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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

India: New report on death-row prisoners poses questions to the political and judicial establishment

The 1st comprehensive report on death-row prisoners by the National Law University, which identified 385 prisoners and received access to 373 of them, reveals certain infirmities that would question the basis upon which death penalties are awarded. 

Confirming studies in other countries that the death penalty is more likely to be imposed on poorer victims, the NLU report says that 74.1 % of those on death row hail from economically vulnerable groups. 

The implications of this are immense: what it tells us is the quality of legal help that they could afford, the most crucial factor that would have ensured that these prisoners were spared the gallows. 

The report also notes that 61 % of the prisoners had not completed secondary school, which explains socio-economic status and their inability to study case files and court documents to build a better defence case for themselves. 

More damningly, the report notes that of 191 of the prisoners who spoke about legal assistance, 68 % said they had never met their lawyers at the high court level and 44 % did not even know the names of the lawyers representing them in the Supreme Court. Interface between the lawyer and the client is key to a successful defence, and the lawyer gathering a better understanding of the case.

Even the role of the State's legal aid services has been questioned by the death-row prisoners who complained that these lawyers extorted money from them. 

As many as 185 of these prisoners said there was no lawyer available to them while in police custody, and 169 prisoners said there were no lawyers to represent them when first produced before a magistrate. This essentially brings out the class distinctions between a rich and a poor person and the latter's disadvantages. 

Even the role of the lower judiciary becomes suspect in this scenario as the Supreme Court has repeatedly asserted, that even a terrorist like Ajmal Kasab, deserves to get legal representation, without which the entire judicial process becomes vitiated. 

The report will energise proponents for abolition of the death penalty and their argument that life imprisonment in jail for the duration of the convict's natural life is a more humane, but equally severe punishment. 

The study also tells us that 25 % of the prisoners were Dalits or Adivasis, 34 % were OBC's, 20 % belonged to religious minorities and 24 % belonged to the general category. While this would broadly correlate with the share of these communities in the larger population, the conjunction of backward caste and lower class identities cannot be rejected outright. 

Last year, the Law Commission had recommended a gradual phase-out of the death penalty and retaining it only for terror cases. But the NLU report also reveals that it is in terror cases that the judicial process has been most vitiated. The disposal of terror cases, on average, takes over 8 years at the trial stage, and six years at the appeal process. 

In contrast, death row prisoners in other cases spent an average of 3 years in jail during the trial stage and 2 years during the appellate stage. But that is where the inhumanity also begins. The researchers found that 1,810 death penalties were awarded by trial courts between 2000 and 2015. But just 5 % of all death penalties were confirmed by higher courts. 

In the last 12 years, just three executions have taken place which indicates that the political executive is even less disposed towards death penalties than the higher judiciary. This raises the question of why prisoners have to be put through death row where they are kept in solitary confinement and not allowed to work and even tortured. 

It is time that the high court and Supreme Court pull their weight and tell trial court judges to be more circumspect when awarding punishments. It is time, again, for Parliament and the Supreme Court to review the constitutionality of the death penalty.

Source: Daily News & Analysis, May 9, 2016

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