Death Penalty

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DEATH PENALTY

CRIMINOLOGY Page 1

CRIMINOLOGY

AN ASSIGNMENT
ON
‘DEATH PENALTY’






SUBMITTED BY:
YASH CHANDEL
BA.LL.B HONS. Vth SEMESTER

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ACKNOWLEDGEMENT

I express my deepest sense of gratitude to my reverend guide, Professor
,JamiaMilliaIslamia , New Delhi for his countenance advice, adherent interest
and pain taking nature.
He spent no pains in correcting and expertly evaluating my project work. It is
pleasant opportunity to pay my regards and sincere thanks to sir for his valuable
support, guidance and immediate help whenever I approached him.
Finally, I wish to thanks my parents and colleagues for their pleasant
cooperation, support and encouragement.
YASH CHANDEL
III year
BA.LL.B (H)



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CONTENT
 ACKNOWLEDGEMENT
 INTRODUCTION
 MEANING OF DEATH PENALTY
 HISTORY OF DEATH PENALTY
 DETERRENT THEORY
 RETRIBUTION THEORY
 REBUTTAL TO RETRIBUTION
 CONCLUSION
 BIBLIOGRAPHY

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INTRODUCTION:
MEANING OF DEATH PENALTY -:
1. The Supreme Court of India ruled in 1983 that the death penalty should be imposed
only in "the rarest of rare cases."

2. Capital crimes are murder, gang robbery with murder, abetting the suicide of a
child or insane person, waging war against the nation, and abetting mutiny by a
member of the armed forces.

3. Since 1989, the death penalty has also been legal for a second offense 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.

4. Recently the Indian Supreme Court in Swamy Sharaddananda v. State of Karnataka
made imposing the death penalty even harder. The judgement holds that the “rarest
of the rare” test prescribed in Bachchan Singh’s case was diluted in the Machchi
Singh case. The judgement then goes on to say that the “rarest of the rare” must be
measured not only in qualitative but also in quantitative terms.

5. India's top court has recommend the death penalty be extended to those found guilty
of committing so-called "honour killings" with the Supreme Court stating that
honour killings fall within the "rarest of the rare" category and deserves to be a
capital crime.

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HISTORY OF DEATH PENALTY -:
1. Official government statistics claim that only 52 people had been executed since
independence, but the People's Union for Civil Liberties cited information has
suggested that the total number of executions since independence may be as high as
3,000 to 4,300.

2. About 29 mercy petitions are pending before the president, some of them from 1992.
These include that of three assassins of Rajiv Gandhi (in a bombing which caused
14 other deaths), Khalistan Liberation Force terrorist Davinder Singh Bhullar
who was convicted for killing nine persons and injuring 31, the cases of slain forest
brigand Veerappan's four associates—Simon, Gnanprakasham, Meesekar Madaiah
and Bilvendran—for killing 21 policemen in 1993 ; Gurdev Singh, Satnam Singh,
Para Singh and Sarabjit Singh, given death penalty for killing 17 persons in a
village in Amritsar in 1991 ; and one Praveen Kumar for killing four members of
his family in Mangalore in 1994.

3. Many more are on death row after having been sentenced to die by lower courts, but
on appeal most of them are likely to be commuted to life imprisonment by the
State High Courts or the Supreme Court of India.

4. That due to the absence of sentencing guidelines in what constitutes "rarest of the
rare", in some less gruesome murders, the lower courts have awarded death
sentences possibly due to poor defence presented by the lawyers of the
economically backward.
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5. The death penalty is carried out by hanging. After a 1983 challenge to this method,
the Supreme Court ruled that hanging did not involve torture, barbarity,
humiliation or degradation.

6. Mohammad Afzal (Afzal Guru) was convicted of conspiracy in connection with the
2001 Indian Parliament attack and was sentenced to death. The Supreme Court of
India upheld the sentence, ruling that the attack "shocked the conscience of the
society at large." Afzal was scheduled to be executed on October 20, 2006, but the
sentence was stayed. The Afzal case remains a volatile political issue.

