Introduction
To regulate crime in society, the State punishes criminals. There are various types of punishment backed by theories of punishment such as deterrence and retribution. In criminal law, the theories of punishment are:
- Theory of Deterrence
- Theory of Incapacitation
- Theory of Rehabilitation
- Theory of Proportionality
- Theory of Retribution
The graver and harsher the crime, the harsher is the punishment. Life imprisonment and the death penalty are examples of such punishments. Capital punishment is the highest punishment served by the State. The word “capital” is derived from the Latin word “capitalis” meaning “regarding the head.” In earlier times, the head of the criminal was beheaded by guillotine, hence the punishment was called capital punishment.
Nowadays, the State uses hanging, lethal injections, and the electric chair to serve capital punishment. In this discussion, I will answer the penological purposes of the death penalty. It is indeed hard to answer this question. The Supreme Court in Shankar Kisanrao Khade vs State of Maharashtra asked the Law Commission of India to answer in this context and stated that it must “resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.”
In 1962, following a reference from the 3rd Parliament, the Law Commission of India was constituted to examine the abolition of the death penalty. It presented the 35th Law Commission Report, which recommended the retention of the death penalty and concluded that it serves deterrence, retribution, and incapacitation purposes of penology.
Now we will take a look at different theories of punishment and their relation with the death penalty.
Deterrence and Death Penalty
From the word itself, one can construe that deterrence is a theory of punishment which aims to deter individuals from committing a crime by the use of fear of punishment. The theory of deterrence presumes humans as rational. Thus, humans will commit crimes only when they will suffer less pain compared to the gain they get from the criminal act.
Every human dreads death, and love of life is very organic and natural to human nature. Therefore, it is said that the death penalty serves as deterrence to society. Sir Fitzjames Stephen stated:
“Some men, probably, abstain from murder because they fear that if they committed murder they would be hanged. Hundreds of thousands abstain from it because they regard it with horror. One great reason they regard it with horror is that murderers are hanged.”
The 35th Report of the Law Commission reiterated this view and supported the idea that the death penalty serves as deterrence. It also concluded that the death penalty is very different from life imprisonment—there is a difference of both degree and quality between the two.
The Supreme Court of India in the landmark case Bachan Singh v. State of Punjab supported the aforementioned proposition. In Mahesh v. State of Madhya Pradesh, the Court observed, “The common man understands the language of deterrence more than the reformative jargon.”
However, in several other cases, the Supreme Court, such as in Sushil Murmu v. State of Jharkhand, disregarded the proposition that deterrence is the primary objective of the death sentence and in several cases doubted the very efficacy of its deterrent value. Many empirical studies have been conducted on this topic, but most are inconclusive. The study of Issac Ehrlich found that the death penalty has “saved eight innocent lives,” but there are several drawbacks in that research. In 1953, the Royal Commission on the Death Penalty concluded that there is no clear evidence of the relationship between the death penalty and crime rates.
Retribution and Death Penalty
The theory of retribution is an individual and offence-centric theory. It does not deal with the prevention of crime. It is generally a delivery of the unpleasant fruit of a wrongful act. This theory can be divided into two types:
- Retribution as revenge
- Retribution as punishment deserved by the offender
Retribution as Revenge
The first type of theory is reflective of mirror punishment. It propounds the idea that the same amount of pain should be inflicted upon the criminal as was inflicted upon the victim—thus, revenge is taken. It aligns with the oft-quoted adage, “An eye for an eye.”
In India, courts have often criticized this approach. In Deena v. Union of India, the Court held that this theory based on revenge is not in line with a civilized scheme of jurisprudence. In Shatrughan Chauhan v. Union of India, the Court utterly disregarded this approach and held that it is antithetical to constitutional protections given to convicts. Later, the Supreme Court reiterated this point and held, “The retributive theory has had its day and is no longer valid.”
Retribution as Deserved Punishment
The second type of theory is more modern and is based on the concept of “desert.” According to this theory, an offender should be punished only when deserved, and it acts as a medium of condemnation of the wrongful actions of the offender. The theory of retribution is generally vague when it comes to determining “how much” to punish.
Post-Bachan Singh, courts used “society’s cry for justice” as justification for imposing the punishment of death. However, they later neglected this approach, as it calls for subjective determination—whether the punishment is deserved by an individual. This approach has a calibration problem, that is, a “calculating problem,” wherein one cannot know where to stop while sliding the scale of punishments.
Restorative Justice & Other Problems
The State, while focusing too much on retributive and deterrence purposes, often neglects the restorative and rehabilitative aspects of crime and the criminal. It also calls for a better investigation system and effective prevention of crime.
There is a clear need for a robust system that can prevent crime in the first place, but if committed, the State must effectively investigate it. In the 20th century, the theory of restorative justice developed and gave impetus to the rights of victims and a victim-centric criminal justice system.
As Ashworth notes, “[t]he fundamental proposition is that justice to victims become a central goal of the criminal justice system and of sentencing.”
Police Reforms and Victim Justice
Thus, the State should strive for police reforms so that investigation and prosecution can be improved, ensuring that victims and sufferers of crime can get justice effectively. The Supreme Court in Prakash Singh v. Union of India issued directions for police reform until the New Model Police Act is prepared.
Witness Protection and Victim Compensation
The State should also focus on a Witness Protection Scheme for a robust criminal justice system. Both the State and Courts can work independently or jointly to compensate and rehabilitate victims of crime. The State may roll out a comprehensive policy on victim compensation to fill existing gaps.
In our criminal justice system, Courts are given powers under the Code of Criminal Procedure, 1973 to award appropriate compensation or impose fines on convicts, which can be directed towards victims as compensation. Thus, a kind State may “wipe the tears” of victims by ensuring meaningful compensation.
Reformation & Conclusion
The theory of reformation presupposes that offenders are capable of change and, when reformed and released, can become productive and ideal citizens of society. In principle, while adjudicating the death penalty, the ideal of reformation should be valued and considered by the sentencing court. However, it has often been neglected.
In Mohammad Giasuddin v. State of AP, the Court observed: “The whole man is healthy man & every man is born good. Criminality is curable deviance … our prisons should be correctional houses, not cruel iron aching soul.”
Towards a Benevolent State
The State should strive to create infrastructure and policies in tandem with the observations of the Court, placing reformation as a central value in adjudication and making offenders more productive. There is a need for a benevolent and kind State, rather than a purely retributive one. The welfare of all remains the avowed objective of the State.
