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Capital Punishment: A Critical Issue

INTRODUCTION

Right to life that life of every human being is very valuable and is a core concept of human civilization. All the major religion and philosophies declared the human life is inviolable. None has any right to take the life of another. If any body takes the life of another he will be punished with death penalty.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1] This basic proposition has been accepted by most of the earlier societies. In the year 399 B.C. Socrates spoke “I to die you to live which is better only God Knows”. It has been condemned to death for the ambiguous crime to impiety, heresy and corrupting the morals of the young. The method execution strangely for that age was by drinking a cup of the poison of hemlock.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] As far as man can recall there was always been the practice of condemning person convicted of certain crimes to death. In spite of that the modern world is sympathetic to the concept of human right issues death penalty, as a form of punishment has still been going rampage in the world. During 2001 at least 3048 people were executed in 31 countries. It is very funny to see that some advanced countries which assert themselves to be pioneer for the protection and promotion of human rights and which are also very vocal to the human right situation in the developing world, do impose death penalty offender even on children. Punishment is ill suffered for an ill done and as such a death penalty has almost universally practiced. Although through the ages the concept of crime and its corresponding consequences have undergone various changes and so also the recognition on death penalty as an acceptable form of punishment.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]

1.1 Meaning of Capital Punishment

Capital punishment is also known as death penalty, this is the most severe form of corporal punishment as it requires law enforcement officers to kill the convicted offender ultimately it constituting that end of all physical function forever. The term capital derives from the Latin ‘caput’ literally meaning, “ head” but also a pars pro toto for the whole individual.

Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes; rape and murder etc where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4]

A death penalty is the sentence of execution for murder and some other capital crimes (serious crimes, especially murder, which are punishable by death). The death penalty, or capital punishment, may be prescribed by Congress or any state legislature for murder and other capital crimes. The U.S.A Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment’s ban on cruel and unusual punishment. Furthermore, the Sixth Amendment of U.S.A does not require a jury trial in capital crime cases. A majority, but not all states provide for the death penalty. Most states that do allow capital punishment have an age requirement, although it is permissible to impose a death penalty on a minor in certain cases. Recently, challenges to death penalties have arisen based upon the mental capacity of the convicted to understand the wrongfulness of their actions. In addition to the death penalty laws in many states, the federal government has also employed capital punishment for certain federal offenses, such as murder of a government official, kidnapping resulting in death, running a large-scale drug enterprise, and treason. In April 1999, the United Nations Human Rights Commission passed the Resolution Supporting Worldwide Moratorium on Executions. The resolution calls on countries which have not abolished the death penalty to restrict its use of the death penalty, including not imposing it on juvenile offenders and limiting the number of offenses for which it can be imposed. Ten countries, including the United States, China, Pakistan, Rwanda and Sudan voted against the resolution.<href=”#_ftn5″ name=”_ftnref5″ title=””>5

1.2 Retributive Effect of Death Penalty

Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society. Death sentence has been used as an effective weapon of retributive justice for centuries. The justification advanced is that it is lawful to forfeit the life of a person who takes away another’s life. A person who kills another must be eliminated from the society and therefore fully merits his executions. Thus the motive for death penalty may indeed include vengeance, which is a compensatory and reparatory satisfaction for an injured party group of society.

When regulated and controlled by law vengeance is also social useful. Legal vengeance solidifies social solidarity against lawbreakers and probably is the only alternative to the disruptive private revenge of those who feel harmed. Commenting on the effectiveness of death penalty Thorsten Sellin observed that it has failed to as a measure of social protection, so also an instrument of retributive justice. Citing illustrations from United states to support this contention, he argued that the number of execution are far less than the number of murders committed annually which clearly indicates that death sentence is no longer looked with favor and is falling into disuse rapidly. Another argument which needs attention regarding declining effect of death penalty is that even after the award of this sentence. In most cases, it is either commuted or pardoned in the last resort and its final execution is seldom carried out.<href=”#_ftn6″ name=”_ftnref6″ title=””>6 Proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior.

However, this does not mean that the punishment has to be equivalent to the crime. A retributive system must punish severe crime more harshly than minor crime, but retribution differ about how harsh or soft the system should be overall. Traditionally, philosophers of punishment have contrasted retributivism with utilitarianism. For utilitarian, punishment is forward-looking, justified by a purported ability to achieve future social benefits, such as crime reduction. For retributions, punishment is backward looking, and strictly for punishing crimes according to their severity. Depending on the retributive, the crime’s level of severity might be determined by the amount of harm, unfair advantage or moral imbalance the crime caused.

In the early period of all systems of law the redress of wrongs takes precedence over the enforcement of contract rights, and a rough sense of justice demands the infliction of proportionate loss and pain on the aggressor as he has inflicted on his victim. Hence the prominence of the “lex talionis” in ancient law. The Bible is no exception: in its oldest form it included the “lex talionis,” the law of “measure for measure” (this is only the literal translation of middah ke-neged middah).

