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IS CAPITAL PUNISHMENT NECESSARY?
1) ADMINISTRATION OF JUISTICE:-
The most essential functions of the state are primarily two:
war and administratation of justice. If a state is not capable of
performing either or both of these functions, it cannot be called state.
According to salmonad, the administration of justice implies the
maintenance of right within a political community by means of the
physical force of the state. It is a modern and civilized substitute for
the primitive practice of private vengeance and violent self-help.
Salmond point out that if the force of the state is not used in all cases
to secure obedience, it does not mean that the control of the state has
disappeared. It merely indicated the final triumph supremacy of the
control of the state..
Hobbes says that without a common power to keep them all in
awe, it is not possible for individuals to live in society. Without it,
injustice unchecked and triumphant and the life of the people is
solitary, poor, nasty, brutish and short. And the condition observed by
the Hobbs in his era is not different as compare to today’s scenario.
Salmond points out that men do not have one reason in them and each
is moved by his own interests and passions. The only alternative is one
power over men. Man is by nature a fighting animal and force is the
ultimaratio of all mankind. Without a common power to keep them all
in awe, it is impossible for men to cohere in any but the most primitive
form of society. Without it civilization is unattainable. However orderly
a society may be , the element of fore is always present and operative.
It is suggested that force as an instrument for the coercion of mankind
is merely a temporary and provisional incident in the development of a
perfect civilization. To a large extent already, the element of force has
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become merely latent and for the most part it is sufficient for the state
to declare the rights and duties of its subjects.
Social sanction is an efficient instrument only if it is associated with
and supplemented by the concentrated and irresistible force of the
community. Force is necessary to coerce the recalcitrant minority and
prevent them from gaining an unfair advantage over the law abiding
majority in a state. The conclusion is that the administration of justice
with the sanction of physical force of the state is unavoidable and
admits of no substitute.1
The origin and growth of administration of justice is identical with
origin and growth of man. The social nature of man demands that he
must live in society. While living so, man must have experienced a
conflict of interest and that created the necessity for providing for the
administration of justice. The second stage in the history of
administration of justice started with the rise of political states.
However, those states were not strong enough to regulate crime and
inflict punishment on the criminals. The law of private vengeance and
violent self-help continued to prevail,. The state merely regulated
private vengeance and violent self-help. The state also prescribed rules
for the regulation of private vengeance. The state enforced the
concept or a tooth for tooth, an eye for an eye.
2) PURPOSE OF CRIMINAL JUSTICE SYSTEM:-
The purpose of criminal justice is to punish the wrongdoer,, he is
punished by the state. The question arises, what is the purpose of
punishment or in other words, what is an end of criminal justice. From
very ancient times, a number of theories have been givn concerning
the purpose of punishment. Those theories may be broadly divided into
two classes. The view of one class of theories is that the end of
criminal justice is to protect and add to the welfare of the state and
1 V. D. Mahajan Jurisprudence and legal theory Fifth Edition Eastern Company 128-129.
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society. The view of the other class of theories is that the purpose of
punishment is retribution. The offender must be made to suffer for the
wrong committed by him.
3) Meaning and definition of punishment:-
We can call punishment as an instrument to achieve the goal of
administration of justice. In other words punishment is method for
punishing the wrongdoer for his wrong. Punishing the offenders is a
primary function of all civil states. The drama of wrong doing and its
retribution has indeed been an unending fascination for human mind.
Punishment can be used as a method of reducing the incidence of
criminals behaviour either by deterring the potential offenders of by
incapacitating and preventing them from repeating the offence or by
reforming them into law-abiding citizens.
Punishment involves pain or suffering produced by design
and justified by some value that the sufferer is assumed to have
violated.
