Death penalty for women is just or Unjust

ABSTRACT

A woman offends society as a whole through her “unladylike” conduct when she commits a crime for which a judge or jury has no qualms in sentencing her to death. The legal system will use this picture of a woman straying from her expected position in society to apprehend and dispose of these “evil” women, thus perpetuating the protective, paternalistic society. It also leaves society with a very specific conception of what it means to be a true woman, which seems to be a white woman from the middle or upper classes. As a consequence, when women deviate from the norms of traditional femininity, they are particularly vulnerable to legal action.

KEY WORDS:

Death row convicts, death penalty, judicial scrutiny, united states, discrimination

INTRODUCTION:

In the case of women on death row, the relationships between gender, crime, and punishment must be explored in order to better understand the death penalty’s inefficacy from a gender justice perspective.

A Supreme Court bench led by the Chief Justice of India observed on January 23, 2020, while hearing the review petition filed by the Amroha death penalty convicts, that “the courts punish the offence not the person”. Shabnam and Salim, the suspects in the Amroha murder case, were found guilty of murdering seven members of Shabnam’s family in 2008. A 10-month-old baby was strangled as part of this.The death penalty was imposed on the pair by the Sessions Court in July 2010, and the verdict was upheld by the Allahabad High Court in 2013. The death penalty was also upheld by the Supreme Court on May 15, 2015. Death warrants were given to the convicts in less than six days. The warrants were later declared invalid by the Supreme Court on May 27, 2015, because the convicts had not exhausted all available remedies. “The decision was notable because it provided requirements for the issuance of death warrants. The appeal decision in the Shabnam and Salim case is still pending.”[1]

Perspective under International Scenario:

The death penalty in the United States has been thoroughly researched, debated, and written about. The subject has been a part of the American landscape since the 1600s, when the first legal execution took place in 1608, and the first woman was executed in 1632. Despite the fact that the death penalty has been in use for nearly 400 years and has resulted in 20,000 executions, 568 of which were women, it has not been without controversy.  The death penalty was subjected to the most intense judicial scrutiny in the 1970s, resulting in the United States Supreme Court’s 1972 decision.

Many of the women hanged in the United States were found guilty of murdering one or more people close to them. Nine of the 16 cases included the murder of an intimate partner, three of a child, and three cases involving the murder of a stranger, one of whom was a police officer. Almost everyone who died was a guy. Women who kill male victims, according to Mary Atwell, an authority on women on death row in the United States, are seen as a greater threat to the social order because they were able to assert control over a man. In certain cases, the prosecutor and the media emphasized that the female perpetrator had violated gender norms.

For example, one woman sentenced to death for murdering her husband was portrayed as an unfaithful wife seeking to obtain her husband’s life insurance. Her prosecutor gave another woman the nickname “black widow” after she was hanged for murdering her husband and children. The defence attorneys were looking for book deals in three of the trials. In reality, one lawyer offered his services in return for the proceeds from a book about his client, despite the fact that he admitted later that he had no experience with capital defence.[2]The eagerness with which these attorneys exploit their clients’ plight casts doubt on their sincerity, thus highlighting the notoriety of women who defy gender norms.

Prison Conditions For Women Under Sentence Of Death

Many states that maintain the death penalty have detention conditions that are well below minimum requirements. Women on death row have a unique circumstance that needs attention, particularly because we know so little about their living conditions. In an age of de facto moratoria, it’s especially necessary to address women’s unique needs. Women are gradually spending longer periods of time on death row in jails that are not built for women in general or for long-term female inmates in particular.

Reason For Women On Death Row:

The majority of women on death row were accused of murder, with many of these cases involving the murders of immediate family members in the sense of gender-based abuse. Drug-related offences are the second most common type of crime that results in women being sentenced to death, particularly in the Middle East and Asia. Women’s participation in drug crimes is linked to a number of factors, including gender dynamics and female disempowerment. Offenses against sexual morality, which are applied discriminatorily against women; terrorism-related offences; witchcraft; and blasphemy are among the other crimes for which women have earned death sentences.

