DEATH PENALTY

CONTEXT

The Supreme Court has repeatedly expressed concern over how trial courts and High Courts have carried out sentencing with very little relevant information

The Bench headed by Justice Lalit agreed to comprehensively examine procedures in death penalty cases to ensure that judges who have to choose between life imprisonment and the death sentence have comprehensive sentencing information.

EXAMINING DEATH PENALTY SENTENCES

The court is undertaking an exercise to reform the procedures by which information necessary in a death penalty case is brought before courts

While the death penalty has been held to be constitutional, how it has been administered has triggered accusations of unfairness and arbitrariness.

CHOOSING BETWEEN A LIFE SENTENCE AND A DEATH SENTENCE

1) In Bachan Singh’s case a framework was developed to choose between life imprisonment and the death penalty

The legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.

2) Rarest of rare” framework- the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed

The Bachan Singh framework

One of the main concerns has been the crime-centred approach to sentencing, often in violation of the mandate in Bachan Singh that factors relating to both the crime and the accused have to be considered. There has been widespread concern that the imposition of death sentences has been arbitrary.

A study by Project 39A looking at 15 years of death penalty sentencing in trial courts has shown that the Bachan Singh framework has broken down, with judges attributing to it multiple and inconsistent meanings. A study of the 595 death sentences imposed in the last five years shows that this concern is intensifying

REASONS FOR FRAMEWORK REMAIN UNIMPLEMENTED

1)  The framework did not have any mechanisms to ensure the actual collection of such information and its presentation before judges.

• This has resulted in a situation where there is barely any meaningful information about the accused that enters the sentencing process.
• It is an empirical reality that the vast majority of death row prisoners are economically vulnerable and very often receive poor legal representation.
• As a result, they do not have access to professionals and expert’s with the necessary training and skill sets to undertake the complex exercise of collecting mitigation information.

2) Sentencing judges have often dismissed the consideration of mitigating factors depending on their perception of the crime despite there being no basis in the law for dismissing the relevance of such factors.

• It points to a deeper gap, that there has been no real guidance on how judges must go about assigning weight to aggravate and mitigating factors, and how they should approach weighing one factor against another

STAGES OF CRIMINAL TRIAL

A criminal trial has two stages — the guilt stage and the sentencing stage. Sentencing happens after the accused has been found guilty of the crime; this is the stage where punishment is determined. Therefore, anything presented or said during sentencing cannot be used to reverse or change the finding of guilt.

It is a fundamental tenet of criminal law that sentencing must be individualized, i.e, in the process of determining punishment, the judge must take into account the individual circumstances of the accused

MITIGATION

Mitigating circumstances are facts that appear to mitigate the seriousness or penalty of a felony by rendering the actions of the criminal more reasonable or less guilty.

The idea of mitigation is to give practical application to considerations of culpability and deservedness that are crucial to the moral idea of punishment.

INFORMATION COLLECTION

The Supreme Court has recognized that it is important to collect this complex interplay of information sentencing is to be done properly. The judgments of Santa Singh (1976) and Mohd Mannan (2019) have recognized the interdisciplinary nature of such an exercise, and that it requires professionals other than lawyers to collect such information

The American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty recognizes the role of a mitigation specialist with a clearly defined role that goes beyond what lawyers can do

CONCERNS

Justice Harry Blackmun who served on the United States Supreme Court for 24 years (1970-94) started out being a strong votary of the death penalty and was part of the decisions to restore the death penalty in the US.

For most of his time on the Bench, Justice Blackmun tried to bring in procedural reforms to make the American death penalty system fairer.

But ultimately, in his last year in the court, he declared that efforts to reform the death penalty had failed and that it was impossible to achieve the required fairness.