Jerome Hall has described punishment in the following terms: First,
punishment is inflicting pain. Second, it is coercive. Third, it is inflicted
in the name of the state, i. e., it is authorized. Fourth, it presupposes
rules, their violation and a formal determination of that expressed in a
judgment. Fifth, it is inflicted upon an offender who caused, committed
harm. Sixth, the extent or type of punishment is in some defended way
related to causing commission of the harm, and aggravated or
mitigated by reference to the personally of the offender, his motive
and temptation.2
The deliberate infliction of harm upon somebody, or the withdrawal of
some good from them, by an authority, in response to their being
2 Jerome Hall The Aims of criminal law, 1958.
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supposed to have committed some offence. Sometimes punishment
may be inflicted upon an animal, or ritualistically upon an inanimate
thing. The philosophical problem with punishment is that since it
involves the infliction of some kind of harm, or deprivation of some
kind of good, it transgresses normal ethical boundaries, and therefore
requires specific ethical justification. The major elements in such a
justification have been felt to be: (i) retribution: if a person has inflicted
some harm on another, then justice requires retribution (see also
justice, retributive); (ii) reparation: if a person has harmed another,
then he owes a duty of reparation to the victim, which his punishment
provides; (iii) reformation: the harm inflicted teaches the criminal to
behave better in the future; (iv) deterrence: knowledge of the penalties
deters potential offenders; (v) prevention: an offender who is deprived
of opportunity (e.g. by being imprisoned) cannot repeat the offence.
Features (iii) and (iv) are often conjoined with (v), in an indirect
utilitarian approach, in which it is argued that a society with an
institution of punishment in place will enjoy better conditions of life
than any without it. A thought more popular among judges than
philosophers is that punishment simply expresses society's revulsion at
some kind of behaviour, and needs no other defence. The difficulty is
that judges are often revolted by too many things, such as long hair,
youth, and poverty.3
4) CAPITAL PUNISHMENT:-
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. Historically, the execution of
criminals and political opponents was used by nearly all societies—
3 http://www.answers.com/topic/punishment?cat=biz-finsds4
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both to punish crime and to suppress political dissent. 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, however, like Brazil, allow for capital punishment only in
exceptional situations, such as treason committed during wartime. The
United 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.
In most places that practice capital punishment today, the death
penalty is reserved as punishment for premeditated murder,
espionage, treason, or as part of military justice. In some countries
sexual crimes, such as rape, adultery and sodomy, carry the death
penalty, as do religious crimes such as apostasy (the formal
renunciation of one's religion). In many retentionist countries
(countries that use the death penalty), drug trafficking is also a capital
offense. In China human trafficking and serious cases of corruption are
also punished by the death penalty. In militaries around the world
courts-martial have imposed death sentences for offenses such as
cowardice, desertion, insubordination, and mutiny. Capital punishment
is a very contentious issue in some cultures. Supporters of capital
punishment argue that it deters crime, prevents recidivism, and is an
appropriate form of punishment for the crime of murder. Opponents of
capital punishment argue that it does not deter criminals more than
life imprisonment, violates human rights, leads to executions of some
who are wrongfully convicted, and discriminates against minorities and
the poor.4
4 http://en.wikipedia.org/wiki/Capital_punishment
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The latest country to abolish the death penalty for all crimes was
Rwanda in mid 2007, until the government of Gabon announced on
September 14, 2007 that it, too, will no longer apply capital
punishment.
5) HISTORY OF CAPITAL PUNISHMENT:-
The use of formal execution extends at least to the beginning of
recorded history. Most historical records as well as various primitive
tribal practices indicate that the death penalty was a part of their
justice system. Communal punishment for wrongdoing generally
included compensation by the wrongdoer, corporal punishment,
shunning, banishment and execution. However, within a small
community, crimes were rare and murder was almost always a crime
of passion. Moreover, most would hesitate to inflict death on a member
of the community. For this reason, execution and even banishment
were extremely rare. Usually, compensation and shunning were
enough as a form of justice However; these are not effective responses
to crimes committed by outsiders. Consequently, even small crimes
committed by outsiders were considered to be an assault on the
community and were severely punished. The methods varied from
beating and enslavement to executions. However, the response to
crime committed by neighbouring tribes or communities included
formal apology, compensation or blood feuds.
A blood feud or vendetta occurs when arbitration between families or
tribes fails or an arbitration system is non-existent. This form of justice
was common before the emergence of an arbitration system based on
state or organized religion. It may result from crime, land disputes or a
code of honour. "Acts of retaliation underscore the ability of the social
collective to defend it and demonstrate to enemies (as well as
potential allies) that injury to property, rights, or the person will not go
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unpunished." However, in practice, it is often difficult to distinguish
between a war of vendetta and one of conquest.
