This Article is written by Vanshikha Mahana ( 4th-year of B.A. LL.B (H) Criminal law student pursuing it from UPES, Dehradun)
An attempt to resolve the dubiety with
light onthe rarest of the rare doctrine.
INTRODUCTION
The death penalty has always been a contentious issue all over the world. For some, it is the most brutal and inhuman punishment having the remnants of the barbaric past. For others, death sentence is inevitable to get rid of criminals who are incorrigible, so that society can be protected and also that other potential offenders may be deterred from committing similar crimes. However, there cannot be any dispute as to the fact that the global trend is towards the abolition of this extreme penalty. Indian law still retains capital punishment for a number of offences. The decision of Bachan Singh v. State of Punjab[1] is epoch-making in this respect. Upholding the constitutional validity of death sentence, the court laid down the standards and norms to be followed in awarding capital punishment. The propositions enunciated in this case, that the death sentence can only be awarded where the court is satisfied that it is ‘a rarest of rare’ case, has time and again been reiterated by the later benches.
Thirty-three years after the Supreme Court propounded the doctrine of ‘rarest of rare’ limiting the scope for awarding death penalty to murder convicts, courts continue to struggle to objectively apply it while choosing between life imprisonment and capital punishment. The Supreme Court verdict commuting the Tandoor murder case[2] convict former Youth Congress leader Sushil Sharma’s death penalty to life imprisonment only highlights the dilemma faced by the courts.
Both the trial court and the Delhi High Court had held that NainaSahni’s murder[3] fell within the category of rarest of rare. But the SC disagreed saying, it can’t be said that the convict can’t be reformed. It was in Bachan Singh’s[4] case in 1980 that the Supreme Court came out with the rarest of rare doctrine drawing from the rationale behind Section 354(3) of the Criminal Procedure Code (CrPC) that requires a judge to record special reasons for awarding death sentence. There is no statutory definition of rarest of rare. It depends upon facts and circumstances of a particular case, the brutality of the crime, conduct of the offender, previous history of his involvement in crime, chances of reforming and integrating him into society, etc. The generally applied test is whether the survival of an orderly society demands the extinction of life of the person, who has committed the murder and whether failure to impose death sentence on him would bring to naught the sentence of death provided under Section 302 of the Indian Penal Code.
Pre-planned, heart-less, brutal, cold-blooded and sordid nature of the crime, without giving any chance to the victim are generally taken into account to decide whether a particular case falls within the parameters of rarest of rare.“Death penalty should be imposed when collective conscience of the society is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability of otherwise of retaining death penalty,” the SC said in Bachan Singh Vs. State of Punjab[5].
The crime has to be viewed from various angles — manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of crime and magnitude and personality of a victim of murder. But the manner in which the doctrine has been applied by various courts raises many questions. In the recent past, the apex court also refused to award death penalty in many cases raising eyebrows from various quarters.In addition to murder, Indian law says the death penalty can be used in crimes such as waging war against India or offering false evidence that leads to the conviction and execution of an innocent person.
The Supreme Court has said judges should weigh mitigating factors for defendants, such as whether they were mentally or emotionally disturbed at the time, or if they are young or old, or if the act was committed under the “duress or domination of another person.”[6]The guidelines give judges a lot of latitude, and as a result the death penalty isn’t applied in a coherent fashion, lawyers say. The death penalty is more likely to be given to defendants deemed to be from a lower social class, several rights lawyers contend. In 2004, the SC sent DhananjoyChatterjee[7] to the gallows for rape and murder of a minor in Kolkata.But in the Priyadarshini Mattoo rape and murder case[8], the SC in 2009 commuted the death penalty of convict Santosh Singh holding that mitigating factors outweighed aggravating factors.
MURDER
In India according to the Indian Penal Code, 1860, murder is defined as follows:
Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-
Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.[9]
CULPABLE HOMICIDE
Anyone causing the death of person other than the person whose death was intended.–If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.[10]
CAPITAL PUNISHMENT
Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone is punished in this manner is a death sentence, while the actual enforcement is an execution. Crimes that can result in the death penalty are known as capital crimes or capital offences. The term capital originates from the Latincapitalis, literally “regarding the head” (referring to execution by beheading).
