The lazy rhetoric of “the death penalty ” is suddenly very real with the announcement by the Head of State that he has signed the death warrants of four condemned prisoners.
A fundamental principle underlying the teaching of the Buddha is do not kill, and (also) loving kindness (meththa). It is therefore hypocritical that this country, (with a majority of its people so eager to proclaim it as the land of Buddha), should seek to violate this very sacred principle that forms the bedrock of Buddhist philosophy.
The argument justifying the implementation of the death penalty is that it is a tool to control crime,especially drug related offences. There are many things wrong with the death penalty and to discuss each one of those within this limited space would be impractical. As such, I look at two aspects: whether the death penalty will be an effective deterrent and how it violates Human Rights.
Capital Punishment is not an effective deterrent
Today, the death penalty is accepted as a failed method in curbing crime. Study after study has led to the same conclusion – death penalty is not an effective deterrent. Most recently, the Death Penalty Information Centre study of homicide statistics pertaining to death penalty states and non-death penalty states in the USA from 1990 to 2016 revealed that every year the murder rates in the non-death penalty states were lower than those of death penalty states- amply demonstrating that the death penalty has no perceivable impact and is not an effective deterrent for crime.
There is only one offence for which capital punishment is mandatory in Sri Lanka- murder. The other offence for which the death sentence is most frequently used as punishment is forspecific drug offences. However, these are only a fraction of the cases that come through the judicial system. According to the 2018 Prisons Statistics of Sri Lanka, the majority of convicted prisoners come from the Magistrates Court, where the maximum punishment is a sentence of 2 years. From the year 2013 to the year 2018, out of the total yearly convicted prisoner admissions, admissions from the Magistrates Court have consistently been between the ranges of 92.9% to 88.1%. Similarly, more than half of the prisoners admitted yearly are imprisoned to serve a sentence less than 6 months.
Between the years 2013 to 2017, out of the yearly convicted admissions,the percentage of prisoners serving a sentence less than six months was between 58.4% and 69.2 %. Therefore, it is clear that the majority of crimes in Sri Lanka are not planned, heinous, or grave crimes. They are not the type of crimes that attract long-term imprisonment let alone the death sentence. As such, implementation of the death penalty will serve no practical purpose as a deterrent for criminal offenders in Sri Lanka.
A majority of those who engage in crime in Sri Lanka do so mainly due to desperate socio-economic circumstances and a lack of skill to engage in gainful employment.It is noteworthy that,throughout the years 2013 to 2017 the majority of offenders are those who have only passed the 8th standard of education.
In fact, this group made 72% to 84 % of the total number of convicted prisoner admissions during the period 2013 to 2017.It is also noteworthy that the majority of offenders are under 40 years of age.
Given that a majority of offenders are from low-income groups and the nature of crimes committed are not grave, capital punishment will serve no social purpose as a deterrent in Sri Lanka.
Socio-economic causes
The way in which to address these crime rates is firstly, to understand the socio-economic causes that lead a person to crime and develop measures to combat such causes, and secondly, by adopting correctional forms of punishment focusing on rehabilitation.
Capital punishment will be similarly impotent in curbing drug related offences. The Statistical Report on Drugs Related Arrests in Sri Lanka (of the National Dangerous Drugs Control Board for the years 2017 and 2018) are testimony to the fact that most drug related crimes in Sri Lanka are committed by drug addicts or users who are in the lower income groups as opposed to traffickers, dealers, peddlers, manufacturers, and the like.
According to the report,almost 97% of those arrested in 2017 were users (67% were cannabis users and related offences and 30% were heroin users).
Here again, the socio-economic dynamic clearly plays a role with regard to those who tend to commit drug related offences.
In the year 2017, of those arrested 56% had only studied up to the 10th grade and were below the age of 39 years; and in the year 2018 of those arrested 46.2 % had either had no schooling or had studied only up to the 10th grade and the majority were below 39 years of age. Clearly what needs to be done in order to address the “drug menace” is to respond to the pressing need for rehabilitation of drug addicts, empowering them with a skill to engage in employment and promote awareness on drug use.
The reality is that almost 95% of the drug offenders,enter prison for short periods of time,and come out only to lapse back into feeding their addiction. Death sentence literally has no impact on 90% or more of drug offenders in Sri Lanka. It is conceded that there is recidivism. This again is because they are addicts.
