Argumentative Essay Against Capital

Punishment
If there are people who are in favor of capital punishment, there are also those who want it to be
abolished. According to the Abolitionists, capital punishment is nothing but an act of
violence. There is nothing more inhumane than tolerating the killing of another human being. It is
indeed very paradoxical that the state will allow the execution of a human person as a solution to
crime and violence. It is said that: “legalized homicide as punishment is generally inconsistent with
the values it is presumed to protect, and in a broader context is demeaning of the dignity of human
life. “ (Capital Punishment: British Columbia Civil Liberties Association, p.1)

Violence will never be the right solution to the rising criminality. It bears stressing that when the
society tolerates execution as a solution to criminality, in effect, we are leaving an imprint on the
minds of the youth that the proper approach to violence is to impose violence. Violence begets
violence. It is sad that when this happens we are legitimizing violence in our society. Thus, the
Abolitionists argue that capital punishment should be abolished because it degrades the value of
human life.

Capital punishment is also perceived to be beneficial for the society because it deters the criminal
from committing another crime and it prevents the other criminals from committing the same
crime. It must however be emphasized that until now there has been no scientific literature that
will prove that there is a causal connection or a cause and effect relationship between capital
punishment and the commission of a crime.

Further, there is empirical research that will prove that a great majority of crimes being committed
in our contemporary society are either crimes of passion or crimes that are not premeditated or
planned. Logic will tell us that if a crime is committed in a fit of rage and anger then the thought of
being executed for a would-be criminal offender will not serve any deterrent purpose because at
the time of the commission of the crime he is no longer capable of making rational calculations
about the benefits and disadvantages of his actions.
The third objection against capital punishment is that it is always possible that an inmate who is on
death row may turn out to be innocent. There are flaws in every criminal justice system. We adopt
the adversarial system wherein the prosecution and defense have sufficient freedom to control the
manner and process of presenting evidence. In this system, the judge acts merely as a passive
arbiter who ensures that everything is in order and decides on the issues presented to him. In this
system, the prosecution lawyers in their haste to “win” their case, more often than not, are obsessed
not with finding the truth but with the conviction of the accused. The public prosecutors, on the
other hand, are already burdened with the number of cases they are currently handling that they
can no longer adequately defend the cause of the accused.

The result is that we have a justice system wherein only those who can afford the best lawyers can
be adequately represented or defended in court. In this justice system the accused is at the mercy
of the public prosecutor. Thus it is not surprising that most people who are languishing in jail are
those living below the poverty line who have no means to pay for a competent lawyer to defend
themselves in a court of law. On the other hand, those who are financially capable can hire skilled
lawyers who can assist and defend them. Thus, Christina Swarns (2004) states that:

“The primary reason for this economic disparity is that the poor are systematically denied access
to well-trained and adequately funded lawyers. Capital defense is now a highly specialized field
requiring practitioners to successfully negotiate minefield upon mine field of exacting and arcane
death-penalty law. Any misstep along the way can literally mean death for the client” (Christina
Swarns p 3)

Death penalty is a process that is irreversible. Once it is imposed it can no longer be taken back
by the state. In the past, there have always been cases where a convict was perceived by the
public to have been arbitrarily imposed the capital punishment. (Bryan Vila, & Cynthia Morris,
p.169) It bears stressing that when a person is sentenced to death, he can no longer be benefited
by any amendments in laws. Likewise, he can no longer be benefited by the possibility that new
evidence will be discovered that will exonerate him. It bears stressing that no less than scientific
evidence has in the past been used to reverse past convictions. A study conducted by Bruce
Robinson (2002) states that at least 350 people between 1900 and 1985 in America might have
been innocent of the crime for which they were convicted, and could have been sentenced to
death.” (Bruce Robinson, p.2)