“Like the vast majority of male death row prisoners, women in vulnerable situations are overrepresented on death row; many are indigent and suffer from mental disorders or intellectual disabilities. Members of racial, ethnic or religious minorities are especially vulnerable to prosecution for capital crimes. In addition, women face intersecting forms of discrimination based on ‘gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence.”[3]

 Legal Provisions:

The death penalty, also known as the death sentence, is a state-sanctioned punishment under which a person is executed for committing a crime. An execution is the act of carrying out such a sentence. Although the type of execution used varies from country to country, the most common method is still hanging. The death penalty is carried out by strangling or fracturing the neck with a suspended noose. Since time immemorial, capital punishment has been a method of punishment, and hanging has been used for it since the Middle Ages. However, as technology and medicine develop, nations are turning to other types of punishment, such as lethal injections, electrocution, and lethal gas.

  • Execution by hanging

The Roman law (crucifixion for execution), Anglo-Saxon laws, English laws, and German laws all included hanging as a method of execution. Until 1965, when capital punishment was abolished in the United Kingdom, hanging was a common and standard method of execution. The condemned person may be suspended from a gallows or crossbeam until death by asphyxiation, or he may stand on a trapdoor and fall several feet until stopped by the rope bound around his neck, or a knot in the noose helps jerk back the victim’s head sharply enough to break the neck.

In India, as per the current position of law, capital punishment is awarded only in the ‘Rarest of the rare cases’ and the primary mode of execution as given under Section 354(5) of the Criminal Code of Procedure, 1973,[4] is ‘Hanging by neck till death’ This mode of execution is widely debated and the Law Commission in its report in 2015 stated that the shift from hanging to more advanced methods execution must be made in India.

  • Execution by firing squad

Aside from hanging, the Army, Navy, and Air Force Acts provide for death by shooting. The court martial has the authority under Section 34 of the Air Force Act, 1950 to enact the death penalty for the offences specified in Section 34 (a) to (o) of the Air Force Act, 1950.[86] The court martial will decide if the death penalty will be carried out by hanging or by being shot. Similar clauses can be found in the Army Act of 1950 and the Navy Act of 1957. Section 163 of the act specifies the format of a death sentence as follows:

In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”

Ø 35th report (1967)

The first report of the Law Commission considering the issue of abolition of capital punishment was released in 1967. The commission recommended the retention of capital punishment. The factors considered for arriving at the conclusion were based mainly on general elements of cultural and social life as it existed then. The Law Commission observed that the subjective discretion of the court in deciding the matters satisfactorily practiced and was within the purview of judicial principles. The report observed that the exercise of discretion may depend on local conditions, future developments, and evolution of the moral sense of the community, state of crime at a particular time or place and many other unforeseeable features. “Furthermore, the report of the law commission does not discuss in detail the apprehensions regarding the arbitrary use of the Court’s discretion in capital sentencing.”[5]

Case laws:

Shabnam’s Case

Facts:

Shabnam was found guilty of murdering seven members of her family in 2008, including her father Shaukat Ali (55), mother Hashmi (50), elder brother Anees (35), Anees’ wife Anjum (25), younger brother Rashid (22), cousin Rabia (14), and Arsh, Anees’ 10-month-old son.

Shabnam, a Saifi Muslim, lived in Bawankhedi, a village in the Hasanpur tehsil of Amroha district in western Uttar Pradesh. She served as a shikshamitra after completing her post-graduate studies in English and Geography (government school teacher). Her family was against her relationship with Saleem, a Class VI dropout from the Pathan community who worked at a wood sawing unit outside their house.

Shabnam sedated six of her family members on the intervening night of April 14-15, according to the prosecution argument –– all but the baby Arsh. Saleem then used an axe to cut off their heads while Shabnam held them by their hair. Her 10-month-old nephew was choked. Shabnam would have been the sole heir to their house and other assets if the rest of her family had died.

Shabnam and Saleem were both in their 20s when they were arrested five days after the murder, and Shabnam was seven weeks pregnant. She gave birth to her son in December of that year.

Issues:

Shabnam was the one who first alerted authorities to her family’s murder. Initially, she reported that unidentified attackers had broken into her home and murdered everyone.

During the appeal, however, the couple turned on each other. According to the 2015 Supreme Court ruling, Shabnam alleged in her Section 313 argument that Saleem had entered the house through the roof with a knife and killed all of her family members while she was sleeping. Saleem, on the other hand, said that he went to the house “only on Shabnam’s order” and that when he arrived, she admitted to killing the others.

