Capital Punishment

Objectives of the Research:

With the broader objective of studying An Inquiry in to nature of the Capital Punishment: Some Observation; the present research specially focuses on present scenario of the Capital Punishment in Bangladesh and the world wide to this matter, which comprises the following issues:

1. To explore the ways of protecting state through capital punishments ;
2. To find out that how the state have right to take the life of a criminal;
3. To find out the enforcement mechanisms of the capital punishment;
4. To explore the aims of giving this capital punishment;
5. To find out the  alternative of capital punishment;
6. To compare the social aspects in our county & developed country after giving this capital punishment.

 Rationale of the Study:

Any type of crime should be punished for the sake of the society. Punishment for a wrong doing can make a criminal understood about the bad sides of the task. Punishment refers to the consequence for undesired behavior. All punishments came in the world in day by day. But there are lots of aspects a person commits crimes and violating laws. These are :

1. Social problem;
2. Environmental problem;
3. Psychological problem;
4. Drug addiction.

Capital punishment is the death sentence awarded for capital offences like crimes involving planned murder, multiple murders, repeated crimes, rape and murder etc where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide death punishment.

The rational or justification of doing this study theoretically are;

• Nowadays it is the most issue of violating human rights.
• The statistics given by a Report made me interested, Support for the Death Penalty: U.S., Britain, Canada – held that;

• 64% of Americans favor the death penalty for a person convicted of murder.
• Canadians are about evenly split on the subject, with 48% in favor of the death penalty 49% opposed.
• In Great Britain, a slim majority supports the death penalty, with 55% in favor and 41% opposed.

• I want to say that, I have chosen this topic cause I think a life is so valuable and the death penalty is a violation of human rights. It is necessary to consider how it deters crime when its existence directly confronts people.

Methodology:

In this study, it had been mostly relied on the following secondary methodologies in doing my research monograph; these are;

• Content analysis of legal provisions of Acts in Bangladesh.
• Secondary documents like books, journal and articles (mentioned in Bibliography).
• Case study of women who faced and experienced violence by their intimate partner or others.
• Analysis of statistics sourced by Amnesty International.

Limitations:

• The major limitation is the time-line to prepare a vast area like ‘An Inquiry in to nature of the Capital Punishment: Some Observation’, but I tried my best within the given period to complete this study, for the partial fulfillment of the requirement for LL.M degree.

• Another most important hurdle I have faced to complete the study was the cost and budget of surveying, managing case studies, collecting interviews etc. The total expense carried out only by my personal budget, without any funding from any sponsor.

• Though there were so many obstacles in researching my topic, I finally succeeded to complete this paper at best possible way.

Introduction:

Right to life, that life of every human being is very valuable, is a core concept of human civilization. All the major religions and philosophies declared that human life is inviolable. None has any right to take the life of another. If anybody takes the life of another, s/he will be punished with death penalty. This basic proposition has been accepted by most of the earlier human societies and it has not been questioned until the modern humanitarian movement has taken momentum. Death penalty is a relevant issue for every human society and it constitutes a “dilemma of hidden human divinity versus hubristic death penalty.” The concept of a right to life is central to debates on the issues of capital punishment, euthanasia, self defense, abortion and war.

• In 1776, the United States Declaration of Independence declared that all men are endowed with certain inalienable rights, and that “among these are life, liberty, and the pursuit of happiness”.

• In 1948, the Universal Declaration of Human Rights, adopted by the United Nations General Assembly declared in article three:

• In 1966, the International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly.

• In 1982, the Canadian Charter of Rights and Freedoms enshrined that

A central principle of a just society is that every person has an equal right to “life, liberty, and the pursuit of happiness.” Within that framework, an argument for capital punishment can be formulated along the following lines: some acts are so vile and so destructive of community that they invalidate the right of the perpetrator to membership and even to life. Those who violate the personhood of others, especially if this is done persistently as a habit must pay the ultimate penalty. This punishment must be inflicted for the sake of maintaining the community whose foundation has been violated. We can debate whether some non-lethal alternative is a fitting substitute for the death penalty. But the standard of judgment is whether the punishment fits the crime and sufficiently honors the nature of moral community.

Operational Definition:

Capital punishment, also called the death penalty, is the execution of a convicted criminal by the state as punishment for crimes known as capital crimes or capital offences. “The term ‘capital ‘derives from the Latin caput, literally meaning ‘head’ but also a pars pro toto for the whole individual.” Capital punishment is, therefore, a penalty for a serious crime, which requires death of the offender either by decapitation (losing one’s head) or otherwise. It is the ultimate corporal punishment constituting the end of all physical functions forever. Prisoners, who are given death penalty, are segregated from other prisoners and kept in some specially separated area of the prison, where they wait for their execution. This separated area is known as “death row” in some places of the world.

According to Encyclopedia Britannica “capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.”

According to Cambridge Dictionary Capital punishment is “punishment by death, as ordered by a legal system.”

