Capital Punishment Is A Legal Process Criminology Essay

Introduction

Capital punishment is a legal process in which a person is put to death by the country or state law as a punishment for a crime. It is also known as death sentence or death penalty. Capital punishment sends the message that such criminal acts will not be tolerated in the society. It works on the simple theory that people desist from doing a particular action when they know that they will have to pay a high price for the same. There is no doubt that death penalty is one of the most debatable issue in our society. In support of death penalty people argue that it discourage others from resorting to similar crimes, those who oppose it are of the opinion that it is not as effective it is promoted to be.

Many countries still keep the capital punishment in their penal laws. This is a practice that has been there since time immemorial as a sign of the Law of Moses, which integrated a retributive approach that was characterized as an eye for an eye and a tooth for a tooth. [1] 

There are 7 types of capital punishments known to world. These are: [2] 

Death by Hanging

Execution by Firing Squad

Lethal Injection

Gas Chamber Executions

Death by Stoning

Death by Beheading

Electrocution.

Capital Punishment in Bangladesh

The capital punishment is one of talkative issue in present day Bangladesh. In the international environment death penalty is actively implemented and well protected. In some cases, it is also a debatable matter in the domestic area. According to Amnesty International report, Bangladesh is a “retentionist” country. [3] That means Bangladesh is the promoter or supporter of capital punishment. There is a lot of evidence which support the statement of Amnesty International report. The practical natures of the explanations or evidences support the elimination of the death penalty in Bangladesh.

Crimes punishable by death in Bangladesh

There is a wide range of crimes are currently subject to the capital punishment in Bangladesh. According to the Penal Code 1860, here is a set of crimes which are subject to the death penalty in Bangladesh:

Section

121: Waging war against Bangladesh

132: Abetting mutiny

194: Giving false evidence upon which an innocent person suffers death

302: Murder

305: Assisting the suicide of a child or insane person

307: Attempted murder by life-convicts

396: Kidnapping of a child under the age of ten (with intent to murder, grievously hurt,

rap or enslave the child) and Armed robbery resulting in murder.

According to the Special Powers Act 1974:

Section

15: Sabotage

25: Hhoarding of goods or dealing on the black market, counterfeiting, smuggling, and

poisoning or contamination of consumables or attempt of any of these offences.

In addition, there is an act, Women and Children Repression Prevention Act-2000, to prevent violence against women and children. Under this act the capital punishment is available for: murder or attempted murder involving burning, use of acid, trafficking of women and children for illegal or immoral acts, sexual assault of women or children occasioning death etc.

Criminals Excluded From the Capital Punishment

The persons who are below 18 years old at the time of committing crime will be excluded from the capital punishment. [4] In 2009, the U.N. Committee on the Rights reiterated this alarm and suggested that Bangladesh explain its clarity of the child to include all people under the age of 18. U.N. papers point out that Bangladesh’s situation is that it does not implement persons for crimes committed while under the age of 18, that capital punishment for such individuals are infrequently-if at all-meted out by courts and that Bangladesh is allowing for altering the 1974 Children Act to assure a clear legal exclusion. [5] Women are not applicable for death penalty during pregnancy period. Women with new born children also will not punishable by death sentence. [6] The people who are mentally sick are excluded from death penalty. During committing the criminal act if the person is in unsoundness of mind or is incapable of knowing the nature of the act will not be punished by capital punishment. [7] 

Courts and the Judiciary of Bangladesh

Bangladesh operates under a judicial system. It was mainly come from the British common law tradition. The Supreme Court is the highest appeals court in Bangladesh. It is divided into the Appellate Division and the High Court. The High Court hears appeals from subordinate courts. Under the writ jurisdiction, the High Court issues orders to enforce fundamental rights and grant other available summons. From the High Court division, the Appellate Division hears appeals. An important function of the Appellate Division is supervising the subordinate courts and tribunals. [8] 

Legal basis of Capital Punishment in Bangladesh

Capital punishment is subject to prior approval of the honable high court division of the Supreme Court of Bangladesh.

