What justifications are there for life sentences? Should they be abolished and replaced by determinate terms of imprisonment?

INTRODUCTION:

“What says the law? You will not kill. How does it say it? By killing!”
-Victor Hugo, author of Les Miserables

Capital punishment, the death penalty, or execution is the killing 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. The term capital originates from Latin capitalis, literally “regarding the head” (Latin caput). Hence, a capital crime was originally one punished by the severing of the head.

Capital punishment has in the past been practiced in virtually every society, although currently only 58 nations actively practice it, with 95 countries abolishing it (the remainder having not used it for 10 years or allowing it only in exceptional circumstances such as wartime). It is a matter of active controversy in various countries and states, and positions can vary within a single political ideology or cultural region. In the European Union member states, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment.

Death sentence can be replaced by the life imprisonment. Life imprisonment (also known as a life sentence, life-long incarceration or life incarceration) is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life.

Death sentence is given for the sever crimes in the society there are a lot of logic in favor of it and a lot of logic which do not support it, here I’m going to present my findings from my research.

——————————————————————————————–

So common was the practice of compensation that the word murder is derived from the French word mordre (bite) a reference to the heavy compensation one must pay for causing an unjust death. The “bite” one had to pay was used as a term for the crime itself: “Mordre wol out; that se we day by day.” – Geoffrey Chaucer (1340–1400), The Canterbury Tales, The Nun’s Priest’s Tale, l. 4242 (1387–1400), repr. In The Works of Geoffrey Chaucer, ed. Alfred W. Pollard, et al. (1898).

Historical Background

Execution of criminals and political opponents has been used by nearly all societies—both to punish crime and to suppress political dissent. In most places that practice capital punishment it is reserved for murder, espionage, treason, or as part of military justice. In most places that practice capital punishment it is reserved for murder, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do religious crimes such as apostasy in Islamic nations (the formal renunciation of the state religion). In many countries that use the death penalty, drug trafficking is also a capital offense. In China, human trafficking and serious cases of corruption are 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.

In certain parts of the world, nations in the form of ancient republics, monarchies or tribal oligarchies emerged the systems of tribal arbitration were submerged into a more unified system of justice which formalized the relation between the different “classes” rather than “tribes”. The earliest and most famous example is Code of Hammurabi which set the different punishment and compensation according to the different class/group of victims and perpetrators. The Torah (Jewish Law), also known as the Pentateuch (the first five books of the Christian Old Testament), lays down the death penalty for murder, kidnapping, magic, violation of the Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare. A further example comes from Ancient Greece, where 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, though Solon later repealed Draco’s code and published new laws, retaining only Draco’s homicide statutes.^[19] The word draconian derives from Draco’s laws. The Romans also used death penalty for a wide range of offenses.

Islam on the whole accepts capital punishment. The Abbasid Caliphs in Baghdad, such as Al-Mu’tadid, were often cruel in their punishments. In the One Thousand and One Nights, also known as the Arabian Nights, the fictional storyteller Sheherazade is portrayed as being the “voice of sanity and mercy“, with her philosophical position being generally opposed to punishment by death. She expresses this though several of her tales, including “The Merchant and the Jinni”, “The Fisherman and the Jinni“, “The Three Apples“, and “The Hunchback”.^[24]

But the present scenario of the world is somewhat different. Among countries around the world, almost all European and many Pacific Area states (including Australia, New Zealand and Timor Leste), and Canada have abolished capital punishment. In Latin America, most states have completely abolished the use of capital punishment, while some countries, such as Brazil, allow for capital punishment only in exceptional situations, such as treason committed during wartime. The United States (the federal government and 35 of the states), Guatemala, most of the Caribbean and the majority of democracies in Asia (e.g. Japan and India) and Africa (e.g. Botswana and Zambia) retain it. South Africa, which is probably the most developed African nation, and which has been a democracy since 1994, does not have the death penalty. This fact is currently quite controversial in that country, due to the high levels of violent crime, including murder and rape.

Advocates of the death penalty argue that it deters crime, is a good tool for police and prosecutors (in plea bargaining for example), improves the community by making sure that convicted criminals do not offend again, provides closure to surviving victims or loved ones, and is a just penalty for their crime. Opponents of capital punishment argue that it has led to the execution of wrongfully convicted, that it discriminates against minorities and the poor, that it does not deter criminals more than life imprisonment, that it encourages a “culture of violence”, that it is more expensive than life imprisonment, and that it violates human rights.

Laws for death penalty

Murder is the only crime for which a death sentence may be imposed. At the discretion of the Prosecuting Attorney, the State may seek a death sentence by allegations on a separate page of the Indictment or Information. Upon request of the defendant, it is required that the jury be sequestered (not separated even at night) during the trial. A bifurcated (two-stage) hearing is required.

A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).

———————————————————

IC 35-50-2-9 Death Sentence (As of April 1, 2008)

And, Notwithstanding subsection (a), a person who was: (1) at least eighteen (18) years of age at the time the murder was committed may be sentenced to: (A) death; or (B) life imprisonment without parole; and (2) at least sixteen (16) years of age but less than eighteen (18) years of age at the time the murder was committed may be sentenced to life imprisonment without parole; under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is a mentally retarded individual.