The Columbia Encyclopedia, in its 2008 sixth edition, under the heading titled “Capital Punishment,” offered the following:

“Capital punishment: Imposition of a penalty of death by the state. Capital punishment was widely applied in ancient times; it can be found (c.1750 BC) in the Code of Hammurabi. From the fall of Rome to the beginnings of the modern era, capital punishment was practiced throughout Western Europe…

The Catholic Encyclopedia, a compilation of Catholic teachings and definitions originally published in 1907, in an entry titled “Capital Punishment,” stated:

“The infliction by due legal process of the penalty of death as a punishment for crime. The Latins use the word capitalis (from caput, head) to describe that which related to life, that by which life is endangered. They used the neuter form of this adjective, i.e., capitale, substantively to denominate death, actual or civil, and banishment imposed by public authority in consequence of crime. The idea of capital punishment is of great antiquity and formed a part of the primal concepts of the human race.”[1]

The death penalty is the most controversial penal practice in the modern world. Other harsh, physical forms of criminal punishment—referred to as corporal punishment—have generally been eliminated in modern times as uncivilized and unnecessary. In the majority of countries, contemporary methods of punishment—such as imprisonment or fines—no longer involve the infliction of physical pain. Although imprisonment and fines are universally recognized as necessary to the control of crime, the nations of the world are split on the issue of capital punishment. About 90 nations have abolished the death penalty and an almost equal number of nations (most of which are developing countries) retain it.[2]

Historical Background:

Capital punishment is the lawful infliction of death as a punishment and since ancient times it has been used for a wide variety of offences. The bible prescribes death for murder and many other crimes, including kidnapping and witchcraft. By 1500 in England, only major felonies carried the death penalty- treason, murder, larceny, burglary, rape, and arson by 1700, however, parliament had enacted many new capital offences, and hundreds of persons were being put to death each year. Reform of the death penalty began in Europe by the 1750s, and was championed by academics such as the Italian jurist Cesare Beccaria, the French philosopher Voltaire, and the English law reformers Jeremy Bentham and Samuel Romilly. They argued that the death penalty was needlessly cruel, overrated as a deterrent, and occasionally imposed in fatal error. Along with Quaker leaders and other social reformers, they defended life imprisonment as a more rational alternative. By the 1850s these reform efforts began to bear fruit. Venezuela (1853) and Portugal (1867) were the first nations to abolish the death penalty altogether. In the United States Michigan was first state to abolish it for murder in 1847. Today, it is virtually abolished in all of Western Europe and most of Latin America. Britain effectively abolished capital punishment in 1965.

 1.      In Primitive Society:

It must be borne in mind that the killing of a person guilty of grievous crime does not, in primitive society, belong to the class of deliberate ordinances enacted by the community. It is rather a form of the impulse of revenge, which the primitive institutions of all the older civilized nations first tolerate, and then regulate and uphold or limit. In primitive conditions revenge has a twofold operation. It is directed in some cases against offenses which affect the individual or the family (such as theft, adultery, and the murder of a freeman); in these cases the injured family proceeds against the offender or his family, and the community takes part only in the interests of public peace, by establishing a penalty on payment of which the offender is to be safe from revenge. Quite a different form of procedure is that against crimes which offend the consciousness of the whole community (sacrilege, unnatural vices, treason in war, etc.). Here the vengeance of the community is provoked, and it acts first by formal delivery of the offender to the will of the members or outlawry, then later by actual execution, in connection with which sacred ceremonies analogous to those of sacrifice are often found. As organized government grows stronger, it takes an official interest in crimes which were originally in the private sphere, withdraws them from individual vengeance, and subjects them to capital punishment. Religion has its influence here.

 2.      In Roman Law:

In so far as the religious influence remained a permanent factor in the penal code, the Jewish State stands alone among the Mediterranean communities. In the others, especially the Greek and Roman, punishment became exclusively a matter of secular enactment. In the Roman the principle is continuously applied from the fifth century that the death penalty (whether by decapitation, burning, or throwing down a precipice) is due to all grave crimes (including murder, arson, perjury, treason, etc.); but in practise this was mitigated by the frequent substitution of the “interdiction of fire and water,” i.e., banishment from the community, especially after the introduction of the provocatio ad populum, an appeal to the whole body of the people against the decision of consuls and other magistrates empowered to pronounce sentence of outlawry. In the last two centuries of the republic capital punishment was seldom applied, to members of the upper classes at least. But it was never abolished, and when the reorganization of the Roman system took place under imperial legislation it was again more frequently employed, even against Roman citizens. Thus at the beginning of the Christian era it was an accepted institution throughout the Roman Empire, though with variations in usage due to local law. The teaching of Christ made no substantial alteration in these conditions. Of his own recorded sayings, the only one directly bearing on the subject is which refers rather to the eternal working out of the divine justice in the abstract. But Paul speaks expressly in of the legal death-penalty although here it is merely designated as reconcilable with the divine law, not required or imposed as a duty upon the State.

 3.      In Modern time:

In modern times the maintenance or abolition of the death-penalty has been considered mainly from the standpoint of social utility and social justice. In the history of penology the influence of Christian and humane sentiments has been distinctly felt; but many drastic punishments have been laid aside, not because they were cruel and severe, but because they were ineffective. As mutilation has been practically abandoned in civilized countries, so reliance upon capital punishment as a means of repressing crime has been greatly weakened. A conclusive proof of this is seen in the restriction of the number of offenses to which it is applied. Scarcely more than a century ago 200 offenses were included in the list of capital crime in England. Until 1894 twenty-five offenses were made capital under the military code of the United States, twenty-two under the naval code, and seventeen under the penal code. Under Federal laws the number of capital offenses has now been reduced to three. Many advocates of capital punishment today are willing to limit its application wholly to cases of murder. Within recent years seven or eight States of the Union, including New York, Massachusetts, New Mexico, North Dakota, have decided that attendance on executions should be limited to a number of legal or specified witnesses. The governors of Georgia and Kentucky have recommended similar legislation. In several States the electric chair has been substituted for the gallows with a view of mercifully rendering death instantaneous. Other States of the Union have abolished the death-penalty altogether. Michigan abolished it in 1847, Rhode Island in 1852, Wisconsin in 1853. Maine abolished it in 1876, restored it in 1883, and again abolished it in 1887. In 1903 New Hampshire abolished the death-penalty for murder in the first degree unless the jury should have fixed the same to the verdict; otherwise the sentence is for life imprisonment. In Kansas there have been no official executions since 1872, as no governor has exercised his power to order the execution of a prisoner. In 1907 the legislature amended the law by substituting life imprisonment for the death-penalty. The governor of Nebraska in 1903 urged the legislature to abolish capital punishment. Colorado abolished the death-penalty in 1897, but restored it 1901, as a result of a lynching outbreak in 1900. In its session 1906-07 the subject of the abolition of capital punishment occupied a prominent place in the discussions of the French parliament without final result. On the contrary, the higher development of civilization in these countries, the growth of the, humane sentiment, and increased reliance upon educational and preventive measures, instead of upon drastic deterrent laws, have led to a gradual reduction of crimes of violence.

