Legal Matters | A moral argument against life without parole

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On August 27, a court in New Zealand imposed an unprecedented sentence on Brenton Tarrant, who went on a shooting carnage at two mosques in March 2019, killing 51 and injuring many others — life sentence without the possibility of early release. New Zealand abolished the death penalty in 1989, so this is the highest possible sentence in the country.

Yet, the sentence has been applauded by those on both sides of the debate on the death penalty. For its stringent opponents, life with parole seems to be a much more humane alternative to death. For victims and their public sympathisers, justice has been served, with the punishment seemingly commensurate with the crime.

Life sentence has been a controversial punishment, particularly in India where the punishments prescribed for heinous crimes are limited to a 10-year sentence, life imprisonment or the death penalty. In rare cases, such as offences under the Narcotic Drugs and Psychotropic Substances, 1985, which involve commercial quantities, the punishment could go up to 20 years.

A common misconception in India is that a life imprisonment means 14 years in prison, leading to people calling for the death penalty for crimes that shock the conscience. The Supreme Court has clarified (Gopal Vinayak Godse v. State of Maharashtra, 1961) that a life sentence is for the rest of one’s natural life, subject to the state government’s power of remission under Section 432 of the Code of Criminal Procedure.

However, Section 433A insists that such power cannot be invoked within 14 years in the case of convicts undergoing the life sentence for offences which attract the death penalty — such as murder. Thus, the 14 year myth took hold.

Be that as it may, Indian courts also impose qualified life sentences, such as when the Supreme Court substituted the death sentence given in the Swami Shraddhanand case, with the condition that the convict not be released in prison for the rest of his life. In other cases, such as when a youth in Kerala murdered an entire family, including a 10-year-old, in cold-blood, the high court awarded a life sentence with a minimum period of 25 years to be served, instead of the death penalty.

A Sentence of Death in Prison

A life sentence, without the possibility of release, is essentially a sentence of death in prison. Yet, many of those who advocate against the death penalty are in favour of such life-long prison sentences — as if the only issue with the death penalty was whether the State had a right to take a life. A debate about relative merits must be more wholesome though.

A study of United States shows that the cost of prosecuting a death penalty case is about 3-4 times that of a non-death case. Even in India, one sees that the State is compelled to put forth its best lawyers in cases involving the death penalty, which also involve many more levels of hearings — often culminating in a midnight hearing just hours before the scheduled hanging.

The additional security requirements and the fact that death row inmates are more prone to mental disorders (requiring treatment) make the death penalty much more expensive to the State in pure fiscal terms. The death penalty is also to be shunned due to its irreversibility.

On the other hand, the shift to ‘life without parole’ doesn’t address the primary moral arguments against the death sentence — it does not take into account the possibility of reformation, the bedrock of our justice system, as well as our obligation under international covenants and United Nations rules. In India, an additional complexity arises over the fact that the justice system can be very indifferent to those who fall short of the death penalty — predominantly from poorer sections of society who cannot always afford proper legal representation.

Then there is the question of arbitrariness in orders granting remission — one of the cases pending before a Constitution Bench of the Supreme Court is the validity of blanket remission orders passed by the State: in one case, it was observed that a certain Home Minister’s visit to a central jail was considered so auspicious an omen that all the prisoners in the jail were given substantial remissions solely for this reason.

Perhaps fittingly, punishments beyond life imprisonment simpliciter are rarely handed out, restricted only to instances where the moral depravity that led to the crime is irredeemable. It is, however, just as important to realise to foreclose the possibility of release is to impose civil death. That is not necessarily any kinder than the gallows.

Abraham C Mathews is a Delhi-based advocate. Twitter: @ebbruz. Views are personal.