All capital punishments in Bangladesh are carried out by hanging according to the Bangladesh government law. [9] Like other nations in the region, Bangladesh does not have a jury system: suspected criminals are tried and sentenced by a judge. [10] Those sentenced to death have an automatic appeal hearing before the High Court. If that appeal fails, the person also has the option to lodge additional appeals with the High Court and, if those fail, with the Supreme Court. Should all these avenues of appeal fail, the condemned person’s final chance is to appeal to the President for clemency. [11] The Jail Code also affords an avenue for appeal, whereby prisoners can appeal to the jail authorities within seven days of being brought to jail – this appears to apply to those prisoners extradited from overseas. Additional to these safeguards, is the requirement that the High Court approve all death sentences pronounced by a lower court before they can be put into effect. A hearing is held in which all documents relating to the case, including the lower court’s judgment, are compiled. [12] 

Clemency process

The Code of Criminal Procedure specifies that executions require not be permitted by the executive. [13] The main executive obstacle to execution of a capital punishment is the privilege of mercy, approved by the Constitution and defined under the Code of Criminal Procedure and Penal Code. Damned persons petition the President for clemency. In addition, the government – which may mean the legislature or some other executive official-may alter capital punishment. [14] 

Available statistics on Capital Punishment in Bangladesh

The information or statistics about capital punishment are not publicly reported in Bangladesh. It only comes in publicly, when it is about a ‘sensational’ or ‘political’ matter. For example, the February 2010 hanging of 5 persons accused and tried for the murder of Sheikh Mujibur Rahman was widely reported; the same holds true of the 2007 hanging of members of the JMB who were accused in the 2005 bomb attacks on two judges at Jhalakathi. [15] There is No official information are available regarding the number of death penalty handed down, or the number of capital punishments carried out. According to the International Federation for Human Rights (2010), there are about 75,000 prisoners all over Bangladesh and 40-45 percent of them are convicted prisoners. In one district jail outside Dhaka, out of the 2,300-2,400 estimated total prison inmates, 90 prisoners are on death row. [16] 

The following table includes the number of capital punishments reported in Amnesty

International’s annual reports for the past five years, as well as the numbers reported by Hands Off Cain.

Number of Executions, Bangladesh, 2005-2010: [17] 

Capital Punishment and the attitude of Bangladesh Government

Bangladesh is a country where there is actually no right to life. Exercising the capital punishment violates the common human rights. In 2010, five people were given the death penalty within a day. On January 28 of the same year, the Supreme Court of Bangladesh made the decision to execute death penalty of the killers of Sheikh Mujibur Rahman. [18] 

On the contrary, on 7th September 2010 Zillur Rahman, President of Bangladesh, pardoned 20 prisoners death row. Those people were sentenced to death in 2006 by a Speedy Trial Tribunal (2002) for the murder of a then-ruling Bangladesh Nationalist Party (BNP) activist Sabbir Ahmed Gama. [19] In the history of Bangladesh it was the first where President gave pardon a huge number of death prisoners at a time. The important thing is that the benefited prisoners are supporters of the present governing party (Awami League). Amnesty International welcomed the pardon of President Zillur Rahman in their international report. At the same time it also argued that it is not ethical to favor only supporters of the governing party. [20] 

Though the death sentence is a permanent punishment, the legislative authorities should ensure that criminals are not released by the politically motivated grounds.

Problems of Bangladesh’s criminal justice system

Lack of fairness and transparency.

Political interference and arbitrary police control over the complaint mechanisms.

Criminal justice system is politicalized, inefficient, and unprofessional.

As far the administration of justice, the judiciary system does not enjoy independence.

Lack of judicial competence and commitment to upholding the rule of law.

The country’s medico-legal system still is not acceptable by international standards.

Lack of interpersonal respect between lawyers, judges, political parties, medico-legal experts seriously hampers effectiveness of the administration of justice.

Is the Capital Punishment an Effective Crime Deterrent

Capital punishment is based on the principle that the peril of death makes probable criminals think twice before doing to some serious crimes – such as murder, rape and makes them totally give up on such criminal act. The effectiveness of death sentence to prevent criminal from doing serious crimes is questionable, whether it really discourages people to do crimes. A study in America discloses that 88 percent of American criminologists believed that capital punishment was not effective crime prevention. In this study about 87 percent of the respondents thought that capital punishment would have no major impact on crime rates in the country as such. [21] 

On the other hand, many criminologists think that death penalty in itself is one of the several factors which makes a person indulge in crime. The example of Canada wherein the murder rate decreased after elimination of capital punishment in 1976. [22] One important thing is that the criminal who is planning to do any crime, he or she will never get affected by the threat of being caught and convicted. In addition, the time gap between the sentencing of convict and his actual execution is quite lengthy. As time elapse the preclusion effect of sentencing a person to death starts decreasing. Now the people who support the death penalty may argue that to speed up legal process and execute the death sentence early. But then, speedy trials would again mean more chances of an innocent person being sent to the gallows, and that is something which we can’t afford to do.

