IS ABOLISHING DEATH PENALTY RELAVANT FOR BANGLADESH?

CHAPTER – ONE

Introduction:

Death penalty is one kinds of punishment of a man and such types of punishment given by the state for committing grievous offence. It is also known as “Capital punishment”.

We know that, the Death Penalty is the highest and cruel punishment. This punishment also executed in different societies and in different ways. There was a system that if a person violated the provision of Islam or Holy things that time society provides Death Penalty for it.

Death penalty is the most cruel, inhuman and degrading punishment. It violates the right to life. There is a possibility of innocent persons being awarded death sentence if he/ she becomes unable to prove his/ her innocence for reasons beyond his/ her control. It has never been observed that death penalty has been able to deter crime more effectively than other punishments.

Generally capital punishment means some big type of punishment. But we mean about death penalty. When a criminal commits a dangerous crime then our justice issues death penalty. But it heats our humanities. When a man dies all of his knowledge, merits, dreams are died. And also we have no power to give life to any body so how can we take a life? In this regard our discussion will hold and we discuss about death penalty as much as possible.

Many country of the world abolish the death penalty after the Second World War but Bangladesh is exception. There is some restriction of Bangladeshi Laws. Many laws of our country prescribe to execute the Death Penalty. But this is the loopholes of our laws. We should amend most the laws of our country if it is not amend it will be violation of human rights.

Aims and Objectives of the Study:

It is very important to identify the aims and objectives of any research. I shall describe all the goal of this research on Abolishing Death Penalty How Relevant in Bangladesh.

The aims and objects of this Research such as follows;

► to define the Death Penalty.

► to determine the motivation of Death Penalty.

► to identify the provision for Death Penalty in Bangladesh.

► what is the International law relevant for abolishing of Death Penalty?

► to justify what is the necessity of Death Penalty.

► how we can abolish the Death Penalty for our Society.

Importance of the Study

Research Study is very important thing. It’s very important for any student to himself himself or herself with Research whatever the topic is, joining with Research can enlarge the knowledge of student. The study and analyzing of the matter of Dowry Problem in Bangladesh: Legal and Socio-Cultural Perspectives are very important for all people.

Methodology:

It is difficult to complete a research without adopting any methods. The optimum outcome of this research depends largely on the adopting of the proper methods related to the topics in the field of the proper investigation. When I prepared this research I followed the some methods i.e. the Imperial Methods, Analytical Method etc. respectively where it is applicable. The techniques of data collection followed in this research are interviewing, questionnaire, uses of documents sources. I also helped by my teachers, friends and different website collecting the topic related information and statistic.

Limitation of the Study:

This research has some limitations in true sense. The limitations reduced the scope of the study. The main limitation of the study is the time binding’s work. The time is not enough for the study.

To create any good research on any topics and subject, that time prerequisites sufficient instrument and enhance more books in university library but our library is not sufficient for making this research on International Treaty.

There is no study that done on this topic before, so there was no perfect guideline. That is another important limitation of this study.

CHAPTER – TWO

Definition and Historical Background

All the forms of punishments, capital punishment is perhaps the most debated subject among the modern penologists. There are arguments for and against the utility of his mode of sentence. The controversy is gradually being resolved with a series of judicial pronouncement containing elaborate discussion on this complex penological issue.

Definition:

1. a) Punishment:

According to the Stanford Encyclopedia of Philosophy, in common usage, the word “punishment” might be described as “an authorized imposition of deprivations of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens  because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent.”

The most common applications are in legal and similarly ‘regulated’ contexts, being the infliction of some kind of pain or loss upon a person for a misdeed, i.e. for transgressing a law or command (including prohibitions) given by some authority (such as an educator, employer or supervisor, public or private official).

1. b) Capital Punishment:

The word capital comes directly from the Latin capitalis, “of the head.” Across human history, beheading has probably been the most frequent mode of dispatch. Sanctioned methods of execution in the United States have included death by electrocution, poison gas, hanging, and firing squad. Concern regarding their cruelty has led to lethal injection as the preferred method.

Capital punishment, or the death penalty, is the execution of a person by judicial process as a punishment for an offense. Crimes that can result in a death penalty are known as capital crimes or capital offences.

1. c) Abolish the Death Penalty:

The death penalty violates the right to life. It is the ultimate cruel, inhuman and degrading punishment. An execution, just like torture, involves a deliberate assault on a prisoner. It is also discriminatory and is often used disproportionately against the poor, the powerless and the marginalized, as well as against people whom repressive governments want to eliminate. The death penalty does not deter crime more than other punishments. International human rights treaties prohibit courts sentencing anyone who was under 18 years old at the time of the crime to death, or executing them. But a small number of countries continue to execute child offenders, violating their obligations under international law. This blog covers Amnesty’s campaign to end the death penalty.

Nature and Scope of Death Penalty:

Capital punishment is given under penal law. So it is the punishment for doing any criminal offences.

Whether one supports or opposes the death penalty, there can be little doubt that there remains great value in continuing our national dialogue about the fall that is condemnation through the criminal law and punishment by death.. It matters also because criminal and penal laws are institutional and moral manifestations of our need and efforts to control the people. We neglect–or in fact choose not–to talk about this anymore, this controlling the people; at least we do not talk about it in precisely those terms. It is easy to understand why. Our politics are to a significant extent rights-oriented, and many of the philosophical origins of our constitutional system are based in certain strands of early modern political thought, which posited that we entered civil society not so that Government could save our souls, but to protect our rights–our lives, our liberties, and our property. We often forget, however, that an important corollary for such security is the preservation of a tolerable civil social order in which certain socially harmful conduct must be met by the reasoned condemnation of the political community. Our constitutional framework may have been conceived amidst the claims of the modern science of politics, but it did not abandon the understanding of the ancients, the understanding that tragedy is an omnipresent element of political life. Humans are weak, flawed, and often dangerous to their fellow citizens and to the state.

This understanding was not lost upon the Founding generation, which attempted to place the claims of liberty and the claims of authority at a proper equilibrium. Remember Madison’s observation in Federalist that, “if men were angels, no government would be necessary.” Controlling the people within a tolerable, reasoned order thus sometimes demands that the Government punish the people harshly for committing particularly serious crimes against the political community, including punishing offenders by death. Congress has enacted, and various Presidents have signed into law, statutes that provide capital punishment for certain serious offenses.  The United States, via a personal opinion of the Attorney General, may only seek the death penalty in a federal civilian prosecution after a rigorous internal review of potential capital cases by the Department of Justice.

Historical background of Death penalty:

Historically, the execution of criminals and political opponents was used by nearly all societies—both to punish crime and to suppress political dissent. In most places that practice capital punishment today, the death penalty is reserved as punishment for premeditated murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery and sodomy, carry the death penalty, as do religious crimes such as apostasy (the formal renunciation of one’s religion). In many retentionist countries (countries that use the death penalty), drug trafficking is also a capital offense. In China human trafficking and serious cases of corruption are also punished by the death penalty. In militaries around the world courts-martial have imposed death sentences for offenses such as cowardice, desertion, insubordination, and mutiny.

Most historical records as well as various primitive tribal practices indicate that the death penalty was a part of their justice system. the Athenian legal system was first written down by Draco in about 621 BC: the death penalty was applied for a particularly wide range of crimes.The Bible prescribes death penaltyfor murder and many others crimes.

In medieval and early modern Europe, before the development of modern prison systems, the death penalty was also used as a generalized form of punishment. For example, in 1700s Britain, there were 222 crimes which were punishable by death, including crimes such as cutting down a tree or stealing an animal..

Although many are executed in China each year in the modern age, there was a time in Tang Dynasty China when the death penalty was actually abolished altogether. This was in the year 747, enacted by Emperor Taizong of Tang (r. 712–756), who before was the only person in China with the authority to sentence criminals to execution. Even then capital punishment was relatively infrequent, with only 24 executions in the year 730 and 58 executions in the year 736. Two hundred years later there was a form of execution called Ling Chi, slow slicing, or death by/of a thousand cuts, used in China from roughly 900 CE to its abolition in 1905.

The last several centuries have seen the emergence of modern nation-states. Almost fundamental to the concept of nation state is the idea of citizenship. This caused justice to be increasingly associated with equality and universality, which in Europe saw an emergence of the concept of natural rights. Another important aspect is that emergence of standing police forces and permanent penitential institutions. The death penalty become an increasingly unnecessary deterrent in prevention of minor crimes such as theft. Additionally, in countries like Britain, law enforcement officials became alarmed when juries tended to acquit non-violent felons rather than risk a conviction that could result in execution. The 20th century was one of the bloodiest of the human history. Massive killing occurred as the resolution of war between nation-states. A large part of execution was summary execution of enemy combatants. Also, modern military organisations employed capital punishment as a means of maintaining military discipline. In the past, cowardice, absence without leave, desertion, insubordination, looting, shirking under enemy fire and disobeying orders were often crimes punishable by death.

In early New England, public executions were a very solemn and sorrowful occasion, sometimes attended by large crowds, who also listened to a Gospel message and remarks by local preachers and politicians. The Connecticut Courant records one such public execution on December 1, 1803, saying, “The assembly conducted through the whole in a very orderly and solemn manner, so much so, as to occasion an observing gentleman acquainted with other countries as well as this, to say that such an assembly, so decent and solemn, could not be collected anywhere but in New England.

Trends in most of the world have long been to move to less painful, or more humane, executions. France developed the guillotine for this reason in the final years of the 18th century while Britain banned drawing and quartering in the early 19th century. Hanging by turning the victim off a ladder or by dangling him from the back of a moving cart, which causes death by suffocation, was replaced by “hanging” where the subject is dropped a longer distance to dislocate the neck and sever the spinal cord. In the U.S., the electric chair and the gas chamber were introduced as more humane alternatives to hanging, but have been almost entirely superseded by lethal injection, which in turn has been criticized as being too painful. Nevertheless, some countries still employ slow hanging methods, beheading by sword and even stoning, although the latter is rarely employed. Execution by nitrogen asphyxiation was proposed in 1995 and appears occasionally in online discussions, but as of 2008, it has not been used by any nation.

Death Penalties in different Countries:

1. a) Bangladesh:

In Bangladesh we exercise death penalty as capital punishment from ancient time. From which time we exercise it didn’t know. According to Islam at the beginning of human there was first two brother Habil and kabil and they commit first killing human. And now we kill human if he or she kills any man. The Penal Code permit death penalty for dacoits with assault.  And also said about death penalty for killing any people.  And for this reason many times we see lot of people to die according to our death penalty. Dangerous criminal Ershad Shikder also dies according to death penalty and now we are very happy for it. Also now at this moment Bangladesh have no plan or future plan to omit death penalty from our penal code.

1. b) Britain

There are very real issues of human rights that will affect us all if it were to be re-introduced. Will the government introduce laws that are just and contain sufficient safeguards and will the judiciary administer them properly. We are all potentially capable of murder (a lot of domestic murders, where one partner murders the other during a row, are first time crimes) and therefore we must each consider whether we and our loved ones are more at risk of being murdered or being executed for committing murder. We must also consider what the likelihood is of innocent people being executed – it is inevitable that it will happen sooner or later. Can the police, the courts and the system generally, be trusted to get things right on every occasion. They never have been able to previously. Will juries be willing to convict in capital cases. Would you like to have to make the decision as to whether the person in the dock should live or die. Will the government really be willing to carry out death sentences or will they find every excuse for not doing so thus returning to the injustices of earlier centuries. Will executions really prove to be the deterrent that the supporters of capital punishment expect them to be. This is a very important point as it is always put forward by the pro-capital punishment lobby as the principal benefit from re-introduction. It is unlikely the very worst murderers would be deterred because they are typically psychopaths or of such dubious sanity that they are incapable of rational behavior (often taking their own lives immediately after the crime, as in the Hungerford and Dunblane massacres) Certain criminals e.g. drug traffickers may be deterred because they have a clear option with defined risks but would the person who has a violent argument with their partner give a second thought to what will happen to them when in the heat of the moment they pick up the carving knife? It is unlikely that a handful of executions a year will have any real deterrent effect particularly on the people whom society would most like to be deterred, e.g. serial killers, multiple rapists and drugs barons. Yet these particular criminals are the least likely to be executed, the serial killers will be found insane and the drug barons will use any means to avoid conviction e.g. intimidation of witnesses. So we go back to the situation where only “sane” murderers can be executed. Thus a modern day Ruth Ellis might also hang because she was sane, whilst Beverley Allitt, who murdered four small children, would be reprieved after because she has Munchausen’s Syndrome by Proxy, or so she and certain psychiatrists claim.