One of the principal international human rights instruments, the International Covenant on Civil and
Political Rights, adopted by the United Nations General Aasembly in 1966, transformed the laconic
and in some sense equivocal ‘right to life’ provision found in article 3 of the Universal Declaration
into a complex text that recognises capital punishment as an exception or limitation on the right to
life.9 Article 6 of the Covenant affirms the ‘inherent right to life’, adding that it cannot be ‘arbitrarily
deprived’. But in a subsequent paragraph, the Covenant states:
In countries which have not abolished the death penalty, 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.
The provision goes on to state that anyone sentenced to death be entitled to seek amnesty, pardon
or commutation of sentence, and to prohibit the death penalty for persons under eighteen at the
time of commission of the crime11 and for pregnant women. A final paragraph, really more
programmatic than normative, declares: ‘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.’ The
Covenant is currently ratified by approximately 150 States, and its principles are therefore
approaching near-universal acceptance.
The Convention on the Rights of the Child, adopted in 1989, states: ‘Neither capital punishment
nor life imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age’. The Convention on the Rights of the Child has been ratified
by essentially the whole world.
Charter of the United Nations, art. 2(7). 9 International Covenant on Civil and Political Rights,
(1976) 999 UNTS 171, art. 6. 10 Ibid., art. 6(2). 11 Convention on the Rights of the Child, GA Res.
44/25, annex, art. 37(a), also prohibits execution for crimes committed under the age of eighteen.
It has been ratified by 192 countries, and signed but not ratified by the United States of America.
Schabas / Abolition of Capital Punishment and International Law Page with the exception of the
United States, which signed it without reservation in 1995. Even signatories to international treaties
are required ‘to refrain from acts which would defeat the object and purpose of a treaty’.12 At the
beginning of the 1990s, Amnesty International reported that several countries continued to execute
persons for crimes committed while under the age of eighteen. Since then, both Pakistan and
Yemen have abandoned the practice, explaining this as an initiative consistent with their obligations
under the Convention on the Rights of the Child. It is now believed that only the United States and
Iran continue to execute juvenile offenders. In parallel to the United Nations instruments, regional
human rights systems have also emerged in Europe, the Americas, Africa and the Arab world. In
each, there is a general international treaty similar to the International Covenant on Civil and
Political Rights. All four instruments recognise the right to life. Three of them resemble the
Covenant in that they treat the death penalty as a limitation or exception to the right to life, while
the fourth is simply silent on the subject. The first of the regional treaties to be adopted, the
European Convention on Human Rights, actually predates the International Covenant on Civil and
Political Rights by several years. It was drafted in 1950 by a handful of Western European States,
members of the Council of Europe at the time, although its reach has now extended to forty-one
parties with the dramatic expansion of the organization in the 1990s. Like the International
Covenant, the European Convention allows capital punishment as an exception to the right to
life.13 The ‘right to life’ provision in the American Convention on Human Rights, adopted in 1969,
rather closely resembles the text of article 6 of the International Covenant on Civil and Political
Rights, but with two significant changes, both of them further limiting the scope of capital
punishment. In addition to pregnant women and juveniles, capital punishment is also prohibited in
the case of persons over seventy years of age. Furthermore, the Convention specifies explicitly
that ‘[t]he death penalty shall not be reestablished in states that have abolished it’, something that
is only implicit in the Covenant.14 The African Charter of Human and Peoples’ Rights, recognises
the right to life but says nothing about capital punishment. Most commentators conclude that
capital punishment must be an implied limitation upon the right to life, given the still-widespread
use of the death penalty within Africa.15 However, under a dynamic interpretation informed by
jurisprudential developments like the judgment of the South African Constitutional Court abolishing
the death penalty,16 it is now argued that the African Charter also mandates abolition.17 The Arab
Charter of Human Rights, adopted in 1994 by the League of Arab States but not yet in force, allows
the death penalty in the case of ‘serious violations of general law’, prohibits its use for political
crimes, and excludes it for crimes committed under the age of eighteen and for both pregnant
women and nursing mothers, for a period of up to two years following childbirth.

