Sages of the New Covenant
The Indian judicial system goes to enormous lengths before allowing a death sentence to be carried out. All the appeals, motions, hearings, briefs, etc. monopolize much of the time of judges, attorneys, and other court employees as well as use up courtrooms & facilities. This is time & space that could be used for other unresolved matters. The court system is tremendously backed up. This would help move things along.
".... rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in case of death sentence can be made, I would much rather support the abolition of death sentence itself. That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether."
- Dr Ambeddkar
"However careful may be the safeguards erected by the law before death penalty can be imposed, it is impossible to eliminate the chance of judicial murder ... the possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility and it is not at all unlikely that so long as death penalty remains a constitutionally valid alternative, the court or the State acting through the instrumentality of the court may have on its conscience the blood of an innocent man."- Justice Bhagwati
"I have never seen a death penalty case on appeal before this court in which the defendant was well represented at trial."
- Justice Ruth Bader Ginsberg, US Supreme Court
Legal-aid rules require senior lawyers be appointed for all possible death-sentence cases, but this is rarely done. Raw inexperienced juniors are roped in for cases that would make seniors baulk. Not surprisingly, appellate courts often remand such cases back to trial courts because the prisoner was not defended in any meaningful way. But more such cases fall through the cracks. It is hardly surprising therefore that most cases of miscarriage of justice, wrongful convictions and executions have been defended at some stage on legal aid. Death-sentence prisoners handicapped by poverty are doomed ab initio by a system that pays legal-aid lawyers a pittance for their work.
George McFarland, sentenced to death in 1992, was represented by an attorney who admitted sleeping during parts of the trial: "I'm 72 years old. I customarily take a short nap in the afternoon." The trial judge commented that: "The Constitution says everyone's entitled to the attorney of their choice. The Constitution does not say the lawyer has to be awake."
It often draws top talent lawyers who will work for little or no cost due to the publicity of the case and their personal beliefs against the morality of the death penalty, increasing the chances a technicality or a manipulated judge will release a guilt person.
Top attorneys are world-class manipulators. They know how to cover up facts and misdirect thinking. They know how to select judges sympathetic to their side. They know how to find obscure technicalities and use any other means necessary to get their client off without any punishment. Luckily, most criminal defendants cannot afford to hire these top guns; they must make do with a low-paid public defender or some other cheaper attorney. However, a death penalty case changes everything. First of all, a death penalty case almost always garners significant media attention. Lawyers want that exposure, which enhances their name recognition & reputation for potential future plaintiffs and defendants. Second of all, thousands of attorneys have made their personal crusade in life the stomping out of the death penalty. Entire organizations have sprung up to fight death penalty cases, often providing all the funding for a legal defense.
“The death sentence was as unusual and cruel as being struck by lightning. One does not know whom it will strike; it cannot be anticipated or guarded against.”
- Justice Potter Stewart, (Case of Furman, 1972)
Judges are human beings and are bound to make mistakes. There is a time-honored principle of not confirming the death penalty if one of the judges on the Bench or any of the lower courts had either acquitted the accused or sentenced him to life imprisonment. A case where a judge either acquits the accused or awards a lesser sentence cannot “unquestionably” be a ‘rarest of rare’ case where a lesser sentence is not an option. However, in Krishna Mochi (2002) and again in Bhullar (2002), the Supreme Court confirmed the death sentence despite one of the judges having acquitted the appellants. In Kheraj Ram (2003) and Satish (2005), the Supreme Court imposed the death sentence on persons acquitted by the High Courts. The Supreme Court has also found in Swamy Shradananda that lot of subjectivity has crept into the process of sentencing in death sentences cases.
A study of Supreme Court judgments in death penalty cases from 1950 to 2006 (“Lethal lottery: The death penalty in India” ) by Amnesty International and the People’s Union for Civil Liberties (PUCL) shows that cases in which the death penalty was imposed are often indistinguishable from those in which it was commuted. Nothing has changed since then. The following verdicts support this view:
"The question may well be asked by the accused: "Am I to live or die depending upon the way the Benches are constituted from time to time? Is that not clearly violative of the fundamental guarantees enshrined in Article 14 & 21?"
- Justice Bhagwati (Bachan Singh Vs State of Punjab - AIT 1982 SC 1325)
A.R. Blackshield’s study (1972-1976) evidences disparities among judges. Justice Pasayat’s conviction rate of about 73 per cent was significantly higher than the collective conviction rate (19 per cent) of other judges during his tenure. Thus, a case not allotted to Justice Pasayat’s Bench was about four times more likely to escape capital punishment. A death-penalty case had an almost equal chance of being heard by Justice Pasayat’s or Justice Sinha’s Bench, but the convict’s chances of living were almost 100 per cent if his case was allotted to the latter instead of the former. A prisoner’s chances of living were better by more than 50 per cent if his case was allotted to Justice Balakrishnan’s Bench rather than Justice Pasayat’s Bench. Would a death sentence appellant not be justified in asking, “Am I to live or die on the basis of the constitution of the Bench and not the evidence in the case? Is that justice according to law?” So, getting a soft judge is like the Russian roulette.
There is no HOT STOVE approach in awarding death penalty. The aggravating and mitigating circumstances are subjected to the ‘eye of the beholder’; and judges become victims to their perception of the scene of the crime, while deciding the ‘rarest of the rare’. Harbans Singh’s case (1982) vividly illustrates this.
In October 1975, the Allahabad High Court confirmed the death sentence imposed by the trial court on Jeeta Singh, Kashmira Singh and Harbans Singh for playing equal roles in murdering four members of a family. Each of them challenged their sentence separately before the Supreme Court. While Jeeta Singh’s appeal was dismissed by a Bench of three judges (Justices Y.V. Chandrachud, V.R. Krishna Iyer and N.L. Untwalia) and he was hanged, a different Bench of two judges (Justices M. Fazal Ali and P.N. Bhagwati) commuted Kashmira Singh’s death sentence to life imprisonment. Another Supreme Court Bench dismissed Harbans Singh’s appeal and review petition though he had sought equal treatment with Kashmira, and he was scheduled to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution and recommended presidential clemency, which was granted.
“Whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of [the] death penalty arbitrary and capricious”. - Justice Bhagwati
The death penalty is like a lottery, in which fairness always loses. Who gets the death penalty is largely determined, not by the severity of the crime, but by: the race, sex, and economic class of the prisoner and victim, public opinion, the quality of defense counsel and vagaries in the legal process. The rampant uncertainty has made death sentencing a game of Russian roulette.
Anyone who follows the news can point to similar disparities. Would the outcome be much different if we decided for life or death by rolling dice or spinning a roulette wheel?
There are several documented cases where DNA testing showed that innocent people were put to death by the government. We have an imperfect justice system where poor defendants are given minimal legal attention by often lesser qualified individuals. Some would blame the court system, not that death penalty itself for the problems, but we can't risk mistakes.
Since the death penalty cannot be awarded with consistency and fairness it must be abolished, for without these prerequisites, judicially sanctioned killings are not meaningfully different from vengeful murder.
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Sages of the New Covenant