1. c) America:

Britain influenced America’s use of the death penalty more than any other country. When European settlers came to the new world, they brought the practice of capital punishment. The first recorded execution in the new colonies was that of Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall was executed for being a spy for Spain. In 1612, Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial Laws, which provided the death penalty for even minor offenses such as stealing grapes, killing chickens, and trading with Indians.

Laws regarding the death penalty varied from colony to colony. The Massachusetts Bay Colony held its first execution in 1630, even though the Capital Laws of New England did not go into effect until years later. The New York Colony instituted the Duke’s Laws of 1665. Under these laws, offenses such as striking one’s mother or father, or denying the “true God,” were punishable by death. (Randa, 1997).

The adaptability of Death Penalty in Various Religious:

1. a) Buddhism:

There is disagreement among Buddhists as to whether or not Buddhism forbids the death penalty. The first of the Five Precepts (Panca-sila) is to abstain from destruction of life. Chapter 10 of the Dhammapada states: Everyone fears punishment; everyone fears death, just as you do. Therefore do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore do not kill or cause to kill.

Chapter 26, the final chapter of the Dhammapada, states, “Him I call a brahm in who has put aside weapons and renounced violence toward all creatures. He neither kills nor helps others to kill.” These sentences are interpreted by many Buddhists (especially in the West) as an injunction against supporting any legal measure which might lead to the death penalty. However, as is often the case with the interpretation of scripture, there is dispute on this matter. Thailand, where Buddhism is the official religion, practices the death penalty, as do all other countries where the majority of the population is Buddhist, i.e. Sri Lanka, Mongolia, and Burma, although the last has had a moratorium on executions since 1997. Moreover, throughout almost all history, countries where Buddhism has been the official religion (which includes most of the Far East and Indochina) have practiced the death penalty. One exception is the abolition of the death penalty by the Emperor Saga of Japan in 818. This lasted until 1165, although in private manors executions continued to be conducted as a form of retaliation.

1. b) Judaism:

The official teachings of Judaism approve the death penalty in principle but the standard of proof required for application of death penalty is extremely stringent, and in practice, it has been abolished by various Talmudic decisions, making the situations in which a death sentence could be passed effectively impossible and hypothetical. “Forty years before the destruction” of the Temple in Jerusalem in 70 AD, i.e. in 30 AD, the Sanhedrin effectively abolished capital punishment, making it a hypothetical upper limit on the severity of punishment, fitting in finality for God alone to use, not fallible people.

In law schools everywhere, students read the famous quotation from the 12th century legal scholar, Maimonides,

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

Maimonides argued that executing a defendant on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely “according to the judge’s caprice.” Maimonides was concerned about the need for the law to guard itself in public perceptions, to preserve its majesty and retain the people’s respect.

1. c) Christianity:

Since its origins, Christianity presented ambiguity about death penalty. Substantially excluded in Mt 5,44 (“love your enemies and pray for those who persecute you”), in Lc 6, 35-37 (“…don’t judge and you won’t be judged; don’t condemn and you won’t be condemned; forgive and you will be forgiven”) and in Gv 8, 1-11 (in the adulteress’s episode), that punishment becomes admissible in the Paul’s epistle to the Romans about the submission to authority; and a similar ambiguity can be seen in apologists’ and Church fathers’ texts, from Tertullian (De Idolatria) and Lactantius (Divinae Institutiones), against death penalty, to Augustin, who admits in some circustances the “sword right”.

In biblical law, death penalty is comminated, among other crimes, for premeditated murder (Es 21, 12; Lv 24, 7), kidnapping and selling a person (Es 21, 16; Dt 24, 7), witchcraft (Es 22, 17), violation of sabbatical rest (Es 35, 2), human sacrifice (Lv 20, 2), abuse and strokes to one’s parents (ES 21, 15; Lv 20, 9), adultery and incest (Lv 20, 10-12; Dt 22, 22), idolatry (Dt 17, 2-5; 19, 17-18).

Nowadays, Catholic Church has a precise attitude: fighting against death penalty, in every case. Pope has more than once made appeals to avoid imminent executions: the case of Joseph O’Dell, sentenced to death in 1997, which caused outcry and reactions by all the world’s governments, is an example of that.

However, death penalty is theoretically still in force in the Vatican City, only in case of attempt on Pope’s life, wellbeing or freedom or in case of attempt on a foreign head of state, when the law of this country provides for this penalty (Vatican law 7th June, 1929, nr. 11, paragraph 4). In Vatican last executions date back to Pius IX’s papacy (1846-78).

1. d) Islam:

Scholars of Islam hold it to be permissible but the victim or the family of the victim has the right to pardon. In Islamic jurisprudence (“Fiqh”), to forbid what is not forbidden is forbidden. Consequently, it is impossible to make a case for abolition of the death penalty which is explicitly endorsed.

Sharia Law or Islamic law may require capital punishment; there is great variation within Islamic nations as to actual capital punishment. Apostasy in Islam and Stoning to death in Islam is controversial topics. Furthermore, as expressed in the Qur’an, capital punishment is condoned. Although the Qur’an prescribes the death penalty for several “hadd” (fixed) crimes including rape, murder is not among them. Instead, murder is treated as a civil crime and is covered by the law of “qisas” (retaliation), whereby the relatives of the victim decide whether the offender is punished with death by the authorities or made to pay “diyah” (wergild) as compensation.

“If anyone kills person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people”.  “Spreading mischief in the land” can mean many different things, but is generally interpreted to mean those crimes that affect the community as a whole, and destabilize the society. Crimes that have fallen under this description have included: (1) Treason when ones helps an enemy of the Muslim community (2) Apostasy when one leaves the faith (3) Land, sea, or air piracy (4) Rape (5) Adultery (6) Homosexual behavior.

When did countries begin to abolish the death penalty?

Capital punishment was widely applied in ancient times throughout the world. The modern movement for the abolition of capital punishment began in the 18th century with the writings of Montesquieu and Voltaire. Some of the first countries to abolish capital punishment included Venezuela (1863), San Marino (1865), and Costa Rica (1877). Today, over half the countries in the world have abolished the death penalty either by law or through practice.  Since 2000, Chile, Yugoslavia, Serbia, Montenegro and Turkey have joined the list of abolitionist countries. Most executions occur in a handful of countries: China, Iran, Saudi Arabia and the United States. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. In 1977, the United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment”.

Ethics and Philosophy of Death Penalty:

Ethical debate of the capital punishment can be split into two main philosophical contexts, a deontological context and a utilitarian/consequentialist context. A priori argument can be further uncategorized into a right argument and a virtue argument. Legal debate also generally falls into prior argument based on legal text. Consequentialist argument can be largely reduced to utilitarian formula through what amount to costs or benefits of the death penalty in terms of human lives and welfare.

The deontological objection to the death penalty asserts that the death penalty is “wrong” by its nature, mostly due to the fact that it amounts to the violation of the right to life, which should be universal. In philosophical debate, however, the virtue school tends to argue that the death penalty is also “wrong” on the ground that the process is cruel and inhumane. It brutalizes the society at large and desensitizes and dehumanizes participants of the judicial process. In particular, it extinguishes the possibility of rehabilitation and redemption of the perpetrator.

Deontological justification to the death penalty, on the other hand, argues that the death penalty is “right” by nature, mostly on the ground that retribution against the violator of another life or liberty is “just”. It naturally follows that not applying death penalty to heinous murder would be unjust. In the context of virtue, they believe that without proper retribution, the judicial system further brutalizes the victim or victim’s family and friends, which amounts to secondary victimization. Moreover, the judicial process which applies the death penalty reinforces the sense of justice among participants as well as the citizens as a whole, and might even provide incentive for the perpetrator to own up to their crime. Opponents to capital punishment argue that imposing the death penalty in fact creates more secondary victims, specifically the family and friends of the executed.

In the context of deontology, life imprisonment cannot be a substitute for the death penalty. This is because life imprisonment or any other length of incarceration is a direct violation of right to liberty. Moreover, the possibility of irreversible miscarriage of justice exists in both the death penalty and incarceration. In deontological term, one cannot substitute violation of one type of right (right to life) with another (right to liberty). Therefore deontological argument against death penalty in principle is argument against retribution and punishment in general. If any restriction is placed on the perpetrator, then it must be on the ground of prevention rather than retribution. Proponents of the death penalty in turn assert that a deontological objection is absurd from moral perspective and that it is also problematic from a consequential perspective. They point out that if there is indeed no penalty for murder or other heinous crimes, then there is no effective barrier against initial crime, barring one of a psychological nature. Moreover, the victim and his/her family and friends are free to take law into their own hand and face no consequence because the justice system no longer functions as deterrent.

At least in the judicial procedure for juveniles, the retribution aspect is explicitly removed and any restriction placed on the perpetrator is essentially for rehabilitation. Moreover, the principle of rehabilitation is increasingly applied to other areas, such as the parole system and various psychological, vocational and educational programs offered within the prison system. So the deontological opposition argue that it is possible to replace the purpose of justice system from retribution to prevention.

Those who argue for the death penalty on deontological (retribution) ground argue that rehabilitation is justified only when the victim survives. In case of murder, they point out that possible rehabilitation of one life cannot redeem another life taken. Alternatively, some concede that the merit of rehabilitation may prevail over the merit of retribution in some circumstances, such as manslaughter, negligent homicide, crime of passion or juvenile crime. However, some argue that in the case of planned multiple homicide committed by an adult who shows no sign of remorse at the time of crime, the death penalty is the only just course of action.

CHAPTER – THREE

Relevant laws of Death penalty

There are many laws in the world but most of the laws are related to the death penalty. Some countries abolish the death penalty after adopt the Protocol II, 1996. In Bangladesh there also many laws but most of the laws are related to the death penalty. The Bangladesh do not abolish the death penalty still now although adopt the ICCPR Protocol II. Our Constitution clearly said that every person has right to life under Article 32 but Penal Code declared death penalty under section 302.

Early death penalty laws:

The first established death penalty laws date as far back as the Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different crimes. The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code; in the Seventh Century B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes; and in the Fifth Century B.C.’s Roman law of the Twelve Tables. Death sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement.

In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the following century, William the Conqueror would not allow persons to be hanged or otherwise executed for any crime, except in times of war. This trend would not last, for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been executed. Some common methods of execution at that time were boiling, burning at the stake, hanging, beheading, and drawing and quartering. Executions were carried out for such capital offenses as marrying a Jew, not confessing to a crime, and treason.

The number of capital crimes in Britain continued to rise throughout the next two centuries. By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many juries would not convict defendants if the offense was not serious. This leads to reforms of Britain’s death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of the 222 crimes punishable by death.

