Death penalty is not the solution

The Bhutanese Newspaper’s 21st September news article and post on MP Tshewang Lhamo’s view that the Constitution and Bhutan Penal code should be amended to give the death penalty for rape of children under 12 has elicited a lot of debate.

Even before her personal views, it was clear that the majority of Bhutanese (going by social media) wanted death and even worse for the Paro rape and murder perpetrator.

The whole nation is angry and hurt not only by this incident, but a series of heinous crimes against children.

However, the question is whether we just want revenge as a balm for our collective anger and hurt, or deep long term reforms and justice that can actually help ?

If we want justice then I, in an earlier article, ( Tackling crimes against children  https://thebhutanese.bt/tackling-crimes-against-children/ ) highlighted the various reforms that have to take place to not only successfully prosecute such cases but also take preventive measures.

The main problem right now is not the absence of a strong law, but the inability to bring to justice and successfully prosecute such perpetrators due to DNA evidence issues, legal capacity etc.
The other main problem that has to be addressed is the lack of preventive measures like a sex offenders registry with the RBP.

However, if instant revenge is the motive then why do we even need the police or the courts.

The accused can be handed over to the angry mob who can tear him from limb to limb, or do worse, never mind, what his children or family will go through.

The mob, even while taking this revenge, no matter what the rationale, will be lowering itself to the same crime and values of the accused.

Also, what if the accused is found to be innocent after a gruesome end as has happened in so many capital punishment cases around the world ?

Are we ready to take the risk of collectively murdering an innocent man or woman to fulfill our momentary blood lust ?

Of course we are civilized people and so any such murder will not be done by the mob, but by the state, on behalf of us by amending a few provisions here and there.

However, murder is murder and are we, as Bhutanese, willing to sign on somebody’s death ?

The outrage today is on crimes against children and it makes almost logical common sense to have the death penalty for such a heinous crime. It even feels right in the gut.

There is massive populist support for death penalty right now.

Similarly, there is also a lot of public outrage about anti national activities, chorten vandalism, murder, drug smuggling etc.

Once a Constitutional amendment is done to allow capital punishment then given the right incident or peaking of public sentiments all the above crimes and more can also become punishable by death.

Remember that our Buddhist country was so outraged by Tobacco that we brought the world’s most stringent anti-tobacco law and locked up dozens until sense prevailed years later.

History and data is proof that death penalty is not a deterrent for heinous crimes and in fact has the opposite impact.

This is one of the many reasons why the vast majority of the first world and large sectors of the developing world have done away with the death penalty.

The ultimate fundamental right is the right to life of an individual.
When we are willing to take away that right for crimes, real or wrongly charged, then we are uprooting the very foundations of fundamental rights.

Also while we give the state the power to take the life of a fellow human we do not have the same power to bring that person back if he or she is proven innocent later.

This is not a theoretical argument as there are plenty of cases where follow up evidences and investigation show the dead person was either framed or there was a goof up in the investigation.

Italian thinker Beccaria in the influential 1764 book ‘Crimes and Punishment’ described the death penalty as:
‘The war of a nation against a citizen..It appears absurd to me that the laws, which are the expression of the public will and which detest and punish homicide, commit murder themselves, and in order to dissuade citizens from assassination, commit public assassination.’

This book, which showed the futility of the death penalty and torture, was largely responsible for many countries in the west doing away with the death penalty.

There is a lot more literature on the issue including by Dr. Daisy Kouzel.

Once a death penalty is at play a Bhutanese judge will be extra cautious and naturally increase the burden of proof as no judge will want to sign on someone’s death until absolutely sure.
Given our imperfect criminal investigation and prosecution system this can actually result in more rapists and murders roaming free, who otherwise, could have been serving lengthy sentences.

A death sentence is not a clean and clinical measure that will only impact the convicted, but it will also have a huge impact on the family of the prisoner.

One only needs to see videos of the last farewells of death row inmates with their family and see the devastating impact it has on the children and family.

A look at our prison population will immediately show that the vast majority of them are from poor and disadvantaged backgrounds and many of them are victims of crimes themselves.
International literature shows that quite a few of sexual predators and molesters have been victims of sexual crimes themselves when they were children.

The middle class and the rich largely avoid such fates as a secure and stable life is the biggest natural preventer of crimes.
Even in the event they run foul of the law their resources and contacts will work to get them off the hook.

The focus should be to treat the societal and economic ills that are fertile grounds for crime and thus prevent the majority of crimes before they happen.

However, if revenge is the motive then why fill our prisons with such people in the first place.
Given how ‘outraged’ we are about many crimes from chorten vandalism to drug smuggling, as explained above, they can all come under capital punishment and there could be mass executions.

Also, maybe like China, the organs of these inmates can be harvested (preferably before complete death) so that our respectable and crime free folk in need of kidneys, livers and other parts can get them.

It is ironical that as a Buddhist country we will not allow the slaughter of pigs and cows but we are willing to start the process that may lead to a mass slaughter house for fellow Bhutanese, to satisfy our occasional blood lust and outrage, disguised under the guise of the law.

Yes, there is tremendous pain, hurt and anger and things can never be allowed to be the same.
However, the question now is if whether we use this outpouring to bring about real and deep reforms in evidence gathering, legal prosecution, judicial process and prevention or dissipate it in blood lust and revenge with unforeseen consequences.

Two additional points

As heinous as rape and murder crimes are, I think we should not give the power to the criminal perpetrators to lower the standards of our entire society and in a way become their mirror image.

Justice is all about this life and the criminal should live day after day thinking about what he or she did and repenting with the possibility of genuine regret and change.
Death is not only unnecessarily cruel but the perpetrator escapes the real essence of justice. One moment a criminal but just dust and ash in the next moment

The writer is the Editor of the paper