Capital punishment has, in the past, been practised by most societies, as a punishment for criminals, and political or religious dissidents. Historically, the carrying out of the death sentence was often accompanied by torture, and executions were most often public.
Currently, 58 nations actively practise capital punishment, 98 countries have abolished it de jure for all crimes, 7 have abolished it for ordinary crimes only (maintain it for special circumstances such as war crimes), and 35 have abolished it de facto (have not used it for at least ten years and/or are under moratorium). Amnesty International considers most countries abolitionist; overall, the organisation considers 140 countries to be abolitionist in law or practice. About 90% of all executions in the world take place in Asia[11].
Nearly all countries in the world prohibit the execution of individuals who were under the age of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried out such executions. Executions of this kind are prohibited under international law.
Capital punishment is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or cultural region. In the European Union member states, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. The Council of Europe, which has 47 member states, also prohibits the use of the death penalty by its members.
The United Nations General Assembly has adopted, in 2007, 2008 and 2010, non-binding resolutions calling for a global moratorium on executions, with a view to eventual abolition. Although many nations have abolished capital punishment, over 60% of the world’s population live in countries where executions take place, such as the People’s Republic of China, India, the United States of America and Indonesia, the four most-populous countries in the world, which continue to apply the death penalty (although in India, Indonesia and in many US states it is rarely employed). Each of these four nations voted against the General Assembly resolutions.[12]
CAPITAL PUNISHMENT IN INDIA
India retains capital punishment for a number of serious offences. The Indian Supreme Court has allowed the death penalty to be carried out in only 4 instances since 1995.
The Supreme Court in Mithuvs State of Punjab[13] struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 52 people had been executed since independence. However, research by the People’s Union for Civil Liberties indicates that the actual number of executions is in fact much higher, as they located records of 1,422 executions in the decade from 1953 to 1963 alone[14]. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.
Under Article 21 of the Constitution of India, no person can be deprived of his life except according to the procedure established by law.
Indian Penal Code, 1860
In colonial India, death was prescribed as one of the punishments in the Indian Penal Code,1860 (IPC), and the same was retained after independence.
| Section under IPC | Nature of crime |
| 120B | Punishment of criminal conspiracy |
| 121 | Waging, or attempting to wage war, or abetting waging of war, against the Government of India |
| 132 | Abetment of mutiny |
| 194 | If an innocent person be convicted and executed in consequence of such false evidence to procure conviction of capital offence |
| 302, 303 | Murder |
| 305 | Abetment of suicide of child or insane person |
| 364A | Kidnapping for ransom |
| 396 | Dacoity with murder If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished |
| 376A | Rape/Sexual Assault An amendment in the year 2013 provided for the death penalty in case he inflicts an injury upon a woman during rape which causes her death or to be in a persistent vegetative state.[15] |
Court proceedings
The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in “the rarest of rare cases.” While stating that honour killings fall within the “rarest of the rare” category, Supreme Court has recommended the death penalty be extended to those found guilty of committing “honour killings“, which deserve to be a capital crime[16]. The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings[17].
An appeal filed in 2013 by Vikram Singh and another person[18] facing the death sentence questioned the constitutional validity of Section 364A of the Indian Penal Code.
Other legislation
In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty.
Sati is an inhumane practice involving the burning or burying alive of any widow or woman along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative. Under the Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1)[19], if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989[20] was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person’s conviction and execution, carries the death penalty. In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of “large scale narcotics trafficking”.
In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi[21], the Indian Government passed an ordinance that applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state“[22]. The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.
Clemency in the Indian Constitution
After the award of the death sentence by a sessions (trial) court, the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If this is not possible, or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned person can submit a ‘mercy petition’ to the President of India and the Governor of the State[23].
