HRF/109/04
02 December 2004
Lethal Injection
It's more than just a pinprick
In October 2003 the Law Commission of India published its 187th report on the Mode of Execution of Death Sentence and Incidental Matters. ‘Incidental matters’ excluded any consideration of the moral and legal basis for the continued use of the death penalty in India, perhaps predicated on the unfathomable assertion by former Union Minister for Law and Justice Arun Jaitley that the debate over abolition of capital punishment was losing its sting as “we have been at the receiving end of cross border terrorism.”
Rather, the report provides a historical synopsis of modes of execution that is poorly researched, poorly written and poorly edited. This synopsis overlooks all historical complexities pertinent to modes of execution. It then proceeds to assess the administering of lethal injections in the United States, ignoring any discussion of potential and actual negative aspects of this process. It compares the existent modes of executions according to a barometer of physical pain, coming to the conclusion that, with lethal injections, this amounts to no more than a pinprick. It proposes that trained assistants with no medical expertise can administer lethal injections, without considering the groundswell of expert opinion that dictates the necessity of medical expertise, despite medical opposition to the use of physicians on ethical grounds. It selectively quotes from the judgment of an abolitionist Supreme Court judge to strengthen its case for alternate methods of execution. It solicits and quotes the views of those who prefer public hanging, yet rebukes the views of those who support abolition. It concludes that, whilst hanging is undoubtedly accompanied by intense physical torture and pain, it should be retained and the mode of execution should be ultimately determined by the Court.
The issue is not whether one form of execution is more or less painful than the other. The preceding and predominant issue is whether the application of the death penalty in itself constitutes cruel, inhuman and degrading treatment, irrespective of the level of physical pain that the mode of execution inflicts. Cruel, inhuman and degrading treatment, according to the UN Human Rights Committee, is not confined to the infliction of physical pain, but also to mental, psychological and emotional torment. With the death penalty, this applies in the pronouncement of death, the act of execution and the intervening waiting period. The growing consensus under international law resolutely supports that the imposition of the death penalty, irrespective of the methods of execution, violates these principles. It is also, according to the emerging consensus under international law, incompatible with the right to life.
The impact of the Law Commission report has already been felt. For instance, in the case of Mohammad Afzal, the man accused of conspiring to attack the Indian Parliament on 13 December 2001, his wife publicly stated on 21 October 2004 that a “human rights lawyer” offered to represent Mr. Afzal in the High Court and began his argument by asking the court not to hang Mr. Afzal but instead kill him by lethal injection.
Compare this with a recent unanimous decision by the US Supreme Court on 24 May 2004 allowing a death row inmate to challenge the “cut-down” procedure seemingly required for lethal injection as cruel and unusual punishment. This sub-judice case [Nelson v. Campbell, 2004 FED App. 036821 (11th Cir.)] is important, for if the Court is to find that this procedure is cruel and yet necessary for the administration of lethal injection in this instance, the constitutionality of lethal injections may subsequently be challenged.
Contents of the Report
Based on the view that modes of execution have escaped debate, the Law Commission decided to resume from where the Law Commission Report of 1967 left off, whereby the “experience gathered in other countries and development and refinement of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject.”
Thus, the Committee resolved to prepare a Consultation Paper and questionnaire,
“the purpose of which was NOT whether the death punishment should be abolished or be retained but… [which] is strictly confined to three issues, namely,: (a) the method of execution of death sentence, (b) the process of elimination of difference in judicial opinions among Judges of the apex Court in passing sentence of death penalty, and (c) the need to provide a right of appeal to the accused to the Supreme Court in death sentence matters.” [emphasis original]
This introduction is succeeded by a gratuitous and distasteful chapter on “Methods of Execution Through Ages” (sic), which reads like an undergraduate essay on “crucification (sic), burning at the stake, the wheel, and hanging and garotteh (sic)”. It is also a damning reflection on the research and editorial skills of the Commission itself – even the contents page is incorrect – not to mention the members’ personal concern with the subject matter. Littered with typographical errors, notably crude and/or nonsensical observations include, amongst many others:
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“[Regarding crucifixion] Nailing a person to a wooden cross and leaving him there till he died was the torturous and popular method of executing death sentence during the years in B.C. (sic). Jesus Christ was crucified in this manner.”