In the 19th century, philosopher Immanuel Kant wrote in The Metaphysical Elements of Justice of retribution as a legal principle: “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime.” Immanuel Kant regards punishment as a matter of justice. He states that if the guilty are not punished, justice is not done. There are two distinct types of retributive justice. The classical definition embraces the idea that the amount of punishment must be proportionate to the amount of harm caused by the offence. A more recent version advocated by the philosopher Michael Davis dismisses this idea and replaces it with the idea that the amount of punishment must be proportionate to the amount of unfair advantage gained by the wrongdoer. Davis introduced this version of retributive justice in the early 1980s, at a time when retributive justice was making resurgence within the philosophy of law community, perhaps due to the practical failings of reform theory in the previous decades.<href=”#_ftn7″ name=”_ftnref7″ title=””>7 Many more jurisdictions following the retributive philosophy, especially in the United States, follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff. As a result, some argue that judges do not have enough discretion to allow for mitigating factors, leading to unjust decisions under certain circumstances. In the case of fines, the financial position of an offender is not taken into account, leading to situations where an unemployed man and a millionaire could be forced to pay the same fine, creating an unjust situation; either the fine would be too punitive for the unemployed offender, or not large enough to punish the millionaire. Alternatives to retributive measures include psychiatric imprisonment, restorative justice and transformative justice. A general overview of criminal justice puts each of these ideals in context. One libertarian approach to this issue argues that full restitution (in the broad, rather than technical legal, sense) is compatible with both retributivism and a utilitarian degree of deterrence .<href=”#_ftn8″ name=”_ftnref8″ title=””>8

1.3 Deterrent Effect of Capital Punishment

It is difficult to conclusively demonstrate the existence or non-existence of a deterrence effect because correlations unearthed (or not) in statistical analysis do not imply causation. Those who refrain from committing crimes due to a supposed deterrent effect of the death penalty will by definition never show up in any statistic. The fear of being condemned to death is perhaps the greatest deterrent, which keeps an offender away from criminality. Death penalty in case of murder serves as an effective deterrent to remind the murderer about the severity of law towards this heinous crime and this certainly helps in reducing the incidence of homicide. The old methods of public execution though abandoned today, were directed to make the sentence as frightening as possible. The present trend, however, is to keep the number of offences punishable by death to minimum and avoid death penalty as far as possible although its retention in the statute book is favored even to this day.<href=”#_ftn9″ name=”_ftnref9″ title=””>9

The question of whether or not the death penalty deters murder usually revolves around the statistical analysis. Studies have produced disputed results with disputed significance. Some studies have shown a positive correlation between the death penalty and murder rates- in other words, they show that where the death penalty applies, murder rates are also high. This correlation can be interpreted in either that the death penalty increases murder rates by brutalizing society or that higher murder rates cause the state to retain or reintroduce the death penalty. However, supporters and opponents of the various statistical studies, on both sides of the issue, argue that correlation does not equal causation.

In recent years, a number of new studies have been published, mostly by economists, which statistically demonstrate a deterrent effect of the death penalty. However, critics claim severe methodological flaws in these studies and hold that the empirical data offer no basis for sound statistical conclusions about the deterrent effect. Surveys and polls conducted in the last 15 years show that some police chiefs and others involved in law enforcement may not believe that the death penalty has any deterrent effect on individuals who commit violent crimes. In a 1995 poll of randomly selected police chiefs from across the U.S., the officers rank the death penalty last as a way of deterring or preventing violent crimes. They ranked it behind many other forms of crime control including reducing drug abuse and use, lowering technical barriers when prosecuting, putting more officers on the streets, and making prison sentences longer. They responded that a better economy with more jobs would lessen crime rates more than the death penalty. In fact, only one percent of the police chiefs surveyed thought that the death penalty was the primary focus for reducing crime.

1.4 Modes of Execution

An appraisal of the administration of criminal justice of ancient times reveals that death penalty was commonly used in cases of heinous crimes. However there was great divergence as to the mode of its execution. The common modes of inflicting death sentence on the offender were fructification, drowning, burning, boiling, beheading, throwing before wild beasts, flying or skinning off alive, hurling the offender from rock, stoning, strangling, impelling, amputating, shooting by gun or starving him to death. Hanging the offender till death in public places has been a common mode of putting to an end to the life of an offender. These draconic and barbarous methods of punishing criminals to death were justified on the ground that they were quickest and easiest modes of punishment and at the same time carried with them an element of deterrence and retribution. They have, however, fallen into disuse with the advance of time and modern humanitarian approach to penology.<href=”#_ftn10″ name=”_ftnref10″ title=””>[5]

1.4.1. Lethal Injection

In the short time before an execution by lethal injection, the prisoner is prepared for his death. This can include a change of clothing, a last meal, and a shower. The prisoner is taken to the execution chamber and two tubes are inserted in to his arms; a saline solution is fed through the tubes. These tubes are then fed through the wall in to an anteroom from where the execution will be carried out. The anteroom contains direct telephone connections to officials who have the power to stay the execution. Once the tubes are connected, the curtains are drawn back so that witnesses may watch the execution, and the prisoner is allowed to make his last statement. Unless a stay is given, the execution begins. There can be one or more executioners, and sometimes in the case of multiple executioners, the lethal dose is given by only one so that no one knows who delivered it. The executioners are shielded from the view of the prisoner and witnesses. The drugs can be delivered by a machine, but due to the fear of mechanical failure, most US states prefer to manually inject the drugs. The drugs are then administered in the following order:

Sodium Thiopental

This drug, also known, as Pentathlon is a barbiturate used as a surgical anesthetic. In surgery, a dose of up to 150mg is used; in execution, up to 5,000mg is used. This is a lethal dose. From this point on if the prisoner is still alive, he should feel nothing.

Pancuronium Bromide

Also known as Pavulon, this is a muscle relaxant given in a strong enough dose to paralyses the diaphragm and lungs. This drug takes effect in 1-3 minutes. A normal medical dose is 40 – 100mcg per kilogram; the dose delivered in an execution is up to 100mg.