Development of the Capital Punishment:

In the older development of the penal code of all nations, corporal punishment is found concurrently with penalties affecting the property of the offender; but the corporal is finally preferred because it is capable of application alike to all, while money fines have a varying effect according to the wealth of the offender. By degrees the permission of compounding for corporal penalties is abolished, with the gradual building up from the twelfth century of modern principles of government. The death-penalty is increasingly preferred as emphasizing the thought of the equality of all men before the law. It is misused for a time as the easiest way of ridding society of dangerous persons, and then, in the sixteenth and seventeenth centuries, the question is widely discussed how far it ought properly to be applied, sad the principle of justice is urged in favor of its restriction to very grave crimes. These arguments, however, produced no great effect until the reaction from the excessive use of it led to the creation of a third form of penalty in a regular system of imprisonment, thoroughly established about 1700. The considerations which moved John Howard and others in the’ eighteenth century to agitate for prison reform on the ground of humanity led also to the more frequent discussion of the desirability of abolishing capital punishment, and finally to an almost universal recognition of the sole ground on which its maintenance can be defended. It is now admitted that on grounds of humanity the State has no right to annihilate the individual existence, and that so far as these grounds go, the heaviest penalty that may be inflicted is that of penal servitude for life. From the standpoint, however, of abstract justice, it is still possible to defend the death-penalty, not in the interest of terrifying offenders, nor yet on the basis of a lex talionis, but on that of a proportion between crime and penalty, which may fairly demand that the severity of the punishment shall correspond in some measure to the importance of the social function injured by the crime. With this is connected the requirement that the penalty shall be impressive as much so as the crime in order that the authority of the law shall be upheld, and equal, falling with the same severity on all classes of the community. The validity of this argument will be denied by those who reject the principle of equivalent compensation and, taking their stand exclusively on the principle of humanity, seek as the result of punishment the amelioration of the offender and the deterrence of him from any further crimes. But the fact that many of those who take this theoretical view acquiesce in the retention of capital punishment in practice shows that the traditional verdict of many centuries as to the relation of crime and punishment is still to be reckoned with in any discussion of this question.

Religious views on capital punishment:

1.      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 brahmin 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. Buddhist-majority states vary in their policy. For example, Bhutan has abolished the death penalty, but Thailand still retains it, although Buddhism is the official religion in both. Historically, most states where the official religion is Buddhism have imposed capital punishment for some offenses.

 2.      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 are 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.[3]

“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” (Qur’an 5:32). “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 one 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.[4]

 3.      Christianity:

Although some interpret that Jesus’ teachings condemn the death penalty in The Gospel of Luke and The Gospel of Matthew regarding Turning the other cheek, and John 8:7 in which Jesus intervenes in the stoning of an adulteress, rebuking the mob with the phrase “may he who is without sin cast the first stone”, others consider Romans 13:3-4 to support it. Also, Leviticus 20:2-27 has a whole list of situations in which execution is supported. Christian positions on this vary.[5] The sixth commandment (fifth in the Roman Catholic and Lutheran churches) is preached as ‘Thou shalt not kill’ by some denominations and as ‘Thou shalt not murder’ by others. As some denominations do not have a hard-line stance on the subject, Christians of such denominations are free to make a personal decision.[6]

 4.      Roman Catholic Church:

The Church classes capital punishment as a form of “lawful slaying”, a view derived from the thought of theological authorities such as Thomas Aquinas, who accepted the death penalty as a necessary deterrent and prevention method, but not as a means of vengeance. In Evangelium Vitae, Pope John Paul II suggested that capital punishment should be avoided unless it is the only way to defend society from the offender in question, opining that punishment “ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”[7] The most recent edition of the Catechism of the Catholic Church restates this view.[8]

 5.      Mormons:

The Church of Jesus Christ of Latter-day Saints (also called Mormons) neither promotes nor opposes capital punishment. They officially state it is a “matter to be decided solely by the prescribed processes of civil law.”[9]

 6.      Eastern Orthodox Christianity:

Eastern Orthodox Christianity generally has a negative view of the death penalty, but there is little said either way in this religion.

