Death penalty does not have deterrence effect

Ravi Nayak


The increasing incidents of rape, followed by the murder of the victim, have contributed to people raising voices for the death penalty of the culprit. Many citizens, politicians, and social activists have argued for hanging of the culprit till death. The horrific rape incident of a veterinary doctor in India and the rape incident of Nirmala Pant in Nepal has generated buzz for the demand of death penalty.

Death penalty is a debatable topic and the Nepali Constitution has explicitly abolished the capital punishment for any crime. Actually, death penalty is the highest form of punishment as it is an irrevocable sentence that takes the life of a human. There are many countries which still retain the provision of the death penalty but the number of convictions is very low.  The conviction under the death sentence is low as it violates human rights and there is no deterrent effect in society.

Death penalty is the violation of “due process of law”, “equal protection of law” and especially the prohibition against “cruel and unusual punishment.” It reduces the value of human life, respect for human life and also violates the offender’s right to life. Statistically, 58 countries still retain death penalty whereas 106 countries have abolished it holistically. Six countries have abolished it for ordinary crime and 32 have abolished it in practice. Countries like India, Iran, Pakistan, Saudi Arabia and China which cover 60 percent of the world’s population have retained the death penalty.

Capital punishment follows the retributive theory of justice which doesn’t allow the criminal to get a chance of rehabilitation and reformation. It is also observed throughout the world that death penalty is mostly declared to those groups of the society who are not able to afford expensive legal services. It boils down to people belonging to racial, ethnic and religious minority groups being meted out the death sentence. It is seldom awarded to a person from a socially and economically privileged background.

Also, death penalty encompasses the violation of basic human rights. Sometimes the state convicts the prisoners without affording them a fair trial. It denies the right to substantive due process, right to procedural due process and also the equality before the law.

International organisation like the United Nations Commission on Human Rights has analyzed that “capital punishment does not deter crime to a greater extent in comparison to the threat and application of the supposedly lesser punishment of life imprisonment.” Amnesty International stated that “the death penalty violates the most fundamental human right—the right to life. It is the ultimate cruel, inhuman and degrading punishment carried out in the name of justice.”

Since there is no deterrent effect of the death penalty in society, it is better to abolish the capital punishment and life imprisonment is preferable. There is no empirical proof of the death penalty having a deterrent effect (which is given as the major reason for not removing this punishment from the statute book) or vice versa. Thus, when there is no conclusive proof that it has a deterrent effect, peoples’ life should not be taken, unless such proof exists.

Before 1946, there was the provision of the death penalty in Nepal. But in that year, the death penalty was partially abolished for the ordinary crime. In 1985, it was reinstated for the offenses of homicides and terrorism. After that, in 1990, Nepal abolished the death penalty and de-constitutionalised the death penalty. In South Asia, Nepal, Bhutan and Sri Lanka have abolished capital punishment while, India, Bangladesh, Pakistan, Afghanistan, and the Maldives have continued the practice.

The newly enacted Penal Offence (Punishment Determination and Implementation) Act, 2017 of Nepal which was implemented from August 17, 2018, has incorporated various new penal provisions such as community service, suspended sentence, reform homes, rehabilitation centres, open prisons, parole, probation etc.

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Section 13, of (Punishment Determination and Implementation) Penal Offence Act, 2017 explicitly prescribes that the purpose of punishment should be to deter the offender, rehabilitate the offender, and create a sense of remorse in the offender and so on. This suggests that the penal policy adopted by the criminal justice system of Nepal is of a reformative approach.

Also, the notable point is that Nepal is a signatory to a second optional protocol of the International Covenant on Civil and Political Rights (ICCPR) which mandates the abolition of the death penalty. If we analyse the crime rate of countries where the death penalty is totally abolished and where the death penalty exists, we can observe that the crime rate of countries that abolished the death penalty is low. Thus, it cannot be conclusively said that the death penalty helps to control crime rate which by itself is enough reason to abolish it. Further, it also has drastic effects on not only the victim and his family but also on the way how society looks at and deals with crimes. There is no conclusive statistical evidence for the deterrent effect of the death penalty.

Since the judiciary in Nepal has such a large backlog of pending cases, it is safe to assume that the courts won’t be able to give as much time as they would have liked to in cases dealing with the death penalty where a person’s life is on balance. There is no point in realising the innocence of the victim after the execution. This places an extra burden on the courts to be careful in awarding capital punishment.

This is not to say that the punishment of the death penalty is itself justified. This can be illustrated through cases such as RV Crippen (England). In that case innocent Dr Crippen was hanged in haste due to lack of time in proper investigation. A 100 years after the execution it was proved that Crippen was innocent.

Courts attempt to pass verdicts on cases as soon as possible and due to this many innocent accused don’t get time to prove their innocence and lose their life. Thus, capital punishment should be abolished strictly. Imprisonment is better than the death sentence as a rehabilitated criminal can make a valuable contribution to society. Rehabilitation doesn’t only help those convicted of a crime and give them a chance to improve themselves. It also helps society in understanding the motives behind the crime and preventing society from such criminal acts.

Punishment is justified only if it is necessary as a means to some socially valid end. Long term imprisonment is sufficient as an invasion of individual liberty, privacy, and autonomy (and other fundamental values) to achieve valid social goals. Prisons serve as a better deterrent for crime as the fear of being deprived of liberty is greater than the fear of death.

There it is an erroneous belief that if criminals get hanged, families of murder victims feel relief. Instead, families of murder victims would be benefited by providing compensation, counselling and other assistance measures.

The writer is pursuing BALLB (Hons.) at National Law School of India University, Bangalore.

Published on 26 December 2019