For most of recorded history, capital punishments were often cruel and
inhuman. Severe historical penalties include breaking wheel, boiling to
death, flaying, slow slicing, disembowelment, crucifixion, impalement,
crushing, stoning, execution by burning, dismemberment, sawing,
scaphism, or neck lacing.
Elaborations of tribal arbitration of feuds included peace settlements
often done in a religious context and compensation system.
Compensation was based on the principle of substitution which might
include material (e.g. cattle, slave) compensation, exchange of brides
or grooms, or payment of the blood debt. Settlement rules could allow
for animal blood to replace human blood, or transfers of property or
blood money or in some case an offer of a person for execution. The
person offered for execution did not have to be an original perpetrator
of the crime because the system was based on tribes, not individuals.
Blood feuds could be regulated at meetings, such as the Viking things.
Systems deriving from blood feuds may survive alongside more
advanced legal systems or be given recognition by courts (e.g. trial by
combat). One of the more modern refinements of the blood feud is the
duel.
In certain parts of the world, nations in the form of ancient republics,
monarchies or tribal oligarchies emerged. These nations were often
united by common linguistic, religious or family ties. Moreover,
expansion of these nations often occurred by conquest of neighbouring
tribes or nations. Consequently, various classes of royalty, nobility,
various commoners and slave emerged. Accordingly, the systems of
tribal arbitration were submerged into a more unified system of justice
which formalised the relation between the different "classes" rather
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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. The word draconian derives from Draco's laws.
Similarly, in medieval and early modern Europe, before the
development of modern prison systems, the death penalty was also
used as a generalized form of punishment. For example, in 1700s
Britain, there were 222 crimes which were punishable by death,
including crimes such as cutting down a tree or stealing an animal.
Thanks to the notorious Bloody Code, life in 18th century (and early
19th century) Britain was a hazardous place. For example, Michael
Hammond and his sister, Ann, whose ages were given as 7 and 11,
were reportedly hanged at King's Lynn on Wednesday, the 28th of
September 1708 for theft. The local press did not, however, consider
the executions of two children newsworthy.
Although many are executed in China each year in the modern age,
there was a time in Tang Dynasty China when the death penalty was
actually abolished altogether.[31] This was in the year 747, enacted by
Emperor Taizong of Tang (r. 712-756), who before was the only person
in China with the authority to sentence criminals to execution. Even
then capital punishment was relatively infrequent, with only 24
executions in the year 730 and 58 executions in the year 736.[31] Two
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hundred years later there was a form of execution called Ling Chi, slow
slicing, or death by/of a thousand cuts, used in China from roughly 900
CE to its abolition in 1905.
Despite its wide use, calls for reform were not unknown. The 12th
Century Sephardic legal scholar, Moses Maimonides, wrote, "It is better
and more satisfactory to acquit a thousand guilty persons than to put a
single innocent man to death." He argued that executing an accused
criminal on anything less than absolute certainty would lead to a
slippery slope of decreasing burdens of proof, until we would be
convicting merely "according to the judge's caprice." His concern was
maintaining popular respect for law, and he saw errors of commission
as much more threatening than errors of omission.
The last several centuries have seen the emergence of modern nation-
states. Almost fundamental to the concept of nation state is the idea of
citizenship. This caused justice to be increasingly associated with
equality and universality, which in Europe saw an emergence of the
concept of natural rights. Another important aspect is that emergence
of standing police forces and permanent penitential institutions. The
death penalty becomes an increasingly unnecessary deterrent in
prevention of minor crimes such as theft. Additionally, in countries like
Britain, law enforcement officials became alarmed when juries tended
to acquit non-violent felons rather than risk a conviction that could
result in execution the 20th century was one of the bloodiest of the
human history. Massive killing occurred as the resolution of war
between nation-states. A large part of execution was summary
execution of enemy combatants. Also, modern military organizations
employed capital punishment as a means of maintaining military
discipline. In the past, cowardice, absence without leave, desertion,
insubordination, looting, shirking under enemy fire and disobeying
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orders were often crimes punishable by death. One method of
execution since firearms came into common use has almost invariably
been firing squad. Moreover, various authoritarian states—for example
those with fascist or communist governments—employed the death
penalty as a potent means of political oppression. Partly as a response
to such excessive punishment, civil organizations have started to place
increasing emphasis on the concept of human rights and abolition of
the death penalty.