 7.      Esoteric Christianity:

The Rosicrucian Fellowship and many other Christian esoteric schools condemn capital punishment in all circumstances.[10]

Methods of Capital Punishment[11]

Methods of capital punishment include:

Some of the historical methods of capital punishment are briefly discussed:

Hanging
Hanging was first adopted as a method of execution about 2500 years ago in Persia. It was reserved for male criminals only. It was considered as less gruesome, less bloody and a cheap method of execution. Moreover, no skilled executioner was needed to perform the job. Hanging is still practiced in some countries like Singapore, Japan, India, Pakistan and three states in USA.
Decapitation
Decapitation or beheading by sword or axe was a common execution practice in Europe until 1850. The chastisement was reserved for person’s belonging to upper class, noblemen etc. This execution method originated from the Roman civilization. This was a bloody and messy method of execution but at least the victim was spared of the torture and pain. Decapitation was last practiced in Bavaria in 1954, after which guillotine replaced it as an execution method.
Burning at the Stake

This was the most common method of execution for people accused of witchcraft or heresy. The victim would be tied to a stake with chains or ropes on top of a heap of faggots. In another method, the faggots would surround the stake with victim tied to it, allowing him to die in flames. The execution would often take place in public view, so as to ascertain the consequences of the offense.

Drowning
Drowning was particularly reserved for women offenders. It was considered as a painless and ‘mild’ form of execution. Also some favored male offenders were granted this ‘privilege.’ Drowning was also mostly used in the cases of involvement of witchcraft. The basic idea was that the accused person would float if he/she were a witch and drown if innocent.
Crucifixion
This is probably the most glorified method of execution. The most famous victim of crucifixion is none other than Jesus Christ. This is a painful method of execution in which the condemned would be nailed to a wooden cross and left there to die.

Quartering by Horses

There are not many incidences of execution by this method. The few that took place have a scary recount in the chronicles. This method of execution was reserved for the crimes pertaining to the murders and attempts to murder of people of royal descent.

Wheel
Wheel was used in many ways for the execution purpose. A person would be either tied to the outer rim of the wheel and the wheel would be made to rotate against a nailed surface, or a person would be made to lie across the slow moving wheel and people would break his limbs with iron bars.

Stoning
This method is mostly practiced in Islamic countries. The main offense that accounts for this method of execution is adultery. The victim is tied to the pole in front of a large gathering of people. Stones are pelted at the victim by the large number of people gathered at the venue. This is by far the most torturous and cruel method of execution.

Strangulation
Strangulation was reserved for women who were accused for the offense that accounted execution by hanging. Strangulation was performed with garrote, a special device for ligature strangulation.
Impalement
No offender in the world deserves this punishment, whatsoever his crime may. The method includes stabbing a long stake through one end of the body and taking it out from the other. The stake would be inserted in the private organs of the offenders.

Constitutional, Penal & Statutory provisions for Death Penalty in BD

Constitutional Provisions on death penalty:

The penal policy of Bangladesh appears to be good in controlling crime and criminals, but a subtle analysis discloses the flaws of the policy. First, the mandatory death provided by the Penal Code is violation 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 of Bangladesh shall be taken except in accordance with law. The requirement of Article 31 is that if the state tries to take any detrimental action to life or liberty of any person, the state has to fulfill two conditions, procedural due process and substantive due 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 of any citizen. If there is no compelling state necessity to take the life of any citizen, the death sentence is not permissible.

 The mandatory death penalty provided by s.302 of the Penal Code is clear violation of 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 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.

  Article 35 (6), mandatory death penalty is violation because it undermines the sanctity of human life and liberty and leaves no space for the discretion of the judges.

Penal Code-1860 Provision on death penalty:[12]

It would be pertinent to refer to the relevant provisions of the Penal Code-1898, which provide for death sentence for 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 (Section 194)

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, 1908 further requires the death sentence of death imposed by the Sessions Judge can be executed only after it is confirmed by the High Court Division.

The history of human civilization reveals that during no period of time death penalty has been discarded as a mode of punishment. This finds support in the observation made by Sir Henry Maine who stated, “RomanRepublic did not abolish death sentence though its non use was primarily directed by the practice of self-banishment or exile and the procedure of questions. Nor does the civilization of Indian subcontinent know of abolition of death sentence although its disuse at some point of time in history has been effected because “the people were most truthful, soft hearted and benevolent and to them vocal remonstrance sufficed. But in the event of failure of these measures, corporal punishment and death sentence were invoked to prevent the society from violent criminals.

Penologists have reacted to capital punishment differently. According to the abolitionists, the enormous increase in homicide crime-rate reflects upon the futility of death sentence. Another argument generally put forth by abolitionists is that hardened criminals commit most cold-blooded murders in a masterly manner. They proceed with their criminal activity in such a way that even if they are caught, they are sure to escape punishment due to one or other procedural law in the existing criminal law.

Different Statutory Provisions for Death Penalty:

  The Special Powers Act, 1974 has provided death penalty for the offences of

Sabotage in Section- 15,

Counterfeiting currency notes and Government stamps Section- 25A,

Smuggling in Section- 25B, and

Adulteration of, or sale adulterated food, drink drugs or cosmetics in Section-25C.

  “Nari o’ Shishu Nirjaton Daman Ain, 2000” has incorporated death as punishment for the offences committed by combustible and likely other substances (section.4), for women trafficking etc (section.5), for children trafficking (section.6), for ransom (section.7), for ravishing any woman or child who dies consequently [section.9(2)], causing death for dowry (section.11), maiming or mutilation of children for begging. (section.12).

Bangladesh criticized for “Child” Death Sentence[13]

October 19, 2005: the international children’s charity Save the Children, criticized the case of Sukur Ali[14] a man sentenced to death for crimes he committed when he was 14 years old. Ali, now 20, was awaiting execution for the rape and murder of a seven-year-old girl after Bangladesh’s Supreme Court upheld his sentence in May 2005. Ali was arrested when he was aged 14, allegedly confessing the crimes to police and sentenced to death in July 2001. Save the Children expressed “serious concern” at the sentence which it said contravened national and international law.