Power of the President
The present-day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor-General, the President and Governors in independent India do not have any prerogative clemency powers.
Constitutional power
Article 72(1) of the Constitution of India states:
The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
Execution of death sentence
The execution of the death sentence in India is carried out by two modes, namely hanging by the neck till death and being shot to death.
Hanging
The Code of Criminal Procedure (1898) called for the method of execution to be hanging. The same method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of the above procedure reads as “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”
Shooting[24]
The Army Act and Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court-martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-
“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he is dead or shall suffer death by being shot to death”.
This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act, 1957 also provide for similar provisions as in The Air Force Act, 1950.
THE DEATH PENALTY UNDER INTERNATIONAL LAW
While the death penalty is not prohibited by the International Covenant on Civil and Political Rights (ICCPR) or any other virtually universal international treaty, there are a number of instruments in force with fewer states parties that do abolish capital punishment. Similarly, international customary law does not prohibit the death penalty at the current time, but custom is rapidly changing towards a position in favour of worldwide abolition.
At the international level, the most important treaty provision relating to the death penalty is Article 6 of the ICCPR. At the time the ICCPR was drafted (1947-1966), just ten countries had abolished the death penalty, but extensive debate nonetheless took place as to its status under the covenant[25].
Article 6 of the ICCPR states:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries that have not abolished the death penalty, a sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
It is clear from this article that there are a number of strict limitations on the imposition of the death penalty, including (but not limited to) the following:
• Right to a fair trial before the imposition of the death penalty;
• Limitation of the death penalty to only the most serious crimes;
• Prohibition against imposing the death penalty when other ICCPR rights have been violated;
• Prohibition against the retroactive imposition of the death penalty;
• Right to seek pardon or commutation of a death penalty sentence;
• Prohibition against the execution of persons who were under the age of eighteen at the time the offence was committed; and
• Prohibition against the execution of pregnant women.
In addition to these limitations, other customary limits are emerging, including (but not limited to) trends towards the abolition of executing the mentally ill and mothers with dependant infants.
The first three limitations remain vague and controversial, so it is helpful to examine some of these issues in greater depth.
‘Arbitrarily deprived’ – the right to a fair trial
Article 6 demands a fair trial before the imposition of the death penalty under two heads: the protection against being ‘arbitrarily deprived of one’s life; and the requirement that the death penalty not be imposed when the Covenant is otherwise breached. This has been interpreted by the Human Rights Committee (the body responsible for monitoring States Parties compliance with the ICCPR ), to mean that in all capital trials a fair trial that observes all the provisions of the ICCPR must be held, without which the death penalty may not be imposed. This includes recognized international requirements including (but not limited to): being informed promptly and in detail of the charges; for translation or interpretation into one’s own language to be provided; presumption of innocence; the counsel of one’s choosing; sufficient time to prepare a defence; a trial to be held without undue delay; for the hearing to be heard by an independent and impartial tribunal; and for the right of review by a higher tribunal.
This interpretation was supported and extended by the European Court of Human Rights, which stated in 2005:
In the Court’s view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed… Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention. Having regard to the rejection by the Contracting Parties of capital punishment, which is no longer seen as having any legitimate place in a democratic society, the imposition of a capital sentence in such circumstances must be considered, in itself, to amount to a form of inhuman treatment.
Limitation to ‘the most serious crimes’
Whilst the limitation of the imposition of the death penalty to the most serious crimes is an established principle of international law, it lacks definition and agreement. In 1984, the Economic and Social Council published the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, which stipulated that the most serious crimes should not go beyond intentional crimes with lethal or other extremely grave consequences. While these Safeguards are not legally binding, they were endorsed by UN General Assembly, indicating strong international support. Similarly, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated that the death penalty should be eliminated for economic crimes, drug-related offences, victimless offences, and actions relating to moral values including adultery, prostitution and sexual orientation.