7. On May 3, 2010, Ajmal Kasab was found guilty of numerous charges and was
sentenced to death on 4 counts.

8. On Thu, May 6 02:18 PM A Mumbai Special Court, which conducted the trial of
26/11 terror strikes, announced the death penalty for Ajmal Amir Kasab, the lone
surviving terrorist. The sentencing by Judge M L Tahiliyani makes Kasab the 52nd
person on death row in India. Kasab was handed capital punishment for killing 72
people and waging war against the state.
In its recent judgment in Mulla v State of UP, the Supreme Court has continued with the
trend of emphasising the extremely limited scope of the rarest of rare doctrine first formulated
in Bachan Singh.
This blog has noted J ustice Sinha's contribution to the death penalty debate, where he
repeatedly emphasised the fundamental precondition in Bachan Singh---that rarest of rare case
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will be one where 'the alternative option [of life imprisonment] is unquestionably
foreclosed.' We have also previously looked at his landmark judgment in Santosh Bariyar in
some detail. J ustice Sathasivam's judgment in Mulla seems to be informed by a similar spirit.
A few extracts from the judgment follow:
The following propositions emerge from Bachan Singh case
(i) of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death
sentence must be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of the crime and all
the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just balance
has to be struck between the aggravating and the mitigating circumstances before the option
is exercised.
In order to apply these guidelines inter alia the following questions may be asked and
answered:
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(a) Is there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which
speak in favour of the offender?
This Court in Bachhan Singh's case (supra) has held that:
"A real and abiding concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed."
Therefore, it is open for the court to grant a death penalty in an extremely narrow set of
cases, which is signified by the phrase `rarest of the rare'. This rarest of the rare test relates
to "special reasons" under Section 354(3). Importantly, as the Court held, this route is open
to the Court only when there is no other punishment which may be alternatively given. This
results in the death penalty being an exception in sentencing, especially in the case where
some other punishment can suffice. It was in this context that the Court had noted:

"The expression "special reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave circumstances of the particular
case relating to the crime as well as the criminal"

Another factor which unfortunately has been left out in much judicial decision-making in
sentencing is the socio-economic factors leading to crime. We at no stage suggest that
economic depravity justify moral depravity, but we certainly recognize that in the real world,
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such factors may lead a person to crime. The 48th report of the Law Commission also
reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,
but they may amount to mitigating circumstances. Socio-economic factors lead us to another
related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to
note that a criminal who commits crimes due to his economic backwardness is most likely to
reform. This court on many previous occasions has held that this ability to reform amount to
a mitigating factor in cases of death penalty.
DETERRENT THEORY
The death penalty prevents future murders.
Society has always used punishment to discourage would-be criminals from unlawful action.
Since society has the highest interest in preventing murder, it should use the strongest
punishment available to deter murder, and that is the death penalty. If murderers are sentenced
to death and executed, potential murderers will think twice before killing for fear of losing
their own life.
For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of
convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac
Ehrlich employed a new kind of analysis which produced results showing that for every
inmate who was executed, 7 lives were spared because others were deterred from committing
murder.
Similar results have been produced by disciples of Ehrlich in follow-up studies. Moreover,
even if some studies regarding deterrence are inconclusive, that is only because the death
penalty is rarely used and takes years before an execution is actually carried out.
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Punishments which are swift and sure are the best deterrent. The fact that some states or
countries which do not use the death penalty have lower murder rates than jurisdictions which
do is not evidence of the failure of deterrence. States with high murder rates would have even
higher rates if they did not use the death penalty.
Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the
question of deterrence closely, 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. They fear most death
deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely
to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise
might not have been deterred. And surely the death penalty is the only penalty that could deter
prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be
arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly
not be deterred by anything else. We owe all the protection we can give to law enforcers
exposed to special risks."
Finally, the death penalty certainly "deters" the murderer who is executed. Strictly speaking,
this is a form of incapacitation, similar to the way a robber put in prison is prevented from
robbing on the streets. Vicious murderers must be killed to prevent them from murdering
again, either in prison, or in society if they should get out. Both as a deterrent and as a form of
permanent incapacitation, the death penalty helps to prevent future crime.



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Testimony in support of deterrence
Ernest van den Haag
Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from " The
Ultimate Punishment: A Defense," (Harvard Law Review Association, 1986)
“Execution of those who have committed heinous murders may deter only one murder per
year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can
think of.”
“Most abolitionists acknowledge that they would continue to favor abolition even if the death
penalty were shown to deter more murders than alternatives could deter. Abolitionists appear
to value the life of a convicted murderer or, at least, his non-execution, more highly than they
value the lives of the innocent victims who might be spared by deterring prospective
murderers.
Deterrence is not altogether decisive for me either. I would favor retention of the death
penalty as retribution even if it were shown that the threat of execution could not deter
prospective murderers not already deterred by the threat of imprisonment. Still, I believe the
death penalty, because of its finality, is more feared than imprisonment, and deters some
prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even
a few prospective victims by deterring their murderers is more important than preserving the
lives of convicted murderers because of the possibility, or even the probability, that executing
them would not deter others. Whereas the life of the victims who might be saved are valuable,
that of the murderer has only negative value, because of his crime. Surely the criminal law is
meant to protect the lives of potential victims in preference to those of actual murderers.”
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”We threaten punishments in order to deter crime. We impose them not only to make the
threats credible but also as retribution (justice) for the crimes that were not deterred. Threats
and punishments are necessary to deter and deterrence is a sufficient practical justification for
them.
Retribution is an independent moral justification. Although penalties can be unwise,
repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of
legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal
volunteered to assume the risk of receiving a legal punishment that he could have avoided by
not committing the crime. The punishment he suffers is the punishment he voluntarily risked
suffering and, therefore, it is no more unjust to him than any other event for which one
knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the
guilty criminal.”
REBUTTAL TO DETERRENCE:

The death penalty is not a proven deterrent to future murders.

