfect platform to build a non-violent and orderly society. But what do you do when even after such brilliant constructs in place, some individuals still break the social contract? In my opinion, if somebody breaks the human-constructed social code then he/she is effectively giving up his/her human rights, which again are a human construct. In this line of thought, there is nothing immoral in the act of punishment. It is just the price you pay for breaking the social contract. There is nothing sacrosanct or divine about either morality, Law, or human rights. These are just some human constructs that we choose to follow. That’s the take-home message here.

And so, the morality argument against death penalty doesn’t cut ice with me. Using one human construct to argue against another human construct makes the argument very fuzzy. No amount of philosophical sophistry would convince me otherwise. In any case, our commitment to building a non-violent society has led us to make a lot of changes in ways that we punish the miscreants of the society.

The old ways of torture and brutality are long gone. Similarly, barring certain exceptions, public executions are a thing of history now. The bloodthirsty crowds of the middle ages perhaps still exist in some corners of the world, but they are the exceptions, not the norm. On the whole, our attitudes towards the public display of brutality have changed for the better. We have realized that blood-thirst is an innate part of human nature and its best not to feed it by a public display of brutality. There are many checks and balances to ensure that such occurrences are a rarity. 

Another line of arguments against the death penalty is that of retribution. People argue that death penalty at its core is just vengeance. A state can not facilitate retribution, they say. I disagree. To explain the disagreement, let me elucidate what, according to me, is the purpose of punishment (under law), and the role of the state.

As I see it, punishment serves mainly three purposes in the society. First, it acts as a penalty for breaking the rules of a system. The rules as defined by Law which when broken cause a cost/penalty imposed on you. That’s the only way you can make a legal system work. Second, punishment acts as a deterrence mechanism in the society. If you punish one bad guy, it inhibits the criminal tendencies in others due to the fear of punishment. And third, it provides a sense of justice to the victims. Let’s face it, vengeance is inherent in human nature. If someone does harm to you, then Gandhi’s philosophy of non-violence is the last thing on your mind. All you want is some kind of payback and closure. And this is what you get when a convict is punished as per the law. The role of the state becomes very critical in view of this third point.

State, while implementing the Law, essentially acts as a mediator between culprits and victims. Human beings seldom react in a well thought out manner, especially when motivated by revenge. The role of the state is to ensure that proper procedures are followed to determine if a person is guilty. In absence of these procedures, the situation would be a lot more chaotic, to say the least. When a state punishes the criminal, it provides a controlled channel to the victims’ feelings of revenge. So, the argument that a state can’t be retributive is fallacious. After all, the state is just a proxy between two parties here. If the crime committed by the criminal is so heinous that only a death sentence would do justice to the feelings of vengeance in the victims, then so be it. 

There is one other issue that I wish to address here. When I say that the crime is ‘heinous’, who decides the degree of ‘heinousity’ of the crime? Of course, the state. Based on how abominable the crime is, the state decides whether it qualifies for the death penalty or not. The ‘rarest-of-rare’ condition in the Indian penal code is one such criterion. Although, it is somewhat ambiguous. I must concede this. 

These norms demand serious discussions. However, the arguments against the death penalty are often absolutist; either you are for the death penalty or against it. I fail to understand why can’t there be discussions over death penalty on a case-to-case basis. As for my personal opinion, I feel that all planned acts against the state involving mass-murders warrant punishment with a death penalty. This covers organized terrorism and riots. All the three purposes of punishment i.e. consequence-of-actions, deterrence-for-others, and vengeance-for-victims demand capital punishment for terrorists and riots-culprits.

I agree that the concept of right-to-life is like a bedrock for a non-violent society. But, as soon as a violent act takes place, the right-to-life of the criminal gets dissolved. I don’t see any problem if for the collective good of many the rights of an individual, who has chosen not to follow the social contract, are taken away by the state.

Even at the end of this long post, I am still open to being convinced otherwise. Perhaps reading more philosophy will help. This is some serious and depressing stuff. Death is an absolute. We need to ascertain whether right-to-life is an absolute or not.