However, this interpretation is contested by a number of countries, and so cannot be regarded as universally accepted. For example, some Islamic states regard adultery and apostasy as some of the most serious crimes, while other states believe the most serious crimes include political offences and economic crimes. States such as Singapore regard drug offences as among the most serious crimes. Many of these views are not supported at the international level, and the Human Rights Committee has stated specifically that the ‘imposition…of the death penalty for offences which cannot be characterised as the most serious, including apostasy, committing a homosexual act, illicit sex, embezzlement by officials, and theft by force, is incompatible with Article 6 of the Covenant’. Other areas remain in contention. While the Committee’s findings are non-binding, they are nonetheless highly persuasive in interpreting the ICCPR, particularly when read in conjunction with the Safeguards endorsed by the General Assembly and the UN Special Rapporteur’s position.
However interpreted, it is clear that this provision restricts the application of the death penalty to a very limited number of crimes. Consequently, under international law, the death penalty must only be used as an exceptional measure, carried out under strict conditions.
Breaches of other human rights in the imposition of the death penalty
The assertion that the death penalty constitutes torture or cruel, inhuman or degrading treatment is gaining ground. These human rights breaches may occur in the period following sentencing and before execution, (which is known commonly in the United States as the ‘death row phenomenon’), in the method of execution, or in the loss of life itself.
The European Court of Human Rights found that the death row phenomenon in the United States constituted cruel, inhuman or degrading treatment in Soering v the United Kingdom and Germany, as did the Judicial Committee of the Privy Council in Pratt et al v Attorney-General for Jamaica et al. However, this has caused concern, as the Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions have noted that such criticisms are only likely to result in the limitation of appeals.
Various methods of execution have also been identified as unacceptable in international law. For example, the Human Rights Committee has deemed the use of the gas chamber to constitute cruel, inhuman and degrading treatment. The Human Rights Committee has also found that ‘public executions are… incompatible with human dignity. The release of the recorded executions of Saddam Hussein and his associates in 2006 was widely criticised, as were the taunts made against him in his last moments. Stonings are heavily criticised as being cruel and inhuman, particularly as the size of the stones is limited in order to prolong the suffering and death of the condemned person. The accidental decapitation of one of Saddam Hussein’s associates (considered further below) also raised objection. In the United States, a number of states have ended use of the electric chair as it is considered to be excessively painful, while debates are ongoing about the use of lethal injections. This is due to concerns that when using lethal injections, the cocktail of drugs may result in an extremely painful and slow death combined with paralysis. However, the use of lethal injection remains legal at international law at this stage.
The line between cruel, inhuman and degrading treatment and torture may be blurred. Some commentators have argued that execution is similar to torture, as it constitutes an extreme mental and physical impact on a person already under the control of the government. Under Article 1of the Convention Against Torture, torture is defined as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as…punishing him for an act he … has committed’, however it specifically excludes ‘pain or suffering arising only from, inherent in or incidental to lawful sanctions’, thereby not prohibiting the death penaltywhere applied in accordance with the law. The comparison of torture with the death penalty raises a number of questions about the logic of current international law, as threatening to kill a prisoner may be illegal, but the sentencing and actual execution of a prisoner may be lawful.Under current international law, progress towards considering the death penalty to constitute torture remains slow. It is more likely that in the near future most methods of carrying out the death penalty will be seen as a breach of the protection against cruel, inhuman or degrading treatment, and eventually, the penalty itself will be regarded as a breach of the right to life.
The international push towards abolition
In addition to the above limitations, the ICCPR encourages states to move towards total abolition of the death penalty. The Human Rights Committee has said that the ICCPR ‘strongly suggest[s] that abolition is desirable’.However, Article 6 does not make abolition mandatory under international law[26].
Despite the lack of such a mandatory requirement, movement towards abolishing the death penalty worldwide has been increasing rapidly in the last sixty years, particularly since the United Nations Declaration on Human Rights. At the beginning of the 20th century, only Costa Rica, San Marino and Venezuela had permanently abolished the death penalty. At the current time, 133 countries have abolished the death penalty in law or in practice.
