Retributive disposition rarely afflicts reasonable people in their personal lives as far as a moral or ethical (nonlegal, nonenforceable) breach is concerned. If somebody betrays us, and are not transparent, we are unlikely to betray them in return — we are more likely to seek the truth from the betrayer.
The same goes for trust — if somebody hasn’t been trustworthy, we are unlikely to in turn be untrustworthy towards them. Instead we seek to expose their lies.
If somebody has wronged us, we, personally, rarely, wish to wrong them as compensation. We might think (sometimes even hope) that bad things should happen to them, but we, ourselves, are unlikely to perpetrate it — we are afraid that that will make us no better than them. That by doing so we would face undesirable consequences resulting in a continuous game of reprisal due to which our loved ones might fail to recognise us; where we would, ourselves fail to recognise who we have become.
What we often seek to do is to find and expose the truth to other people, not perhaps for the sake of truth, but for the very instrumental role that truth can play. In the hope that they will be ostracised from all that helps them flourish, from society, from friends, and institutions, etc.
While what I have claimed is restricted to the realm of moral and ethical norms or violations of law which are relatively minor — breaking a contract, say which has personal but nonsocial ramifications, not keeping your word, breaking a promise, lying, and such. But if someone whom we love is physically hurt, we hope that the perpetrators face the consequences of their wrongdoing.
When it comes to wrongs that are primarily moral or ethical, or are minor violations of law — the truth seems to play a role in how we treat the rule breakers, but when it comes to severe rule breaking, we, as a society, seek redemption through retribution, reprisal for the sake of reprisal, infliction of pain for the sake of inflicting pain. When crimes get more severe, we tend to become vengeful. The value of truth in our minds diminishes with respect to the severity of the crime.
The motivation or the reasoning by which we come to conclusions about how the life of a murderer or a rapist ought to go is guided not so much by empirical evidences regarding the deterrence effect of death penalty, nor by the philosophical arguments concerning the virtues of reformation.
Instead, our reasoning is guided by inflicting commensurate harm for the crimes that were committed, even after the threat they pose has been neutralised. We know from empirical work that the effect on deterrence the death penalty imposes is gravely questionable regarding the subsequent rates of the commitment of severe crimes.
In a highly cited paper “Uses and Abuses of Empirical Evidence in the Death Penalty” (2006), Donohue III and Wolfers, in the context of the US, find that death penalty does not have large effects on the murder rate. Furthermore, in a very recent global study (2015) about death penalty, Roger Hood and Carolyn Hoyle, after studying the US context, reach a stronger conclusion that it shouldn’t be readily accepted that grave crimes like murder are deterred any more by death penalty than life imprisionment.
I am not aware of any such sophisticated econometric study that has taken place in the Indian context, we do urgently need one, but we can reasonably hypothesise by looking at evidence elsewhere that we might reach the same conclusions; the deterrent effect of death penalty is seriously questionable.
Regardless of the efficacy of the death sentence on deterrence, we must ask ourselves that when those individuals who have committed grave crimes remain neutralised by incarceration, by demanding that they be killed: what more are we seeking?
Justices Pinaki C Ghose and R F Nariman, in a recent judgement (2017), rehearsing the 262nd Law Commission report held that the death penalty “breaches the reformative theory of punishment under criminal law”.
Contrary to the reformative philosophy that guided the aforementioned judgement, the Supreme Court in its judgement of the Nirbhaya rape case held that “deterrent punishment [must be] commensurate with the gravity of the offence to be awarded”, that the courts “should impose punishments befitting the crime so that it reflects public abhorrence of the crime”. The philosophical thrust of a true Republic is that it prohibits law to respond directly to public outrage.
The death penalty permits the State to kill threats that have already been neutralised: if law did not permit it, would we think differently? If the death penalty did not seek to appease the “collective conscience”, would we ask more questions?
Many ‘arguments’ that one sees circulate about the justification of the death penalty is a simplistic one: ‘oh but the law allows it’. In our minds, however, the question should be a counterfactual one: if the law didn’t allow it, then what would our arguments be for the State to begin allowing it?
By attempting to answer this question for each and every case where the death penalty is involved, we might become more reflective on the reasons that underlie our demands for somebody to be killed. By asking this question, I think, we might come closer to truth.
This article was previously published in Indian National Interest