Potassium Chloride

This is a toxic agent, which induces cardiac arrest. Not all states use this as the first two drugs are sufficient to bring about death. Saline solution is used to flush the between each dose. Within a minute of two after the final dose is given, a doctor declares the prisoner dead. The body is then sent to the coroner for verification and sometimes an autopsy and is released to the family for burial or is buried by the state.<href=”#_ftn11″ name=”_ftnref11″ title=””>[6]

1.4.2. The Electric Chair

In execution by electric chair, the prisoner is strapped to the chair with metal straps and a wet sponge is placed in his head to aid conductivity. Electrodes are placed on the head and leg to create a closed circuit. Depending on the physical state of the prisoner, two currents of varying level and duration are applied. This is generally 2,000 volts for 15 seconds for the first current to cause unconsciousness and to stop the heart. The second current is usually lowered to 8 amps. The current will normally cause severe damage to internal organs and the body can heat up to 138 °F (59 °C). While unconsciousness should occur within the first second or two, there have been occasions where it has taken much longer, leading people to speak out against this method of execution. The post-execution cleanup is an unpleasant task as skin can melt to the electrodes and the person often loses control over bodily functions. The skin is also often burnt.

1.4.3. Gas Chamber

The gas chamber has been used for executions for a considerable number of years. It has gained the most notoriety from its use in the German prison camps during World War II where it was used to exterminate millions of people in one of the worst cases of genocide in the 20th century. All of the five US states that still use the gas chamber allow the prisoner to choose death by lethal injection instead. The last death by gas chamber in the US was in 1999 when German Walter LaGrand was executed in Arizona. There are unconfirmed reports that North Korea is using the gas chamber as a method of execution and to test poisonous gasses on prisoners. Prior to the execution, the executioner will enter the chamber and place potassium cyanide (KCN) pellets into a small compartment beneath the execution chair. The prisoner is then brought in and secured to the chair. The chamber is sealed and the executioner pours a quantity of concentrated sulfuric acid (H₂SO₄) through a tube which leads to a holding compartment in the chair. The curtains are drawn back for witnesses to see the execution and the prisoner is asked to make his last statement. After the last statement, a level is thrown by the executioner and the acid mixes with the cyanide pellets generating lethal hydrogen cyanide (HCN) gas. The prisoners will generally have been told to take deep breaths in order to speed up unconsciousness, but in most cases they hold their breath. Death from hydrogen cyanide is painful and unpleasant. After the prisoner is dead, the chamber is purged of gas and neutralized with anhydrous ammonia (NH₃). Both the ammonia and the acid that must be removed from the chamber are highly dangerous. Guards with oxygen masks then enter the chamber and remove the body so that it can be examined by a doctor.

1.4.4. Single Person Shooting

Execution by shooting is the most common method of execution in the world, used in over 70 countries. Whilst most of these countries use the firing squad, single person shooting is still found. In Soviet Russia, a single bullet to the back of the head was the most frequently used method of execution for military and non-military alike. This is still the main method of execution in Communist China though the gunshot can be to either the neck or head. In the past, the Chinese government would ask the family of the executed person to pay the price of the bullet. In Taiwan, the prisoner is first injected with a strong anesthetic to render him senseless and then a bullet is fired in to his heart.

1.4.5. Firing Squad

The firing squad is considered by many to be the most honorable method of execution, and for that reason it was specifically not used on war criminals. While the method differs widely from country to country, generally the condemned is blindfolded and restrained. A group of men then fire a single bullet in to the heart of the prisoner. In some cases, one of the shooters is given a blank – so that afterwards he will feel less guilt. None of the shooters knows who has a blank or, in fact, if any of they do. In the most recent execution by firing squad in Utah, the brother of the executed man stated that there were five bullet holes in his brother’s shirt, indicating that every shooter fired a live round. Here is an eyewitness account of the execution of William Johnson, a deserter in the Army of the Potomac in 1861.All being ready the Marshal waved his handkerchief as the signal, and the firing party discharged the volley. Johnson did not move, remaining in a sitting posture for several seconds after the rifles were discharged. Then he quivered a little, and fell over beside his coffin. He was still alive, however, and the four reserves were called to complete the work. It was found that two of the firing party, Germans, had not discharged their pieces, and they were immediately put in irons. Johnson was shot several times in the heart by the first volley. Each of the four shots fired by the reserves took effect in his head, and he died instantly. One penetrated his chin, another his left cheek, while two entered the brain just above the left eyebrow. He died at precisely a quarter to four o’clock. In the United States only two states allow execution by firing squad: Idaho, and Oklahoma; though Utah still has four prisoners on death row who were sentenced when it was lawful there and they may be permitted to be executed in this way.

1.4.6. Hanging

Hanging is carried out in a variety of ways: the short drop is when the prisoner is made to stand on an object which is then thrust away – leaving them to die by strangulation. This was a common method of hanging used by the Nazis and was the most common form used before the 1850s. Death is slow and painful. Suspension hanging (very popular in Iran) is when the gallows itself is movable. The prisoner stands on the ground with the noose around their neck and the gallows is then lifted in to the air, taking the prisoner with it. The standard drop was in common use in English nations after the 1850s – it involved tying the noose around the prisoner’s neck and then dropping them a short distance (usually 4-6 feet) to break the neck. This was the method used to execute the Nazi war criminals. The final method is the long drop, devised in 1872 in which the weight of a person was taken in to account to determine the correct rope and drop to be used to ensure the breaking of the neck. This was the method used by Albert Pierre point, the last executioner of England.

1.4.7. Beheading

In some nations that adhere to Islamic Sharia law, beheadings are still a commonly used method of execution. The most frequently seen cases involve beheading by a curved, single-edged sword. While many nations allow beheading by law, Saudi Arabia is the country that uses it most often. The sentence is normally carried out on a Friday night in public outside the main mosque of the city after prayers. The penalty can be dealt for rape, murder, drug related crimes, and apostasy. Saudi Arabia frequently comes under fire from international agencies because of the fact that they continue to pass this sentence on minors. Saudi Arabian officials state that they are not in breach of international law because the sentence is not carried out until the child has reached the age of 18.