The first international treaty to limit the death penalty was the 1929 Geneva Convention, which restricted it as a penalty on prisoners of war taken in armed conflict. The absence of such a prohibition from the ICCPR is explained by leading death penalty expert Professor William Schabas, who claims that the ICCPR’s goal was abolition, but it was not made mandatory due to ‘the prudence of its drafters, aware of its anomaly but fearful of alienating retentionist States and discouraging them from ratification’.
Public support for abolishing the death penalty gained ground following the huge loss of life in the Second World War, and numerous states began to move towards abolition. In the 1980s, three international instruments completely abolishing the death penalty were drafted. At great speed, the world moved towards ending capital punishment, and abolitionist states outnumbered retentionist states as early as the mid-1990s. Progress continues to this day, with an average of three countries per year abolishing the death penalty throughout the last decade. William Schabas cites an unmistakable trend towards abolition, one that is constantly growing in momentum…Customary international law does not prohibit capital punishment…but trends in State practice, in thedevelopment of international norms, and in fundamental human values suggest that it will not be true for very long.
The issue of the death penalty has clearly moved firmly into the human rights arena, and is no longer accepted as simply a national criminal justice policy issue. It has been argued that the exclusion of the death penalty by the international courts for the most heinous crimes imaginable suggests that there is now no crime serious enough to warrant the death penalty.
One example of the way in which the movement towards abolition has been growing is evident in the Human Rights Committee’s consideration of the responsibilities of abolitionist states in extradition and deportation cases. In a 2003 landmark decision, the Human Rights Committee held that Canada was obliged to ensure that the death penalty would not be carried out on a proposed deported. In this decision, the Human Rights Committee stated:
For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence will not be carried out.
This was a departure from the previous position of the Committee, which had allowed such extraditions and deportations to take place. In moving from its earlier position, the Committee stated:
Since that time there has been a broadening international consensus in favour of abolition of the death penalty, and in states which have retained the death penalty, a broadening consensus not to carry it out…The Committee considers that the Covenant should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions.
While Human Rights Committee decisions are not binding, this decision supports the assertion that the human rights discourse surrounding the death penalty is expanding. It is highly likely that, eventually, international customary law will view the death penalty as a breach of the right to life, the prohibition against torture, and the right not to be subjected to cruel, inhuman or degrading treatment
International law is clearly moving towards disallowing the death penalty and this is continuing apace. The primary human rights treaty, the ICCPR[27], encourages states to abolish the death penalty, and the Human Rights Committee has supported this encouragement with strong statements promoting abolition. International custom is also becoming increasingly abolitionist, with more states regarding the death penalty as being inconsistent with human rights standards. While the death penalty remains legal at international law at the current time, it is highly likely that progress towards abolition will continue. Arguments in favor of retaining the death penalty often appear to rely on unproven allegations, such as its deterrent effect, or focus solely on the argument that the decision to abolish or retain capital punishment remains within national sovereignty. Additional arguments relying on religious or cultural grounds appear to be criticized when investigated in-depth, and have not prevented other nations from abolition.
CAPITAL PUNISHMENT IN THE UNITED STATES OF AMERICA
Capital punishment in the United States is a legal sentence in 32 states and the federal civilian and military legal systems. Its application is limited by the Eighth Amendment to the United States Constitution to aggravated murders committed by mentally competent adults.
Capital punishment was a penalty for many felonies under English common law, and it was enforced in all of the American colonies prior to the Declaration of Independence. The methods of execution and the crimes subject to the death penalty vary by state and have changed over time. The most common method since 1976 has been lethal injection. Since capital punishment was reinstated in 1976, thirty-four states have performed executions.