6) CAPITAL PUNISHMENT IN UNITED STATES:-
Capital Punishment in the United States is officially sanctioned by 38 of
the 50 states, as well as by the federal government and the military.
The overwhelming majority of executions are performed by the states;
the federal government maintains the legal power to use capital
punishment but does so relatively infrequently. Each state practicing
capital punishment has different laws with huge diversities regarding
its methods and crimes which qualify; no state may execute someone
for a crime committed before the age of 18. The state of Texas has
performed more executions than any other states since the resumption
of the death penalty in 1976; prior to that date, Virginia had led the
nation. Capital punishment is a controversial issue in the U.S. with
many prominent organizations and individuals participating in the
debate. Arguments for and against it are based on moral, practical,
religious, and emotional grounds. Advocates of the death penalty
argue that it deters crime, improves the community by making sure
that convicted criminals do not find their way out onto the streets to
offend again, and is cheaper than keeping convicted criminals in high
security prison for the rest of their natural lives. Some opponents of
the death penalty claim that "capital punishment cheapens human life
and puts government on the same low moral level as criminals who
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have taken life." Since the reinstatement of the death penalty in 1976
there have been 1098 executions in the United States (as of
September 24, 2007).[3] There were 53 executions in 2006. 67% of
capital convictions are eventually overturned, mainly on procedural
grounds of incompetent legal counsel, police or prosecutors who
suppressed evidence and judges who gave jurors the wrong
instructions.[5][6] Seven percent of those whose sentences were
overturned between 1973 and 1995 have been acquitted. Ten percent
were retried and re-sentenced to death.
7) CAPITAL PUNISHMENT IN INDIA
Capital punishment is legal in India although rarely used. Between
1975 and 1991, about 40 people were executed, though there was a
period between 1995 and 2004 when there were no executions. Anti-
death penalty activists dispute those figures, claiming much higher
numbers on Death Row and actual executions.
In August 2004, a 41-year-old former security man, Dhananjoy
Chatterjee, was executed for raping and killing a 14-year-old schoolgirl
in Calcutta. This was the country's first execution since 1995[1] and the
first execution in West Bengal since 1993 when Kartik Sil and Sukumar
Burman were hanged.[2]
In 2005, about a dozen people were on the country's Death Row. Many
levels of appeals are available through different courts and India allows
state governors and the president to grant clemency.
The death penalty is to be used in the "rarest of rare" cases according
to the Supreme Court of India, although the meaning of this phrase is
not clearly defined. Capital punishment can be imposed for murder,
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instigating a child's suicide, treason, acts of terrorism, or a second
conviction for drug trafficking.
The death penalty is usually carried out by hanging. After a 1983
challenge to this method, the Supreme Court ruled that hanging did
not involve torture, barbarity, humiliation or degradation.
It was reported in 2006 that the number of mercy petitions pending
with President Abdul Kalam from convicts on death row stands at 20,
including 12 were submitted when K. R. Narayanan was the president.
In May 2004, Kalam referred several of these petitions to the home
ministry for a possible review. The legal department of the ministry
reiterated the advice given to him by the previous government that
those cases did not deserve the president’s mercy
A major controversy exists as to whether or not to execute Mohammad
Afzal, a Kashmiri militant who attacked the Indian parliament building.
8) INTERNATIONAL USE OF DEATH PENALTY:-
For millennia, the death penalty has been used around the world as a
means of preventing and punishing crime. Some anthropologists attest
to finding prehistoric cave drawings which depict executions. Legal
references to capital punishment can be traced back to 1750 B.C. with
the Code of Hammurabi. Both the Old and New Testaments of the Bible
are replete with references to the use of death as the penalty for
various crimes. Perhaps one of the most notorious executions by a
state of a perceived criminal was the crucifixion of Jesus Christ.
Subhash Gupta, Deputy Secretary of the Indian Red Cross Society,
speculated that "here is practically no country in the world where the
death penalty has never existed."