A perverse logic is also applied to the relative merits of modern methods of execution:
“It is significant to note that the leaders of the third Reich of Germany, who were given death punishment by hanging at the Nuremberg trials, asked for execution of death punishment by the firing squad as the former was degrading and they wanted a military death. This reflects that death by hanging is not a dignified method of execution.”
It is very difficult to maintain a semblance of respect for the Law Commission’s report after ten pages of “study” equivalent to the above.
Conversely, no space is given to more useful historical information about lethal injection, such as the fact that it was first considered as a potential method of execution as early as 1888, some 21 years after the first states abolished the death penalty, but was rejected on the grounds that the medical profession believed the general public would link the practice of medicine with death. Or that in 1953 the British Royal Commission on Capital Punishment discredited any notions of humaneness in the use of lethal injections because of the potential harm that may be caused to convicts with particular medical complications.
Modes of Execution and India
The report attempts to provide a normative account of methods and procedures of execution in the United States and India. In this, it overlooks the myriad complexities that have arisen on account of the switch in the US to lethal injections and the very strong assertions by certain legal experts that “lethal injection appears to be unconstitutional given the science and faulty application of injections”.
It also provides a comparative analysis of the relative ‘humanity’ of hanging, lethal injections and shooting, founded on generally undisclosed yet apparently “basic and widely accepted norms.” This forms the substantive core of the report, focusing almost exclusively on the dissenting opinion of Justice Bhagwati in the case of Bachan Singh v. State of Punjab. This is truly remarkable, as Justice Bhagwati had concluded in the same case that the death penalty violated Articles 14 and 21 of the Constitution because it serves no legitimate social purpose or constitutional goal and is arbitrary and unreasonable in its application. The report, in effect, selectively quotes from the judgment of an abolitionist to strengthen its case for alternative methods of execution.
The report opens with the partial truth that “most of the developed as well as developing countries have replaced the mode of execution by hanging by the modes of intravenous lethal injection or by shooting”. This is partial in so far as most States have either de jure or de facto abolished the death penalty. The report then unequivocally states that the pain induced by lethal injection is “only as a result of needle prick.” This analysis is apparently sufficient for the Commission to conclude that lethal injection “is being accepted now as the most civilized mode of execution of death sentence.”
This is a gross generalisation. Apart from the mental and emotional pain that a convict is subjected to by sentence of death, irrespective of the method of execution, there exists a proportionately high litany of available examples where convicts have suffered extreme and prolonged physical pain on account of mishandled injections.
The report does not see the administering of lethal injections as a practice of medicine and thus believes it to be outside the scope of medical ethics. According to the report, “one of the solutions to this problem is to train persons having knowledge of the medicine and related field specifically for this purpose, and to see that such persons are designated by the appropriate authority in this behalf (sic).” Commission members appear to be unaware that those who concern themselves with medical ethics find this to be a wholly unethical practice. This is supported by the guidelines of almost all medical organisations in the United States, the World Medical Association’s resolution on Physician Participation in Capital Punishment, and the UN General Assembly resolution on Principles of Medical Ethics Relevant to the Role of Health Personnel.
The Commission then moves to recommend that hanging should not be replaced by lethal injection, but should be introduced by way of amendment to Section 354(5) of CrPC of 1973 in order that lethal injections are introduced as an alternate method of execution. This begs the obvious question: why would anyone compile a 98-page report and then pull a conclusion out of thin air? To compound this contradiction, the Commission then recommends that the mode of execution should not be the choice of the condemned, but of the Court. This despite the fact that 63 percent of those polled by the Commission voted in favour of allowing the condemned person to decide.
The report concludes by supporting the right to Supreme Court appeal and the instituting of a minimum bench of five judges to hear cases in which the death penalty has been imposed. No further consideration is given to how lethal injections might be administered.
Conclusion
From the evolution of international criminal law culminating in the Rome Statute of the International Criminal Court, from the inference of Article 6 of the ICCPR and the express intention of the second optional protocol to the ICCPR, from the resolutions of the UN General Assembly and Commission on Human Rights, from the EU Memorandum on Capital Punishment and the rulings of the European and Inter-American Courts on Human Rights, and from the increasing majority of the states’ de jure or de facto abolition of the death penalty, the momentum against the death penalty is evident.
The limited intellectual scope of the Law Commission’s report however ensures that it is unable to take into account the penological theory that has evolved under international criminal law. It ignores the fact that India’s outmoded retention of the death penalty contradicts its pride in democratic values. Thus ends an ignominious chapter in the history of the Law Commission of India.
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