Those who believe that deterrence justifies the execution of certain offenders bear the burden
of proving that the death penalty is a deterrent. The overwhelming conclusion from years of
deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of
life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists,
such as William Bowers of North-eastern University, maintain that the death penalty has the
opposite effect: that is, society is brutalized by the use of the death penalty, and this increases
the likelihood of more murder. Even most supporters of the death penalty now place little or
no weight on deterrence as a serious justification for its continued use.
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States in the United States that do not employ the death penalty generally have lower murder
rates than states that do. The same is true when the U.S. is compared to countries similar to it.
The U.S., with the death penalty, has a higher murder rate than the countries of Europe or
Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not
expect to be caught or do not carefully weigh the differences between a possible execution
and life in prison before they act. Frequently, murders are committed in moments of passion
or anger, or by criminals who are substance abusers and acted impulsively. As someone who
presided over many of Texas's executions, former Texas Attorney General Jim Mattox has
remarked, "It is my own experience that those executed in Texas were not deterred by the
existence of the death penalty law. I think in most cases you'll find that the murder was
committed under severe drug and alcohol abuse."
There is no conclusive proof that the death penalty acts as a better deterrent than the threat of
life imprisonment. A survey of the former and present presidents of the country's top
academic criminological societies found that 84% of these experts rejected the notion that
research had demonstrated any deterrent effect from the death penalty.

Once in prison, those serving life sentences often settle into a routine and are less of a threat
to commit violence than other prisoners. Moreover, most states now have a sentence of life
without parole. Prisoners who are given this sentence will never be released. Thus, the safety
of society can be assured without using the death penalty.


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RETRIBUTION THEORY:
A just society requires the death penalty for the taking of a life.
When someone takes a life, the balance of justice is disturbed. Unless that balance is restored,
society succumbs to a rule of violence. Only the taking of the murderer's life restores the
balance and allows society to show convincingly that murder is an intolerable crime which
will be punished in kind.
Retribution has its basis in religious values, which have historically maintained that it is
proper to take an "eye for an eye" and a life for a life. Although the victim and the victim's
family cannot be restored to the status which preceded the murder, at least an execution brings
closure to the murderer's crime (and closure to the ordeal for the victim's family) and ensures
that the murderer will create no more victims.
For the most cruel and heinous crimes, the ones for which the death penalty is applied,
offenders deserve the worst punishment under our system of law, and that is the death
penalty. Any lesser punishment would undermine the value society places on protecting lives.
Robert Macy, District Attorney of Oklahoma City, described his concept of the need for
retribution in one case: "In 1991, a young mother was rendered helpless and made to watch as
her baby was executed. The mother was then mutilated and killed. The killer should not lie in
some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals.
For justice to prevail, some killers just need to die."