Constitutional Provisions:

The penal policy of Bangladesh appears to be good in controlling crime and criminals, but subtle analysis discloses the flaws of the policy. First, the mandatory death provided by the Penal Code is violative of Articles 31, 32 and 35(5) of the Constitution. Article 31 of the Constitution states that, no action detrimental to the life, liberty, body, reputation or property of any citizen or resident Bangladesh shall be taken except in accordance with.  The requirement of Article 31 is that has to fulfill two conditions, procedural due process and substantive process. Article 32 provided that “No person shall be deprived of life or personal liberty save 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 any citizen. If there is no compelling state necessity to take the life of any citizen, the death sentence is not permissible. In Bachan Singh vs. Punjab   the death sentence was challenged of the Indian Supreme Court held death sentence as constitutional and recognized the as being violative of Article 14, 21 and 19 of the Indian Constitution. Majority Judges right of the state to deprive a person of his right to life in accordance with due process of law. Bhagawati J. dissented with the majority and every emphatically said that…: death penalty as provided U/S. 302 of the Penal Code …does not serve any legitimate end of punishment, since by killing the murderer it totally rejects the reformative purpose and it has no additional deterrent effect It must, therefore be held that penalty is arbitrary and irrational and hence violation of Article 14 and 21 of the Constitution (of India).

The mandatory death penalty provided by S. 302 of the Penal Code 1860 is clear violation pf Article 31 and 32 of the Constitution of Bangladesh, because through these provisions the farmers recognized the inviolability and sacrosanct nature of human life and liberty. The inherent philosophy behind these two provisions is to enhance and enhance and entrench the dignity of human life and liberty. That has clearly been violated by the mandatory nature of death punishment provided by the penal law. Notwithstanding the saving clauses and Article 35 (6), mandatory death penalty is violative,  because it undermines the sanctity of the human life and liberty and leaves no space for the direction of the judges.

Death Penalty under the Bangladesh Penal Code, 1860:

It would be pertinent to refer to the relevant provision of the penal code-1898, which provide for death sentence fore certain specified offences. These offences are:

1. Waging war against the Government (Section 121)
2. Abetment of mutiny (Section 132)
3. Giving or fabricating false evidence leading to procure one’s conviction for capital offence (Section194)
4. Murder (Section 302)
5. Abetment of suicide by child or insane person (Section 305)
6. Attempt to murder by a life convict, if hurt is caused (Section 307)
7. Dacoity with Murder (Section 396)
8. Kidnapping for ransom (Section 364A)

The Code of Criminal Procedure, 1898 further requires the death sentence of death imposed by the Session Judge can executed only after it is confirmed by the High Court.

Constitutional Prohibition of Death penalty (other country):

The Republic of Ireland became one of the first countries in the world to constitutionally band the Capital punishment as death penalty by popular referendum in 2001 with the approval of the Twenty-first Amendment to the Irish constitution.

The Federal Republic of Germany prohibited death penalty in its Basic Law in 1949. Costa Rica abolished death penalty in 1877, and its 1949 constitution states: “Human life is inviolable.” and “No one may be subjected to cruel or degrading treatment or to life imprisonment, or to the penalty of confiscation.” Presumedly, death penalty is also prohibited by this statement.

Even Czechoslovakia (now divided into Czech Republic and Slovakia) abolished death penalty in 1990 after the Velvet Revolution, and prohibited its use in the constitution in 1991 (by adoption of the Charter of Fundamental Rights and Freedoms). See 1960 Constitution of Czechoslovakia, Constitution of the Czech Republic.

To sum up, Ireland is nowhere near the first country to ban death penalty in the constitution. Amnesty International lists constitutional prohibitions of the death penalty; as of 1999, 38 countries have done so.

Constitutionality of the Death Penalty in America:

1. a) Challenging the Death Penalty:

The 1960s brought challenges to the fundamental legality of the death penalty. Before then, the Fifth, Eighth, and Fourteenth Amendments were interpreted as permitting the death penalty. However, in the early 1960s, it was suggested that the death penalty was a “cruel and unusual” punishment, and therefore unconstitutional under the Eighth Amendment. In 1958, the Supreme Court had decided in Trop v. Dulles , that the Eighth Amendment contained an “evolving standard of decency that marked the progress of a maturing society.” Although Trop was not a death penalty case, abolitionists applied the Court’s logic to executions and maintained that the United States had, in fact, progressed to a point that its “standard of decency” should no longer tolerate the death penalty.

In the late 1960s, the Supreme Court began “fine tuning” the way the death penalty was administered. To this effect, the Court heard two cases in 1968 dealing with the discretion given to the prosecutor and the jury in capital cases. The first case was U.S. v. Jackson , where the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury. The Court held that this practice was unconstitutional because it encouraged defendants to waive their right to a jury trial to ensure they would not receive a death sentence.

The other 1968 case was Witherspoon v. Illinoisi  in this case, the Supreme Court held that a potential juror’s mere reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that the juror’s attitude toward capital punishment would prevent him or her from making an impartial decision about the punishment.

In 1971, the Supreme Court again addressed the problems associated with the role of jurors and their discretion in capital cases. The Court decided Crampton v. Ohio and McGautha v. California . The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence. The Court, however, rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was “beyond present human ability.”

1. b) Suspending the Death Penalty:

The issue of arbitrariness of the death penalty was again be brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia . Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be “cruel and unusual” if it was too severe for the crime, if it was arbitrary, if it offended society’s sense of justice, or it if was not more effective than a less severe penalty.

In 9 separate opinions, and by a vote of 5 to 4, the Court held that Georgia’s death penalty statute, which gave the jury complete, sentencing discretion, could result in arbitrary sentencing. The Court held that the scheme of punishment under the statute was therefore “cruel and unusual” and violated the Eighth Amendment. Thus, on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.

1. c) Reinstating the Death Penalty:

Although the separate opinions by Justices Brennan and Marshall stated that the death penalty itself was unconstitutional, the overall holding in Furman was that the specific death penalty statutes were unconstitutional. With that holding, the Court essentially opened the door to states to rewrite their death penalty statutes to eliminate the problems cited in Furman. Advocates of capital punishment began proposing new statutes that they believed would end arbitrariness in capital sentencing. The states were led by Florida, which rewrote its death penalty statute only five months after Furman. Shortly after, 34 other states proceeded to enact new death penalty statutes. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina   Other states sought to limit that discretion by providing sentencing guidelines for the judge and jury when deciding whether to impose death. The guidelines allowed for the introduction of aggravating and mitigating factors in determining sentencing. These guided discretion statutes were approved in 1976 by the Supreme Court in Gregg v. Georgia , collectively referred to as the Gregg decision. This landmark decision held that the new death penalty statutes in Florida, Georgia, and Texas were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.

In addition to sentencing guidelines, three other procedural reforms were approved by the Court in Gregg. The first was bifurcated trials, in which there are separate deliberations for the guilt and penalty phases of the trial. Only after the jury has determined that the defendant is guilty of capital murder does it decide in a second trial whether the defendant should be sentenced to death or given a lesser sentence of prison time. Another reform was the practice of automatic appellate review of convictions and sentence. The final procedural reform from Gregg was proportionality review, a practice that helps the state to identify and eliminate sentencing disparities. Through this process, the state appellate court can compare the sentence in the case being reviewed with other cases within the state, to see if it is disproportionate. Because these reforms were accepted by the Supreme Court, some states wishing to reinstate the death penalty included them in their new death penalty statutes. The Court, however, did not require that each of the reforms be present in the new statutes. Therefore, some of the resulting new statutes include variations on the procedural reforms found in Gregg.

The ten-year moratorium on executions that had begun with the Jackson and Witherspoon decisions ended on January 17, 1977, with the execution of Gary Gilmore by firing squad in Utah. Gilmore did not challenge his death sentence. That same year, Oklahoma became the first state to adopt lethal injection as a means of execution, though it would be five more years until Charles Brooks became the first person executed by lethal injection in Texas on December 7, 1982.

CHAPTER – FOUR

Status of Death Penalty in Bangladesh

The status of death penalty is the violation of Human Rights. For that reason most of the countries of the world abolition of death penalty. But in status of Bangladesh, there do not obey the International law, because there is several numbers of laws in Bangladesh which are related to the death penalty.

Death penalty in perspective of Bangladesh:

In Bangladesh we exercise death penalty as capital punishment to execute the murderer or a convict of vital crime from ancient time. From which time we exercise it didn’t know. Though the sentences of death penalty pass frequently from the courts but the executions of those sentences are not frequent as well. Every year very few convicts are executed in Bangladesh. Some times the Government of the country releases the convict by showing political issue.

According to Islam at the beginning of human there was first two brother Habil and kabil and they commit first killing human. And now we execute human if he or she kills any man. According to our Penal Code permits death penalty for dacoits with assault  and also said about death penalty for killing any people  and for this reason many times we see lot of people to die according to death penalty. Dangerous criminal Ershad Shikder also died according to death penalty and now we are very happy for it. Also now at this moment Bangladesh have no plan or future plan to omit death penalty from our penal code.

Death sentence: International trend and Bangladesh:

All the punishment, death penalty occupies the most significant position in the administration of criminal justice. This because death penalty is a punishment that extinguishes the light of life, takes away hopes and aspirations of the world and deprives the blameless children of paternal affection, love and care. This is an inhuman, degrading, cruel punishment symbolizing the primitive propensity in punishing offenders. Article 35(5) of the Constitution of the People’s Republic of Bangladesh precicisely states that no person shall be subjected to cruel, inhuman or degrading punishment or treatment.

Since the liberation of Bangladesh, 247 convicted criminals have been hanged to death. Not less than 1500 criminals are now death convicts. More than 350 convicts including 28 women are the condemned cell waiting for the day of last breathing. Others (more than 500 convicts) are in hiding. This article will attempt to state whether death penalty serves the end of justice. Firstly, let’s have a glimpse of the end of the administration of criminal justice.

End of criminal justice: The purpose of criminal justice is to punish the wrongdoer. He is punished by the state. The question arises what is the purpose of punishment or in other words, end of criminal justice. From very ancient times a number of theories have been given concerning the purpose of punishment. These theories are in brief state below;

Deterrent theory (deterrent punishment): according to this theory, the object of punishment is not only to prevent the wrongdoer from doing  a wrong a second time but also to make him an example to other persons who have criminal tendencies. To quote Salmond: “punishment is before all things deterrent and the chief end of the law of crime is to make the evil doer an example and a warning to all that are likeminded with him.”

Preventive theory (preventive punishment): this theory attempts to prevent the wrongdoer from committing offences again. The offenders are disabled from repeating the offences by such punishment as imprisonment, death, and exile etc. prevention seem to be the chief and only universal purpose of punishment. The law threatens certain pain, if you do certain things, intending thereby to give you a new motive for not doing them.

Reformative theory: the object of punishment should be to bring about the moral reforms of the offenders. Even if an offender commits a crime, he does not cease to be a human bring. He may have committed a crime under circumstance which might never occur again. The advocates of the reformative theory contend that by a sympathetic, tactful and loving treatment of the offenders, by moral education and proper training, a revolutionary change may be brought about in their characters.

Retributive theory: In primitive society, the person wronged was allowed to have his revenge against the wrongdoer. The principle of “an eye for an eye “,“a tooth for a tooth” was recognized and followed. Plato was supporter of this theory. He wrote: “every culpa demands expiation; the culpa is ugly, it is contrary to justice and order; the expiation is beautiful because all that is just is beautiful and to suffer for justice is also beautiful.

Comparative study: The modern world tends to reform the offenders instead of punishing them. The reason is that modern Criminology and penology treat the offenders as sick, subnormal human being who may be transformed into good citizens by educative and reformative treatment to them by government.