1.4.8. Guillotine

Contrary to popular belief, Joseph-Ignace Guillotin did not invent the Guillotine; he suggested that a method of execution be devised that was quick and to be used on all people regardless of class. He sat on the committee that eventually designed the device, but it was actually Antoine Louis who came up with the design that was then used to build the first functioning guillotine. This is one of the two execution methods on this list which is no longer used anywhere in the world. The device itself is a large timber frame with a space at the bottom for the neck of the prisoner. At the top of the machine is a large angled blade. Once the prisoner is secured, the blade is dropped, severing the head and bringing about immediate death. Much speculation exists as to whether or not the person dies immediately, and one man went so far as to ask a prisoner to blink after his head was cut off if he could. The accounts tell us that he did blink, but it is most likely that if he did, it would have been a post-death twitch. The last public guillotining in France was secretly filmed, and the scandalous behavior of the onlookers caused the government to ban public executions. It was the official method of execution in France until the death penalty was outlawed in 1981.

1.4.9. Stoning

Stoning to death is when a person’s movements are restricted and an organized group throws stones at them until dead. Under Islamic Sharia law, stoning is an acceptable method of execution and it is used in many Islamic nations. In Iran, stoning is sanctioned for adultery and other crimes. Sentences to death by stoning, or stoning without a sentence have occurred in Afghanistan, Nigeria, Iran, Pakistan, Sudan, Saudi-Arabia and the United Arab Emirates in recent years, according to the International Society of Human Rights.

1.4.10. Garrote

The garrote is the second method of execution on this list, which is no longer sanctioned by law in any country though training in its use is still carried out in the French Foreign Legion. The garrote is a device that strangles a person to death. It can also be used to break a person’s neck. The device was used in Spain until it was outlawed in 1978 with the abolition of the death penalty. It normally consisted of a seat in which the prisoner was restrained while the executioner tightened a metal band around his neck until he died. Some versions of the garrote incorporated a metal bolt, which pressed in to the spinal chord, breaking the neck. This spiked version is known as the Catalan garrote. The last execution by garrote was José Luis Cerveto in October 1977. Andorra was the last country in the world to outlaw its use, doing so in 1990.<href=”#_ftn12″ name=”_ftnref12″ title=””>[7]

DEATH PENALTY AS A FORM OF PUNISHMENT IN HISTORY

As a form of punishment death penalty has been getting in all the way through the history of different society. The most primitive death penalty was dated back the eighteen century B.C.’s in the code of king Hammurabi of Babylon. It contains death penalty provision for the twenty-five different crimes. The fourteen Century B.C.’s Hittite Code seventeen Century B.C.’s Draconian Code of Athens and the fifth Century B.C.’s Roman law of the twelve Tables made death penalty for all times. The death penalty was carried out by such means as crucifixion, beating to death burning alive and impalement.<href=”#_ftn13″ name=”_ftnref13″ title=””>[8] Execution took place for such capital offences a marrying a Jew, not confessing to a crime and treason. By the Seventeen Century, Britain made 222 crimes punishable by death, including stealing cutting down a tree, a robbing a rabbit warren. Assuming the severity of the punishment of death, many juries wouldn’t convict defendants if the offence was not serious. This led to reforms of Britain’s death penalty legislations.

From 1823 to 1837, the death penalty was abolished forever 100 of the 222 crimes punishable by death.<href=”#_ftn14″ name=”_ftnref14″ title=””>[9] When European settlers occupied different parts of the world, they carried out by the practice of capital punishment. Britain as a colonial power influenced America use of the death penalty more than any other country did. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was exposed to execution for being a spy for Spain. In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, containing the death penalty for even minor offences such as stealing grapes, killing chickens and trading with the India.2.1 Capital Punishment in Ancient Rome and Greece.

In ancient times, the law administrators unflinchingly executed murder because they believed that “the life of each man should be sacred to each other man”. They realized that it is not enough to proclaim the sacredness and inviolability of human life, it must be secured by threatening with the loss of life those who violate what has been proclaimed inviolable the right to innocent to live. Murder being the worst of crimes must deserve the highest penalty, which is death sentence. Ancient Roman accepted the deterrent value of death penalty. Under the Roman Criminal Law the offender was put to public ridicule and his execution took the form of festival Death was caused to the condemned person in most tortuous manner. For example one who killed his father was sewing in a sack along with a live dog cat and cobra and thrown into river. The object was to make him die most painfully. The sentence of death could be awarded even to debtor who was unable to pay off the debt of his creditor. Thus a creditor who found that his debtor was unable to pay could vent his wrath upon the debtor by marching him up the Tar peian rock and hurling him from there death.<href=”#_ftn15″ name=”_ftnref15″ title=””>[10]The Greece penal system also provided death sentence for many offences. The offender’s were stripped, tarred and feathered to death publicly. Execution of death penalty in public places was favored because of its deterrent effect.

2.1 Capital Punishment in Britain

The Anglo-Saxon invaders introduced hanging by neck as a form of capital punishment in Great Britain in the fifth century. It had become a common method of execution by the tenth century. William conqueror declared that hanging would be used for conspirators or in times of war. He decreed that instead of hanging the criminals should be castrated and has their eyes put out. William refuse reintroduce hanging but only those were executed who were found guilty poaching royal deer. Henry I brought back hanging as a principle method of execution. In 1196 the first recorded execution took place at the notorious Tyburn hanging tree. Some 72000 people were executed various methods during the reign of Henry VIII.<href=”#_ftn16″ name=”_ftnref16″ title=””>[11] Various methods of execution subsumed boiling, burning at the stake, beheading and hanging with drawing and quartering. During the first half of the nineteenth century there were 220 different crimes, which were punishable with death.<href=”#_ftn17″ name=”_ftnref17″ title=””>[12]Majority people in the UK believed that death penalty acted as a deterrent to criminals. But the data within the report of the commission were inconclusive on this issue. From an ethical stand point the report recommended abolition but it did not mention possible miscarriages of justice. The report concluded death penalty ought to retain unless there was overwhelming majority for abolishing death penalty. By 1957 a number of controversial cases made the issue of capital punishment to be dismissed. The House of Lords amended the crime and disorder act 1988 by which death penalty was abolished for crime of treason and piracy with violence. In the same year 6 protocol of the European convention on human rights abolishing the capital punishment for murder except in the time of war came for consideration before per lament. The House of Commons voted to implement the 6 protocols on 20 May 1998. All provisions for death penalty were finally abolished in the United Kingdom with the rectification. On 10 October 2003 the UK acceded to the 13^th protocol, which clearly abolished death penalty under all circumstances.<href=”#_ftn18″ name=”_ftnref18″ title=””>[13]