The state may seek either a death sentence or a sentence of life imprisonment without parole for murder by alleging, on a page separate from the rest of the charging instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection (b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond a reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged. However, the state may not proceed against a defendant under this section if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is a mentally retarded individual.

The aggravating circumstances are as follows: the defendant committed the murder by intentionally killing the victim while committing or attempting to commit any of the following:

(A) Arson (IC 35-43-1-1).

(B) Burglary (IC 35-43-2-1).

(D) Criminal deviate conducts (IC 35-42-4-2).

(E) Kidnapping (IC 35-42-3-2).

(F) Rape (IC 35-42-4-1).

(G) Robbery (IC 35-42-5-1).

(H) Carjacking (IC 35-42-5-2).

(I) Criminal Gang Activity (IC 35-45-9-3).

(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).

As used in this chapter, “individual with mental retardation” means an individual who, before becoming twenty-two (22) years of age, manifests: (1) significantly sub average intellectual functioning; and (2) substantial impairment of adaptive behavior; that is documented in a court ordered evaluative report.

—————————————————————————————————-Mandatory life sentences(i) When sentencing an offender to life imprisonment for murder a court must impose a minimum term or ‘tariff’. There are three starting points based upon statutory criteria: whole life, 30 years and 15 years. At the highest end of the scale are the gravest of cases for which life will mean the remainder of a person’s life. That would normally include the murder of two or more people with a substantial degree of premeditation or which involved abduction or sadistic or sexual conduct, the murder of a child involving abduction or sexual or sadistic motivation, murder for a political or ideological cause and murder by someone previously convicted of murder. The next starting point is 30 years. Examples include the murder of a police or prison officer, murder involving use of a firearm or explosive, murder for gain such as during a robbery, murder involving sexual or sadistic conduct and murder which is racially aggravated or aggravated by sexual orientation. For all other cases the starting point is 15 years. (ii) Once the starting point has been decided, the Court must consider any aggravating and mitigating features (not already considered in setting the starting point) which may shift the minimum term up or down. Aggravating factors include significant planning or premeditation, a victim particularly vulnerable because of age or disability, mental or physical suffering of the victim before death and concealment or destruction of the body. Mitigating factors include an intention to cause serious harm rather than to kill, lack of premeditation, whether the offender suffered from any mental disability, a belief that the killing was an act of mercy and a plea of guilty. (iii) The time served by the offender remanded in custody while before sentence will then be deducted. (iv) Whatever the minimum term, release of the offender will not be automatic at its conclusion. On the contrary the offender will only be released if the Parole Board is satisfied, having considered the offender’s rehabilitation, that it is no longer necessary for the protection of the public that the prisoner should be confined. In many cases the offender will in fact serve very much longer than the minimum term and in some cases may never be released. (v) Once released, the offender will remain ‘on licence’ for the rest of his life. Conditions will be imposed on his licence, including supervision by the probation service. If the offender presents a risk of harm to others or is in breach of his licence conditions he may be recalled to prison.

[As added by P.L.158-1994, SEC.3.]

IC 35-50-2-3 Murder Penalties (As of April 1, 2008)

Justification:

While some of us believe execution is just and reasonable punishment, others view it as an inhumane and barbaric act. The intensity of feeling that capital punishment provokes obscures its long and varied course in the history.

Austin Sarat seeks to change the terms of that debate. Capital punishment must be stopped, Sarat argues, because it undermines our democratic society. Sarat unflinchingly exposes us to the realities of state killing. He examines its foundations in ideas about revenge and retribution. He takes us inside the courtroom of a capital trial, interviews jurors and lawyers who make decisions about life and death, and assesses the arguments swirling around Timothy McVeigh and his trial for the bombing in Oklahoma City. Aided by a series of unsettling color photographs, he traces Americans’ evolving quest for new methods of execution, and explores the place of capital punishment in popular culture by examining such films as Dead Man Walking, The Last Dance, and The Green Mile. Sarat argues that state executions, once used by monarchs as symbolic displays of power, gained acceptance among Americans as a sign of the people’s sovereignty. Yet today when the state kills, it does so in a bureaucratic procedure hidden from view and for which no one in particular takes responsibility. He uncovers the forces that sustain America’s killing culture, including overheated political rhetoric, racial prejudice, and the desire for a world without moral ambiguity.

Singapore, Pakistan, Bangladesh has high rate of life sentence and life imprisonment. But the rate of crime is not declining because of that. The crimes for what life sentence is given those are highly dependent on the country’s economical and political situation. Several researches show that the rate of crime goes up when the rate of unemployment increases.

——————————————————–

When Bnajir Vutto came to the power she commuted 2000 death sentences in 1988, which was published in ‘death penalty news’ in 1993.

