On capital punishment and violation of moral rights

The post contains links to disturbing content so if you’re having a good day or intend to have one, close the tab and move on to something else.

Troy Davis was executed this week in Georgia under bizarre circumstances. Details are here and here. The victim’s family claim he’s the killer, Troy maintained his innocence to his last breath. Witnesses recanted testimonies, courts stalled the execution thrice and the third time it went to the Supreme Court who then issued a unanimous verdict to disallow a stay of execution. And so Troy Davis breathed his last, with no one except the courts and Officer MacPhail’s family certain of his guilt.

On Twitter we lamented the fact that a case with ambiguity was allowed to result in the death penalty. Unavoidably, conversation drifted to the death penalty itself. I haven’t had to re-examine my views on capital punishment since “Dead Man Walking”. I’m a supporter of capital punishment and the movie made me question that point of view. My conversations on Twitter also compelled me to evaluate my stand and justify it. (That said, if arguments on the internet were capable of solving a problem, mankind would’ve ended itself out of boredom by now.)

I was swayed by graphic accounts of how capital punishments are conducted, the many ways they can go wrong, the suffering of the individual and the solemn, torturous ritual involved. But the only argument against capital punishment I found compelling enough to respond to is that it’s immoral. A violation of a person’s right to live. Regarding this moral absolute I completely agree that it is fundamentally wrong to take a life – whether it is the accused or the state responsible. However, if everyone followed moral absolutes, we would have no need for laws, much less capital punishment. So allow me to respectfully disagree with the morality argument because it only applies if everyone universally adheres to it. We don’t.

The reason we don’t (and I grossly oversimplify) is that the practice of absolute morality conflicts with reality where a living being has to compete for limited resources with other living beings. Only the self-actualized or the divinely ascetic may afford to live by a stringent moral code. The rest of us are fallible, selfish and those sentiments will eventually cause conflict. Conflict may be resolved peacefully or through violence. Laws help us formulate our response to such conflicts. Society, through laws, may impose minor punitive action, incarceration for a limited period of time in the hope of redemption or incarceration for life involving crimes of severity. In the rarest of rare cases, society may choose to rescind the right to live. I agree that the last statement smacks of high-handedness. But for me, there need to be three necessary conditions where state-sanctioned execution is understandable (never justified, only understandable)

1. Where the crime is of a brutal and unremorseful nature so as to set a precedent for the accused’s actions and intent

2. There is absolutely no ambiguity that the accused was responsible for the crime

3. There is a distinct possibility that freeing or keeping the accused alive carries significant threat to the citizens of that state

Point 3 is important because it carries with it the judgment of threat perception. During my discussion I brought up the example of Maulana Masood Azhar who was freed by the Indian Govt as a result of the IC814 hijacking. He reciprocated the government’s largesse by attacking its Parliament in 2001. I contend that the threat perception of Masood Azhar was high enough to warrant immediate execution by the government. He was high-profile, a planner for terrorist groups in Kashmir and hence directly or indirectly responsible for the loss of Indian lives. I also believe his death would have prevented IC814. Perhaps it would not have prevented any other retributive action but terrorism is about sentiment, not rationality. On the contrary a state’s policy should be to minimize immediate threat to its citizens, which is as rational as one can get when dealing with cowards who are unable to muster the courage to meet an army on open ground (yes, I know they fought the Soviets in Afghanistan but they certainly don’t seem to want to do the same anymore).

It has been argued that by the same yardstick a pickpocket should also be executed for fear of an attack by his associates. Theoretically, this is possible but so is an event involving an asteroid crashing to earth on my lawn containing evidence of extra-terrestrial life. The day I have to consider a pickpocket and a terrorist as equivalent threats is the day I pick up a weapon and go foraging for food because order would have ceased to exist.

So in effect, I argue for applying context to morality. Context matters, and that context is defined by an individual’s immediate circumstance or by a collective mandate, aka the law. If my neighbor stole my newspaper I’d probably want to have chat with him about it, not kill him. If my neighbor barged into my house with a gun and threatened my family I would be forced to retaliate appropriately. Similarly, if a person steals a wallet, society will tut-tut in disapproval and send him to jail. If a person kills in cold-blood, society is compelled to act accordingly because the lives of its citizens are at stake.

I consider the execution scene of Dead Man Walking a work of genius. I doubt Tim Robbins supports the death penalty but it takes courage to leave viewers questioning the righteous anger against capital punishment that has been built up throughout the movie.