It is contended that the deterrent theory has been proved ineffective in checking crimes. Provisions for severe punishment in Penal Code have filed to stop increasing crimes in the world. Excessive harshness of punishment tends to defeat its own purpose by arousing sympathy of the public towards those who are given cruel punishment. Deterrent punishment is likely to harden the instead of creating in him the fear of law. Hardened criminals are not afraid of punishment. Punishment loses its horror once the criminal is punished. Retributive theory has also been criticized as barbaric and uncivilized form of punishment. Revenge is wild justice. It merely aggravates the mischief. Preventive punishment may be effective in certain cases; for instance, cancellation of driving license, dismissal of service etc but inflicting severe pains in the name of prevention ultimately results in nothing other than hardening criminals. Again the application of reformative theory runs the risk of increasing crimes in the society. If the criminals are o be sent to prison to be transformed into good citizens by physical, intellectual and moral training, prisons must be turned into comfortable dwelling places. There are many incorrigible offenders who are beyond the reach of reformative influences and with whom crime is not a bad habit but an instinct and they must be left in despair. It is true that criminals generally are not normal human beings. However if all the offenders are treated leniently even ordinary sane people may be tempted to commit crimes in view of the lenient attitude of the towards crimes. The perfect system of criminal justice cannot therefore be based on any one theory of punishment. Every theory has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored. Likewise the reformative aspect must be given its due place. The personality of the offender is as important as his actions and we must not divorce his actions from his personality. The offender is not merely a criminal to be punished. He is also a patient to be treated. Special treatment should be given to the juvenile offenders. It must not be forgotten that motive for the crime is generally lacking in the case of children. They commit petty offences on account of bad company and bad neighbors. Their cases must be handled with imagination and sympathy. While awarding punishment the judge should study the character and age of the offender, his early breeding, his education and environment the circumstances under which the committed the offence, the object with which he committed the offence and other factors.

In 1977, a world conference on capital punishment was held in the capital of Sweden. Since then the voice against such a cruel punishment grew stronger worldwide. The various organizations are working over the world against death sentence. The major organizations are Amnesty International, European Union. In 2002, World Coalition against the Death penalty (WCADP) was formed under the patronization of EU in Rome of Italy. This coalition has observing 10 October as the day against death penalty since 2003.

The Special Power Act, 1974 has provided death penalty for the offences of sabotage , counterfeiting currency note and Government stamps, smuggling , and adulteration of, or sale adulterated food, drink drugs or cosmetics.

“Nari o Shisshu Nirjaton Daman Ain, 2000” has incorporated death as punishment for the offences committed by combustible and likely other substances , for women trafficking etc, for children trafficking , for the ransom, for ravishing any woman or child who dies consequently, causing death for dowry, maiming or mutilation of children for begging .

The Court and Tribunals of Bangladesh are frequently imposing death penalty under various enactments. During the rule of four –party alliance a good number of criminals were sentenced of death, especially after the Constitution of monitoring Cell. During the last seven years almost 30 death sentences were executed. Now the question arise has the death penalty or to act as a deterrent? In our republic a number of persons depend for maintenance upon the income of a single adult person for offences committed by him in the heat of passion and on the spur of moment? Is it not injustice to them without taking any step for their maintenance, and good environment which are essential for their mental and physical growth as good citizens of the republic? The state cannot deprive any child of its father’s love and affection. The state cannot do injustice in the name of checking crimes. It has been pledged in the preamble of the public’s constitutions that equality and justice will be secured for citizens. The liberation heroes had dedicated their lives with a view to establishing a welfare state in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed. Protection against cruel, inhuman and degrading punishment is a fundamental right under the Constitution.  So time has come to reconsider death sentence as a means of punishment. The world tend is precisely towards the correction of the offenders in lieu of inflecting cruel, inhuman and degrading punishment. Bangladesh as a democratic county cannot lag behind. The state is undergoing cumulative increase of crimes owing to a great deal of factors such as lack of good governance, absence of rule of law, corruption, patronization of terrorists, wide gap between the haves and have-nots, confrontational politics and so on. Instead of giving emphasis on removing these factors, we are wrongly attempting to check crimes by conflicting exemplary punishment.

CHAPTER – FIVE

Motivation of Death Penalty in Bangladesh

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 mode of inflicting death sentence on the offender were crucification, drowning burning, boiling, beheading, throwing before wild beasts, flaying or skinning off alive, hurling the offender from rock, stoning, straining, amputating. Shooting by gun or strives him to death. These draconic and barbarous methods of punishing criminals to death were justified on the ground that they were the 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.

It may be inferred from the foregoing analysis that neither retention nor abolition of death sentence can be justified in absolute terms. The desirability of this punishment, by and large, depends on the nature of the crime and the circumstances associated therewith. The following generalizations may, however, serve a useful purpose in deciding the desirability of capital punishment:

1. The retention of death penalty seems desirable in cases of h00ardened murderers who are incorrigible’s arid commit cold blooded murders in a calculated manner.
2. Particularly, in agricultural countries like India, the real problem of death penalty arises in case of murders committed during agrarian riots and disputes relating to possession or ownership of land-property. In such cases, the offenders are well aware of the consequents of their act but they fall a prey to criminality due to passion, excitement or anger for the victim whom they want to put out of their way once for all. Thus these persons though aware of the consequences, in fact do not intend those consequences to follow, hence they cannot be categorized as professional killers and death penalty can hardly serve any useful purpose in such cases.
3. Experience has shown that quite a large number of murders and homicides which occur in this country are due to presence of racial, ethnical, and religio-political cultures. The offender often falls a prey to his surroundings and in a fit of passion commits homicide without thinking about its gravity and consequences.
4. 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 by generating in the community a sentiment of horror against killing that we can hope to deter offenders from committing that act.

The above generalizations 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 judged 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 mania 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. When interrogated, these men-killers have boldly confessed that they commit homicides because they derive some kind of pleasure in watching their victim dying in pain and torture. Needless to say that death sentence is perhaps the only appropriate punishment for such beastly offenders.

Motivations of Death Penalty:

1. a) Pro Motivations:

Death penalty supporters find different reasons in favour of their thesis, reason of ethical, social and economic order.

They start from the supposition that the State has to defend at all costs the community and the single individuals, that those who respect the law are entitled to more protection then those who break it, that those who commit a crime have to pay for it, that there are some wrongs for which no penalty but death sentence is the right punishment. It would be a justice demand to support their reasons.

In relation to death penalty, the theories about its function are essentially two: the retribution one and the prevention one. According to the first one, the punishment is a “damage” which intervenes as a moral and juridical reaction to the wrong committed with the crime, whose seriousness is proportionated, so that it can be considered as a moral chastisement and not as a revenge; according to the second one, the State doesn’t give back wrong with wrong, but it just defends the community from the danger of the criminals, trying through death penalty to avoid that socially dangerous individuals commit other crimes.

In fact death penalty supporters give it a deterrent function, as they think that the severity of punishment is sufficient in many cases to avoid that a crime is committed: only those who act with passion don’t care about the penalty provided for by the law.

Particularly, death penalty would have a preventive function against organized criminality waves that could be able to upset the social life of a State (gangsterism, Mafia, terrorism).

Besides, as it satisfies victims’ and their relatives’ resentment, it would remove the temptation of private revenge and the showing of social disorders.

The definitive elimination of a delinquent would avoid the recurring of other crimes from him who, though condemned, could still come back to freedom because of remissions or other mechanism provided by the law; surely economically death penalty represents a punishment system less onerous than a long detention and than life imprisonment, and then it’s advantageous for the community.

The fact that capital punishment is irreparable and that one who has been sentenced unfairly can’t be refunded wouldn’t be a sufficient reason to suppress it: it just has to be applied when there is the mathematical certainty of the defendant’s guilt; anyway there is a further guarantee: the power of every head of state to grant the pardon if there is any doubt, commuting death penalty to life imprisonment or other prison sentence.

1. b) Con Motivations:

Those who oppose death penalty do it mostly for moral reasons. Besides the atrociousness implied in this instrument (atrociousness which doesn’t end during the execution, but consists in years of anguish waiting for it), they think that no man, neither individually nor as a society representative, has the right to take another man’s life, even apart from the seriousness of his guilt.

In the opinion of death penalty opposers, it contravenes the principle according to which the penalty doesn’t have to tend to the revenge or the mere punishment of the criminal, but must re-educate him and rehabilitate him morally and humanely: and what rehabilitation will be possible towards a dead man? As a matter of fact, the fear of neglecting details and legal means to which the sentenced can apply protracts trials and postpones the execution, so the condemned is often changed from the man who committed the crime, with the result of executing people different from the condemned ones.

Besides ethics, death penalty opposers refute point by point supporters’ thesis, saying that death penalty isn’t deterrent, as it’s simplicistic to think that a criminal consults the code to choose what crime to commit, and that is useless against organized criminality, which has been actually defeated sometimes, but with other instruments, for example hitting it in its economic interests.

Other phenomena that death penalty supporters think avoidable only with its use, like recidivisms or private revenge, are to be faced, according to opposes, in terms of social education, that is helping and following former prisoners and doing a general widespread work of legal education.

There are other two considerations even more significant. First of all, the possibility of miscarriages of justice, that is the not remote at all possibility of killing an innocent, justifies alone the abolition of death penalty. Finally, death penalty is discriminating; in fact mostly criminals of weak social classes or marginal groups are sentenced to death: members of ethnic minorities, little-educated people, people whose familiar life is adrift, poor people, and sometimes political opponents.

In a more detailed way it is possible to verify the inefficaciousness of death penalty in some particular cases:

1. i) is it effective against murderers?

The argument most often used to support death penalty in former-Soviet republics is the necessity of having a particularly efficacious deterrent against murders and other common crimes. However, none of the many studies about the matter has been able to show that death penalty is more deterrent than other punishments.

It’s completely wrong to think that most of those who commit serious crimes such as murders consider the consequences of their actions. Murders are often committed when the criminal is blinded with passion, when emotions prevail over reason. They are sometimes committed under the influence of drugs or alcohol, or in panic moments, when the culprit is discovered while he steals. Some murderers have very serious psychiatric problems or are mental patients. In none of these cases it’s possible that the fear to be sentenced to death could act as an effective deterrent.

There is another heavy limit. One who plans a crime rationally can choose to go on, although he knows the risk he’s running, thinking that he won’t be discovered. Most of the criminologists assert that the best way to discourage murderers isn’t increasing the severity of punishment, but increasing the possibility of discovering the crime and condemning the culprit.

Sometimes death penalty has opposite effects to the ones wanted. Those who know they risk to be sentenced to death can be encouraged to kill the witnesses of their crime or anyone who could be able to identify and incriminate them.

Finally, data about crime in abolitionist countries don’t prove at all that the abolishment of death penalty has provoked its rise. In 1988 the UN Board for Crime Prevention conducted a study with existing data about the relation between death penalty and murder rate, concluding that:

The study couldn’t offer scientific support to the thesis that capital punishment produces better results than life imprisonment and it’s unlikely that evidence of it will be soon available. Even data, in fact, don’t help thesis of deterrence.

1. ii) Is it effective against drug traffickers?

There are lots of countries (most of which Asiatic) where traffic in drugs involves death penalty; half of them adopted these measures during the eighties. Hundreds of people have been executed since then. The reason that induced to turn to death penalty resides in its presumed deterrent efficaciousness, as it’s obvious, against drug traffickers. However, in spite of the numerous executions, there is no convincing evidence that a decrease of drug traffic in interested countries could be attributed to the threat or application of capital punishment.

In Iran, executions for drug crimes started before the revolution in 1979. It turns out that, later, over a thousand people have been sentenced to death; and yet drug abuse and trade are still a serious problem, not solved at all.

In Malaysia, where death penalty for drug crimes is compulsory since 1983, authorities have more than once publicly acknowledged its ineffectiveness. The general detective inspector affirmed in 1985 that capital punishment didn’t seem to have deterrent effects against traffickers; in 1990, the Vice-minister of the Interior affirmed that capital punishment hadn’t been able to decrease drug use or traffic and there was the need of a different approach to the problem. The list of the failures could go on.