In India, in 1814, there were three cases of boys of eight, nine, and eleven years who were
hanged. In the Mughal period, torturous methods were used in the execution of condemned
criminals.

However, today there are a very few crimes for which death penalty is imposed. Four
characteristics of capital punishment may be pointed out or our country: (1) Capital
punishment is given only for (selected) seven crimes. (2) Hanging in the presence of public is
totally abolished. (3) No painful methods are used in executing death sentence. (4) Capital
punishment is awarded only by a governing authority.

The Indian Penal Code recognises capital punishment under eight sections (121, 132, 194, 302,
303, 305, 307, and 396) for different offences. Article 21 of the Indian Constitution provides
that "no person shall be deprived of his life and personal liberty except according to the
procedure established by law."

On the basis of this article, the constitutional validity of capital punishment has been accepted
by our Supreme Court on several occasions, if the procedure adopted is "just, fair, and
reasonable" and is not "fanciful, oppressive, or arbitrary". There was a proposal in mid 1999
from some sources that capital punishment should be awarded to rapists.

However, this view has not been accepted by many. Even the National Commission for Women
in its recommendation made in April 2000 did not recommend capital punishment for rape.

This recommendation was made on the basis of opinions expressed by social workers, victims
of rape, counselors, psychiatrists, NGOs, etc., in 16 workshops organised by State Women's
Commissions in different parts of the country. Only four workshops recommended capital
punishment, 10 were against it and two did not express any specific opinion.

The first successful effort for abolishing capital punishment in India was made in Travancore
in 1944 but it was reintroduced in 1950. The number of persons awarded capital punishment
by the courts in Travancore was 159 in 1950,168 in 1951 and 170 in 1952.

In 1956, a bill was introduced in the Lok Sabha by one Agrawal for abolishing capital
punishment but it was rejected by Parliament in 1961. The then Deputy Minister for Home
Affairs (Mrs. Violet Alva) intervening in the debate on the resolution had said:

A correct assessment of the situation in the country rather than sentiment should guide our
approach to this question. Since the crime situation continues to be serious, the time was not
ripe to do away with capital punishment, though principles underlying the demand for its
abolition may be accepted (The Hindustan Times, September 10, 1961).

In 1963, the Law Commission was asked to look into the question of abolishing capital
punishment. It gave its recommendations in November 1971 and turned down the idea of
abolition. In 1980, five judges of the Supreme Court of India discussed its justification. Of
these, four were in favour of retaining it, while one was in favour of abolishing it.

At present, capital punishment in India is given for seven crimes. These are: murder, dacoity
coupled with murder, war against the state, false evidence which results in capital punishment
to an innocent person, instigating a minor or an insane person to commit suicide, and leaking
out secrets to other countries.

Though capital punishment is still sanctioned in our country, yet four types of persons are
exempted from it: (i) children below 15 years of age, (ii) pregnant women, (iii) mentally
deranged persons, and (iv) persons above 70 years of age. There is also a provision for
appealing to the President for mercy after the Supreme Court rejects appeals.

The Indian Constitution provides for altering the death sentence into life imprisonment if
there was prolonged delay in the execution of death sentence.

Such cases occurred in 1944 (in the case of one Piare Dusadh when he awaited the execution
of death sentence for over a year), in 1974 in Andhra Pradesh (in the case of Edigo Anamma
who awaited execution for two years), in 1978 in Uttar Pradesh (in the case of Bhagan Bux
Singh who awaited execution for two and a half years), in 1978 in Uttar Pradesh , (in the case
of Sadhu Singh who awaited execution for three and a half years), in 1983 in Tamil Nadu (in
the case of S.M. Fazal Ali who awaited execution for eight years) (Cf. Jaswal and Jaswal, Social
Defence, January 1986, 30-35).

However, the Supreme Court also said in one case in 1983 that in every case in which there is
a long delay in execution of death sentence, the sentence need not be substituted by sentence
of life imprisonment.