2.2 Capital Punishment in U.S.A

Available literature on capital punishment in United States testifies that in modern times the sentence of death is being sparingly used in that country. This however, does not mean that capital punishment is altogether abolished in United States. The retention of death penalty is still considered to be morally and legally just though it may be rarely carried in to practice. American Penologists justify the retention of capital punishment for two obvious reasons. Firstly, from the point of view of protection of society, death penalty is needed as a threat or warning to deter the potential murderers. Secondly, it also accomplishes the retributive object of punishment inasmuch as a person who kills another has perhaps forfeited his claim for life. It is however, generally argued that the risk of being executed in fact serves no deterrent purpose because the murderer often plans out his crime in such a way that the chances of his detection are rare and he is almost sure of his escape without being punished. The retention of death penalty for capital murderers is justified on the ground that if not executed, they will remain menace and potential danger to society.<href=”#_ftn19″ name=”_ftnref19″ title=””>[14]

In America, Captain George Kendall was executed in 1608 in the Jamestown Colony of Virginia; he was accused of being a spy for Spain. In 1612, Virginia death penalty violations included what modern citizens would consider minor violations: stealing grapes, killing chickens and trading with Indians.<href=”#_ftn20″ name=”_ftnref20″ title=””>[15]

Recent trend in America is to restrict capital punishment only to the offence of murder and rape. Another noticeable trend during recent years is to make the process of execution private, painless and quick as against the old method of public execution which was brutal, painful and time consuming. At present the common modes of inflicting death penalty in United States are electrocution hanging, asphyxiation with lethal gas and shooting. Several American States have abolished death punishment with beneficial result.

More recently Mr. Justice Brennan and Mr. Marshall of the US Supreme Court in a well known decision in Georgia Case<href=”#_ftn21″ name=”_ftnref21″ title=””>[16] observed that death penalty should be outlawed on the ground that it was an anachronism degrading to human dignity and unnecessary in modern life. But most of the judges did not agree with the view of that the eight amendment of the American constitution, which prohibits capital punishment for all crimes and under all circumstances is a good law.

Some of the American recent decision suggests that the court is convinced that the death penalty per se is not volatile of the constitution. However in some parts of the USA death penalty has been retained only for the murder of prison officer by a life convict. An international survey carried out in 1962 by the United Nations, However confirmed that neither suspension nor abolition of death penalty had immediate effect increasing the incidence of crimes punishable with sentence of death. The countries, which had abolished capital punishment notably, Germany, Austria, Scandinavia, Netherlands, Denmark and some Latin American States reported no ill-effects of abolition.<href=”#_ftn22″ name=”_ftnref22″ title=””>[17]

THE DEATH PENALTY WORLDWIDE

According to Amnesty International, 137 countries have abolished the death penalty. Argentina, Chile, and Uzbekistan outlawed the death penalty in 2008. During 2007, 24 countries, 88% in China, Iran, Pakistan, Saudi Arabia, and the United States alone, executed 1,252 people compared to 1,591 in 2006. Nearly 3,350 people were sentenced to death in 51 countries. More than 20,000 prisoners are on death row across the world.<href=”#_ftn23″ name=”_ftnref23″ title=””>[18]

3.1 Death Penalty under International Law

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in December 1948, recognizes each person’s right to life. It categorically states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). In Amnesty International’s view, the death penalty violates these rights. The community of states has adopted four international treaties specifically providing for the abolition of the death penalty. Through the years, several UN bodies discussed and adopted measures to support the call for the worldwide abolition of the death penalty. In December 2007 and 2008 the United Nations General Assembly (UNGA) adopted resolutions 62/149 and 63/168, calling for a moratorium on the use of the death penalty. Since then, other regional bodies or civil society coalitions adopted resolutions and declarations advocating for a moratorium on executions as a step towards global abolition of the death penalty.<href=”#_ftn24″ name=”_ftnref24″ title=””>[19] These resolutions are not legally binding on governments, but represent important milestones for the abolitionist movement and constitute a continued progress towards the total exclusion of capital punishment from International law.

3.2 Ratification of international treaties

The community of nations has adopted four international treaties providing for the abolition of the death penalty. One is of worldwide scope; the other three are regional.

Following are short descriptions of the four treaties and current lists of states parties and countries, which have signed but not ratified the treaties. (States may become parties to international treaties either by acceding to them or by ratifying them. Signature indicates an intention to become a party at a later date through ratification. States are bound under international law to respect the provisions of treaties to which they are parties, and to do nothing to defeat the object and purpose of treaties, which they have signed.)

3.1.1. Second Optional Protocol to the International Covenant on Civil and Political Rights

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, adopted by the UN General Assembly in 1989, is of worldwide scope. It provides for the total abolition of the death penalty but allows states parties to retain the death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state which is a party to the International Covenant on Civil and Political Rights can become a party to the protocol. This protocol has 72 parties and 3 countries have signed but not ratified.