Some international organizations have discussed the matter. The UN thought about the measures to be adopted against drug traffic that:

On the grounds of many experts’ experience, the fact that as utmost punishment there is death penalty doesn’t imply necessarily that it has particular effects against drug traffic: as a matter of fact in some cases it could complicate Public Prosecution’s activity since law courts need much higher standards of evidence if death penalty is provided (particularly if it’s complsory). The most effective deterrent is surely the certainty to be discovered and arrested.

For its part, the International Conference about the drug abuse and traffic, held in Vienna in 1987, adopted a Multidisciplinary scheme of future activities for drug abuse control which includes prevention and repression measures.

1. iii) Is it effective against terrorists?

Death penalty is often demanded as a useful and necessary instrument to stem terrorism. Dynamite attacks, kidnappings, murders of public officers or politicians, hijacks, and other actions of violence with a political background often hit not only chosen targets, but also innocent people who are accidentally in that place. These events arouse indignation and public opinion asks understandably for exemplary and severe punishments, death penalty included. However, as many experts said, executions can, rather than stop terrorism, aggravate it.

Professor Ezzat A. Fattah, university teacher of criminology at Simon Fraser University in Canada, said: Those who really think that death penalty can stop terrorist attacks or make them decrease, are naïve people or dreamers. Usual punishments, death penalty included, don’t provoke any fear within terrorists or political criminals, who are ideologically motivated and devoted to sacrifice for love of their cause […]. Besides, terrorist activities are dangerous and the terrorist faces letal risks every day, so he isn’t frightened by immediate death. How could he be discouraged by the risk of being sentenced to death?

English authorities that governed Palestine in the forties sentenced many members of illegal organization Zionist Irgun, accused of dynamite attacks and other violent actions, to be hanged. Menachem Begin, former Irgun leader and then Israel Prime Minister, once said to a former British governor that executions had so much “galvanized” his group that sentenced many English soldiers to be hanged in revenge. In Begin’s opinion, hangings gave them the motivations they needed and make them more combat-hardened and devoted to their cause. Executions for political crimes publicize terrorism, exciting public opinion’s interest and giving to terrorist groups the opportunity of making their political positions well-known; there is also the risk to create “martyrs” whose memory must be honoured. Besides, executions are used to justify other violent actions committed in revenge: armed groups can maintain the legality of their actions saying that they want to use the same death penalty which government says it has the right to use against them.

Robert Badinter, the French Minister of Justice, said in 1985:

Throughout history, threat of death penalty never stopped terrorism or political violence. If there are men or women who are not afraid at all of capital punishment, they are just terrorist, that often risk their own life in action.

And Albert Pierrepoint, the last English executioner, said, about the execution of two members of IRA:

The morning of the execution both of them sang: “Long live the rebels…”, they sang without fear while they went to the gallows pole. People outside don’t realize these things, they say: “If they aren’t afraid of death, why can capital punishment be a deterrent”. To be honest, I think that, with the many death sentences I executed, I didn’t stop any murderer.

CHAPTER – SIX

Arguments for the Death penalty

This is the critical issue in the world. If a person commits a crime that time he should get punishment. If the person commit sever crime which is murder that time he should get death penalty.

Arguments in Favour of the Death Penalty:

1. a) Utilitarian Arguments Concerning Death Penalty:

Perhaps the most common defenses of capital punishment are on utilitarian grounds. For utilitarians, punishment in general is justified only insofar as it creates a greater balance of happiness vs. unhappiness. From the utilitarian perspective, then, capital punishment is justified if it (1) prevents the criminal from repeating his crime; or (2) deters crime by discouraging would-be offenders. For, both of these contribute to a greater balance of happiness in society. There are several immediate problems with this line of reasoning. First, the burden of proof is on the defender of capital punishment to show that the same effects could not be accomplished with less severe punishment, such as life imprisonment. This is especially pertinent since the goal of utilitarianism is to reduce as much unhappiness as possible and this entails imposing the least severe of two possible punishments when everything else is equal. Italian political theorist Cesare Beccaria (1738-1794) argues this point in On Crimes and Punishment (1764), one of the first systematic critiques of capital punishment from the utilitarian point of view. According to Beccaria, capital punishment is not necessary to deter, and long term imprisonment is a more powerful deterrent since execution is transient.

A second and more basic problem with utilitarian defenses of capital punishment involves the fact gathering process. Since the utilitarian is making a factual claim about the beneficial social consequences of capital punishment, then his claim should be backed by empirical evidence. In the absence of such reliable empirical evidence, the utilitarian position must be dismissed, as is the case with any unverified factual claim. “Empirical evidence” in general is of two varieties: anecdotal evidence and scientific evidence. Anecdotal evidence involves isolated observations which appear to correlate two states of affairs, which, in this case, would be (a) capital punishment, and (b) improved social conditions. Given the gravity of the issue at stake with capital punishment, namely, people’s lives, anecdotal evidence is an insufficient ground for establishing a causal connection between capital punishment and improved social conditions. Instead, scientific studies are needed. Several studies have been conducted in the past few decades regarding such a connection, but, unfortunately, the methodology used on social questions of this nature is necessarily imprecise. Ideally, a truly scientific study of the question would involve a comparison between two otherwise identical societies in which capital punishment was not used in the control group but was used in the test group. The problem, though, is that it is a practical impossibility to isolate two otherwise identical societies upon which to conduct the study. An almost endless variety of differing factors in the respective groups will make the results inconclusive. Not surprisingly, the recently conducted empirical studies in fact draw conflicting conclusions. This basic problem in the fact gathering process not only applies to the utilitarian defender of capital punishment, but also to the utilitarian critic of capital punishment who might, for example, argue that society benefits more from life imprisonment sentences.

A third problem with utilitarian justifications of punishment, as pointed out by contemporary political philosopher Adam Bedeau, concerns the ratio of innocent lives saved per execution. Perhaps, in the best possible situation, executing five of the most dangerous convicts will result in saving five innocent lives in the future. As the number of executions increases, however, the number of innocent lives saved will not increase proportionally. Eventually, it may take one thousand additional executions to save only one additional innocent life. So, eventually it must be determined how many executions justify the saving of one innocent life. This, though, is virtually impossible to determine, yet utilitarian need this information to successfully calculate the overall social benefit of capital punishment.

Finally, critics of capital punishment sometimes argue on utilitarian grounds that the expense involving executions is substantially greater than the cost of life imprisonment. The costs of appeals and legal counseling are the principal expenses. Thus, the extra financial burden of capital punishment contributes to a greater balance of unhappiness vs. happiness. There are three problems with this argument. First, such financial calculations typically do not take into account that much of the legal counseling for death row inmates is pro bono which does not cost the taxpayer. Second, even if this is a true description of the cost of capital punishment in the United States and other developed countries, it is not representative of the cost of criminal executions world wide. Indeed, one might reasonably expect that in many developing countries executions are substantially cheaper than life imprisonment costs. Assuming that critics of capital punishment object to its practice in any country, this argument not only lacks universal application, but might in fact be used as an argument in favor of capital punishment in countries with less expensive appeals processes. Finally, even if executing criminals is more costly than life imprisonment, it is not immediately obvious that the extra expense either contributes to a greater balance of social unhappiness or even tips the balance towards unhappiness. Society may actually be pleased with, or at least content with, the value it is getting for its capital punishment dollar.

1. b) Retributive Arguments Concerning Death penalty:

The retributive notion of punishment in general is that (a) as a foundational matter of justice, criminals deserve punishment, and (b) punishment should be equal to the harm done. In determining what counts as “punishment equal to harm,” theorists further distinguish between two types of retributive punishment. First, lex talionis retribution involves punishment in kind and is commonly expressed in the expression “an eye for an eye.” Second, lex salica retribution involves punishment through compensation, and the harm inflicted can be repaired by payment or atonement. Historically, capital punishment is most often associated lex talionis retribution. One of the earliest written statements of capital punishment from the lex talionis or “eye for an eye” perspective is from the 18th century BCE Babylonian Law of Hammurabi:

If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death.

Critics of classic lex talionis-oriented capital punishment point out several problems with this view. First, as a practical matter, lex talionis retribution cannot be uniformly applied to every harm committed. The second sentence in the above quote from the Law of Hammurabi shows the inherent absurdity of consistent application: “If it [i.e., a collapsed house] kills the son of the owner, then the son of the builder shall be put to death.” Second, as a strict formula of retribution, lex talionis punishment may even be inadequate. For example, if a terrorist or mass murderer kills ten people, then taking his single life is technically not punishment in kind. Third, foundational beliefs in general have the unfortunate consequence of appearing arbitrary. If a belief in lex talionis retribution is foundational, then, by definition, it cannot be defended by appealing to a prior set of reasons. The arbitrary nature of this is particularly clear when we see that there is an alternative retributive view of punishment which is equally foundational, yet which does not require capital punishment, namely lex salica retribution.

Finally, critics of capital punishment argue that the true basis of retributive justifications of capital punishment is not at all foundational, but instead rooted in psychological feelings of vengeance. Even if we grant that vengeance is a natural human emotion, critics argue that it is an impulse which should be tempered, just as we do natural feelings of fear, lust, and greed. Laws about punishment, then, should not be grounded in our extreme feelings, but should instead be based on our more tempered ones. When we moderate our natural feelings of vengeance, there should be little inclination to execute criminals. Immanual Kant offered an alternative retributive justification of capital punishment which is not rooted in vengeance. Instead, for Kant, capital punishment is based on the idea that every person is a valuable and worthy of respect because of their ability to make rational and free choices. The murder, too, is worthy of respect; we, thus, show him respect by treating him the same way he declares that people are to be treated. Accordingly, we execute the murderer. A key problem with Kant’s justification of capital punishment is that it tells us what to do with only ideally rational killers, although many killers are not rational.

1. c) Deterrent Effect of Death penalty, Incapacitation of the criminal:

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 a minimum and avoid death penalty as far as possible although its retention in the statute book is favored even to this day.

Capital punishment permanently removes the worst criminals from society and should prove much cheaper and safer for the rest of us than long term or permanent incarceration. It is self evident that dead criminals can not commit any further crimes, e.i. 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 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 killing was murder. Often the only people who know what really happened are the accused and the deceased. It then comes down to the skill of the prosecution and defence lawyers as to whether there will be a conviction for murder or for manslaughter. It is thus highly probable that people are convicted of murder when they should really have only been convicted of manslaughter. A second reason, that is often overlooked, is the hell the innocent family and friends of criminals must also go through in the time leading up to and during the execution and which will often cause them serious trauma for years afterwards. It is often very difficult for people to come to terms with the fact that their loved one could be guilty of a serious crime and no doubt even more difficult to come to terms with their death in this form. However strongly you may support capital punishment two wrongs do not make one right. One cannot and should not deny the suffering of the victim’s family in a murder case but the suffering of the murderer’s family is surely equally valid. There must always be the concern that the state can administer the death penalty justly, most countries have a very poor record on this. In America a prisoner can be on death row for many years (on average eleven years {2004 figure}) awaiting the outcome of numerous appeals and their chances of escaping execution are better if they are wealthy and/or white rather than poor and/or black irrespective of the actual crimes they have committed which may have been largely forgotten by the time the final decision is taken. Although racism is claimed in the administration of the death penalty in America, statistics show that white prisoners are more liable to be sentenced to death on conviction for first degree murder and are also less likely to have their sentences commuted than black defendants. It must be remembered that criminals are real people too, who have life and with it the capacity to feel pain, fear and the loss of their loved ones and all the other emotions that the rest of us are capable of feeling. It is easier to put this thought on one side when discussing the most awful multiple murderers but less so when discussing, say, an eighteen year old girl convicted of drug trafficking.(Singapore hanged two girls for this crime in 1995 who were both only eighteen at the time of their offences and China shot an 18 year old girl for the same offence in 1998.)There is no such thing as a humane method of putting a person to death irrespective of what the State may claim (see later). Every form of execution causes the prisoner suffering, some methods perhaps cause less than others, but be in no doubt that being executed is a terrifying and gruesome ordeal for the criminal. What is also often overlooked is the extreme mental torture that the criminal suffers in the time leading up to the execution. How would you feel knowing that you were going to die tomorrow morning at 8.00 a.m.? There may be a brutalising effect upon society by carrying out executions – this was apparent in this country during the seventeenth and eighteenth centuries when people turned out to enjoy the spectacle. They still do today in those countries where executions are carried out in public. It is hard to prove this one way or the other – people stop and look at car crashes but it doesn’t make them go and have an accident to see what it is like. I think there is a natural voyeurism in most people. The death penalty is the bluntest of “blunt instruments” it removes the individual’s humanity and with it any chance of rehabilitation and their giving something back to society. In the case of the worst criminals this may be acceptable but is more questionable in the case of less awful crimes. There within prison or after escaping or being released from it.