“We are seriously concerned as the case was a basic failure up to the highest tier of the judiciary,” Shohana Shabnam, program manager of Save the Children, Bangladesh, said.
Ali’s trial in an adult rather than a juvenile court was a “gross violation” of the country’s Children Act 1974,s he said.

Imposing the death sentence for a crime committed by a person under the age of 18 also contravened the United Nation’s Convention on the Rights of the Child, she said.
Bangladesh was among the first countries to ratify the convention in 1989.
Legal experts and local human right groups have also expressed concern at the sentence.
“If this execution is carried out, it will be a gross violation of human rights,” said Shahdeen Malik, head of law at BracUniversity in Dhaka.

“There is no such precedent “– he also added.

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 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 Tablets. 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 Conquerer 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 VII, 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 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 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. (Randa, 1997)[15]

Global Distribution

Contemporary use of death penalty-global distribution:[16]

The Columbia Encyclopedia, in its 2008 sixth edition, under the heading titled “Capital Punishment,” offered the following:

“Capital punishment: Imposition of a penalty of death by the state. Capital punishment was widely applied in ancient times; it can be found (c.1750 BC) in the Code of Hammurabi. From the fall of Rome to the beginnings of the modern era, capital punishment was practiced throughout Western Europe…

Some of the first countries to abolish capital punishment included Venezuela (1863), San Marino (1865), and Costa Rica (1877). As of 2004, 81 countries had entirely abolished the death penalty, including the members of the European Union. Some other countries retained capital punishment only for treason and war crimes, while in others, death remained a penalty at law, though in practice there had not been any executions for decades.

Since the 1970s almost all capital sentences in the United States have been imposed for homicide. Today, 36 states and the federal government have reinstituted the death penalty… some 75% of executions now employ lethal injection. The gas chamber, hanging, the firing squad, and, most commonly, the electric chair are still used in some states… In 2002 the Court ruled that the death penalty must be imposed through a finding of a jury and not a judge.”[17]

Capital punishment has been used in almost every part of the globe, but in the last few decades many countries have abolished it. Amnesty International classifies countries into four categories:

• 59 countries maintain the death penalty in both law and practice. (Also lists the Palestinian Authority)
• 91 have abolished it. (Also lists the Cook Islands & Niue)
• 9 retain it for crimes committed in exceptional circumstances (such as in time of war).
• 35 permit its use for ordinary crimes, but have not used it for at least 10 years.

Additionally, five countries execute child offenders.^[1] In some countries the practice of extrajudicial execution sporadically or systematically outside their own formal legal frameworks occurs. This list below includes several unrecognized states with de facto control over their territory and dependent territories, neither of which are included in the above numbers, except as noted

Global distribution of death penalty:

Use of the death penalty around the world (as of Sep. 2007).

     Abolished for all offenses (90)      Abolished for all offenses except under special circumstances (11)      Retains, though not used for at least 10 years (32)      Retains death penalty (64).

Death Penalty Abolished Countries

 countries that have abolished the death sentence for all crimes:

 MOST EXECUTIONS CARRIED OUT IN 2007[18]

 MOST EXECUTION CARRIED OUT IN 2008[19]

 MOST EXECUTION CARRIED OUT IN 2009[20]

The following table shows the approximate number of executions in some other countries in the rest of the world that have been recorded in the year 2009.

NUMBER OF EXECUTIONS, BANGLADESH, 2005-2010

 *AI = Amnesty International; ** HOC = Hands off Cain.

– = no statistics available.

SUPPORT FOR THE DEATH PENALTY: U.S., BRITAIN, CANADA[21]

Not everyone believes in the Old Testament notion of “an eye for an eye.” Americans may be more likely than those in some other developed nations may be to favor that type of reciprocal justice; according to Gallup Polls conducted late last year in three countries*, 64% of Americans favor the death penalty for a person convicted of murder. Canadians are about evenly split on the subject, with 48% in favor of the death penalty and 49% opposed. In Great Britain, a slim majority supports the death penalty, with 55% in favor and 41% opposed.

The governments of both Great Britain and Canada abolished the death penalty for murder some time ago, in 1965 and in 1976, respectively. The U.S. Supreme Court struck down state death penalty laws in 1972 and did not reinstate the punishment again until 1976. The first execution after the moratorium took place in January 1977, when Gary Gilmore was executed by firing squad in Utah. Currently, capital punishment is legal in 38 U.S. states.

Arguments in favor of Capital Punishments:

  The death penalty gives conclusion: Some family members of crime victims may take years or decades to recover from the shock and loss of a loved one. Some may never recover. One of the things that helps hasten this recovery is to achieve some kind of closure. Life in prison just means the criminal is still around to haunt the victim. A death sentence brings finality to a horrible chapter in the lives of these family members.

  It creates another form of crime deterrent. Crime would run rampant as never before if there wasn’t some way to deter people from committing the acts. Prison time is an effective deterrent, but with some people, more is needed. Prosecutors should have the option of using a variety of punishments in order to minimize crime.

  Our justice system shows more sympathy for criminals than it does victims. It’s time we put the emphasis of our criminal justice system back on protecting the victim rather than the accused. Remember, a person who’s on death row has almost always committed crimes before this. A long line of victims have been waiting for justice. We need justice for current and past victims.