In 2011, 43 inmates were executed in the United States, and 3,082 were on death row– an execution rate of less than 2%. Many states such as Texas, Oklahoma, Florida, Ohio, and Arizona regularly execute convicted murderers. Texas has performed the most executions by far, and Oklahoma has had (through mid-2011) the highest per capita execution rate.[28]
CAPITAL PUNISHMENT IN UNITED KINGDOMS
Capital punishment in the United Kingdom was used from the creation of the state in 1707 until the practice was abolished in the 20th century. The last executions in the United Kingdom were by hanging, and took place in 1964, prior to capital punishment being abolished for murder (in 1965 in Great Britain and in 1973 in Northern Ireland). Although not applied since, the death penalty was abolished in all circumstances in 1998. In 2004 the 13th Protocol to the European Convention on Human Rights became binding on the United Kingdom, prohibiting the restoration of the death penalty for as long as the UK is a party to the Convention.
Abolition
The Criminal Damage Act 1971 abolished the offence of arson in royal dockyards.
The Naval Discipline Act 1957 reduced the scope of capital espionage from “all spies for the enemy” to spies on naval ships or bases.[29] Later, the Armed Forces Act 1981 abolished the death penalty for espionage.[30](The Official Secrets Act 1911 had created another offence of espionage which carried a maximum sentence of fourteen years.)
Beheading was abolished as a method of execution for treason in 1973. However hanging remained available until 1998 when, under a House of Lords amendment to the Crime and Disorder Act 1998, proposed by Lord Archer of Sandwell, the death penalty was abolished for treason and piracy with violence, replacing it with a discretionary maximum sentence of life imprisonment. These were the last civilian offences punishable by death.
On 20 May 1998 the House of Commons voted to ratify the 6th Protocol of the European Convention on Human Rights prohibiting capital punishment except “in time of war or imminent threat of war.” The last remaining provisions for the death penalty under military jurisdiction (including in wartime) were removed when section 21(5) of the Human Rights Act 1998 came into force on 9 November 1998. On 10 October 2003, effective from 1 February 2004,[31] the UK acceded to the 13th Protocol, which prohibits the death penalty under all circumstances.
As a legacy from colonial times, several states in the West Indies still had the British Judicial Committee of the Privy Council as the court of final appeal; although the death penalty has been retained in these states, the Privy Council would sometimes delay or deny executions. Some of these states severed links with the British court system in 2001 by transferring the responsibilities of the Privy Council to the Caribbean Court of Justice, to speed up executions.
CONCLUSION
Does the Death Penalty Deter Homicide?
People murder for a variety of reasons and in different situations
eg.
- During domestic disputes, when passion are inflamed.
- Under the influence of alcohol or other drugs, when the preparatory is not in rational control
- Hit-men doing contract killings; they typically never expect to be arrested.
- Psychopaths and other mentall ill individuals who have little regard for uman life and who are unable to accept the responsibility of their actions.
- Self-destructive individuals who believe that the deserve to die and want to be arrested and executed.
- Brain-damaged individuals, who experience periods of rage, and occasionally kill.
With the exception of professional hitmen, very few people are in a rational frame of mind when they kill others. It may be hopeless to expect any form of punishment to act as a deterrent.
There are Some Indicators that the Death Penalty has no Effect:
- From 1976 to 1996, the number of excecutions per year in the United States has increased from 0 to just under 60. The homicide rate per 1,00,000 population has remained constant at just under 10.[32]
- Criminologists who belong to American Society of Criminology, the Academy of riminal justice Sciences, and the Law and Society Association were polled. Over 80% believe that our current knowledge does not indicate a deterrent effect. 75% felt that increasing the numbers of executions or decreasing time spent on death row would not result in a deterrence.[33]
- 67% of U.S. police chief do not believe that the death penalty significantly reduces the numbers the numbers of murders.
- In 1967, a study by Thorsten Sellin[34] compared the homicide rats between neighboring States in which some had the death penalty , and others did not. Sellin also compared murer rates before and after States either abolished or reinstated the death penalty. He found no statistically valid difference in rates in both cases. These rults were summarized in a book by J. Q. Wilson.[35] The study might have been affected b the numbers of executions at the time; they had dropped to near zero in the U.S., so tht even those States with deat penalty laws on the books were not exercising them fully.