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Testimony in support of retribution
Louis P. Pojman
Author and Professor of Philosophy, U.S. Military Academy. Except from "The Death
Penalty “[Opponents of the capital punishment often put forth the following argument:]
Perhaps the murderer deserves to die, but what authority does the state have to execute him or
her? Both the Old and New Testament says, “„Vengeance is mine, I will repay,‟ says the
Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of
a human being.
The objector fails to note that the New Testament passage continues with a support of the
right of the state to execute criminals in the name of God: „Let every person be subjected to
the governing authorities. For there is no authority except from God, and those that exist have
been instituted by God. Therefore he who resists what God has appointed, and those who
resist will incur judgment.... If you do wrong, be afraid, for [the authority] does not bear the
sword in vain; he is the servant of God to execute his wrath on the wrongdoer‟ (Romans 13:
1-4). So, according to the Bible, the authority to punish, which presumably includes the death
penalty, comes from God.
But we need not appeal to a religious justification for capital punishment. We can site the
state's role in dispensing justice. Just as the state has the authority (and duty) to act justly in
allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending
its citizens from violence and crime, and in not waging unjust wars; so too does it have the
authority, flowing from its mission to promote justice and the good of its people, to punish the
criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed,
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especially if it will likely deter would-be murderers, the state has a duty to execute those
convicted of first-degree murder.”
REBUTTAL TO RETRIBUTION:
The death penalty is not a just response for the taking of a life.
Retribution is another word for revenge. Although our first instinct may be to inflict
immediate pain on someone who wrongs us, the standards of a mature society demand a more
measured response.
The emotional impulse for revenge is not a sufficient justification for invoking a system of
capital punishment, with all its accompanying problems and risks. Our laws and criminal
justice system should lead us to higher principles that demonstrate a complete respect for life,
even the life of a murderer. Encouraging our basest motives of revenge, which ends in another
killing, extends the chain of violence. Allowing executions sanctions killing as a form of 'pay-
back.' Many victims' families denounce the use of the death penalty. Using an execution to try
to right the wrong of their loss is an affront to them and only causes more pain. For example,
Bud Welch's daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his
first reaction was to wish that those who committed this terrible crime be killed, he ultimately
realized that such killing "is simply vengeance; and it was vengeance that killed Julie....
Vengeance is a strong and natural emotion. But it has no place in our justice system."
The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has
never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of
a murderer is a similarly disproportionate punishment, especially in light of the fact that the
U.S. executes only a small percentage of those convicted of murder.
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CONCLUSION
The Indian penal code provides for capital punishment for criminal conspiracy, waging or
attempting to wage war against the Government of India, abetment of mutiny giving or
fabricating false capital evidence in officers leading to the conviction, abetment of suicide
committed by a child or insane or delirious person or a person who is intoxicated and murder
in decoity.
In India, death penalty is discretionary rather than mandatory in all capital offences except in
case of murder by a life correct Section 303 of an IPC lays down "whoever, being under
sentence of imprisonment for life, commits murder shall be punished with death."
For various capital offences the judges no doubt take into account the background of the
crime, the age of the offender and the mental and physical condition of the accused.
Moreover the appellate courts also show some leniency. And top of all there is the executive
clemency exercised by the President of India. The fail that only 25 to 40 percent of convicted
offenders are hanged every year, goes to prove that both of judicial process and executive
clemency are available to a significant percentage of offenders condemned to death.
The recent announcement by the Government that it was not in favour of abolishing the death
penalty has again highlighted the question raised by many human rights activists. Is it
consistent with human dignity?
The opposition to abolition of the death penalty stems from the myth that it will lead an
increase in the number of murders. The fact is that in the state of Travancore there were 162
murders between 1946 and 1950 when the death penalty was not in force, But in the five
years from 1950 when it was re-imposed, there were 967 murderers.
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It has been argued that it is not possible to fight such crimes by framing law. What we need is
to target the root of the crime. Discontent in a society is one of the reasons for such crimes.
Those who do not support capital punishment often quite ignore incidents like Mumbai or
attack on Andhra Pradesh Chief Minister's convoy in Tirupati. But we should remember that
terrorist and suicidal maniacs responsible for the blasts and other such crimes also do not care
about the extremely of punishment. They are already beyond the pale of humanity and have to
be fought using innovative ideas and methods of counter terrorists.
It was 1931 where the death penalty was seriously challenged in the Bihar Assembly. A
member of the Assembly unsuccessfully sought to introduce a bill seeking its abolition. In
1946, on the eve of independence the then Union Home Minister stated that the Government
did not think it was to abolish capital punishment. Ten years late when the government asked
the states for their opinions; most of them expressed support for the death penalty.
In the 35th report produced in 1967 the Law Commission took the view that capital
punishment acted as a deterrent to crime. But the statistics did not prove these so called
deterrent have any effect the Supreme Court traditionally has not questioned the death
sentence per se. In the Jagmohan Singh case (1973) it agreed with the Law Commission that
capital punishment should be retained.
But subsequently cases such as those of Eliga Anawana (1974) and Rajender Prasad (1979)
saw dissenting voices being raised in the Apex Court. These led (1980) case by Constitution
Bench. The Bench concluded by four to one vote that the death penalty did -not violate
Article 14 or Article 21 of the constitution. But some liberal judges tried to develop the
alternative by holding that the consent could involve Article 21 in the event of the death
sentence not being carried out even after two years and demanded that it be quashed.
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Amnesty International, a strong opponent of the death penalty world wide, cites the Boldus
report prepared in the U.S. to argue that capital punishment is socially oppressive. It found,
that if the homicide victims were white, the killers were four times more likely to get the
death sentences that if those murdered were black.
It can not be disputed that the outcome of any trial depends to a large extent on the quality of
legal advice that the accused receive. This loads the scales in favour of the rich the
arbitrariness of the sentencing mechanism in India persuades one to strongly argue against
releasing the death penalty but it is the Parliament who has the right to take capital
punishment.


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BIBLIOGRAPHY
 "The Penalty of Death," by H.L. Mencken - Classic Essays
 Www.preservearticles.com
 Ahmad siddique’s criminology & penology
 N.V. Paranjape, Criminology and Penology

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