State parties: Albania, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Philippines, Portugal, Romania, Rwanda, San Marino, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Timor-Last, Turkey, Turkmenistan, Ukraine, United Kingdom, Uruguay, Uzbekistan, Venezuela.<href=”#_ftn25″ name=”_ftnref25″ title=””>[20]

3.1.2 The Protocol to the American Convention on Human Rights

The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted by the General Assembly of the Organization of American States in 1990, provides for the total abolition of the death penalty but allows states parties to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state party to the American Convention on Human Rights can become a party to the protocol.

States parties: Argentina, Brazil, Chile, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Uruguay, Venezuela.

LEGAL CONDITION OF DEATH PENALTY IN BANGLADESH

4.1 Death Penalty in Penal Laws

The death penalty provisions contained in several legislation in Bangladesh can be compared with the provision found in the legislation of Britain before 1823 where the death penalty was imposed for 222 crimes with the 1612 Virginia divine moral and martial laws which provided death penalty for even insignificant offences such as stealing grapes, killing chickens trading with the Indians. In Bangladesh, we exercise death penalty as capital punishment to execute the murderer or a convict of vital crime from ancient time. Though the sentence of death penalty pass frequently from the courts but the execution of these sentences are not frequently as well.<href=”#_ftn26″ name=”_ftnref26″ title=””>[21]. The following are the conditions which offenses are punishable by death in the legislation of Bangladesh:

Under the Penal Code, 1860-

1. Waging and attempting to wage war or abetting waging of war against Bangladesh<href=”#_ftn27″ name=”_ftnref27″ title=””>[22]
2. Abetment of mutiny if mutiny is committed in consequence there of <href=”#_ftn28″ name=”_ftnref28″ title=””>[23]
3. Giving and fabricating false evidence with intend to cause any person to be convicted of a capital punishment if an innocent person is consequently convicted and executed <href=”#_ftn29″ name=”_ftnref29″ title=””>[24]
4. Murder<href=”#_ftn30″ name=”_ftnref30″ title=””>[25]
5. Murder by a person under sentence of imprisonment for life<href=”#_ftn31″ name=”_ftnref31″ title=””>[26]

vi. Abetment of suicide of a child or insane person.<href=”#_ftn32″ name=”_ftnref32″ title=””>[27]

vii. Attempt by life convicts to murder if hurt is caused. <href=”#_ftn33″ name=”_ftnref33″ title=””>[28]

viii. Kidnapping or abducting a person under the age of ten.<href=”#_ftn34″ name=”_ftnref34″ title=””>[29]

ix. Dacoit with murder.<href=”#_ftn35″ name=”_ftnref35″ title=””>[30]

4.2 Other Laws in Bangladesh dealt with Death Penalty

In addition to penal code, 1860 other laws like Special Powers Act, 1974; Arms Act, 1878; Explosives act, 1884; The Women and Children Anti Oppression Act, 2000 etc. also have the provisions of Capital Punishment.

(a) Under (the Special Power) Act 1974

i) Sabotage.<href=”#_ftn36″ name=”_ftnref36″ title=””>[31]

ii) Hoarding or dealing in black market.<href=”#_ftn37″ name=”_ftnref37″ title=””>[32]

iii) Counterfeiting Currency notes and government stamp.<href=”#_ftn38″ name=”_ftnref38″ title=””>[33]

iv) Smuggling.<href=”#_ftn39″ name=”_ftnref39″ title=””>[34]

v) Adulteration or sale of adulterated food, drink, drugs or cosmetics.<href=”#_ftn40″ name=”_ftnref40″ title=””>[35]

vi) Attempt for committing offences punishable with death.<href=”#_ftn41″ name=”_ftnref41″ title=””>[36]

(b) Under the Arms Act 1878 using unlicensed firearms for murder.<href=”#_ftn42″ name=”_ftnref42″ title=””>[37]

(c ) Under the Explosives Act 1884 abetments and attempts to commit offences

punishable with death.<href=”#_ftn43″ name=”_ftnref43″ title=””>[38]

(d) Under the Explosive Substance Act 1908 causing explosion likely to endanger

life person or property.<href=”#_ftn44″ name=”_ftnref44″ title=””>[39]

(e) Under the Women and Children Anti Oppression Act 2000

(i) Causing or attempt to cause death to women and children by inflammatory corrosive or poisonous substances.<href=”#_ftn45″ name=”_ftnref45″ title=””>[40]

(ii) Trafficking women.<href=”#_ftn46″ name=”_ftnref46″ title=””>[41]

(iii) Trafficking Children.<href=”#_ftn47″ name=”_ftnref47″ title=””>[42]

(iv) Detaining women or children for claiming pawn.<href=”#_ftn48″ name=”_ftnref48″ title=””>[43]

(v) Causing death by rape.<href=”#_ftn49″ name=”_ftnref49″ title=””>[44]

(vi) Causing death by dowry.<href=”#_ftn50″ name=”_ftnref50″ title=””>[45]

(vii) Taking any part of the body off for engaging a child in begging.<href=”#_ftn51″ name=”_ftnref51″ title=””>[46]

4.3 Death Penalty and Constitutional Provision in Bangladesh

In Bangladesh we exercise death penalty as capital punishment from ancient times. The Penal policy of Bangladesh appears to be good in controlling crime and criminal, but an analysis discloses the flows of the policy. First, the mandatory death penalty provide by the Penal Code, 1860 violative of Articles 31, 32 and 35(5) of the Constitution of the People’s Republic of Bangladesh.