  Modern crime scene science can now effectively eliminate almost all uncertainty: One of the biggest arguments against the death penalty is the possibility of error. Sure, we can never completely eliminate all uncertainty, but nowadays, it’s about as close as you can get. DNA testing is over 99 percent effective. And even if DNA testing and other such scientific methods didn’t exist, the trial and appeals process is so thorough it’s next to impossible to convict an innocent person. Remember, a jury of 12 members must unanimously decide there’s not even a reasonable doubt the person is guilty. The number of innocent people that might somehow be convicted is no greater than the number of innocent victims of the murderers who are set free.

  Prisoner parole or escapes can give criminals another chance to kill. Perhaps the biggest reason to keep the death penalty is to prevent the crime from happening again. The parole system nowadays is a joke. Even if a criminal is sentenced to life without possibility of parole, he still has a chance to kill while in prison, or even worse, escape and go on a crime/murder spree.

  It contributes to the problem of overpopulation in the prison system. Prisons across the country face the problem of too many prisoners and not enough space & resources. Each additional prisoner requires a portion of a cell, food, clothing, extra guard time, and so on. When you eliminate the death penalty as an option, it means that prisoner must be housed for life. Thus, it only adds to the problem of an overcrowded prison system.

  It gives prosecutors another bargaining chip in the plea bargain process, which is essential in cutting costs in an overcrowded court system. The number of criminal cases that are plea bargained can be as high as 80 or 90 percent of cases. With the time, cost, and personnel requirements of a criminal case, there really isn’t much of a choice. The vast majority of people that are arraigned are in fact guilty of the crime they are accused. Even if you believe a defendant only deserves life in prison, without the threat of a death sentence, there may be no way to get him to plead guilty and accept the sentence. If a case goes to trial, in addition to the enormous cost, you run the chance that you may lose the case, meaning a violent criminal gets off scot free. The existence of the death penalty gives prosecutors much more flexibility and power to ensure just punishments.

Arguments against Capital Punishments:

Everyone thinks human life is valuable. Some of those against capital punishment believe that human life is so valuable that even the worst murderers should not be deprived of the value of their lives.

They believe that the value of the offender’s life cannot be destroyed by the offender’s bad conduct – even if they have killed someone.

Some abolitionists don’t go that far. They say that life should be preserved unless there is a very good reason not to, and that those who are in favor of capital punishment are the ones who have to justify their position.

  Denial of basic right – According to Humans Right Association capital punishment overrules our most basic human right – the right to life. Human life has fundamental value. The blessedness of human life is denied by the death penalty. Live is precious. This is very similar to the ‘value of life’ argument, but approached from the perspective of human rights. Death penalty is clearly violated of Article 3 & Article 5 of the Universal Declaration of Human Rights. Its also violates the “natural rights” laid by 17^th centaury English philosopher John Locke.

  The possibility of error –The most common and most cogent argument against capital punishment is that sooner or later, innocent people will get killed, because of mistakes or flaws in the justice system. Later investigations revealed many convicted individuals innocent which got death penalty in the past, and have been pardoned.

  Unfair Judgment – In many death penalty cases the defendants remain poorly represented or not represented at all because of their poverty, which cause greater injustice. It also notice a kind of racial discrimination this happens due to varied reasons. Because the poor can offer very low compensation the defense lawyers are often incompetent, resulting in losing the case. Due to prejudice and bias, poor people, and people from minority sections become soft target for such capital punishments, as unrestricted discretion has offered to District attorney. If any one wants to appeal then it becomes a burdensome process for him often resulting in denial of justice.

  Lack of Deterrence – The purpose of any punishment should be deterrence from repeating the same act. But, according to the statistics available, the death penalty has not been effective in controlling the homicide rate. The studies have revealed the shocking truth that executions actually increase the murder rate. That means the capital punishment does not deter violent crime. According to a New York Times study, the last 20 years witnessed 48% homicide rate in states with the implementation of capital punishment compared to 23% in the states without capital punishment.

  Justifying circumstances – Sometimes, persons suffering from emotional trauma, abandonment, violence, neglect or destructive social environment commit such heinous crimes. These mitigating situations can have devastating effect on their humanity. So, it is unfair to hold them fully responsible for their crimes. It is our communal responsibility to show some sympathy to some extent. It’s generally accepted that people should not be punished for their actions unless they have a guilty mind – which requires them to know what they are doing and that it’s wrong.

  Effects on society – Capital Punishment is itself a premeditated murder. This is unacceptable even it is inflicted by state authority as it lowers the value of life. In fact, such act can only brutalize the society. “Revenge is essential” can become a society attitude. By witnessing such acts, our own mental makeup starts believing that violence is necessary to curb the wrongdoings. By giving capital punishment, the family of the victim is permanently traumatized and victimized. They are often punished by their loved ones without their fault, even though they are innocent.

  Financial costs to taxpayers of capital punishment is several times that of keeping someone in prison for life. Most people don’t realize that carrying out one death sentence costs 2-5 times more than keeping that same criminal in prison for the rest of his life. It has to do with the endless appeals, additional required procedures, and legal wrangling that drag the process out. It’s not unusual for a prisoner to be on death row for 15-20 years. Judges, attorneys, court reporters, clerks, and court facilities all require a substantial investment by the taxpayers.

Case Example:

In 1972, the Supreme Court declared that under then existing laws “the imposition and carrying out of the death penalty … constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” (Furman v. Georgia, 408 U.S.238) The majority of the Court concentrated its objections on the way death-penalty laws had been applied, finding the result so “harsh, freakish, and arbitrary” as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes, and factual situations.