As Matthew Poncelet is strapped to the table and prepared for receiving the lethal injection, Nusrat Fateh Ali Khan’s voice gradually takes over the solemn build-up. The jailors are shown starting the process to administer the lethal cocktail of drugs to Poncelet and that is when the scene cuts to the crime that got him there. A horrifying rape and double murder executed with chilling disregard for the sanctity of life and limb. As the scene shifts between the crime and its consequence the viewer is forced to tear himself away from his morals and examine the role of context.

That’s all I intend to do when it’s a person’s life at stake.

25 responses to “On capital punishment and violation of moral rights”

  1. Hemant Puthli says :

    Meant to raise this point earlier but lost track …. I wonder what people against the death penalty have to say about the killing of Osama bin Laden. And also what they’d have to say if we were to extend the question to 2 hypothetical scenarios: (A) If he was captured, brought to the US, given a fair trial, convicted, sentenced to death and executed, and (B) Same as scenario A except “extradited” instead of “captured” (with all official and legal i’s dotted and t’s crossed – assuming Pakistan would play ball). Just curious.

  2. Gargi Mehra says :

    I think the execution scene in Dead Man Walking almost led me to support the death penalty (provided the guilt is proved of course). To me the scene revealed different modes of murder but the execution appears almost humane in comparison to the murder.

  3. At Sita_Iti says :

    While I agree that a functioning society needs laws to maintain civil order, absolute morality continues to remain nebulous and the country struggles to punish its deemed-worst offenders by the most humane killing process it can come up with, I still believe capital punishment is something we need to walk away from. It is the most humane thing to do. How we punish offenders and rehabilitate victims as a society is a mirror to our own evolved state of being.

    • daddysan says :

      Fair point, but that is a utopian ideal.

      • At Sita_Iti says :

        May seem idealistic, but not quite Utopian :)

        For example, we have come a long way from the middle ages when perceived offenders were sometimes burned (Here) quartered (Europe) or the skin flayed off (Mughals).
        I believe in future we will iteratively move from where we now are wrt punishment but will always have practical constraints as boundaries. The duo of punishment & existing constraints in a particular time period will always somewhat mirror the state of the society.
        I may accept our present imperfect system but moving away from capital punishment is something I prefer.

      • daddysan says :

        Sita, that is a superb argument. I have to agree our forms of punishment mirror the state of society. So to your wish for moving away from the death penalty, I say amen.

        Thank you for the perspective.

  4. Yogesh says :

    Of the many defenses i have read of capital punishment, i felt compelled to respond to yours as you have at least noted the problems with capital punishment and the “immorality” involved in it. On the 3 points,

    1) Let it be clear that death penalty after deliberation, discussion and all that is also a brutal crime and many a time, remorseless one too. In the original crime, a few men took pleasure in the killing but sometimes in hanging, the goverments are making a few millions take pleasure out of it. Individual or state-sanctioned killing – both are equally culpable and just because the later pretends to serve the majority does not absolve it of the crime. I wish that at least we are aware of this inherent contradiction so that we may find a more humane solution to punishment and in particular, capital punishment. To accept that the current system is unavoidable or the best is tantamount to condoning murder and we will never find a better one. Probably, our unquestioned acceptance of these systems are the reason we aren’t finding a better one. The first step towards finding a solution is to accept that there is a problem. To me. abolishing capital punishment is also a step towards more humane ways of punishment.

    2) Absolute unambiguity in evidence is as hard as absolute morality. Circumstantial or confessional evidence are very dicey and great many cases involve either of the two. And yes, absence of evidence isn’t always evidence of absence. So, it is never safe to say that a few men have got it dead right when we very well know that they are not infallible. At least in India, there are many cases where there is high political pressure for revenge and there is pressure to punish someone.

    3) This is and will be again a highly politicised issue. The case of Maulana is a very in-hindsight argument. So many terrorists and people related to terrorist activities have been arrested. Should all of them be hanged ? Potentially, their friends could repeat IC-814. Whether hanging someone would quieten or incite his friends is debatable.

    Agreed that there is potential for misuse in every law but here the misuse immediately kills someone. If someone is mistakenly sent to a few more years of jail, it is still possible to pick up the pieces of his life but with capital punishment nothing can undo it.

    This brings back to the first point. If states set the example of killing their (potential) enemies then individual citizens too will be tempted to follow the same once in a while. This is a rephrasing of Eleanor Hubbard quote. The cowardly way of not fighting on battle grounds was also an example set by state. And individuals have duly followed it.

    • daddysan says :

      Yogesh

      Point 1 – agree to disagree. I stand by what I wrote. They are two opposite ideologies and the twain shall never meet.

      Point 2 – Hemant in his comment above

      “The possibility of misuse is not enough to justify removal of a law. All it points to is the need for more evolved drafting/ framing and better enforcement/ implementation.”

