Despite Kathua barbarity, death penalty is no deterrent

You’re talking of that rape and murder in J&K?

The same. From politicians — including State Chief Minister Mehbooba Mufti to Central Minister Maneka Gandhi to Opposition leader Farooq Abdullah — to plebeians alike, there have been calls for the death penalty in this case.

Did you read the chargesheet?

Yes, and it makes for very queasy reading.

Yet, you’d say this?

An emotionally charged response, such as we’ve seen, is perfectly understandable, given the stomach-churning allegations, and considering that the victim was an eight-year-old girl. But as legal scholar Samuel H Pillsbury wrote in a May 1989 paper titled ‘Emotional Justice: Moralizing the passions of criminal punishment’, “the more a legal issue might provoke popular rage…, the harder courts must work to insulate the legal decision from emotive influence.”

But isn’t the noose a deterrent against horrific crimes?

It isn’t, really. French philosopher Albert Camus put it best. In his 1957 essay ‘Reflections on the Guillotine’, he wrote: “For centuries, the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet, crime persists. Why? Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium.”

But haven’t studies shown up the deterrent effect?

A 2003 study, ‘Getting off Death Row: Commuted sentences and the deterrent effect of capital punishment’, by economists Naci Mocan at the University of Colorado at Denver and Kaj Gittings at Cornell, established that every execution of a killer (in the US) translates into five fewer homicides; and, conversely, commuting a death sentence results in five more homicides. There have been other similar studies, too, but their findings have been contested.

Tell me more.

US economist Isaac Ehrlich, in his 1975 paper ‘The Deterrent Effect of Capital Punishment: A Question of Life and Death’, concluded that “law enforcement activities in general and executions in particular do exert a deterrent effect” on serious crimes. But in 1978, a Panel on Research on Deterrent and Incapacitative Effects (of criminal sentencing) said Ehrlich’s findings were flawed. “No conclusive evidence has been produced to prove capital punishment is a deterrent,” it reasoned.

But sheer common sense suggests otherwise.

Perhaps, but back in 1925, sociologist EH Sutherland noted in a paper titled ‘Murder and the Death Penalty’ that “common sense is not an adequate basis for policies of social control.” Instead, he argued, “the best prospect for the control of crime… is to study as scientifically as possible... the situations in which the criminal attitudes are developed.”

Okay, so how can ’high crimes’ be deterred?

It’s the certainty of punishment, rather than the severity of it, that will deter crimes. In a 2003 paper titled ‘Prison Conditions, Capital Punishment and Deterrence’, economists Lawrence Katz (Harvard University), Steven D Levitt (of Freakonomics fame), and Ellen Shustorovich (City University of New York) argue that the quality of life in prison is likely to have a greater impact on criminal behaviour than the death penalty. In other words, poor prison conditions are likely deter crime.

That sounds provocative.

The authors caution that their research is descriptive, not proscriptive. They write, “the moral and ethical considerations surrounding these issues would appear to dominate any economic arguments. In a society predicated on civil liberties, the social costs of degrading... conditions in prisons... are likely to overwhelm any... reductions in crime.”

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