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Even though the arguable historical trend has been towards the
abolition of capital punishment, ninety-three nations and territories still
use it as a punishment for ordinary crimes with some degree of
regularity. Although the methods of execution, the crimes subject to
the punishment, and the rationales supporting its use differ
substantially, the governments, and perhaps even the citizens, of each
of these nations have concluded that the death penalty is a legitimate
method of criminal punishment. Despite the many differences, one
common factor is that most executions performed by the state, under
the designation of capital punishment, are not carried out in secret In
fact, executions often are announced in advance, reported by the
press after they have occurred, and in many cases, witnessed. Fifteen
countries have abolished the use of the death penalty for ordinary
crimes, yet retain it for exceptional crimes, such as crimes under
military law or crimes committed under exceptional circumstances
such as during wartime Antonio Marchesi noted that many countries
reach total abolition in two stages, where the first stage is abolition for
ordinary crimes. On the side of total abolition, fifty-six countries have
abolished entirely the use of the death penalty for any crime by
repealing all laws that had authorized such punishment. An additional
thirty countries and territories are considered to be de facto
abolitionist since they have not executed anyone for over ten years,
although they still have laws providing for the death penalty for
ordinary crimes. Although most of the latter groups of countries have
not executed anyone in the last twenty years, they should not yet be
viewed collectively as truly abolitionist in spirit. So long as the death
penalty is still technically legal, the governments may attempt to
activate it.
For example, in late 1993 the Philippine Congress passed legislation
reinstating the death penalty for thirteen heinous crimes. While there
had not been an execution in the Philippines since 1976, death
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sentences were still imposed until late 1986. In 1986, the Constitution
of the Philippines was redrafted and the death penalty was abolished
for all crimes except those which were considered to be heinous. In
April 1987, President Corazon Aquino announced that she would
commute all of the existing death sentences to life imprisonment. But
after this notable trend towards abolition, the Philippines is expected to
resume executions at any time. This case study illustrates that one
must be careful not to generalize about de facto abolitionist countries
and must consider the particular history of both the legality and the
application of the death penalty in each country when assessing the
status of capital punishment in that country.
Many countries have limited application of the death penalty to only
those convicted of murder. According to Amnesty International,
twenty-five of the sixty-three nations known to have executed
criminals from the middle of 1985 to the middle of 1988 executed only
convicted murderers. The United States falls into this category.
However, a majority of the retentionist nations continue to execute
people for offenses not resulting in the loss of life or even involving
violence. For example, Amnesty International reports that during the
last decade prisoners have been executed for
adultery (Iran, Saudi Arabia), prostitution (Iran), running a brothel and
showing pornographic films (China), taking bribes (USSR),
embezzlement (China, Ghana, Somalia) . . . economic corruption
(Iraq) . . . kidnapping (China, Malaysia), rape (China, Egypt, South
Africa, Syria, Thailand, Tunisia, United Arab Emirates), robbery or
armed robbery (China, Ghana, Iran, Kenya, Republic of Korea, Nigeria,
Saudi Arabia, Syria, Taiwan, Tunisia, Uganda, United Arab Emirates,
Zaire, Zambia) and drug-trafficking (China, Iran, Malaysia, Saudi
Arabia, Singapore, Syria, Thailand). While this data may surprise most
Americans, recent American debate over the death penalty has raised
questions of whether the death penalty should be extended to crimes
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other than murder. International experience with the use of capital
punishment for other crimes can serve as a source of information for
the justification and effect of applying the death penalty to crimes
other than murder.
9) IS CAPITAL PUNISHMENT NECESSARY?-
Perhaps the most common defenses of capital punishment are on
utilitarian grounds. For utilitarians, punishment in general is justified
only insofar as it creates a greater balance of happiness vs.
unhappiness. From the utilitarian perspective, then, capital punishment
is justified if it (1) prevents the criminal from repeating his crime; or (2)
deters crime by discouraging would-be offenders. For, both of these
contribute to a greater balance of happiness in society. There are
several immediate problems with this line of reasoning. First, the
burden of proof is on the defender of capital punishment to show that
the same effects could not be accomplished with less severe
punishment, such as life imprisonment. This is especially pertinent
since the goal of utilitarianism is to reduce as much unhappiness as
possible and this entails imposing the least severe of two possible
punishments when everything else is equal. Italian political theorist
Cesare Beccaria (1738-1794) argues this point in On Crimes and
Punishment (1764), one of the first systematic critiques of capital
punishment from the utilitarian point of view. According to Beccaria,
capital punishment is not necessary to deter, and long term
imprisonment is a more powerful deterrent since execution is
transient.