Because of two different rulings of the Supreme Court, confusion prevailed for two years in the
courts but in 1985 it was again ruled by the Supreme Court that if there was a prolonged delay
of two years or more in the execution of death sentence, the accused could invoke the law
(Article 21) and get the sentence substituted.
The number of persons admitted with death sentence in India was 843 (830 males and 13
females) in 1959 and 791 (785 males and 6 females) in 1960. However, the actual number of
persons executed was 190 (188 males and 2 females) in 1959 and 210 (all males) in 1960. In
1982, 56.4 thousand persons were arrested for 23,339 murders (Crime in India, 1993).

Of these cases, trial was completed only in 14,000 (28%) cases, of which 6,335 (i.e., 45%)
were convicted, 200 (i.e., 37%) were given death penalty but only 64 (i.e., 0.3%) were actually
hanged.

In 1998, 81,093 persons were arrested (77,649 or 95.8% males and 3,444 or 4.2% females)
for 38,653 murders (ibid., 1998: 271).

Of these, trial was completed in 63,974 cases (including pending cases), of which 20,396
were convicted and 134 were awarded capital punishment. But hardly 20 were hanged. Thus,
in the last two-three decades, the number of persons actually executed has sharply come
down.

A study was conducted in America in 1958 by Elma Rober on attitudes towards capital
punishment. He found that 50 per cent respondents were opposed to death penalty, 42 per
cent were in favour of death penalty, and 8 per cent expressed no opinion.

In 1972, the Supreme Court of America declared death penalty unconstitutional but in 1976,
the Supreme Court heard new arguments and ruled that death penalty was not
unconstitutional per se. between 1967 and 1976; there were no legal executions at all in the
country. Today, only thirteen states in the United States have retained capital punishment
while all others have abolished it.

Since capital punishment is usually associated with the crime of murder, the questions
criminologists ask are: why do people commit murder and what type of persons actually kill?
David Abrahamsen (1952: 184) is of the opinion that murder is caused by frustration which is
caused by financial inadequacy, social inadequacy (long accumulated bitterness), sexual
inadequacy, and intellectual inadequacy.

The reasons for committing murders in India are analysed as: personal vendetta or enmity
(14.5%), property disputes (10.6%), love affairs (6.9%), dowry (2.8%), gain (4.7%), sexual
causes (6.0%), communalism (31.9%) and other motives (22.6%) (1998: 122).

Explaining the type of persons who kill, Barnes and Teeters (1943: 317) have classified
murderers into three groups:

(i) Those who suffer from serious physical, mental, and cultural deficiencies that make it
possible for them to contemplate murder as a more or less natural form of conduct. Their point
of view is so defective, judged by socially approved standards, that the hatred against taking
human life, which exists in the normal individual, is more or less absent in their case;

(ii) Those who are relatively normal physically, mentally, culturally but are subjected to
difficult or inciting emotional situations which lead them to commit murder, whereas under
normal circumstances, they would lead a law-abiding existence;

(iii) The professional gunmen in the matter of taking life bear close resemblance in their
mental habits to army personnel.

Their attitude towards the taking of human life is very much like that of the soldier on the
battlefield, namely, it is taken as a matter of course not involving any personal responsibility.

Capital Punishment
"If we are to abolish the death penalty, I should like to see the first step taken by my friends
the murderers." ALPHONSE KARR. This sums up the emotions and opinions of most in
support of the death sentence as an appropriate means of punishment for hardened criminals.

The basic purpose of criminal laws of any nation is the reformation of offenders and not
retribution. But it is also the responsibility of the same state to protect the interests of the
society at large and reiterate the society's faith in system of justice and capital punishment
may be a means to this end.
There may be many reasons for any crime. At some times the crimes are committed
voluntarily or for enjoyment due to bad mentality whereas on some places these are
committed under any compulsion, under sudden and grave provocation or accident. The
punishment in Indian law is based on mens-rea i.e. mental condition of a person at the time
of commission of the offence. If a person commits crime willfully only to feed his greed or lust
which may be for money, sex or any other type of other achievement putting in danger the
whole society then to satisfy the cry of the society then he needs stringent punishment.