1. d) Other Arguments for Death penalty:

Some standard arguments for capital punishment do not fall neatly into either the retributive or utilitarian categories. For example, John Locke’s famous defense of capital punishment has both a retributive and utilitarian component. Locke argued that a person forfeits his rights when committing even minor crimes. Once rights are forfeited, Locke justifies punishment for two reasons: (1) from the retributive side, criminals deserve punishment, and, (2) from the utilitarian side, punishment is needed to protect our society by deterring crime through example. Thus, society may punish the criminal any way it deems necessary so to set an example for other would-be criminals. This includes taking away his life. Under the influence of Locke’s theory of the forfeiture of rights, English law had some 200 capital offenses by 1800. Critics of Locke argue that there are alternatives to his assumption that criminals forfeit their right to life. It may be, instead, that criminals forfeit other rights (such as freedom to travel), yet the right to life is simply not forfeitable. Beccaria, for example, argued that people did not sacrifice their rights to life when entering into the social contract.

Another defense of capital punishment is based on an analogy that capital punishment is to the political body just as self-defense is to the individual. The reasoning is that, in dangerous circumstances, the individual is justified in protecting himself by self-defense with deadly force. Since society (or the political body) is like a large person, society, too, is justified in using deadly force through capital punishment. However, for this analogy to be a successful, it must parallel the accepted principle that self-defense with deadly force is justified only when there is no alternative open to us (such as fleeing). This means we must see whether any alternative to capital punishment is open (such as long term imprisonment). Further, the self-defense with deadly force is grounded in the moral right of self-preservation. However, only people, properly speaking, have moral rights; abstract entities and institutions such as governing bodies do not. Consequently, the analogy between capital punishment and self-defense fails it a basic level.

Arguments against Death Penalty:

1. a) Is capital punishment ethically acceptable?

The state clearly has no absolute right to put its subjects to death although, of course, almost all countries do so in some form or other, (but not necessarily in the conventional form of capital punishment.) In most countries it is by arming their police forces and accepting the fact that people will from time to time killed as a result and therefore at the State’s behest. A majority of a state’s subjects may wish to confer the right to put certain classes of criminal to death through referendum or voting in state elections for candidates favoring capital punishment. Majority opinion in many democratic countries tends to be in favour of the death penalty. It is reasonable to assume that if a majority is in favour of a particular thing, in a democratic society their wishes should be seriously considered with equal consideration given to the down side of their views. A fact that is conveniently overlooked by anti capital punishment campaigners is that we are all ultimately going to die. In many cases we will know of this in advance and suffer great pain and emotional anguish in the process. This is particularly true of those diagnosed as having terminal cancer. It is apparently acceptable to be “sentenced to death” by one’s family doctor without having committed any crime at all but totally unacceptable to be sentenced to death by a judge having been convicted of murder or drug trafficking (the crimes for which the majority of executions are carried out).However there are obvious merits to both the pro and anti arguments.

1. b) Cost:

Money is not an inexhaustible commodity and the state may very well better spend our (limited) resources on the old, the young and the sick rather than the long term imprisonment of murderers, rapists etc.

Anti capital punishment campaigners in America sight the higher cost of executing someone over life in prison but this is (whilst true for America) has to do with the endless appeals and delays in carrying out death sentences that are allowed under the American legal system where the average time spent on death row is over 11 years. In Britain in the 20th century the average time in the condemned cell was less than 8 weeks and there was only one appeal.

1. c) Retribution:

Execution is a very real punishment rather than some form of “rehabilitative” treatment, the criminal is made to suffer in proportion to the offence. Although whether there is a place in a modern society for the old fashioned principal of “lex talens” (an eye for an eye) is a matter of personal opinion. Retribution is seen by many as an acceptable reason for the death penalty, according to my survey results.

1. d) Deterrence:

Does the death penalty deter? It is hard to prove one way or the other because in most receptionist countries the number of people actually executed per year (as compared to those sentenced to death) is usually a very small proportion. It would however seem that in those countries (e.g. Singapore) which almost always carry out death sentences there is generally far less serious crime. This tends to indicate that the death penalty is a deterrent, but only where execution is an absolute certainty. Anti death penalty campaigners always argue that death is not a deterrent and usually site studies based upon American states to prove their point. This is, in my view, flawed and probably chosen to be deliberately misleading. Let us examine the situation in three countries.

1. e) Can these scenarios ever be seen as justice?

Should we only execute people for the most awful multiple murders as a form of compulsory euthanasia rather than as a punishment or should we execute all murderers irrespective of the degree of guilt purely as a retributive punishment for taking another person’s life and in the hope of deterring others. What about crimes such as violent rape, terrorism and drug trafficking – are these as bad as murder? How should we punish such offences should executions be carried out in such a way as to punish the criminal and have maximum deterrent effect on the rest of us (e.g. televised hangings) Would this be a deterrent or merely become a morbid show for the voyeuristic? Or should they be little more than a form of euthanasia carried out in such a way as to remove from the criminal all physical and as much emotional suffering as possible. Does it make any sense to imprison someone for the rest of their life or is it really crueler than executing them? If we do not keep them in prison for life will they come out only to commit other dreadful crimes? A small but significant number do what is the cost to society of keeping people in prison? (£600.00 per week at present for an ordinary prisoner which is around £468,000 for a typical 15 years of a life sentence)These questions need to be thought about carefully and a balanced opinion arrived at. If the general conclusion is that capital punishment is desirable then the first step toward restoration is for the Government to present a fully thought out set of proposals, that can be put to the people in a referendum, stating precisely what offences should carry the death penalty, how it should be carried out, etc. and what effect on crime is expected to follow from re-introduction. If such a referendum produced a clear yes vote, the Government would have a genuine mandate to proceed upon, and could claim the support of the people, thus substantially reducing the influence of the anti-capital punishment lobby. There should be another referendum about five years later, so that the effects of re-introduction could be reviewed and voted on again. Referenda have the advantage of involving the public in the decision making process and raising awareness through the media of the issues for and against the proposed changes.

1. f) “Life without parole” versus the death penalty:

Many opponents of capital punishment put forward life in prison without parole as a viable alternative to execution for the worst offenders and surveys in America have shown that life without parole (LWOP) enjoys considerable support amongst those who would otherwise favour the death penalty. However there are drawbacks to this:Death clearly permanently incapacitates the criminal and prevents them committing any other offence. LWOP cannot prevent or deter offenders from killing prison staff or other inmates, or taking hostages to further an escape bid – they have nothing further to loose by doing so. However good the security of a prison someone will always try to escape and occasionally will be successful. If you have endless time to plan an escape and everything to gain from doing so it as very strong incentive. We have no guarantee that future governments will not release offenders who were imprisoned years previously, on the recommendations of various professional “do-gooders” who are against any punishment in the first place. Twenty or thirty years on it is very difficult to remember the awfulness of an individual’s crime and easy to claim that they have reformed.

Myra Hindley is prime example of this phenomenon – whilst I am willing to believe that she changed as a person during her 37 years in prison and probably did not present any serious risk of re-offending, one has absolutely no guarantee of this and it does not obviate her responsibility for her crimes.  Fortunately she died of natural causes before she could obtain the parole which I am sure she would have eventually been granted.

1. g) The Numbers Game “death versus deterrence”:

If we are however, really serious in our desire to reduce crime through harsher punishments alone, we must be prepared to execute every criminal who commits a capital crime, irrespective of their sex, age (above the legal minimum) alleged mental state or background. Defences to capital charges must be limited by statute to those which are reasonable. Appeals must be similarly limited and there can be no reprieves. We must carry out executions without delay and with sufficient publicity to get the message across to other similarly minded people. This is similar to the situation which obtains in China and would, if applied in Britain, undoubtedly lead to a large number of executions to begin with until the message got through. I would estimate at least 2,000 or so in the first year if it were applied for murder, aggravated rape and drug trafficking. This amounts to more than seven executions every day of the year Monday through Friday. Are we as a modern western society willing to do this or would we shy away from it and return to just carrying out the occasional execution to show that we still can, without any regard for natural justice? These events will be seized upon by the media and turned into a morbid soap opera, enjoyed by a (large) proportion of the population. (Note the popularity in the American media of capital murder trials there.) It is doubtful whether executions carried out on this basis will deter others from committing crimes. For capital punishment to really reduce crime everyone of us must realise that we will personally and without doubt, be put to death if we commit the particular crimes and that there can be absolutely no hope of reprieve.

One wonders if as many people would be willing to vote for this scenario in a referendum when they realised the full consequences of their action. I have no doubt that if we were to declare war on criminals in this fashion we would see a rapid decline in serious crime but at what cost in human terms. There will be a lot of innocent victims – principally the families of those executed.

1. h) Can Death Penalty ever be “humane”?

We did not believe that any form of death, let alone execution, is either instant or painless, so which method of capital punishment should a modern “civilised” society use? Should our worst criminals be given a completely painless death even if the technology exists to provide one or should a degree of physical suffering be part of the punishment?

Whatever method is selected should have some deterrent value whilst not causing a slow or agonising death. British style, hanging is an extremely quick process that is designed to cause instant and deep unconsciousness and also benefits from requiring simple and thus quick preparation of the prisoner. It seems to have substantial deterrent value.

Lethal injection may appear to be more humane than other methods, to the witnesses but is a very slow process. If the short acting barbiturate functions properly it usually causes unconsciousness in under a minute but this does not always happen. There is considerable debate and litigation going on at present as to whether the first chemical causes full unconsciousness.  If it doesn’t then the prisoner may suffer a great deal of pain but will be unable to communicate this due to the paralysing effects of the second rug. The biggest single objection to lethal injection is the length of time required to prepare the prisoner which can take from twenty to forty five minutes depending on the ease of finding a vein to inject into which is vital for a painless death.

The gas chamber seems to possess no obvious advantage as the equipment is expensive to buy and maintain, the preparations are lengthy, adding to the prisoner’s agonies and it always causes a slow and cruel death. It is also dangerous to the staff involved.

Electrocution can cause a quick death when all goes well but seems to have a greater number of technical problems than any other method, often with the most gruesome consequences.

Shooting by a single bullet in the back of the head seems greatly preferable to shooting by a firing squad in that it is likely to cause instant unconsciousness followed quickly by death rather than causing the prisoner to bleed to death, often whilst still conscious.

1. i) The right to life:

Obviously this does not exist as such, because some 800,000 people die each year in Britain alone. Perhaps then it should be re-designated as the “right not to have one’s life arbitrarily terminated by the state”. Even this more realistic definition does not really apply in Britain and is probably not entirely possible. The death penalty ended in 1964 and since then nobody in Britain has been executed by the state. However the state does still kill a few of its citizens each year. The police shoot a small number of people and a few more die due to being restrained whilst resisting arrest. In none of these cases has there been what the Americans call “Due Process”. Some 900 people are murdered every year – does the government do enough to prevent this? We also allow abortion, effectively on demand, and some 180,000 lives are terminated annually through this means. Then there is the withholding of health care due to the decisions of officials that normally go unchallenged. The most high profile case of this recently was 11 year old Jamie Bowen who suffered from leukemia and whose health authority declined to pay for further treatment. Her father took them to court and the case entered the public arena. Jamie was a very courageous and articulate young lady who won massive public support for her case. Had she been an unattractive old woman would anybody have cared. I have heard the arguments on both sides in her case and do not know who was right and who was wrong but I do know that we do not guarantee the citizens of this country the right to life particularly where it is going to cost a lot of money.