The retributive notion of punishment in general is that (a) as a
foundational matter of justice, criminals deserve punishment, and (b)
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punishment should be equal to the harm done. In determining what
counts as "punishment equal to harm," theorists further distinguish
between two types of retributive punishment. First, lex talionis
retribution involves punishment in kind and is commonly expressed in
the expression "an eye for an eye." Second, lex salica retribution
involves punishment through compensation, and the harm inflicted can
be repaired by payment or atonement. Historically, capital punishment
is most often associated lex talionis retribution. One of the earliest
written statements of capital punishment from the lex talionis or "eye
for an eye" perspective is from the 18th century BCE Babylonian Law
of Hammurabi:
Immanual Kant offered an alternative retributive justification of capital
punishment which is not rooted in vengeance. Instead, for Kant, capital
punishment is based on the idea that every person is a valuable and
worthy of respect because of their ability to make rational and free
choices. The murder, too, is worthy of respect; we, thus, show him
respect by treating him the same way he declares that people are to
be treated. Accordingly, we execute the murderer. A key problem with
Kant's justification of capital punishment is that it tells us what to do
with only ideally rational killers, although many killers are not rational.
Some standard arguments for capital punishment do not fall neatly
into either the retributive or utilitarian categories. For example, John
Locke's famous defense of capital punishment has both a retributive
and utilitarian component. Locke argued that a person forfeits his
rights when committing even minor crimes. Once rights are forfeited,
Locke justifies punishment for two reasons: (1) from the retributive
side, criminals deserve punishment, and, (2) from the utilitarian side,
punishment is needed to protect our society by deterring crime
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through example. Thus, society may punish the criminal any way it
deems necessary so to set an example for other would-be criminals.
This includes taking away his life. Under the influence of Locke's theory
of the forfeiture of rights, English law had some 200 capital offenses by
1800. Critics of Locke argue that there are alternatives to his
assumption that criminals forfeit their right to life. It may be, instead,
that criminals forfeit other rights (such as freedom to travel), yet the
right to life is simply not forfeitable. Beccaria, for example, argued that
people did not sacrifice their rights to life when entering into the social
contract.
Another defense of capital punishment is based on an analogy that
capital punishment is to the political body just as self-defense is to the
individual. The reasoning is that, in dangerous circumstances, the
individual is justified in protecting himself by self-defense with deadly
force. Since society (or the political body) is like a large person,
society, too, is justified in using deadly force through capital
punishment. However, for this analogy to be a successful, it must
parallel the accepted principle that self-defense with deadly force is
justified only when there is no alternative open to us (such as fleeing).
This means we must see whether any alternative to capital punishment
is open (such as long term imprisonment). Further, the self-defense
with deadly force is grounded in the moral right of self-preservation.
However, only people, properly speaking, have moral rights; abstract
entities and institutions such as governing bodies do not.
Consequently, the analogy between capital punishment and self-
defense fails it a basic level.
J. J. Maclean of Canada defends the right of the state to award capital
punishment for murder. According to him, if the state has the right and
duty to defend the community against outside aggression such as in
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time of war and within the country, for instance, I case of treason etc.
and that to the extent of taking the life of the aggressors and guilty
parties, if the citizen wants to protect his own life by killing whoever
attacks without any reason, the state can do the same when a criminal
attacks and endangers the life of the community by deciding to
eliminate summarily another human being. Capital punishment must
be retained to prove the sanctity of that most precious thing which is
the gift of life. If embodies the revulsion and horror that we feel for the
greatest of crimes. As a deterrent, death penalty is playing its part for
which there is no substitute. `
10) CONCLUSION AND OPINION:-
Capital punishment is therefore necessary but there are opponents
who think that it is barbaric. Hugo Adam Bedau, a professor of
philosophy at Tufts University, says this about capital punishment “the
death penalty is uncivilized in theory and has no place in a civilized
society." This is true but we do not live in a civilized society if we did
there would be no crime thus the death penalty would be out of date.
But in this uncivilized society that we live in I say let the punishment fit
the crime, an eye for an eye. Bedau also said that “Criminals no doubt
deserve to be punished, and punished with severity appropriate to
their culpability and the harm they have caused to the innocent." This I
strongly agree with and feel that Bedau is beginning to see the need
for capital punishment.