Article 31 of the constitution states that no action detrimental to life, liberty, body, reputation and property of any citizen or resident in Bangladesh shall be taken except in accordance with law. Article 32 provides that no person shall be deprived of life or personal liberty in accordance with law. The deprivation of life means total loss (death penalty) and deprivation of liberty means confining any person within the prison. Only the security of the organized society or state can justify deprivation of life or liberty of any citizen the death sentence is not permissible. The mandatory death penalty provide by section 302 of the Penal Code is clear violation of articles31 and 32 of the constitution of Bangladesh because through these provision the framers recognized the inviolability and sacrosanct nature of human life and liberty.<href=”#_ftn52″ name=”_ftnref52″ title=””>[47] The sentence of whipping provided by the G.P.C and mandatory death penalty provided by the Penal Code are also violation of Article 35(5) of the constitution, which provides that no person shall subject to torture or to cruel, inhuman or degrading punishment or treatment. Notwithstanding the saving clauses and article 35(6), mandatory death penalty is violative because it undetermines the sanctity of human life and liberty and leaves no space for the discretion of the judges.

4.4 Execution of the killers of Bangabandhu Sheikh Mujibur Rahman

The execution of the killer of “Bangabandhu Sheikh Mujibur Rahman”may be the burning example of death penalty in Bangladesh for the next few centuries.The leader who guided thousands of Mukti Bahini members (freedom fighter) to the victory was not spared by the anti-national elements. Sheikh Mujib, who was popularly known as Bangabandhu (friend of Bengal) was killed with almost all his family (including one of his pregnant daughter in law) members within four years of the successful completion of the freedom movement. The countdown has been already started for the convicted as the court has signed the death warrants.

Following the final verdict of the Supreme Court of Bangladesh, the District and Sessions Judge of Dhaka Abdul Gafar signed the death warrants of five detained convicts on January 3 and already been served to them in Dhaka central jail, where they were being imprisoned. In the deadly assassination attempt by a group of army officers in his private residence at Dhanmondi in Dhaka on August 15, 1975, the killers did not spare Sheikh Mujib’s wife Fazilatunessa Mujib, sons Sheikh Kamal, Sheikh Jamal and Sheikh Russell, daughters-in-law Sultana Kamal and Rosy Jamal, and his brother Sheikh Naser. The President’s military secretary Colonel Jamil, detective officer Nurul Islam Khan and Sepoy Shamsu also lost their lives in the during the pre-dawn operation. Only two daughters of Bangabandhu, Sheikh Hasina (the present Bangladesh PM) and Sheikh Rehana escaped as they were out of the country at that time. The apex court of the country had confirmed the death sentence to 12 convicts in the sensitive case. Rejecting the appeals of five former army officers, the Appellate Division of the Supreme Court (in its final judgment pronounced on November 19, 2009) upheld the High Court’s verdict sentencing all the 12 retired or dismissed army officers to death on the charge of murdering Sheikh Mujib. A five-member bench of the court, comprising Justice Mohammed Tafazzal Islam, Justice Abdul Aziz, Justice Muzammel Hossain, Justice B K Das and Justice S K Sinha, observed in its verdict that ‘it was not a mutiny, but a conspiracy to kill Sheikh Mujibur Rahman’. <href=”#_ftn53″ name=”_ftnref53″ title=””>[48]

The 412-page landmark judgment analyzed ‘having taken into consideration the facts and circumstances of the case and upon detailed analysis of the evidence and judgments of the courts’, there was ‘no illegality in the judgment and order passed by the High Court Division’ (to hang the killers of Mujib by the neck until death). The five convicts who were behind the bar and waiting for gallows include Muhiuddin Ahmed, Syed Faruque Rahman, Sultan Shahriar Rashid Khan, Bazlul Huda (repatriated from Thailand) and AKM Mohiuddin (repatriated from the United States). Other convicts, who were hiding in different countries (arguably in Libya, Belgium, Pakistan, India, Hong Kong, Canada) include Khandaker Abdur Rashid, Shariful Haque Dalim, AM Rashed Chowdhury, Abdul Mazed, Risaldar Mosleuddin Khan, and Noor Chowdhury (to be deported from Canada). One convict Abdul Aziz Pasha took political asylum in Zimbabwe and he died there in 2001. Nearly 35 years after Bangladesh’s founding father Sheikh Mujibur Rahman was assassinated, five army officers who were among those convicted for the killing were hanged at Dhaka Central Jail Thursday, bringing to an end a long manhunt and the quest for justice of Mujib’s daughter, current Prime Minister Sheikh Hasina.The five condemned prisoners – Lieutenant Colonels Syed Farook Rahman, Shahriar Rashid Khan, Mohiuddin Ahmed, A.K.M. Mohiuddin and Major Bazlul Huda – were walked to the gallows shortly after midnight. Two hangmen put nooses around their necks. At 12.05 a.m. of January 28, 2010. Dhaka Jail Superintendent Touhidul Islam dropped a handkerchief to signal the hangmen who then pulled the levers. Sultan Shahriar and Farooq were kept hanging for half an hour to confirm their deaths, witnesses were quoted as saying.At 12:35 a.m., two other killers – A.K.M. Mohiuddin and Bazlul Huda – were brought to the gallows. They were also executed. Then it was the turn of Mohiuddin Ahmed. He was brought to the gallows at 1.05 a.m. Dhaka Deputy Commissioner Zillar Rahman told The Daily Star. As the news spread that Bangabandhu’s killers would be hanged, hundreds of people began to gather outside the jail. Members of Rapid Action Battalion, police and armed police battalion were deployed around the prison. Before the hanging, the prisoners were bathed around 11 p.m. Half an hour later, the civil surgeon and two other doctors conducted their medical check-up before leading them to the gallows. After it was all over, the bodies of the five former army officers were sent to their villages in five ambulances under police protection.

