How to answer the moral question that follows death penalty

"Justice is not a method of averaging, it is a matter of assigning to each individual his or her proper desert."

- John Hopers

I cannot understand what compassion requires a man who rapes a minor girl, sometimes as young as seven or six or five, and then kills her, be allowed to live a life - howsoever confined and constrained. Brutalised and killed, the victim is gone (even in cases where not murdered, will never be able to live a psychologically and emotionally normal life) but the assaulter lives. One can argue that even assaulter may suffer guilt pangs and might not be able to live a normal life under his guilty conscience but then he is the reason for the trauma caused to both the lives.

Or take the case of a killer who kills for the sake of money. Would such a murder qualify as "rarest of rare" to invite death penalty under Indian law? One of the most reputed lawyers of our times gained his fame and standing by portraying in the court of law, one such convict as a victim of circumstances and saving him from gallows. But is anything less than death penalty a commensurate punishment for a crime where a fellow human was murdered with the nonchalance of a fly being wasted on a wall? Even before we discuss the convicts in terror cases - a crime in an altogether different league - the debate around death penalty demands concerns wider than the bleeding heart compassion of those seeking its complete abrogation.

The argument that death penalty is retributive is an absolute non starter as all punishment in criminal jurisprudence is basically retributive. The general confusion between retribution flowing from a due legal course and crude vengeance is best addressed by the American philosopher and defender of death penalty Louis Paul Pojman "People often confuse retribution with revenge...Vengeance signifies inflicting harm on the offender out of anger because of what he has done. Retribution is the rationally-supported theory that the criminal deserves a punishment fitting the gravity of his crime". The state can reduce the quantum of punishment but it still remains retributive and as friend Pratyasha Rath rightly points out, if the element of retribution is removed from criminal justice system there remains nothing for the kith and kin of victim in it.

Again, there is a debate over the efficacy of severity of punishments acting as deterrent. The abolitionists contend it is the certainty of punishment and not the severity which acts as a deterrent. The counter argument is that the absence of both severity and certainty is further detrimental to the society and that we will be best with a judicial system which is speedy, efficient and stern at the same time. However, this whole "either-or" argument is a false dilemma which is peripheral to the real moral question in this debate.

A central feature of a lawful society is state through its courts meting out justice on behalf of the kith and kin of victims. The idea obviously is to contain chaos and whimsical retribution if it was left to individuals or groups but proportionality in punishment is a fundamental feature of criminal jurisprudence which simply cannot be ignored. Just as death penalty for shoplifting would be atrocious, a first degree murderer being let off with a social service sentence, in hope of a character reform, will be a gross travesty on the other side.

This brings us to the second and more central argument forwarded by death penalty abolitionists which is that state cannot be as barbaric as criminals and that death penalty undermines the sanctity of human life. While state may attempt reformation of convicts in some cases, it also bears the burden of responsibility for the potential criminality of convicts who are released or forcibly freed out of incarceration. The rights of convicts in such heinous cases obviously stand forfeited for having broken the code of civilised living and the state is under obligation to be just prudent. Psychopaths and so also terrorists ready to lay down their lives for an ideology which they consider dearer than modern constitutions pose a recurring threat and anything short of death penalty in such cases puts the society at grave risk.

As regards the sanctity of human life being undermined by death penalty it would be interesting to read foremost liberal and utilitarian John Stuart Mill at some length. "Much has been said of the sanctity of human life and the absurdity of supposing that we can teach respect for life by ourselves destroying it. But I am surprised at the employment of this argument, for it is one which might be brought against any punishment whatever. It is not human life only, not human life as such, that ought to be sacred to us, but human feelings. The human capacity of suffering is what we should cause to be respected, not the mere capacity of existing. And we may imagine somebody asking how we can teach people not to inflict suffering by ourselves inflicting it? But to this I should answer - all of us would answer - that to deter by suffering from inflicting suffering is not only possible, but the very purpose of penal justice."

A death penalty in deserving cases is in fact an affirmation of the sanctity of human life. It affirms society's collective value in human life much after it is dead. This remembrance not only marks the underpinnings of our civilised being but also the loftiness of human ideals. To me, considering the dead a material expedient at the stake of some facile compassion is actually lowering the sanctity of human life. I am for revising the scope of death penalty as what might constitute "rarest of rare" today may not be considered so tomorrow just because more number of similar cases are reported. It would rather be that a category of crime dictated death penalty than the advocates convincing justices of the rarity of the crime.

It is not just cases of terror - which is a war on society and should be requited as such - but capital murders or aggravated murders and even rapes of minors below a certain age which should invite death penalty. In an age which had not yet been intellectually inundated by the facetiousness of pretentious liberalism, Hegel had said "Although requital cannot simply be made specifically equal to the crime, the case is otherwise with murder, which is of necessity liable to the death penalty; the reason is that since life is the full compass of a man's existence, the punishment here cannot simply consist in a 'value', for none is great enough, but can consist only in taking away a second life." Obviously not for all cases of murder but this should be the moral position guiding us in categories of crimes mentioned above.