In conclusion, murder is a crime that involves taking the life of another
human, and that act needs to be punished justly--not with a shortened
sentence in an overly luxurious prison, but in an effective manner that
gives society the message that it is living in a just world. Moreover, the
death penalty is not racially biased; it's just that more minorities are
being executed than Caucasians, because more minorities are
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committing more crimes. If capital punishment is taken away, we will
not have an effective justice system and crimes against innocent
citizens will continue. This is why capital punishment is necessary and
needed in America.
It is really desirable in the context of the Indian
society. Because the contagion of lawlessness would
undermine social order and lay it in ruins. Protection of
society and stamping out the criminal productivity must be
the object of law which must be achieved by imposing
appropriate sentence. Undue sympathy to impose
inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of
the law, and society could not long endure under such
serious threats. It is, therefore, the duty of every court to
award proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed. It does not mean that death penalty is the need
of each and every crime. But before imposing such harse
punishment precaution should be taken so as to avoid the
miscarriage of justice.
In today’s world terrorism as well as the growing
activities of the anti-social element requires such
punishment. In Indian society the increasing rate of terrorism
is a serious threat to the ‘Sovereignty and Integrity of India’,
so from this angle also the provision of death penalty should
not be eliminated from our law books. The annals of the
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Indian history show that certain Eras were called the Golden
Age because people enjoyed a secure and peaceful life, as
punishment was very severe even for small crime in those
days.
According to the abolitionist the most of the person
condemned to the death penalty are the poorest of the poor
and those who cannot afford the good lawyer. In my opinion
proper attention should be given in this direction and good
lawyers should be given to those needy people who are no
capable of having this opportunity.
If we see the death penalty from human rights
perspective, and say that it should not be given to an
accused. Don’t you think that we are not justified in
considering the right of victim? Because he is also a human
being having the right to life. In such situation we are
punishing a person who has taken an innocent person’s life,
but what about the victim who did not commit any crime and
lost his life. What about his family?
So in my opinion if we talk about human right
definitely we should not forget the right of the victim also. I
would like to conclude my paper saying that the time is not
yet ripen to abolish the death sentence. It should be there
for the most serious and heinous crime.
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BIBLIOGRAPHY
TEXT BOOKS
1. The Death Penalty – A World Wide Perspective Roger Hood
2. Criminal Law and Criminology K.D. Gaur
3. Criminal Justice BY: - Dr. K. I. Vibhute First Edition, 2004, EasternBook Company.
4. Criminology and Penology Punishment BY: - N. V. Paranjape 12th
Edition, Central law publications.
5. Criminology By: - Ram Ahuja Reprinted 2005 , Rawat publication ,jaipur New Delhi
6. V. D. Mahajan Jurispudence and legal theory Fifth Edition Eastern Company
JOURNALS
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5. Journal- Stanford Law Review Dec.2005 – Ethics and Empirics of CapitalPunishment
6. International Review of Law and Economics, March 1993- the Demand
8. Journal of the Indian Legal thoughts ,Volume 2 2004 , School of Indian Legal thought , Mahatma Gandhi University , Kottayam.
WEBLIOGRAPHY
1. http://www.answers.com/topic/punishment?cat=biz-finsds4
2. http://en.wikipedia.org/wiki/Capital_punishment
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CONTENTS
1) ADMINISTRATION OF JUISTICE
2) PURPOSE OF CRIMINAL JUSTICE SYSTEM
3) MEANING AND DEFINITION OF PUNISHMENT
4) CAPITAL PUNISHMENT
5) HISTORY OF CAPITAL PUNISHMENT
6) CAPITAL PUNISHMENT IN UNITED STATES
7) CAPITAL PUNISHMENT IN INDIA
8) INTERNATIONAL USE OF DEATH PENALTY
9) IS CAPITAL PUNISHMENT NECESSARY?
10) CONCLUSION AND OPINION
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SYMBIOSIS SOCIETY’S LAW SCHOOL,
PUNE
SUBJECT: - CRIMINOLOGY AND PENOLOGY.
SEMINAR TOPIC:- IS CAPITAL PUNISHMENT
NECESSARY?
GUIDED BY: - PROF. CHOPRA SIR
PRESENTED BY
KALE DILIPKUMAR
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LL.M. IIIrd SEMISTER.
ROLL NO. 42.