From the study of history, we can see the prevalence of capital punishment since time
immemorial, which includes death by hanging the offender in public, lethal injections,
electrocution etc. The punishment has since been abolished by almost 139 countries of the
world and amongst those who retain it, partially or wholly include countries in Asia including
India, Pakistan and China, Latin America and Caribbean including Trinidad & Tobago and
Cuba, North America including the USA. The reasons in favour of retaining capital
punishment include safety (of society), deterrence and costs (of maintaining such criminals
in the prisons). It can be seen that capital punishment is an appropriate penalty for many
offenders who are perpetrators of the inhuman act of killing people with utmost impunity and
disregard for human life.

The use of capital punishment is also viewed as a means of vengeance for the victims/
families of the victims of such barbaric acts. But this is far from being the aim of capital
punishment as it is not always possible to hand out the sentence in every instance where the
family/ the public at large believe that it is the most suitable punishment. A good example of
the same is the Indian case involving Dara Singh who burned alive Mr. Graham Staines, an
Australian missionary and his 8 year old son in 1999. The Supreme Court, dismissing the
CBI's plea for death sentence said that the case did not fall within the framework of 'rarest of
rare cases'.

In India, the legal framework for use of Capital punishment is laid down in the Indian Penal
Code which permits use of capital punishment for murder in the 'rarest of rare cases'. Section
302 of the Indian Penal Code says that a person committing murder shall be punished with
death, or [imprisonment for life] and shall also be liable to fine. There are also some other
offences for which the death penalty has been provided. The sparing use of this sentence in
the country is also in conformance with its obligation of judicious use of this penalty as a party
to the International Covenant for Civil and Political Rights (ICCPR). The country's judiciary
uses this punishment upon an unequivocal establishment of the culpability of the offender/
offence in a case before it which, the court believes truly falls within the definition of the 'rarest
of rare case'.

It is, however, interesting to note that despite the punishment being handed down by the
courts, both the lower and appellate ones, not many have been carried out. According to
official statistics, only 1 sentence, that of Dhananjoy Chatterji in 2004 was carried out since
the execution of 'Auto' Shankar in 1995. And the execution in 2004 has been the last in the
country. Death sentences have recently been handed down to rapist Umesh, where the
Supreme Court confirmed the death penalty handed down by the Karnataka High Court and
in the case of Surinder Koli, the serial killer who committed the heinous act of strangulating
young girls and raping their dead bodies. Such cases defy the laws of basic human courtesy
towards the dead and the death sentence is seen as a welcome punishment by many. Further
to this, Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks in 2008 is also
sentenced to death. Another terrorist Yakoob Memon has been executed recently in 2015
who was convict of Mumbai Blasts. Now they both have been executed.

India has been hesitant in abolishing capital punishment and had even voted against a United
Nations General Assembly resolution in 2007 calling for moratorium on the death penalty.
This action is justified and even people's consensus is in favour of retaining the same with
over 70% of the public voting for continuing the usage of death penalty as a means of
punishment. Although nothing is more inhuman than taking away the human life, Capital
punishment meted out to offenders who show no remorse for their barbaric actions may set
an example in the society of the consequences of such an act and incite fear in the minds of
anyone contemplating a similarly hideous act. The liberty of life of a person cannot be at the
cost of another or in most cases several others in the society. Therefore, capital punishment
meted out to serial killers, rapists and terrorists, who have no consideration for human life
and are blinded by lust, power and misguided by unethical considerations restores the
people's faith in the judicial system. However, the judiciary has an obligation to be prudent in
the use of this sentence and act upon a well-founded and unbiased judgement in its decisions.
To conclude, every act performed in moderation always results in greater good for oneself
and the people around.