By – Srisoniya Subramoniam

Abstract

The Indian Constitution guarantees fundamental rights, which foremost protect the life of an individual. Article 21 highlights that ‘no person’ shall be denied such protection unless it is warranted by a ‘procedure established by law’. Here, a dilemma arises – what if such a procedure established by law is itself liable to be suspect? The imposition of death penalties appears to be in direct contradiction with such a right. S. 393 of the BNSS warrants the articulation of ‘special rights’ by the courts while imposing death penalties, but who shall be the judge of these reasons? Can we truly say that a single judge or even a greater bench has the authority to decide such matters? If not, can a jury decide the fate in such circumstances? This article, through a primary comparative analysis of the American criminal justice system with the Indian system, aims to understand the impact that a jury might have on the imposition of death penalties. 

Introduction

Capital sentences are extremely controversial. While it is understood from practice that criminal offences are treated as crimes against the State and not merely the concerned victim/individual, it is also crucial for one to not be blinded by lex talionis, i.e., an eye for an eye. Gandhi can be validly quoted in such a circumstance. His famous quote – an eye for an eye makes the whole world blind highlights the reality of the situation that punishing a human with death for causing death or hurt to another individual is not justice served. When an accused is sentenced to death, the judicial system is not only sentencing the concerned individual but also his entire family and friends to a lifetime of criticism and bias. This, of course, shall not disregard the pain and suffering of the victim, and justice should be provided. The only question is whether justice in such circumstances requires the death of the accused, especially when such decisions are taken by a jury without complete application of the law. 

Diverging Judgements, Converging Stakes

Under Indian law, clause 3 of both S.393 of BNSS and the previous S.354 of CrPC has not undergone any changes in regards to the direction to the courts to submit reasons for death sentences to ensure that capital punishment is a reasoned choice. The law established under the Bachan Singh v State of Punjab, employs the ‘rarest of the rare’ doctrine to make the death penalty constitutionally valid only when life imprisonment seems extremely inadequate. Following this, Indian courts have begun to employ a balancing test between aggravating (nature of crime, vulnerability of victim, societal values, etc.) and mitigating factors (age of accused, mental health, criminal history, possibility of reformation, etc.) to determine a reasonable sentence for the accused once convicted.

In Rajendra Prasad v State of UP, the majority held that –” One stroke of murder hardly qualifies for this drastic requirement (capital punishment)”. Justice Kailasam, on the other hand, thinks that the court should not have discretion in the imposition of death penalties and that the jurisdiction for such decisions lies with the Parliament alone. But Justice Krishna Iyer has opined in Rajendra Prasad that the special circumstances referred to in S.393 of the BNSS (previously S.354 of CrPC) shall not amount to the crime but to the criminal. This aligns with the ‘capabilities approach’ framework developed by Amartya Sen and Martha Nussbaum, which essentially is a combination of the retributive and restorative models, allowing a structured balance between the need for social healing through punishments and consideration of the accused’s potential for change and rehabilitation. My opinion may differ from yours. The perspectives of legally qualified judges may differ from each other. The same matter before two different benches might not necessarily result in the same outcome. If this is true, it is not fair to allow individuals with various predispositions and biases to decide the fate of the accused, especially when the stakes are high.

Prejudice and Instinct: Volatile Will of the Jury

A study conducted amongst 200 Florida jurors in 2007 presents a jarring representation of the prevailing gross bias against the accused, with 21 percent automatically agreeing to the imposition of the death penalty and only 10 percent opposing it. According to the same study, only 38 percent of the juror population aimed to employ a fact-based decision-making strategy. It amounts to less than half, rendering the whole scheme of the jury deciding the fate of an individual volatile and unjust. Furthermore, it can be noted that a long history of restraint with regards to death penalty hinders the jurors from imposing a death sentence; almost 67 percent were less likely to sentence a person in the state of California, where the State has not executed anyone since 2006. This trend has subsequently changed since the 1990s as concerns about death sentencing resurface, which largely depends on ‘emotional attitudes pertaining to each person’s ideological self-image’ as explained by Phoebe Ellsworth.

There has always been severe caution where the jury is involved in a capital case as opposed to when it must decide in a non-capital case. Courts and legislatures have often been unconcerned by elements of arbitrariness and discretion in non-capital jury sentencing, highlighting the high risks associated with a jury in death trials. It is common knowledge that jury sentences can be extremely unpredictable; such unpredictability may not only hinder the justice process but also cause extreme hardship to the accused and his family if faced with a long period of uncertainty in regard to his status in life. Though not preferred to be acknowledged by most, the salience of race is quite high in jury trials – jurors, being humans, are predisposed to their opinions and biases, which may hinder rationality and fair process. 

Final Word: Judge or the Jury? 

In 2013, through the case of Woodward v Alabama Supreme Court, J. Sotomayor, along with J. Breyer, questioned the impact of death sentences when the final arbiter of the sentence was the judges as opposed to the jury. Delaware is currently one of the very few states that allows judges to have the final decree in matters of death penalty sentencing. As early as 1961, this state too initially required the jury to decide issues of the death penalty, but following the Furman v Georgia ruling, which declared such penalties to be violative of the Eighth Amendment, the state underwent a series of changes until, in 1991, such power was vested with the judge alone. After a decade, the case of Ring v Arizona (2002) emphasized the rights of a defendant to claim a jury trial for finding any aggravating factor that shall make the defendant eligible for the death penalty based on the Sixth Amendment. 

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

J. Sonia Sotomayor, consequently, in the 2016 case of Hurst v. Florida, voiced her opinion on the ongoing debate between judge and jury as raised by her previously in the Woodward case. A jury is often preferred by the defendants because there is a probability, which, if fortunate, can prove to be beneficial for the accused, but it can also backfire, and in my opinion, the life of an individual cannot be a bet. According to a report, the rate of death sentences is considerably higher when juries impose the sentences compared to judge-imposed sentences. It should be noted that 7 out of 8 Maricopa County defendants were sentenced to death by the jury, and similarly, 10 of 14 were sentenced statewide. Whereas before the Ring case, judges imposed death penalties in a mere 29 out of 143 cases. Paul McMurdie, the division chief of the county attorney’s appeals, has thoughtfully introduced the perspective that “judges see murder all the time,, whereas for the jurors it’s the worst case they have seen in their lives”, and this gives rise to a certain set of biases that the judiciary might not entertain. 

Conclusion

The changing views on death penalties and subsequent backlash against opposing sentiments may play a substantial role in the decision of the jury. At this juncture, we need to reconsider our approach to punishment and assess whether the outcome it produces is truly the one we desire and demand. While the difference between the absence and presence of a jury in capital sentences is apparent, there is still uncertainty in regards to which shall truly protect justice, given that both have their flaws – one being based on rigid laws and the other on too much subjectivity. It is crucial for us to find a middle ground or for India to eliminate capital sentences in its entirety, like other American states have before. 

About the Author

Srisoniya Subramoniam is a law student with a deep passion for exploring the psychological dimensions of criminal justice.

Image source: https://images.app.goo.gl/6ptYCiHNofMU1rUs7