      Point 3 – There is no element of hindsight in my use of IC814. I can easily make my argument generic by stating that criminals with high threat perception can be the cause of dangerous incidents targeted at freeing them. IC814 is just an example of what happened. The 2001 attack on our parliament was another outcome.

      Moreover, when you say “should they all be hanged” I remind you of

      1. Threat perception
      2. Context

      This is very much the same as asking me “should a pickpocket be executed?”

      I get the impression you think I’m arguing for not following an absolute by quoting an absolute principle – execute criminals. I’m not. It’s about judgment.

      • Yogesh says :

        1) My question is whether brutality and remorselessness is applicable only to murders committed by individuals ? Or is to state and govt. servants too ?

        2) Hemant’s point is only valid partially. The consequences of misuse are to be taken into account. It is why one gives fake guns to a child but not a real gun. Both could be misused but the misuse of the latter will (and not can) be fatal. The same as not allowing inflammable goods in flights because misuse is fatal. The misuse of the death penalty law can be disastrous and irreversible for sure ! If a jail sentence is misused to send someone for 2 years more than it should have been, one can correct it later and at least partially reduce the injustice. And this is without considering the fact that the witnesses might have lied and the honesty of lawyers involved. Is it possible to guarantee that a law will never be misused and the witnesses will never lie ? Isn’t that equally utopian ? That courts are infallible. When the worst result is fatal, one needs to plan for the worst case scenario too and not merely for the best or average.

        Also, Lawyer’s integrity ? Indian courts work merely on evidence presented to them and aren’t involved in the investigative process. The latter is the domain of lawyers and police. Wasn’t there enormous social outrage against lawyers defending Kasab ? In effect, the judgement was pronounced by the public even before a fair trial. In such cases, the investigative process itself is compromised and how many ever courts examine the case, the judgement would still be defective.

        Though i disagree with points (1) & (2), i can understand why someone will agree with them. Retribution is quite instinctive and forgivance is very hard sometimes. Perception of effectiveness of different institutions differ, so some believe courts can be infallible and “absolute proof” exists. But (3) is something i cannot digest. Refute it very strongly.

        3) Two issues on threat perception apart from its high level of subjectivity. The problem is that justice is being applied differently to him because he has already committed a crime.

        (3.1) Fundamentally, punishment is for someone who HAS COMMITTED a crime and not for a POTENTIAL crime. Yes, sedition laws et al exist but that is again being debated. Again, those aren’t fatal and is merely, a few days of arrest. But punishing someone based on threat perception (however one qualifies or quantifies that) tantamounts to assuming that HE WILL (and not can) COMMIT A CRIME IN FUTURE. Such assumptions will lead to flouting of one of the fundamental principles of court justice – better ten criminals escape than an innocent being punished.

        (3.2) HE IS NOT RESPONSIBLE FOR SOMEONE ELSE COMMITTING A CRIME IN HIS NAME OR FOR HIM. How fair is it to blame Maulana for an hijacking in which he was not involved ? If he wasn’t involved in planning or execution, how is he responsible for IC 814 ? That argument amounts to holding me responsible for the actions of someone else in my name or for me. That is exactly the way people react during mob violence / terrorism – where an entire group is targetted for the mistakes of a few members of the group. Should courts also commit the same error ? RTI activists are being targeted for bringing some corrupt dealings of powerful men to the fore and at least one has been killed . What did we do then ? Call for the respective bigwigs to be punished as a preventive measure. No, we asked for the strengthening of security to RTI activists. It is the same with IC 814.

        It was because of airport security failure. The state, if at all it wants to ensure no hijacks, needs to focus on airport security. If airport security is weak, hijack will happen with or without death penalty. 9/11 hijack was not for the release of someone.

        Merely saying that the final destination (absolute morality) is an utopian ideal and hence we shouldn’t strive for it is against the very notion of progress. We may or may not achieve it but not to even strive for it ….

        Thanks for bearing with all of it….

  5. Aju says :

    My argument on the issue of the immorality of the death punishment is the same as the argument on the use of torture by the state. The same arguments that you have raised can be used to justify any number of things – including the use of torture, or even genocide. Of course we live in an imperfect world, but the state should always aspire to a condition of moral correctness. Efficiency apart, an essential condition of giving up certain rights of the natural condition is that the state will exercise its power morally.