They go back into the means they know best to sustain their addiction – sometimes selling a packet or two to a fellow user or worse becoming the mule for the transportation of drugs. The problem internally, within Sri Lanka, therefore is more a case of addiction , and killing the offender will not solve the problem.
Hub for drug trafficking
That Sri Lanka can become a hub for drug trafficking is not disregarded, but combating this requires highly sophisticated and skilled investigators and surveillance apparatus.
It requires timely detection of information and monitoring the shores, seas,and ports of Sri Lanka in order to intercept drugs entering and leaving Sri Lanka.Implementing the death penalty cannot replace this requirement. What will deter a criminal is the high certainty of getting caught and not the punishment for the offence.
Ultimately, the only purpose of capital punishment is retribution. Implementing the death penalty will only result in awakening a society’s barbaric instincts in its response to crime, This, is not acceptable in a civilized society where the most basic human right is the right to life.
The right to life is the most significant human right, without the protection of which all other rights are frustrated. It is the responsibility of the state to protect these rights. By implementing the death penalty, the state effectively disregards not only its obligation to protect the right to life but also its obligation to ensure all the other rights.
The death penalty is also an affront to human dignity and is a cruel, inhuman, and degrading punishment.
To take away another human’s life is cruel. It’s inhuman. Implementing the death penalty questions not only the human values on which a state is founded but the humanity of an entire society which will tolerate to witness this killing. Ironically the implementation of the death penalty is the textbook definition of murder – it is planned, premeditated and with a motive. Most murders tried as offences are not committed with such precision and planning.
Should the death penalty be implemented, it is not only the moment of execution that is torture, cruel, and inhuman but the entire process from trial to conviction to the gallows.
Throughout the stages of trial and appeal the accused/prisoner is subject to intense mental anguish uncertain of his fate and in fear of loosing his life.
Thereafter, the condemned prisoner is subject to severe mental suffering waiting on death row not knowing when his date with the gallows will be. This torture is all the more agonizing for one who is in fact innocent.
Article 11of our Constitution protects every person from being subject to “torture or to cruel, inhuman or degrading treatment or punishment”. The Death penalty is just that. By the very nature of the mental agony it makes a prisoner go through and the raw cruelty of killing a person, who is conscious of his impending death, it leaves no room for doubt that capital punishment is inhuman, cruel and torture.
Conclusion
It would be frighteningly barbaric if a state would become so morally reduced as to think it fit and just to kill a person, to subject him to such cruel and inhuman punishment,even for committing a crime.
Society must be progressive and not regressive.The law, with its social purpose of regulating the conduct of society and protecting rights, plays a significant role in ensuring a progressive society. As such, punishment cannot remain frozen in time, but must move with time.
It should respond to and reflect effective and new methods of rehabilitation and protection of society. This is where our law should be and this is where our efforts should be.
The death penalty is ultimately a dangerous weapon in the arsenal of statute books and judicial power.
The legal system consists of humans and humans are given to err. To deprive a person of life relying on the investigative skills, prosecutorial skills, defense skills, expert knowledge,and reasoning of another person is replete with danger and discrimination.
There are ample instances where convicted prisoners were later proved innocent either upon new evidence emerging or “old” evidence having been revisited.
The most recent cases beingthat of Charles Ray Finch, who was convicted and sentenced in 1976 but was exonerated and released in 2019 at the age of 81 years after the evidence in his case was re-examined; and that of Nathan Myers who was sentenced at the age of 18 but was released 44 years later, after having all charges against him dismissed upon are-evaluation of the physical and scientific evidence in his case.
A tragic case, which is one of many, is that of Cameron Todd Willingham, a man who despite consistently maintaining his innocence, was executed in 2004 for the alleged killing of his 3 daughters.
A recent re-examination of the evidence has however proved that he was found guilty based on erroneously interpreted and misleading forensic evidence.
A life once taken away cannot be reinstated or replaced. In short, a mistake of the state in wrongfully executing an innocent person can never be undone nor fully compensated.
If reasoning and empirical evidence do not convince one of the ineffectiveness of implementing the death penalty, then it is hoped that, a moment’s reflection on this evil and most destructive aspect of the death penalty would deter a person from supporting the implementation the death penalty.
The writer is an Attorney-at- Law, Barrister (of Lincoln’s Inn)