But within four years after the Furman decision, more than 600 persons had been sentenced to death under new capital-punishment statutes that provided guidance for the jury’s sentencing discretion. These statutes typically require a bifurcated (two-stage) trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In July 1976, the Supreme Court moved in the opposite direction, holding that “the punishment of death does not invariably violate the Constitution.” The Court ruled that these new statutes contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” (Gregg v. Georgia, 428 U.S.153) Thus the states as well as Congress have had for some years constitutionally valid statutory models for death-penalty laws, and more than three dozen state legislatures have enacted death penalty statutes patterned after those the Court upheld in Gregg. In recent years, Congress has enacted death penalty statutes for peacetime espionage by military personnel and for drug-related murders.

Executions resumed in 1977, and by the early 1990s nearly three thousand persons were under sentence of death and more than 180 had been executed.

Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia, the ACLU continues to oppose capital punishment on moral and practical, as well as on constitutional, grounds:

• Capital punishment is cruel and unusual. It is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those other barbaric practices, executions have no place in a civilized society.
• Opposition to the death penalty does not arise from misplaced sympathy for convicted murderers. On the contrary, murder demonstrates a lack of respect for human life. For this very reason, murder is abhorrent, and any policy of state-authorized killings is immoral.
• Capital punishment denies due process of law. Its imposition is arbitrary and irrevocable. It forever deprives an individual of benefits of new evidence or new law that might warrant the reversal of a conviction or the setting aside of a death sentence.
• The death penalty violates the constitutional guarantee of the equal protection of the laws. It is applied randomly at best and discriminatorily at worst. It is imposed disproportionately upon those whose victims are white, on offenders who are people of color, and on those who are themselves poor and uneducated.
• The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unfettered discretion to “guided discretion.” These changes in death sentencing have proved to be largely cosmetic. They merely mask the impermissible arbitrariness of a process that results in an execution.
• Executions give society the unmistakable message that human life no longer deserves respect when it is useful to take it and that homicide is legitimate when deemed justified by pragmatic concerns.
• Reliance on the death penalty obscures the true causes of crime and distracts attention from the social measures that effectively contribute to its control. Politicians who preach the desirability of executions as a weapon of crime control deceive the public and mask their own failure to support anti-crime measures that will really work.
• Capital punishment wastes resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and correctional personnel. It unduly burdens the system of criminal justice, and it is therefore counterproductive as an instrument for society’s control of violent crime. It epitomizes the tragic inefficacy and brutality of the resort to violence rather than reason for the solution of difficult social problems.
• A decent and humane society does not deliberately kill human beings. An execution is a dramatic, public spectacle of official, violent homicide that teaches the permissibility of killing people to solve social problems — the worst possible example to s et for society. In this century, governments have too often attempted to justify their lethal fury by the benefits such killing would bring to the rest Or society. The bloodshed is real and deeply destructive of the common decency of the community; the benefits are illusory.

Conclusion:

An issue that has continually created tension in today’s society is whether the death penalty serves as a justified and valid form of punishment.  Whenever the word “death penalty” comes up, extremists from both sides start yelling out their arguments.  One side says deterrence, the other side says there’s a potential of executing an innocent man; one says justice, retribution, and punishment; the other side says execution is murder.  Crime is an evident part of society, and everyone is aware that something must be done about it.  Most people know the threat of crime to their lives, but the question lies in the methods and action in which it should be dealt with. There is debate over the morals and effectiveness of such a harsh sentence. The punishment for murder is getting to be shorter and shorter. Some case capital punishment has proven to have good benefits upon the country in determining the consequences that criminals deserve.  This is needed to ensure the safety and moral values of society.  If this is the case, there is no need for us to consider the expenses involved in the death penalty.  Certainly human lives are more important, for it may easily be yours.  We should not abolish capital punishment, but hold our country accountable for properly exercising the death penalty upon that issue which is no alternative way to punishing & who deserve it most. Given the benefits of capital punishment, it is hard to imagine why anyone would be against it, but there are several arguments against the death sentence that need to be addressed.  Opponents of the death penalty point out that there is a possibility of wrongly executing an innocent man.  Of course, there is a possibility of wrongly sending an innocent man to prison, or wrongly fining an innocent man, but they contend that because of the finality and severity of the death penalty, the consequences of wrongly executing an innocent person are much more wrong. The execution of an innocent man is a strong enough argument to abolish the death penalty.

Recommendation:

All the discussion on above that some points are so strong in favor of Death Penalty and some are strongly opposed it. The debate about capital punishment, colloquially known as the death penalty, is highly controversial. This debate is present in countries with a decent freedom of speech, where the death penalty is abolished or used only for convicted murderers.

Opponents argue that it leads to miscarriages of justice, that it violates the criminal’s right to life, that the life imprisonment without parole works as a deterrent for murder, and moreover, that the death penalty is ineffective because it does not reduce the number of crimes.

These arguments are opposed to the principle of retribution — “an eye for an eye”. It also opposes the argument that sanctity life is affirmed by the death penalty, which puts to death those who commit murder. On a more practical point on view, the main question is: “Are death penalty effective deterrence for murder and other brutal crimes? What are the advantages and drawbacks of each compared to the other?”