  6. sai kumar mahadevan says :

    @daddy_san loved the argument you put forward… considering the third point .. if he is a threat to.the society even though he is in prison… i personally feel that the security must be strengthened in order to prevent retaliations and retaliation must not be used as a reason to execute the convict

    • daddysan says :

      It’s touch and go on that one. Although my sense of outrage and retribution pushes me to wish for an execution, to be honest Kasab really doesn’t pose any threat to us jailed for life. He’s a pawn in the game and has no significance so I don’t expect any attempts to free him. That’s my threat perception so I’m inclined to agree with you.

  7. Bandragirl says :

    Have you seen Three Colours Red by Kieslowski? There is a particularly beautiful scene in which Irene Jacob has a conversation with the judge over dinner. I tried looking for a youtube link but couldn’t find one of it. That conversation summarizes my thoughts on such subjects.

  8. bhel says :

    D-San, while I agree with your three situations where the death penalty is justified, I am having a problem with some of your points:

    – ” the practice of absolute morality conflicts with reality where a living being has to compete for limited resources with other living beings.” and the rest of that argument: It feels like you are saying something like “because some people are immoral, it is okay for everybody to be immoral.”

    – applying context to morality: the examples you’ve given (neighbor stealing newspaper vs. coming with a gun) don’t prove the point. My example would be “a person killing someone in cold blood vs. killing someone by accident”. The law recognizes this distinction too, which is why there are different crimes such as manslaughter, murder etc.

    Btw, Christopher Hitchens respectfully disagrees with you:
    http://www.laphamsquarterly.org/essays/christopher-hitchens-staking-a-life.php?page=all

    @bhel

    • daddysan says :

      Hi Bhel

      No I didn’t imply it’s OK to be immoral. I’m saying it’s an unfortunate reality and I’m not the kind of person who believes in turning the other cheek if the first one has been stabbed.

      Thanks for reminding me of the self-defense, accidental angles. We had covered this in our twitter discussion but I forgot to add it to the post. However, the examples I gave are also about context – in this case the severity of the infraction. The examples you gave are also context but it’s based on intent.

      Thanks for linking the Hitchens article. One of the big reasons for his opposition is the probability of executing an innocent man. I agree and that’s why I was appalled at Troy Davis’ execution. Also he appears to de-link the act of war from moral arguments. I can’t see why. Killing is killing, isn’t it? After all, war is just another form of state-sanctioned killing which is necessary to protect the lives of its citizens (unless your objective is offense, not defense).

      Finally he and I agree that the process is torturous. But I don’t have a solution that could make it easier.

      This is one of those agree to disagree situations :)

      • Hemant Puthli says :

        I agree. In any case, Hitchens “respectfully” disagrees with just about everyone on just about every subject.

        The argument presented by moral absolutists is also flawed in another aspect – if it is per se wrong to take another life, then why is it OK to incarcerate another for the rest of his/her life? In fact, why is it OK for any form of punishment to be imposed on criminals? Who decides these things and on what basis? Is there a book on this somewhere that I’ve missed? This is one problem I always encounter with moral absolutists – there’s a certain “givenness” to their assertions that eventually they themselves are unable to justify other than to say that it is self-evident. It is not enough to say that it is wrong to take a life and leave it at that – they need to show why it is wrong to take a life when it is OK to inflict other forms of punishment on that life. In other words, what, about taking a life, differentiates it from all other forms of punishment, and what about it signals to us that it should prohibited.

        The possibility of misuse is not enough to justify removal of a law. All it points to is the need for more evolved drafting/ framing and better enforcement/ implementation. Legal reforms. The focus should be on error reduction – kinda like six sigma (bad analogy, but makes the point, I hope).

        I agree with your 3 criteria inasmuch as they reflect the 3 broad dimensions of jurisprudence – retributive, preventive and exemplary. Personally, I don’t care much for the retributive rationale – it sounds more like organized, socially sanctioned vengeance (and has a streak of moral absolutism to it). But prevention and deterrence are sound and practical reasons, IMO.

      • daddysan says :

        Hemant, as usual hitting it out of the park :)

        I think incarceration to some extent serves as a deterrent although hardened criminals don’t improve with more stints in jail.

        Totally hear you on the retribution part. My bloodthirst for executing Kasab falls into that category and so it’s not really fair. It violates Point 3. He’s not a threat because he’s too low in the hierarchy to matter. However, he could be a threat if he is freed.

  9. Patrix says :

    I will comment in detail later but I think linking to Gaurav’s counter argument on his blog is in order since you do mention, it has been argued..

    • daddysan says :

      I have not referred to his blog when writing my post. I am referencing my conversation with him on Twitter. There are too many links from there to post in context properly.

  10. Rainbow (@ra1nb0w) says :

    the genre is different from what you usually write on, but no less gripping. thank you!

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