1. j) Direct Attacks on Death Penalty:

As noted, most arguments against capital punishment are based on exposing flaws in defenses of capital punishment. However, some are more direct attacks, such as that capital punishment should be abolished since it is undignified, inhumane, or contrary to love. Corporal punishment, such as flogging, and extreme types of capital punishment, such as burning at the stake, are no longer accepted practices because of their indignity. By parity of reasoning, capital punishment should be abolished too. However, even if we grant that capital punishment violates our duty to treat people with dignity, humanity, and love, that alone may not be a sufficient reason for abolishing the practice. Dignity, humanity and love are foundational moral goods and as such are prima facie in nature. That is, they are each morally binding on face value until a stronger duty emerges with which it conflicts, thereby creating a moral dilemma. Defenders of capital punishment argue that retributive justice is one such conflicting duty. For, even though we are duty bound to acknowledge a criminal’s dignity, the duty of retribution is also present and is in fact outweighs the other duties.

A second direct attack on the practice of capital punishment is that, at least at present, it is virtually impossible to apply death sentences fairly. People on death row are typically poor and thus could not afford the best defense at their initial trial. They are also predominately Afro-American or Hispanic which raises larger issues of racial inequality in the US. As ethnic minorities, they are also likely to receive more strict judgments from juries than their white counterparts who commit the same crime. These considerations recently prompted a US Supreme Court Justice to change his own views on capital punishment and reject the practice. In addition to problems of class bias, the practice of capital punishment is further tainted by the tragic fact that innocent people are sometimes executed. Eliminating capital punishment not only prevents their wrongful execution, but gives them more time to to clear their names and return to society. The most compelling arguments against capital punishment can be made on the basis of its actual administration in our society. I will list five of the usual points.

1. The possibility of error. Sometimes a person might be put to death who is innocent.
2. Unfair administration. Capital punishment is inflicted disproportionately on the poor and minorities.
3. Weakness of the argument from deterrence. The claim that the threat of capital punishment reduces violent crime is inconclusive, certainly not proven, extremely difficult to disprove, and morally suspect if any case.
4. The length of stay on death row. If there were ever any validity to the deterrence argument, it is negated by the endless appeals, delays, technicalities, and retrials that keep persons condemned to death waiting for execution for years on end. One of the strongest arguments right now against capital punishment is that we are too incompetent to carry it out. That incompetence becomes another injustice.
5. Mitigating circumstances. Persons who commit vicious crimes have often suffered from neglect, emotional trauma, violence, cruelty, abandonment, lack of love, and a host of destructive social conditions. These extenuating circumstances may have damaged their humanity to the point that it is unfair to hold them fully accountable for their wrongdoing. Corporate responsibility somehow has to be factored in to some degree. No greater challenge to social wisdom exists than this.

The conclusion of the matter is that the present practice of capital punishment is a moral disgrace. The irony is that the very societies that have the least right to inflict it are precisely the ones most likely to do so. The compounding irony is that the economic malfunctions and cultural diseases in those same societies contribute to the violence that makes it necessary to unleash even more repression and brutality against its unruly citizens to preserve order and stave off chaos. To the degree that society provides opportunities for all citizens to achieve a good life in a sensible culture, it is reasonable to believe that the demand for capital punishment will be reduced or eliminated. The fact that our prisons are so full is the most eloquent testimony imaginable of our dismal failure to create a good society. Massive incarceration indicates the bankruptcy of social wisdom and social will. It points to the shallowness of our dedication to solving the basic problems of poverty, moral decay, meaninglessness, and social discord. Meanwhile, our leaders divert our attention with the alluring fantasy that capital punishment will make our citizens more secure against violent crime.

CHAPTER – SEVEN

Abolition of Death Penalty from the World

Most of the countries of the world already abolish the death penalty, but Bangladesh is exception. If we want to established ourselves as welfare state that time we should abolish the death penalty.

The Abolitionist Movement:

1. a) Colonial Times:

The abolitionist movement finds its roots in the writings of European theorists Montesquieu, Voltaire and Bentham, and English Quakers John Bellers and John Howard. However, it was Cesare Beccaria’s 1767 essay, On Crimes and Punishment, that had an especially strong impact throughout the world. In the essay, Beccaria theorized that there was no justification for the state’s taking of a life. The essay gave abolitionists an authoritative voice and renewed energy, one result of which was the abolition of the death penalty in Austria and Tuscany. ( Schabas 1997) American intellectuals as well were influenced by Beccaria. The first attempted reforms of the death penalty in the U.S. occurred when Thomas Jefferson introduced a bill to revise Virginia’s death penalty laws. The bill proposed that capital punishment be used only for the crimes of murder and treason. It was defeated by only one vote.

Also influenced was Dr. Benjamin Rush, a signer of the Declaration of Independence and founder of the Pennsylvania Prison Society. Rush challenged the belief that the death penalty serves as a deterrent. In fact, Rush was an early believer in the “brutalization effect.” He held that having a death penalty actually increased criminal conduct. Rush gained the support of Benjamin Franklin and Philadelphia Attorney General William Bradford. Bradford, who would later become the U.S. Attorney General, led Pennsylvania to become the first state to consider degrees of murder based on culpability. In 1794, Pennsylvania repealed the death penalty for all offenses except first degree murder.

1. b) Nineteenth Century:

In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the northeast. In the early part of the century, many states reduced the number of their capital crimes and built state penitentiaries.In 1834, Pennsylvania became the first state to move executions away from the public eye and carrying them out in correctional facilities.

In 1846, Michigan became the first state to abolish the death penalty for all crimes except treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the end of the century, the world would see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil and Ecuador follow suit.

Although some U.S. states began abolishing the death penalty, most states held onto capital punishment. Some states made more crimes capital offenses, especially for offenses committed by slaves. In 1838, in an effort to make the death penalty more palatable to the public, some states began passing laws against mandatory death sentencing instead enacting discretionary death penalty statutes. The 1838 enactment of discretionary death penalty statutes in Tennessee, and later in Alabama, were seen as a great reform. This introduction of sentencing discretion in the capital process was perceived as a victory for abolitionists because prior to the enactment of these statutes, all states mandated the death penalty for anyone convicted of a capital crime, regardless of circumstances. With the exception of a small number of rarely committed crimes in a few jurisdictions, all mandatory capital punishment laws had been abolished by 1963. (Bohm, 1999)

During the Civil War, opposition to the death penalty waned, as more attention was given to the anti-slavery movement. After the war, new developments in the means of executions emerged. The electric chair was introduced at the end of the century. New York built the first electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted this execution method. (Randa, 1997).

1. c) Early and Mid-Twentieth Century:

Although some states abolished the death penalty in the mid-Nineteenth Century, it was actually the first half of the Twentieth Century that marked the beginning of the “Progressive Period” of reform in the United States. From 1907 to 1917, six states completely outlawed the death penalty and three limited it to the rarely committed crimes of treason and first degree murder of a law enforcement official. However, this reform was short-lived. There was a frenzied atmosphere in the U.S., as citizens began to panic about the threat of revolution in the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and there were intense class conflicts as socialists mounted the first serious challenge to capitalism. As a result, five of the six abolitionist states reinstated their death penalty by 1920.

In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to pump cyanide gas into Jon’s cell while he slept, but this proved impossible, and the gas chamber was constructed.

1. d) Retention preferred to Abolition:

The current wave of reformation in the field of criminal justice system has inspired Parliamentarians in India to launch a crusade against capital punishment. The members also pleaded that the Government was already lenient in commuting death sentence to that of life imprisonment wherever it was possible.

As regards the question of exempting certain categories of persons from death sentence, the Law Commission in its 42nd Report published in June 1971 suggested that

(1) Children below 18 years of age (at the time of commission of the crime) should not be sentenced to death.

(2) It is not necessary to exempt women generally from the death penalty.

(3) It is unnecessary to insert a statutory provision relating to “diminished responsibility” in the statute book.

The American view point for and against death sentence may be summarized as follows:

Pro- Arguments:

1. Elimination of murderers by execution is fair retribution and saves potential future victims.
2. Punishments must match the gravity of offence and worst crimes should be severely   punishment.
3. Societies must establish deterrents against crime. Death sentence serves as an effective deterrent.
4. Death is a just punishment and death penalty has been held constitutionally valid to ensure justice for condemned offenders.

Con- Arguments:

1. An exaction arising out of miscarriage of justice is irreversible.
2. Capital punishment is lethal vengeance which brutalizes the society that tolerates it.
3. Capital punishment does not have deterrent effect. Hired murderers take the risks of criminal justice system whatever the penalties. Thus it has no reason rational purpose.
4. Death penalty is unjust and often discriminatory against poor who cannot defend themselves properly.

Abolitionist and Retentionist Countries:

More than half the countries in the world have now abolished the death penalty in law or practice. The numbers are as follows:

Abolitionist for all crimes: 88

Abolitionist for ordinary crimes only: 11

Abolitionist in practice: 29

Total abolitionist in law or practice: 128

Retentionist: 69

Following are lists of countries in the four categories: abolitionist for all crimes, abolitionist for ordinary crimes only, abolitionist in practice and Retentionist.

At the end is a list of countries which have abolished the death penalty since 1976. It shows that in the past decade, an average of over three countries a year have abolished the death penalty in law or, having done so for ordinary offences, have gone on to abolish it for all offences.

1. a) Abolitionist for all crimes:

Countries whose laws do not provide for the death penalty for any crime

Andorra, Angola, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan, Bosnia-Herzegovina, Bulgaria, Cambodia, Canada, Cape Verde, Colombia, Costa Rica, Cote D’ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France, Georgia, Germany,Greece, Guinea-Bissau, Haiti, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia (Former Yugoslav Republic), Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated States), Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia, Seychelles, Slovak Republic, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu, Vatican City State, Venezuela.

b ) Abolitionist for ordinary crimes only:

Countries whose laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances

Albania, Argentina, Bolivia, Brazil, Chile, Cook Islands, El Salvador, Fiji, Israel, Latvia, Peru.

1. c) Abolitionist in practice:

Countries which retain the death penalty for ordinary crimes such as murder but can be considered abolitionist in practice in that they have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions. The list also includes countries which have made an international commitment not to use the death penalty.

Algeria, Benin, Brunei Darussalam, Burkina Faso, Central African Republic, Congo (Republic), Gabon, Gambia, Ghana, Grenada, Kenya, Kyrgyzstan, Madagascar, Malawi, Maldives, Mali, Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, Sri Lanka, Suriname, Swaziland, Togo, Tonga, Tunisia.

1. d) Retentionist:

Countries and territories which retain the death penalty for ordinary crimes

Afghanistan, Antigua And Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Burundi, Cameroon, Chad, China, Comoros, Congo (Democratic Republic), Cuba, Dominica, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kazakstan, Korea (North), Korea (South), Kuwait, Laos, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, Oman, Pakistan, Palestinian Authority, Qatar, Rwanda, Saint Christopher & Nevis, Saint Lucia, Saint Vincent & Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Tajikistan, Tanzania, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, United States Of America, Uzbekistan, Vietnam, Yemen, Zambia, Zimbabwe.

Countries which have abolished the death penalty since 1976–

# 1976: PORTUGAL abolished the death penalty for all crimes.

# 1978: DENMARK abolished the death penalty for all crimes.

# 1979: LUXEMBOURG, NICARAGUA and NORWAY abolished the death penalty for all crimes. BRAZIL, FIJI and PERU abolished the death penalty for ordinary crimes.