When we thought about the alternative punishment for death penalty then first we thought transportation for life as a punishment. It was also included in our Penal Code but at one time it’s abolished. I also think transportation for life time is not an appropriate punishment. For my thinking have also reason which is execution of this punishment is very expensive and developing country like Bangladesh can’t afford this 100%. On the other hand all other alternative free form this problem and I think my solution also productive for the country. I believe that we should not necessarily abolish the death penalty completely, just make it voluntary. When a criminal commits a terrible, violent offense, give the person the option of life in prison without parole or death. Since we all know that life imprisonment can be “cruel and unusual punishment” as well, let the accused choose how he’d like to spend the rest of his life. If he’d truly rather die than spend his whole life in jail, I find nothing wrong then in using the death penalty. This way would nearly eliminate all the costs of the death penalty – with hardly any appeals and lower trial costs (from eliminating the second, death sentence trial) – and would give the accused more time if he needed to prove his innocence. Obviously an innocent man would choose life in jail and hope that he could prove his innocence to the courts – which makes this alternative almost a guaranteed way to end the innocence on death row.

While the inmate is in jail, I believe he should be put to some kind of work for the better of society – with all his earnings going to the family of the victim. This alternative would help most if the victim was the sole provider of income for that family. Just killing the accused would not bring peace or better anybody, it would just bring more pain and vengeance. However, if the accused is put to work, then the family of the victim will at least receive a little money to help them get through their hard times, and move on with life.

Lastly, we should promote reform in a bias-ridden judicial system. We can do this in two ways. First, make qualified and experienced defense available to all, regardless of race or financial standing. This will give everyone an equal opportunity for a fair trial and will eliminate the discrimination on death row. Second, make the district in which the accused is tried a non-factor in whether the death penalty, or any sentence, is pursued. Only through these changes can true justice be served, rather than barbaric state-sanctioned murder.

Morally, socially and economically, the death penalty is a bad public policy.  The following may be the better options to choose as a viable alternative to the death penalty:[22]

• Persons convicted of capital murder should serve a minimum of 25 years in prison before the possibility of consideration for parole. Please note: consideration for parole in no way suggests an inmate will receive parole. Parole boards must abide by strict but fair standards in deciding who should receive parole. The abolition of parole endangers prison workers.

• In certain cases, imprisonment should be for life, with no possibility of parole – ever.

• While in prison, prisoners who are physically and mentally able should work in jobs which are not slave-like and allow for some dignity and purpose of life for the inmate. Such work situations create safer conditions for guards and others who work in prisons.

• A portion of the prisoners’ earnings should go to pay for their imprisonment, and a portion should go into a fund for the victims of violent crime and their survivors. This would allow for a restitution fund for social, psychological and religious help for victims and survivor families. Such funds could also provide financial help for families which have lost a wage earner to murder.

Bibliography

BOOKS:

1. Sheikh Hafizur Rahman Karzon, “Theoretical and Applied Criminology” (Dhaka, Palal publication, Published in June 2008), pp. 255-257

2. Prof. N.V. Paranjape, “Criminology & Penology”; ( Allahabad, Central Law Publications, Twelfth edition- Re print 2008), pp. 239, 245

3. Principal Md. Altaf Hossen, Dondobidhi (Penal Code, 1860) Dhaka, City Law Books Publication, Fifth edition 2005, pp. 98, 106, 161-162, 239, 241, 277, 308.

4. Sue Titus Reid, Crime & Criminology,   McGraw Hill Higher Education Group, Inc, Eighth edition, FloridaStateUniversity, pp. 515-517.

5. Pojman, Louis P., and Jeffrey Reiman. (1998). The Death Penalty: For and Against.Lanham, MD: Rowman & Littlefield.

6. Sorrel, Tom. (1987). Moral Theory and Capital Punishment.Oxford: Blackwell.

7. Kant, Immanuel. (1887). The Metaphysics of Morals.Edinburgh: T & T Clark.

ENCYCLOPEDIA

1. Encyclopedia Britannica 2009

2. Encarta Encyclopedia 2009

WEBSITES

1. http://en.wikipedia.org/wiki/Capital_punishment_debate (Accessed on December 2009)

2. http://en.wikipedia.org/wiki/Capital_punishment#Global_distribution (Accessed on November 2009)

3. http://en.wikipedia.org/wiki/List_of_methods_of_capital_punishment (Accessed on December 2009)

4. http://www.thedailystar.net/2008/01/04/index.htm (Accessed on December 2009)

5.http://www.handsoffcain.info/archivio_news/200510.php?iddocumento=7402396&mover=1 (Accessed on December 2009)

6. http://www.telegraph.co.uk/news/worldnews/asia/bangladesh/3918193/Death-penalty-for-Bangladesh-militant

7. http://en.wikipedia.org/wiki/List_of_methods_of_capital_punishment (Accessed on December 2009)

8. Japan hangs two more on death row (see also paragraph 11) http://en.wikipedia.org/wiki/Capital_punishment (Accessed on December 2009)

9. Moses Maimonides, The Commandments, Neg. Comm. 290, at 269–271 (Charles B. Chavel trans., 1967). http://en.wikipedia.org/wiki/Capital_punishment

10. Babylonian Talmud Sanhedrin 2a http://en.wikipedia.org/wiki/Capital_punishment (Accessed on December 2009)

11. What The Christian Scriptures Say About The Death Penalty – Capital Punishmen http://en.wikipedia.org/wiki/Capital_punishment (Accessed on December 2009)

12. http://www.cin.org/users/james/ebooks/master/trent/tcomm05.htm (Accessed on December 2009)

13. http://www.priestsforlife.org/magisterium/bishops/04-07ratzingerommunion.htm (Accessed on December 2009)

14. http://www.newadvent.org/cathen/12565a.htm (Accessed on December 2009)