Most of the death sentence was given on the political background. One’s belief is stopped by another by death sentence. We have observed it several times in Asia. In the context of subcontinent our history has observed most of the death sentence at the time of dictators, as example we can mention the death sentence of Colonel Taher. So death sentence gives the ruling party to uproot their opponents. If the process of death sentence could be replaced by the imprisonment for whole life then there would be a chance to establish the truth. But for that the transparency of the court is mandatory.

———————————————————————————————————————

1987 – P.L. 332-1987, § 1 (effective July 1, 1987)
– Amends (b) making the minimum age for the death penalty 16 years of age at the time of the murder. (Prior to this time, the only Indiana statute relating to minimum age was the juvenile waiver statutes, which allowed waiver to adult court in some cases for the crime of murder committed by a 10 year old.)
– Not applicable to death sentences imposed before September 1, 1987.

1994 – P.L.158-1994, § 5 (Approved March 15, 1994, effective July 1, 1994)
– Adds a provision exempting mentally retarded individuals from a death sentence or life without parole.
– Note that this statute was passed without incorporating the changes of P.L. 164-1994 § 2, which was approved 4 days earlier. The Indiana Supreme Court held in Smith v. State, 675 N.E.2d 693 (Ind. 1996) that the subsequently passed statute prevails.

2005 – P.L. 71-2005, § 6 (effective April 25, 2005)
– Eliminates “presumptive” sentences, instead making 55 years imprisonment an “advisory” sentence, all in an effort to bypass Blakely v. Washington so that a sentence greater than the “advisory” sentence can be given without a jury determination of aggravating circumstances.

For mental retardation:IC 35-36-9-2

Death sentence is to protect people in the society. It demoralizes the criminals and creates obligations to the people that they should not take the law in own hand. Death sentence is works as a threat to the people who has intention to commit severe crime. But the same thing also can be done by the imprisonment. Imprisonment also can demoralize people from doing crime. Right implication of law can bring faith of people on the judiciary system and in that situation imprisonment is enough as the punishment of highest level of crime. If the state have proper law and its implication then the offender and the defender both will feel no risk to ask for the jurisdiction for the highest level of crime. Here court will decide the level of punishment according to the existing law and if needed the court can use the examples from other courts or they can also ask for new law to the state.

Court will go through the following process in deciding the length of sentence:

(i) Determine whether the offence is one for which there is a minimum sentence. A small number of offences, for example some firearms offences and ‘third strike’ burglary and Class A drug trafficking offences, carry a minimum term of imprisonment, regardless of any mitigating features or discounts. The minimum term of imprisonment must be imposed unless there are exceptional circumstances. (ii) Determine the seriousness of the offence and the harm caused or intended. For example a robbery can be a handbag snatch committed on the spur of the moment with little effect on the victim; by contrast it may also be a raid of a sub-post office with weapons in which the postmaster is attacked and a large amount of money stolen. (iii) Consider aggravating factors. These include breach of trust and planning, relevant previous convictions of the offender, whether the offence was committed on bail and whether it was racially or religiously motivated. (iv) Consider a discount for a guilty plea. This may depend upon the stage at which the plea is entered with the maximum discount (usually one third) for pleas of guilty at the earliest stage and the minimum for a plea on the day of trial. (v) Consider whether a custodial sentence is necessary. Was it so serious that only a custodial sentence and no other form of penalty, for example a community sentence or a suspended sentence, is justified? The effect of the sentence will be as follows: Imprisonment for Public Protection. Once certain criteria are met, the Court must pass a sentence of Imprisonment for Public Protection. There are three criteria. (i) First, the offence for which the offender is to be sentenced is a ‘specified offence’. (ii) The second criterion is that the offence must be also be a ‘serious offence’, that is to say one which carries a maximum term of 10 years imprisonment or more. Serious offences include wounding or abusing serious bodily harm intent and rape and most sexual offences, but not lesser offences such as affray and sexual voyeurism.(iii) The third criterion is that the offender represents a significant risk to members of the public of serious harm by committing further specified offences in the future.

Conclusion

From my research I have found that the life sentence is almost always not clear in the world history. Most of the times life sentences are given at the political background to demolish opponent. To restrict severe crime first of all the economical system and political system of a country must be good. Then the judiciary system need to transparent and accountable to the public. If it can be ensured then the fatal crimes will surely decrease. The criminal also have the right to get the correct justification and for that we should abolish death sentence because it deprives the criminal from human right.

If the Law enforcing organizations work properly then it is not very tough to control the severe crimes in the society for what the death sentence is given. Here we need accountability of police and other law enforcing forces.

From the human right attorney’s point of view:

“It can be argued that rapists deserve to be raped, that mutilators deserve to be mutilated. Most societies, however, refrain from responding in this way because the punishment is not only degrading to those on whom it is imposed, but it is also degrading to the society that engages in the same behavior as the criminals.”
-Stephen Bright, human rights attorney

So life sentence cannot be a solution to solve problem of society. Even Quran says that

‘You will take hand at the revenge of hand, head for head but only at the field of battle, not in your society.’

So, why death sentence? It cannot be supported from any point of view either not from the religious point of view or from the human rights point of view .so I strongly agree that death sentences should be abolished by imprisonment.