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This is written in response to the recent article in India Real Time on the rising clamour for Capital Punishment in the wake of the barbaric rape of and assault on a young 23 year old girl in New Delhi. As the headline suggests; the gist of the argument is that Capital Punishment (the focus of the article) is a flawed answer to Rape and some reasons why, are detailed in the body of the text. I disagree with the author’s conclusions as also with the characterization of Capital Punishment as flawed reasoning.

A. ‘The data is counterfactual. What are the proponents of capital punishment comparing to when they say the death penalty will be a deterrent?’ That seems like a fair-enough point. But there are few answers either to what the author is comparing her energetic claim with. The article cites two studies from the US; one in support (Ehrlich) and the other (Donahue), not in discord; but with a carefully worded conclusion; ‘found it impossible to conclude with any certainty that capital punishment is a deterrent’. This latter study would have served the purpose of the article, and/or of its author, better if it had concluded the corollary – that it is possible to conclude with certainty that capital punishment is not a deterrent. These two conclusions, most will agree, are entirely different things.

Reading the study’s abstract from the link provided; we learn:

1. That this was conducted to study the inferences of ‘other’ studies that had concluded a substantial deterrent effect of capital punishment

2. That the metaanalysis was undertaken to verify the veracity of the conclusions of those other studies. It reviews the inferences of others and is not designed to study the critical question of independently assessing capital punishment as, or as not, a deterrent. Other study conclusions are put to the test; not the deterrent ability of capital punishment.

3. In conclusion, the study ‘found it impossible to conclude with any certainty that capital punishment is a deterrent’ because the other studies suffered from poor study design and I quote: ‘short samples and particular specifications may yield large but spurious correlations’.

B. There are a couple of other reasons the author adds to bolster her case.

1) ‘the morality of fighting barbarism with barbarism is complicated and that every country in the West has abolished it except the US’. I am deeply uncomfortable with the portrayal of a demand for the death penalty, as an option on the table, for the crime of rape as, ‘barbaric’. If this demand came from the victim or her family, would anyone dare to deem it ‘barbaric’? Morality being a deeply subjective issue; it is prudent to be cautiously restrained with its assessment especially in the face of grave tragedy and, 2) ‘there might be emotional satisfaction to the victims and their families’. That possibility is quickly refuted by the author because she has ‘doubts’ on this score! There is also a reference elsewhere to common sense. All assessments of common sense, morality and emotional satisfaction are subjective and informed by the biases of all participating sides.

After spending time reading this article, given that it has great visibility due to the platform of its publication; are we convinced to some measure (any measure) of the reasons for the flawed logic of using capital punishment as a deterrent? The answer is a clear, no.

Crime and culture are deeply intertwined. While the study quotes the Western experience with deterrence; it ignores that of Eastern nations completely. What, for example, is the deterrence ability of capital punishment under Sharia Law in progressive and theocratic Islamic Nations? The impact of capital punishment on behaviour, societal shaming and ostracization  cannot be ignored. The law is formulated taking into account socio-cultural circumstances unique to the people of the land. Just as human behavior in its normal and perverse forms falls within a spectrum of possibilities; so too does the application of the law. The law is not blanket applied to every case of crime based on its classification. The judicial prudence of the judge is applied to the specific circumstances of each case. Measures to rein in the abhorrent rape statistics include a plethora of suggestions ranging from the cultural, the familial, police and security reform and yes, judicial reform. While we wait for behavioural and cultural reform; the last two can be instituted with greater immediacy and have the capability (when strictly enacted) of influencing and enforcing behaviour. The endemicity of rape forces us to revisit and rethink the law.

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