Lengthy process of implementing death sentence doesn’t function as retribution or deterrence
The Supreme Court has ruled that it would start a new tradition of hearing in open court, petitions seeking review of judgments confirming the death penalty. Otherwise, all review petitions are considered by the judges in chamber without another hearing. This decision, yet again underlines the sensitivity in our highest judiciary to the infliction of death by man on man.
Expectedly, hardliners rail against such considerations. If a criminal can kill with impunity, they would argue, there should be no reason to spare her from any form of indignity. They would accuse defense lawyers of frustrating execution. A typical line one hears is that it is only in India one experiences delays in execution and the system is broken. The United States of America is often extolled for perceived speed in punishment and the allegedly consequential fear of law in the American society.
The review and appeal of a death sentence takes more than 25 years in California. The national average in the US, at over 15 years, is not spectacularly better. Only 17 out of the 748 Californian convicts with a death sentence have had their appellate and review processes run its full course. Since 2006, no execution has taken place. Over 20 per cent of the death row convicts have crossed the age of 60 in prison. The random few who do get executed would have languished for so long that their execution would serve neither the purpose of retribution nor deterrence, the court has observed.
“Indeed, the law, and common sense itself, have long recognized, the judgment reasons, “that the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition.” These observations could well have been about India. Despite the paraphernalia of safeguards, the administration of the death sentence is as damaged in the US as it is in India. The blind faith Indian hardliners have in the US justice system is therefore neither backed by facts nor shared by her constitutional courts. In fact, access to justice is so expensive in the US that even the innocent are incentivized to strike “plea bargains” rather than fight to clear their reputation, relieving prosecutors from having to stand the test of scrutiny. The super-rich settle to save super-expensive litigation costs. The impoverished end up in jail. The quality of legal representation they then get is proportionate to their financial strength, rather than strength of their merits.
Our Supreme Court’s latest decision on a public review of death sentences is therefore understandable – one has to be truly cautious about consigning any human into the living hell that the death sentence represents.