# 1981: FRANCE and CAPE VERDE abolished the death penalty for all crimes.

# 1982: The NETHERLANDS abolished the death penalty for all crimes.

# 1983: CYPRUS and EL SALVADOR abolished the death penalty for ordinary crimes.

# 1984: ARGENTINA abolished the death penalty for ordinary crimes.

# 1985: AUSTRALIA abolished the death penalty for all crimes.

# 1987: HAITI, LIECHTENSTEIN and the GERMAN DEMOCRATIC REPUBLIC (1) abolished the death penalty for all crimes.

# 1989: CAMBODIA, NEW ZEALAND, ROMANIA and SLOVENIA (2) abolished the death penalty for all crimes.

# 1990: ANDORRA, CROATIA (2), the CZECH AND SLOVAK FEDERAL REPUBLIC, HUNGARY, IRELAND, MOZAMBIQUE, NAMIBIA and SAO TOMÉ AND PRINCIPE abolished the death penalty for all crimes.

# 1992: ANGOLA, PARAGUAY and SWITZERLAND abolished the death penalty for all crimes.

# 1993: GUINEA-BISSAU, HONG KONG (4) and SEYCHELLES abolished the death penalty for all crimes.

# 1994: ITALY abolished the death penalty for all crimes.

# 1995: DJIBOUTI, MAURITIUS, MOLDOVA and SPAIN abolished the death penalty for all crimes.

# 1996: BELGIUM abolished the death penalty for all crimes.

# 1997: GEORGIA, NEPAL, POLAND and SOUTH AFRICA abolished the death penalty for all crimes. BOLIVIA abolished the death penalty for ordinary crimes.

# 1998: AZERBAIJAN, BULGARIA, CANADA, ESTONIA, LITHUANIA and the UNITED KINGDOM abolished the death penalty for all crimes.

# 1999: EAST TIMOR, TURKMENISTAN and UKRAINE abolished the death penalty for all crimes. LATVIA (5) abolished the death penalty for ordinary crimes.

# 2000: COTE D’IVOIRE and MALTA abolished the death penalty for all crimes. ALBANIA (6) abolished the death penalty for ordinary crimes.

# 2001: BOSNIA-HEZEGOVINA (7) abolished the death penalty for all crimes. CHILE abolished the death penalty for ordinary crimes.

# 2002: CYPRUS and YUGOSLAVIA (now two states SERBIA and MONTENEGRO (9)) abolished the death penalty for all crimes.

# 2003: ARMENIA abolished the death penalty for all crimes.

# 2004: BHUTAN, GREECE, SAMOA, SENEGAL and TURKEY abolished the death

penalty for all crimes.

# 2005: LIBERIA (8) and MEXICO abolished the death penalty for all crimes.

# 2006: PHILIPPINES abolished the death penalty for all crimes.

Limiting the Death Penalty:

1. a) Creation of International Human Rights Doctrines:

In the aftermath of World War II, the United Nations General Assembly adopted the Universal Declaration of Human Rights. This 1948 doctrine proclaimed a “right to life” in an absolute fashion, any limitations being only implicit. Knowing that international abolition of the death penalty was not yet a realistic goal in the years following the Universal Declaration, the United Nations shifted its focus to limiting the scope of the death penalty to protect juveniles, pregnant women, and the elderly.

During the 1950s and 1960s subsequent international human rights treaties were drafted, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. These documents also provided for the right to life, but included the death penalty as an exception that must be accompanied by strict procedural safeguards. Despite this exception, many nations throughout Western Europe stopped using capital punishment, even if they did not, technically, abolish it. As a result, this de facto abolition became the norm in Western Europe by the 1980s.

1. b) Limitations within the United States:

Despite growing European abolition, the U.S. retained the death penalty, but established limitations on capital punishment.

In 1977, the United States Supreme Court held in Coker v. Georgia   that the death penalty is an unconstitutional punishment for the rape of an adult woman when the victim was not killed. Other limits to the death penalty followed in the next decade.

1. c) Mental Illness and Mental Retardation:

In 1986, the Supreme Court banned the execution of insane persons and required an adversarial process for determining mental competency in Ford v. Wainwright . In Penry v. Lynaugh , the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment. However, in 2002 in Atkins v. Virginia,  , the Court held that a national consensus had evolved against the execution of the mentally retarded and concluded that such a punishment violates the Eighth Amendment’s ban on cruel and unusual punishment.

1. d) Race:

Race became the focus of the criminal justice debate when the Supreme Court held in Batson v. Kentucky  that a prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for the strikes.

Race was again in the forefront when the Supreme Court decided the 1987 case, McCleskey v. Kemp. McCleskey argued that there was racial discrimination in the application of Georgia’s death penalty, by presenting a statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The Supreme Court held, however, that racial disparities would not be recognized as a constitutional violation of “equal protection of the law” unless intentional racial discrimination against the defendant could be shown.

1. e) Juveniles:

In the late 1980s, the Supreme Court decided three cases regarding the constitutionality of executing juvenile offenders. In 1988, in Thompson v. Oklahoma , four Justices held that the execution of offenders aged fifteen and younger at the time of their crimes was unconstitutional. The fifth vote was Justice O’Connor’s concurrence, which restricted Thompson only to states without a specific minimum age limit in their death penalty statute. The combined effect of the opinions by the four Justices and Justice O’Connor in Thompson is that no state without a minimum age in its death penalty statute can execute someone who was under sixteen at the time of the crime.

The following year, the Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at age sixteen or seventeen. At present, 19 states with the death penalty bar the execution of anyone under 18 at the time of his or her crime.

In 1992, the United States ratified the International Covenant on Civil and Political Rights. Article 6(5) of this international human rights doctrine requires that the death penalty not be used on those who committed their crimes when they were below the age of 18. However, in doing so but the U.S. reserved the right to execute juvenile offenders. The United States is the only country with an outstanding reservation to this Article. International reaction has been highly critical of this reservation, and ten countries have filed formal objections to the U.S. reservation.

In March 2005,  Roper v. Simmons, the United States Supreme Court declared the practice of executing defendants whose crimes were committed as juveniles unconstitutional in Roper v. Simmons.

CHAPTER – EIGHT

Concluding Remarks

Criticisms:

There are many loopholes of our Acts by which declared death penalty such as 302 of the Penal Code, 1860. In our country there are many cases which are instituted by wrongfully and falsely. In those case declared death penalty which is treated injustice. If the government execute any death penalty that time violates the Human Rights.

There are also some following criticisms:

► The government did not take proper step for abolishing death penalty;

► In Bangladesh there are many Acts which are called Black Law such as The Special Powers Act, 1974;

► Most of the Act includes death penalty;

► The government makes new laws which are also include death penalty.

Recommendation:

We know that, death penalty is the violation of Human Right. If the countries abolish the death penalty that time establish the Human Rights. Most of the Countries of the world abolish the death penalty so other state should abolish the death penalty that is not abolishing the death penalty.  So the Bangladesh should abolish the death penalty by making new Act or amendment.

The capital punishment as being violative of constitutional provisions should be deleted from the text of penal law of Bangladesh. At the same time penal law should be amended for accommodating diversion measures for enlarging the offenders in the free society for rehabilitation and transformation. There is a system of privation which is not properly utilized. Other alternative measures should be introduced by amending the penal laws. That will meet up progressive demand of humanity and will better ensure the security of organized society and state.

There are also some following recommendations;

• The government should establish Human Rights;
• The government should amend the Act which provides death penalty;
• The government should modify some Act where found loopholes;
• To publicly adopt a clear timetable for the abolition of the death penalty;
• To ensure that the Ministry of Justice makes publicly available comprehensive statistics on the use of the death penalty, including the numbers sentenced to death;
• When a criminal commit murder that time the court should declared for life imprisonment or may send to the reformation center if he juvenile;
• To immediately cease the practice of shackling prisoners;
• The government should take proper step for abolishing the death penalty.
• To urgently address the issue of prison overcrowding through the allocation of adequate resources;
• To incorporate the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), without reservations, into domestic law;
• The government should adopt International Protocol such as ICCPR, Protocol II.

What are the realistic alternatives to the death penalty? Any punishment must be fair, just, adequate and most of all, enforceable. Society still views murder as a particularly heinous crime which should justify the most severe punishment. Whole life imprisonment could fit the bill for the worst murders with suitable gradations for less awful murders.

I am personally against the mandatory life sentence for murder as it fails, in my view, to distinguish between really horrible crimes and those crimes which, whilst still homicide, are much more understandable to the rest of us. Therefore it is clearly necessary to give juries the option of finding the prisoner guilty, but in a lower degree of murder and to give judges the ability to pass sensible, determinate sentences based upon the facts of the crime as presented to the court. Imprisonment, whilst expensive and largely pointless, except as means of removing criminals from society for a given period, is at least enforceable upon anyone who commits murder (over the age of ten years). However it appears to many people to be a soft option and this perception needs to be corrected.

In modern times we repeatedly see murderers being able to “get off” on the grounds of diminished responsibility and their alleged psychological disorders, or by using devices such as plea bargaining. This tends to remove peoples’ faith in justice which is very dangerous. Are there any other real, socially acceptable, options for dealing with murderers? One possible solution (that would enrage the civil liberties groups) would be to have everyone’s’ DNA profile data-based at birth (not beyond the wit of modern computer systems) thus making detection of many murders and sex crimes much easier.

If this was done and generally accepted as the main plank of evidence against an accused person and a suitable, determinate sentence of imprisonment passed, involving a sensible regime combining both punishment and treatment, it would I am sure, considerably reduce the incidence of the most serious and most feared crimes. The reason for this is that for most people, being caught is a far greater deterrent than some possible, probably miss-understood, punishment – e.g. “life imprisonment”. Surely this has to be better than the arbitrary taking of the lives of a tiny minority of offenders (as happens in most countries that retain the death penalty) with all the unwanted side effects that this has on their families and on the rest of society. It is clear that certainty of being caught is a very good deterrent – just look at how people observe speed limits when they see signs for speed cameras and yet break the speed limit as soon as the risk is passed.

Conclusion:

It may be reiterated that capital punishment is undoubtedly against the notions of modern rehabilitative processes of treating the offenders. It does not offer an opportunity to the offender to reform himself. That apart, on account of its irreversible nature, many innocent persons may suffer irredeemable harm if they are wrongly hanged.

In this above discussion our main object was to high light that, what the realistic alternatives to the death penalty are. Any punishment must be fair, just, adequate and most of all, enforceable. Society still views murder as a particularly monstrous crime which should justify the most severe punishment. Whole life imprisonment could fit the bill for the worst murders with suitable gradations for less awful murders.

I have tried to argue here that whether the death penalty is moral and just. I am personally against the mandatory life sentence for murder as it fails, in my view, to distinguish between really horrible crimes and those crimes which, whilst still homicide, are much more understandable to the rest of us. Therefore it is clearly necessary to give juries the option of finding the prisoner guilty, but in a lower degree of murder and to give judges the ability to pass sensible, determinate sentences based upon the facts of the crime as presented to the court. Imprisonment, whilst expensive and largely pointless, except as means of removing criminals from society for a given period, is at least enforceable upon anyone who commits murder.

The death penalty is no doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably, discriminatorily, freakishly or wantonly, but if it administered rationally, objectively and judiciously, it will enhance people’s confidence in criminal justice system.

And lastly, we can also say that, in Bangladesh we exercise death penalty as capital punishment to execute the murder or a convict of a vital crime from ancient time. From which time we exercise it didn’t know. Though the sentences are not frequent as well. Every year very few convicts are executed in Bangladesh. Some times the Government of the country releases the convict by showing political issue.

So it is our hope and expectation that like other countries of the world our country also abolishes the death penalty by giving alternative punishment to the criminals for doing serious crimes and protects the human rights.