|
Taking
Note of New Entrants to Noose Debate–
The Economists
Dilwala Singh
 It
was interesting to read Jagmohan Singh's letter to the governor of
New Jersey as also the other articles in the World Sikh News'
edition of December 19-25, 2007. Jagmohan Singh as well as other
writers failed to bring on record an important aspect of the debate
on whether capital sentence should remain on the statute book or
not. Homicide is a favourite subject among criminal justice scholars
across the globe, especially those in the United States, and
scholars remain divided over the wisdom of persevering with death as
punishment but recently there have been new entrants -- economists!
Now, this was one class not normally associated with a problem that
is generally looked upon as the concern solely of families of
victims, policemen, prosecutors, judges, criminologists,
sociologists and human rights activists. But the economists have
brought some new arguments to the fore. Also entering the debate are
the legal scholars, so far a detached group limiting itself to mere
semantics of the law.
As
per a New York Times report (November 18), some economists believe
that by persisting with the execution of murderers a substantial
number of homicides are prevented. The ratio of 1:3-18 is quoted. It
is interesting that a formula could be worked out at all. The group
of economists that is convinced that the death penalty deters
prospective murderers is led by Gary Becker, who won the Nobel Prize
for Economics in 1992.
Admitting the limitations of empirical evidence, the group has
concluded that death penalty should be retained so that ones
commiting the most heinous of offences will be deterred. Gary Becker
is backed by Professors Cass R. Sunstein of the University of
Chicago Law School and Adrian Vermeule of the Harvard Law School.
Writing in Stanford Law Review (2005) they said: “... the recent
evidence of a deterrent effect from capital punishment seems
impressive”, and added: “Those who object to capital punishment, and
who do so in the name of protecting life, must come to terms with
the possibility that the failure to inflict capital punishment will
fail to protect life.”
 An
exactly opposite point of view comes from John J. Donohue III, a Law
Professor at Yale with a doctorate in Economics, and Justin Wolfers,
an Economist at the University of Pennsylvania. They write in the
Stanford Law Review, again in 2005, that the present evidence of
deterrence of capital punishment is “fragile”. They were slightly
derisive of the “econometric sophistication” of those in the
opposite camp. In their view, it is “intuitive plausibility” that
should take precedence in research design and analysis of a problem
that is part of public policy.
Addressing the economic question behind the whole debate, Prof.
Wolfers was positive that capital sentence is too expensive to
persist with. This stand is supported by the fact that an execution
for murder is preceded by incredibly prolonged litigation that
involves huge costs for both the prosecution and defence. The
Donohue-Wolfers analysis ends with a reference to how murder rates
in Canada and the U.S. run parallel, although the last time Canada
ever executed a prisoner was in 1962.
The
New York Times report comes against the backdrop of two recent U.S.
Supreme Court decisions which have imposed a near countrywide
moratorium on executions. The first of these was on September 25
when the court allowed a constitutional challenge to the protocol
for administering lethal injections to a convict. This was a
reference from Kentucky involving two convicts, Ralph Baze (49) and
Thomas Bowling (52), on the death row for more than a decade, both
for separate double murders. While Ralph Baze killed a Sheriff and
his deputy while they were serving warrants on him in 1992, Thomas
Bowling murdered a husband and wife outside their dry-cleaning store
in 1990.
 The
two appealed against the death sentence awarded to them on the
grounds that the lethal injection by which they were to be executed
was a “cruel and unusual punishment” prohibited by the Constitution.
The appeals were turned down successively by a State Judge in 2005
and the Kentucky Supreme Court the following year after obtaining
medical opinion. The latter went to the extent of saying that the
Constitution did not envisage a “complete absence of pain” to the
prisoner during execution.
The
Baze-Bowling ruling of September this year was followed by a similar
one on October 30 when the U.S. Supreme Court stayed the execution
of a Mississippi prisoner, Earl W. Berry, who is on death row for
killing a woman 20 years ago. This was a dramatic intervention
indeed, just 19 minutes before the execution that had been set for 6
p.m. on that day. It is significant that Berry got a fortuitous
reprieve from the same court that had earlier turned down two of his
appeals.
In
all probability, it was the Supreme Court’s ruling in the Kentucky
cases that came to Berry’s rescue. In the appeal filed on October
29, Berry’s lawyers were for the first time disputing the
constitutional correctness of the procedure adopted in administering
the injection. The Kentucky prisoners and Berry were taking
advantage of a finding that the injection was after all not
painless.
It
will not be until next spring when the Supreme Court rules on the
constitutionality of the current procedures relating to lethal
injection. In the meantime, no State may be expected to go ahead
with an execution.
26 December, 2007
|
Read Also