- In 1998 research study conducted for the United Nations concluded: “This research has failed to provide scientific proof that executions have a greater detterent effect than life imprisonment. Such proof is likely to be forthcoming. The Evidence as a whole still gives no positive support to the deterrent hypothesis.”[36]
There are some Indicators that it Acts as a Deterrent:
- Police chief ranked the death penalty as least effective among 7 methods of reducing the homicide rate. 31% viewed reducing the usage of dugs as the most effective; 17% with a better economy and more jobs, 16% by simplifying court rules; 15% with longer prison sentence….1% by expanding the use of the death penalty.
- One writer disagrees with the belief of most sociologists that the death penalty does not deter murderers. Differing cultures in various States may produce differing homicide rates. And those Stated with the higher murder rates might also be those which retain the death penalty. He refers to:
- A study by Isaac Ehrlich which found that the murder rate responded to changes in the likelihood of execution from 1993 to 1967.[37]
- A study by Kenneth Wolpin which showed that each execution, on average, reduced the number of murders in England by 4.
[4]supra note 1
[5]Supra note 1
[9] Sec. 300, Indian Penal Code, 1860.
[10] Sec. 299, Indian Penal Code, 1860.
[11]“Abolitionist and retentionist countries”.Amnesty International.
[12]“No serious chance of repeal in those states that are actually using the death penalty”. Egovmonitor.com. 25 March 2009.
[13]VENKATESAN, V. (7 September 2012). “A case against the death penalty”.Frontline.
[14]‘Number of executions much higher than 52.'”Times of India. 10 March 2005
[15]http://indiacode.nic.in/acts-in-pdf/132013.pdf
[16]“Honour killings: India’s top court calls for death penalty”. The Sydney Morning Herald. 10 May 2011.
[17]“Hang cops involved in fake encounters: Supreme Court”. NDTV.com. 2011-08-08
[18]“Is death for kidnap and ransom fair?”.The Hindu. 5 July 2013. Retrieved 29 July 2013.
[19]“The Commission of Sati (Prevention) Act, 1987”. PART II , Punishment for offences relating to Sati.
[20]“The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.”. Chapter II , Section 2 (1).
[21]“BBC News – India president approves tough rape laws”. Bbc.co.uk. 2013-02-04.
[22]“Notorious Attack Spurs India to Approve New Rape Laws”. New York Times. 3 February 2013.
[23]Devender Pal Singh Bhullar&Anrvs State Of Nct Of Delhi on 12 April, 2013
[24]“Consultation paper on mode of execution of death sentence and incidental matters”.Law commission of India.
[25]IBAHRI Council Resolution on the Abolition of the Death Penalty, May 2008
[26]The Death Penalty Under International Law:A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty, by International Bar Association, May 2008.
[27]Inapplicability of ICCPR to Death Penalty Case, The American Journal of International Law Vol. 95, No. 4 (Oct., 2001), pp. 878-880; American Society of International Law
[28]“The Execution State?”.Oklahoma Watch. 2013-02-21
[29]“Naval Discipline Act 1957, section 93”. Statutelaw.gov.uk. Retrieved 3 September 2010.
[30]“Armed Forces Act 1981 (c. 55), section 17 – Statute Law Database”.Statutelaw.gov.uk.
[31]“Human Rights Act 1998 (Amendment) Order 2004”. Opsi.gov.uk.
[32]“Facts about deterrence and the death penalty.” At: http://www.essential.org/dpic/deter.html
[33] M. Radelet and R. Akers, “Dererrence and the Death Penalty? The views of the Experts,” (1995).
[34] T. Sellin, “Capital Punishment”. (1967).
[35] J. Q. Wilson, Thinking About Crime, 1983, pp. 181-183.
[36] R. Hood, “The Death Penalty : A World-wide Perspective”. Clarendon Press, (1996), Page 238.
[37] Isaac Ehrilch, “The Deterent Effect of Capital Punishment A Maatter of Life and Death”, American Economic Review, June 1975.