There are some studies which support the death sentence as crime prevention. A study showed that eighteen lives are saved for every criminal death penalty. [23] The legislative authorities of Bangladesh argue that the capital punishment is essential for control the serious crimes like murder. They also think that capital punishment will transmit the message of ultimate results of murder to the potential criminal. This so-called prevention of criminal act is shown to not be working effectively, as incidents of serious crimes rise each year. For example, according to the Bangladesh Police website, there were 3592 murders during 2005 and 4219 murders in 2009. [24] 

Arguments in favor of Capital Punishment

There are two types of criminals in our society – ones who commit crimes under unavoidable circumstances and other ones who commit crimes intentionally. The people who commit crimes intentionally, they do not feel any kind of guilt for their actions and they do not hesitate to do same again. So, it is important to implement capital punishment for making such criminals to realize that they are not the decider of life and death. Here is some supports behind the capital punishment:

Fear of Death:

All people have the fear of death, even though death is inevitable. Implementing death penalty for serious crimes like murders or rapes will absolutely make the criminal think twice before doing any brutal crimes. There are some killers who are commit killing only for fulfill their hobby. Capital punishment will send the message to the criminal that, he or she is preparing own grave by killing someone else.

No Escape:

No one can getaway from the death, but any one can escape from imprisonment. There are so many evidences of jail escaping illegally by managing political leader or prison inspector. After escaping the criminal commit crimes again and making the innocent suffers. So this is unethical to let innocent people die and criminal live.

Justice not Killing:

Sometimes the people who do not support capital punishment, they think death penalty is all about revenge in the name of law or justice. However it is very important for our society to teach criminals about the importance of life.

Saving the Innocent:

To save innocent people there is no other alternative way without death penalty to the serious criminals. If we allow criminals in the imprisonment, then suffer for the innocent people will be huge.

Law Should Provide Justice:

Capital punishment issued by law is fair and justified for the society. The innocent victims do not get any chance do crime, then why should we give the chance to the criminal with imprisonment.

Arguments against Capital Punishment

Some people think that reason of the death penalty is to send a right message to the society. Such harsh punishment means that no serious crime will be tolerated and the responsible must be punished for his or her act.

Denial of basic right:

Death penalty violates human right – the right to life. Human being life has a essential value. The holiness of human life is denied by the capital punishment. Life is priceless.

The possibility of error:

Capital punishment is decided by the collected evidences against the individual. Sometimes those collected information and investigation might be wrong or manipulated. So in case of imprisonment, after finding error in judgment individual may be released and compensated for the injustice. However, in case of capital punishment judge can do nothing without feeling guilty for taking innocent life.

Lack of Deterrence:

The goal of capital punishment is to deter serious criminal activities from the society. However, according to the available information, the capital punishment has not been effective in controlling the murder rate. For example, according to the Bangladesh Police website, there were 3592 murders during 2005 and 4219 murders in 2009. [25] 

Racist Factor:

Death penalty is a cruel and unusual punishment for human being. Most of the people in all over the world think that death penalty is a way of minimizing the number of minorities in a particular country.

Killing is Expensive:

Keeping one person in the prison for entire life is less expensive compare to give death penalty. Long and complex process of death penalty cases is the biggest drawbacks of capital punishment.

Justifying circumstances

There is possibility for individuals to suffer from emotional trauma, violence, destructive social environment to commit such terrible crimes. So it is unethical to blame only them for their activities.

Recommendation

Observe existing law with a view towards diminishing the scope of crimes that attract the death sentence to only those with deadly consequences.

All mandatory death sentences should be revoked as unconstitutionally controlling the judgment and freedom of the judiciary, as required under international standards.

Other convicts may under no situation be entrusted to carry out a capital punishment, a practice that is not in conventionality with the domestic legal structure and constitutes an inhuman and degrading treatment for concerned prisoners.

Make public information about the death penalty and executions to permit an informed public debate on the capital punishment.

Assign a committee of high level jurists to inform on the purpose and situations of implementation of the capital punishment in the country.

Conclusion

Death penalty is as basically wrong as a cure for crime as charity is wrong as a cure of poverty. Bangladesh’s constitution’s Article 35 prohibits “torture, cruel, degrading or inhuman punishment or treatment”. [26] There can hardly be any argue that the capital punishment does not amount to brutal punishment, which is banned in the country’s supreme law. In fact, such brutal punishment comprises a violation of the Constitution by deflation the natural dignity of human beings. The reality concerning the criminal justice system must be understood to assess how hazardous the use of the capital punishment can be in Bangladesh. Essential policies or steps should be taken to reduce the reappearance of crimes that are presently penalized by the death sentence in the place of continuing with this unsuccessful prevention.

Bangladesh should obey to national and international statement for human rights. And Bangladesh government should eliminate the death sentence system immediately, if they believe on human rights.