Death Penalty is Not the An­swer

Southasia - - The Last Stop - By Anees Jil­lani Anees Jil­lani is an ad­vo­cate of the Supreme Court and a mem­ber of the Washington, DC Bar. He has been writ­ing for var­i­ous pub­li­ca­tions for more than 20 years and has au­thored sev­eral books.

On Fe­bru­ary 3, 2013, the In­dian Pres­i­dent pro­mul­gated the Crim­i­nal Law (Amend­ment) Or­di­nance 2013, which de­fines and out­lines the pro­ce­dures to de­ter sex­ual crimes against women. The fact that the Government had to do it through an or­di­nance, which is rare in In­dia, showed the ur­gency of the mat­ter. It was un­der­stand­able given the out­break of un­prece­dented protests all over the coun­try, par­tic­u­larly in New Delhi, fol­low­ing the rape, and later the death, of a 23-year old girl in De­cem­ber.

There is no doubt that rape and sex­ual abuse is an ex­tremely heinous crime. How­ever, folks ask­ing for a death sen­tence for this crime must re­al­ize that such a se­vere penalty may en­dan­ger the lives of the vic­tims.

I re­al­ize how peo­ple feel about a heinous crime and their feel­ings for the vic­tim and her fam­ily. I also value their ha­tred for the crim­i­nal. How­ever, at the same time, we should be ap­pre­cia­tive of the prac­ti­cal ex­i­gen­cies. For ex­am­ple, in Pak­istan, it is a crime pun­ish­able by death to pa­rade women naked in pub­lic; this amend­ment was en­forced af­ter some feu­dal pa­raded land­less, naked fe­male farm­ers in Nawabpur, Pun­jab. What law­mak­ers failed to re­al­ize was that if the crime of parad­ing is death, then the crim­i­nal might as well shoot his vic­tim af­ter the pa­rade: there can­not be a more se­vere pun­ish­ment than death.

A few decades ago, two young­sters car­jacked a po­lice ve­hi­cle at gun point in Cal­i­for­nia and with it the two po­lice­men in the ve­hi­cle. They were only in­ter­ested in the car, so they parked it next to an onion field and asked the po­lice­men to run away. Just then, one car­jacker told his mate about a new law in Cal­i­for­nia un­der which any­one kid­nap­ping a po­lice­man would face the death sen­tence. The other man promptly shot both the po­lice­men dead. Even­tu­ally, both men were ar­rested but the in­ci­dent led to a fu­ri­ous de­bate in Cal­i­for­nia that even­tu­ally re­sulted in law­mak­ers re­peal­ing the manda­tory death pun­ish­ment pro­vi­sion from the law. The episode in­spired the movie Onion Fields.

The in­ci­dent de­picts a com­mon sense propo­si­tion that if a crim­i­nal finds out that the sen­tence for the lesser of­fense he or she is com­mit­ting is also death then there is noth­ing stop­ping the crim­i­nal from killing his vic­tim to re­move all traces of ev­i­dence.

One may go into the causes of the high rates of rape in In­dia. Ad­dress­ing them is the re­spon­si­bil­ity of the government and the so­ci­ety. How­ever, one pri­mary rea­son rape may be so com­mon is the lack of de­ter­rence as far as pun­ish­ment is con­cerned. The tri­als should be quick and ef­fec­tive. There is no ex­cuse not to ap­point more judges and es­tab­lish more courts. In­dia has a huge pop­u­la­tion and it thus re­quires ad­di­tional courts. This iron­i­cally does not even re­quire re­sources as the le­gal sys­tem gen­er­ates its own re­sources in the form of court fees and is thus self-sus­tain­able. The courts should also start award­ing costs to the victorious party as is done in the West.

I am of the opin­ion that much can be ac­com­plished in de­ter­ring rape by sim­ply in­tro­duc­ing dras­tic le­gal re­forms and fast-track or speedy courts. It is a mis­con­cep­tion that cap­i­tal pun­ish­ment de­ters crimes. It does not. The in­sti­tu­tion of death sen­tence has been in vogue since time im­memo­rial and has been on the statute books in In­dia since the in­tro­duc­tion of the Pe­nal Code in 1860. It has not re­sulted in elim­i­nat­ing mur­ders. We should, in this re­gard, keep in mind the sit­u­a­tion in the Scan­di­na­vian coun­tries where there is no cap­i­tal pun­ish­ment and the rate of mur­der is one of the low­est in the world.

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