RETENTION OF CAPITAL PUNISHMENT HOW FARJUSTIFIED

The death penalty is used in many states as punishment for murder. Many people consider capital punishment as cruel; others consider it as justice served with the assumption that it prevents crime, but murder rates have not decreased when capital punishment is adopted.<href=”#_ftn54″ name=”_ftnref54″ title=””>[49]There were more than 4,500 people executed in the United States since 1930. Around 120 inmates on death row have been released since 1973 because of evidence of their innocence. In 2005, the U.S.A Supreme Court struck down the death penalty for crimes committed by juveniles. There were 22 defendants executed for crimes committed as juveniles since 1976. In 2002, the U.S.A Supreme Court ruled that it’s unconstitutional to execute defendants with mental retardation, which overturned a previous 1989 ruling. The American Psychiatric Association, the American Psychological Association, the National Alliance for the Mentally Ill, and the American Bar Association endorse an exemption of the death penalty for the severely mentally ill. Lethal injection is the preferred execution method today for about 75% of executions. The electric chair, the gas chamber, hanging, and the firing squad are still used in some states. In 2006, there were concerns that people experienced extremely painful executions due to poor administration of the injections, which led several courts to review how lethal injections were conducted and set stricter standards for them. This paper will address both sides of the argument for and against capital punishment, looking at the issue from a neutral standpoint. The debate over capital punishment has been raised and discussed for years throughout history. In the 1800’s, most executions occurred for convictions for murder. Some people were executed for convictions of armed robbery, kidnapping, rape, and treason.<href=”#_ftn55″ name=”_ftnref55″ title=””>[50] Pennsylvania was the first state to abolish the death penalty for robbery, burglary, and sodomy in 1786 and applied executions only for first-degree murder. Capital punishment became widespread during the middle Ages. From Rome to modern era, the death penalty was applied throughout Western Europe for more than two thousand years. England had more than 200 capital offenses in the 1700’s.<href=”#_ftn56″ name=”_ftnref56″ title=””>[51] The call to abolish capital punishment started in the 18^th century. Some of the first countries to abolish the death penalty included Venezuela in 1863, San Marino in 1865, and Costa Rica in 1877. Great Britain abolished the death penalty in 1965 and was permanently outlawed in 1969. As of 2004, 81 countries had abolished capital punishment, including members of the European Union. But some other countries still use the death penalty only for treason and war crimes. Countries in the Caribbean, Africa, and Asia have capital punishment for ordinary crimes. The United States and China apply the death penalty more frequently than other countries. Texas applies the death plenty more frequently than all the other states. Christian conservatives, the Catholic Pope, and others have always and will continue to advocate against the death plenty. Capital punishment has been a debated topic for years. There will always be supporters for and against the death plenty.<href=”#_ftn57″ name=”_ftnref57″ title=””>[52]

5.1 Arguments in favour of death penalty

Capital punishment permanently removes the worst criminals from society and should prove much safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals cannot commit any further crimes, either within prison or after escaping or after being released from it.<href=”#_ftn58″ name=”_ftnref58″ title=””>[53]

The retention of death penalty seems desirable in cases of hardened murders that are incorrigibles and commit cold-blooded murders in a calculated manner. The reason generally advanced for retaining the death penalty is protection of society. It means that the criminal is exterminated and got rid of once for all. But it must be remembered that it is not by the fear of death but generating in the community a statement a horror against killing, which we can hope to deter offenders from committing that act.<href=”#_ftn59″ name=”_ftnref59″ title=””>[54]

Retentionists argue strongly in favour of the continuation of the systems of capital punishment for certain crimes. According to them, some criminals are hopelessly ‘degenerate’ and ‘irreformable’ that only their removal can protect society. The idea of life imprisonment instead of death penalty according to the retentionists is a ‘hoax’ because parole and pardon powers are so abused that the criminal ends up serving only a minimum number of years behind bars which is unjust and not in keeping with the heinousness of the crimes they have committed. They argue that capital punishment really has a deterrent influence and a large number of crimes are prevented because of this particular mode of punishment.

Abolitionists also put forward the argument that the mental torture suffered while waiting final judgement as well as the ‘poignant’ sufferings of friends and family of the person to be executed ought well to be considered. According to kant on the other hand, punishment is inflicted only because it is merited and whether it will reform or deter is irrelevant in justifying the infliction the punishment. It is often said that too little attention is paid to the victims of murder, that the consideration is for the offender who did not consider his victims.

Lord Denning opined that the punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for such crimes. It is a mistake, he thought, to consider the object of punishment as being deterrent, or reformative, or preventive or anything else.<href=”#_ftn60″ name=”_ftnref60″ title=””>[55]

The ultimate justification of any punishment is not that it is a deterrent, but that is the denunciation by the community of a crime, and from this point of view there are some murders which in the present state of public opinion, demand the most emphatic denunciation of all, namely the death penalty.

The above generalisations suggest that classification of different types of homicides can be made on the basis of social environment and personality of the offender. Therefore, the efficacy of death penalty in such cases should be just in the light of the surrounding conditions. Considered from this standpoint, the habitual offenders and sex psychopaths are abnormal persons who develop a kind of menia for their crime without bothering about its gravity or evil effects. There is yet another category of criminals who take pleasure in killing human life without any apparent reason. They commit murder one after another only for the sake of fun. When interrogated, these men-killers have boldly confessed that they commit homicides because they drive some kind of pleasure in watching their victim dying in pain and torture.<href=”#_ftn61″ name=”_ftnref61″ title=””>[56]Needles to stay that death sentence are perhaps the only appropriate punishment for such beastly offenders.

5.2 Arguments against Death Penalty

There are a number of incontrovertible arguments against the death penalty. The most important one is the virtual certainty that genuinely innocent people will be executed.and that there is no possible way of compensating them for this miscarriage of justice. There is also another significant but much less realised danger here. The person convicted of the murder may have actually killed the victim and may even admit having done so but does not agree that the kil