Is Death Penalty Deterrent Against Crime?

Author: - Shivalika Verma

3rd Year BBA LL.B
BVDU, New Law College, Pune

1. INTRODUCTION

Society has always used punishment to deter potential criminals from undertaking unlawful measures. The highest priority of any legal system is to prevent crime and protect its citizens. Thus, the law prescribes the death penalty as the strongest punishment which is supposed to deter a criminal from committing a crime. Capital punishment or the death penalty is a government-authorised punishment whereby an individual is hung to death as a punishment for a crime. It is believed that if offenders are sentenced to death, they will think twice before committing any offence because of the fear of losing their own life.

Capital punishment is regarded as the highest form of penalty awardable to an accused. It first emerged in Egypt, around 16th century B.C., and was recorded in the Babylonian Code of Hammurabi in the 18th century B.C. Romans also imposed the death penalty for peculiar ‘crimes’ like on those who disturbed the peace of the city at night or who published insulting songs. However, they also used death and battle as a source of entertainment which was quite evident by their gladiator battles and sea battles in the Coliseum.

In the case of Bachan Singh v. the State of Punjab[1], the Constitutional Bench of the Supreme Court opined the dictum of “rarest of rare cases”. As per this, the death penalty is not to be awarded except in the rarest of rare cases, when the substitute option is certainly foreclosed. In other words, cases where crimes have been committed in a cold-blooded or barbaric fashion. Indian law believes that permitting criminals guilty of having committed well-indented, cold-blooded, and brutal crimes, to run away with a lesser punishment will divest the law of its efficacy and result in travesty of justice.

2. CAPITAL PUNISHMENT AND INDIAN PENAL CODE

Deterrence is considered to be the only objective behind the death penalty as per Indian law. The Indian Penal Code prescribes ‘death’ as punishment for various offences, to which the offenders may be sentenced. These offences are:

  • Section 121: Waging War against the Government of India
  • Section 132: Abetting Mutiny which was committed
  • Section 194: Giving or fabricating false evidence upon which an innocent person suffers death
  • Section 302: Murder
  • Section 303: Punishment for murder by life convict. But this section was put to an end by the Supreme Court of India in the case of Mithu v. State of Punjab[2] as being unconstitutional and void.
  • Section 305: Abetment of suicide of a minor, insane; or intoxicated person
  • Section 307: Attempt to murder by a person serving life imprisonment, if the hurt is caused
  • Section 376 A: Punishment for causing death or resulting in a persistent vegetative state of the victim
  • Section 376 AB: Punishment for rape on a woman under twelve years of age
  • Section 376 DB: Punishment for gang rape on a woman under twelve years of age
  • Section 376 E: Punishment for repeat offenders
  • Section 396: Dacoity accompanied by murder

 

Some other criminal statutes provide for the death penalty as punishment as well. These are:

  • Direct or indirect abetment of sati which attracts the death penalty under the Sati (Prevention) Act, 1987
  • Giving false evidence leading to the execution of an innocent member belonging to the SC or ST can lead to the death penalty under SC and ST (Prevention of Atrocities Act), 1989
  • Rape of a minor below 12 years of age is punishable with the death penalty under the POCSO Act
  • Financing, producing, manufacturing, and the sale of certain drugs provides for the death penalty for repeat offenders under the NDPS Act, 1985
  • Commission of an organized crime resulting in the death of a person is punishable with death under the Maharashtra Control of Organized Crime Act, 1999
  • Unlawful Activities (Prevention) Act, 1967; Army, Navy, and Air Force Acts also provide the death penalty as punishment for certain described offences committed by members of the armed forces.

 

3. CONTRARIAN VIEWS

“In light of the massive amount of evidence before us, I see no alternative but to conclude that capital punishment cannot be justified based on its deterrent effect.” ~Justice Marshall, U.S. Supreme Court (Furman v. Georgia, 1972)

“Contrary to the views of some social theorists, I am convinced that the death penalty can be an effective deterrent against specific crimes.” ~ Richard M. Nixon (1973)

This has always been a topic of passionate debate and discussion for ages. Some believe that the death penalty has reduced crimes, while others do not agree with this connotation.

The latest issue of the Journal of Criminal Law and Criminology contains a study[3] by Michael Radelet and Traci Lacock, a Sociology professor and a graduate student respectively, at the University of Colorado-Boulder, who have examined the diverse opinions of leading criminology experts on the deterrence effects of the death penalty. 

In favour of the connotation – The death penalty tends to deter crime:

  • (If the death penalty increases = Crime decreases) {Inverse relationship between the death penalty and crime}

A well-known professor of Jurisprudence at Fordham University, Ernest van den Haag studied this concept of deterrence closely and wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else.”

According to him, the death penalty is the supreme form of punishment which will aid in deterring crime rates to a great extent. The basic idea behind giving the death penalty is to generate fear in the mind of criminals for the potentially criminal activities they may contemplate and/or end up committing.

Against the connotation- The death penalty does not tend to deter crime:

  • (If Death penalty increases = Crimes remains unaffected)

Death as a punishment has been abolished in most of the developed nations. Even the global moratorium against the death penalty was passed at United Nations General Assembly resolution on18 December 2007.

A famous politician, Shashi Tharoor has also quoted that “studies and statistics support the view that there is no direct correlation between the death penalty and deterrence.” 

He is one of the few Indian politicians who stated his opinion against the death penalty in the Yakub Memon hanging.[4]

An overwhelming majority of scientists agree that the death penalty has no deterrent effect. These scientists felt the same way over ten years ago, and nothing has changed since then.  States without the death penalty continue to have notably fewer crime rates than those that retain capital punishment. Thus, the results reveal that most experts do not accept that the death penalty or the carrying out of executions serve as deterrents to the crimes, nor do they believe that existing empirical research reinforces the deterrence theory.

In India also, in the majority of the cases, death was replaced by the punishment of life imprisonment, while some convicts were acquitted by the appellate courts. Death has been stipulated as a punishment for murder ever since the Indian Penal Code, 1860 was being drafted by Lord Macaulay. Yet, murders continue unabated in this vast land. Likewise, the death penalty has been authorized in rape cases since the year 2013 under Section 376A of the Indian Penal Code. Despite this, rapes statistics continue to rise every year, as the ferocity of rapes has increased manifold as they are now even accompanied by murder. This impels one to think whether the death penalty is truly a potent deterrent to crimes.

4. CONCLUSION

In the opinion of the author as well, the punishment of the penalty has no deterrent effect on the minds of potential perpetrators. It only removes a few criminals from our society but does not do anything to result in a deterrence of the crime rates. Capital punishment is merciless, immoral, unjust, and highly discriminatory in practice. We need to revamp and correct our morals as a society through the means of value-education. Fundamental beliefs and thought process of the people needs to be targeted and changed, to reduce crime rates in the country.

 

References:

[1] AIR 1980 SC 898.

[2]AIR 1983 SC 473.

[3] DO EXECUTIONS LOWER HOMICIDE RATES?: THE VIEWS OF LEADING CRIMINOLOGISTS,

https://files.deathpenaltyinfo.org/legacy/files/DeterrenceStudy2009.pdf.

[4] Opinion: Hanging Yakub Memon Makes Us Murderers Too,

 https://www.ndtv.com/opinion/hanging-yakub-memon-makes-us-murderers-too-1202042.

 

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