Deterring crime

With the last death sentence executed in mid-2019, Pakistan has put an unannounced moratorium on the state-sanctioned practice while the country’s courts continue handing down capital punishment in 33 offences.

Lahore-based Justice Project Pakistan (JPP), a non-profit organisation which claims to represent the most vulnerable Pakistani prisoners facing the harshest punishments, at home and abroad, put the latest death row prisoners’ figures in the country at 3,831 on its website. Sindh’s official number is 490.

Quoting a study of a non-governmental organisation Reprieve, civil rights attorney Asad Jamal explained that in 70 per cent to 78pc cases, appellate courts do not maintain the death sentence awarded by trial courts. “In another 12pc to 15pc cases the victims’ families pardon the suspect unilaterally or in consequence of an agreement reached between victims and culprits’ families; or culprits’ mercy appeals are allowed. Hardly 3pc to 5pc of the convicts handed down death by courts reach the gallows.”

Jamal questioned the logic behind prescribing death sentence for so many offence when finally 95pc of those who are awarded the capital punishment are either acquitted by the appellate courts or their sentence is commuted to life or lesser imprisonment terms.

He pointed out that governments in our country have never conducted any studies to know whether the death penalty work as an effective deterrence against crimes. “Every murder is not wilful or planned. A street criminal may take the life of a robbery victim although they would originally have not planned to do that.”

While prescribing death for so many offences, we may be ignoring the underlying factors which force one to commit such crimes, he explained.

Jamal also said that he is “personally against the death sentence” because the “torture” the execution involves is “against human dignity” and “violence itself cannot be eliminated by violence.”

Public outreach manager of JPP Muhammad Shoaib commented that the deterrence is basically defective. “Deterrence comes from the certainty of being caught for committing crime, not from the severity of potential punishment.”

He argued that there is no empirical evidence that shows that the death penalty deters crime. “On the other hand, an overview of the past two decades of per-capita GDP growth, terrorism, and homicide rates demonstrates a strong correlation between economic inequality, political violence, and murder rates.”

He explained that in years where the growth rate of the per-capita GDP is less than 2pc, the homicide rate tends to be 7.5 murders per 100,000 while it is generally lower in years with higher percentage growth. This, he says, means that “poverty and violence are inextricably linked.”

According to Shoaib, the world is moving away from this “inhuman” practice and many Muslim-majority countries are bringing in reforms in their criminal justice systems, carrying out lesser executions. Shoaib cited the example of Iran that had reportedly been executing drug traffickers for decades. “But now it has to amend its laws which is a proof that the death penalty has not served as a deterrence. Other than this, we have to see who we are executing and sentencing to death. We have executed prisoners with claims of juvenility, records of mental illness and sadly, those who were acquitted after their execution.”

Shoaib claimed that the death sentence is a “political tool” all over the world and is applied disproportionately against marginalised and vulnerable communities. “The state-sanctioned practice has very little to do with the deterrence of crime.”

However Hamid Khan, a senior lawyer and author of many books on law and the Constitution, disagrees. “What alternative do you have to deter criminals from committing heinous crimes?”

He admitted that the country’s criminal justice system has serious defects but most of the errors made by the trial judges have a chance to be corrected at appellate stage and such errors are corrected by the appellate courts. He also said that there can always be debate that which offences should carry capital punishment and which should not. “But it cannot be abolished altogether.”

He further said that the importance of the death sentence as a deterrence can be judged from the fact that many states of the USA, where investigation standards are quite high and the prosecution system is the most efficient, have revived the death sentence in areas where it had been abolished.

Mehmood Alam Rizvi, a former judge of the Sindh High Court, remarked that even the most civilised societies have maintained the death sentence for some offence. “And in Pakistan too, the Supreme Court over the years has evolved jurisprudence through its various rulings and narrowed the scope of the death penalty.”

He further said that false witnesses who record evidence at trial courts as professionals have been a curse in our criminal justice system. “However, former chief justice Asif Saeed Khosa gave a verdict declaring that the rule ‘falsus in uno, falsus in omnibus’ (false in one thing, false in everything) shall be an integral part of jurisprudence in criminal cases. “Because of this ruling, subsequently appellate courts overturned the death sentence in a large number of cases.”

Similarly, he elaborated, through various judgments, the SC has barred the execution of mentally ill and juvenile offenders while guidelines for sentences in drugs-related cases has also narrowed the scope of death sentence in such cases.

Rizvi highlighted that while abolishing the death sentence may not be a wise choice, “flawless” investigation and prosecution and development of jurisprudence on death sentence can ensure that no innocent person is put to the gallows.