“Seven years after the crime, when her son was being sent to foster care, Shabnam had claimed she feared for his life, as the people who had killed her family over a property dispute could harm him too.”[6]

Judgment:

They were sentenced to death by an Amroha sessions court in 2010, which was upheld by the Allahabad High Court in 2013 and the Supreme Court in May 2015. The death warrants were stayed by the Apex Court within ten days.

Shabnam’s request for mercy, based on her obligations to her son Mohammad Taj, was denied by then-Uttar Pradesh Governor Ram Naik in September 2015. Her mercy petition was denied by then-President Pranab Mukherjee in August 2016.

A Supreme Court bench led by Chief Justice of India SA Bobde upheld the death penalty in January 2020.

In Arizona v. White,[7]

Defendant Michael Ray White appealed his conviction of first-degree murder and subsequent death sentence. Among the fourteen issues on which White appealed, he claimed that his equal protection rights were violated because his female codefendant, who was convicted for the same crime, received life imprisonment instead of the death sentence.’ White argued that this was the result of sex discrimination because; despite the fact that women commit ten percent of all murders in Arizona, no woman had received a death sentence under the then current Arizona sentencing guidelines.

CASE STUDY: KANIZAN BIBI

Kanizan Bibi has been on death row since she was 16 years old, in 1989. She’s been in a psychiatric facility for the past ten years. Her health has declined so much in recent years that her family no longer knows her. She is incapable of taking care of herself in the most basic of ways. She is completely unaware of her surroundings. Her relatives and hospital personnel claim she hasn’t said anything since her admission. Despite the fact that she has been diagnosed with paranoid schizophrenia, she exhibits symptoms of mental illness that go far beyond this particular diagnosis. Kanizan comes from a poor tenant farmer family. She began working as a nanny in wealthy families when she was a teenager. Kanizan was found guilty and sentenced to death in 1991 for murdering her pregnant boss and her two young children. Kanizan, on the other hand, retains her innocence. She was working as a nanny for the family at the time of her arrest. Khan Muhammad, her co-defendant, was the victims’ husband and father. In addition, he was found guilty and sentenced to death, and he was executed in 2003. The press claimed that Kanizan and Muhammad were lovers who plotted to murder the family, but Kanizan and her family refute this claim.

Kanizan was held in police custody for 11 days after her arrest. When she was being questioned at the police station, villagers reported hearing cries and creams. She was battered while hanging from a fan by a chain. Mice were set loose in her pants by the cops. She was electrocuted many times. Her injuries were treated in the hospital, but she was then sent to jail. Kanizan was unable to afford private legal representation in her defence of the murder charges. Kanizan’s confession was the most important piece of evidence against her. Her allegation was questioned in court as tortured, but it was unsuccessful. She has since been examined by medical examiners twice since her arrest, with the most recent finding in 2015 that she is unfit to be executed.

“Yet she remains incarcerated; her conviction and her sentence still stand. Indeed, her plea for clemency was also rejected by the President of Pakistan. Kanizan’s case starkly illustrates how poverty, gender bias, state sponsored torture, and mental illness interact in shaping the realities of women on death row.”

CASE STUDY: TRISHA

Their union was prohibited. I’m a twenty-four-year-old woman. Trisha had two master’s degrees, while Kamal was a twenty-six-year-old carpenter with no education. Trisha and Kamal were from different castes as well as different socioeconomic groups. They knew it would be difficult to build a life together.

Trisha’s family was outraged when they learned of the young lovers’ secret relationship. Trisha and Kamal were arrested for the murders of several members of Trisha’s family months later, when they were discovered dead in their house. Trisha was beaten by her father, who opposed her marriage to Kamal, according to two prosecution witnesses, including the father of Trisha’s deceased sister-in-law and Trisha’s cousin. To avoid their relationship, Trisha’s father had confiscated her phone and disconnected the house phone. Trisha discovered she was eight weeks pregnant with Kamal’s child during a medical test performed at the time of her arrest. As Trisha awaited her trial, their son, Jai, was born in jail. Trisha and Kamal were found guilty of murder in 2010 and were sentenced to death by hanging. Trisha has maintained her innocence throughout her life. Trisha and Kamal were both prosecuted by the same state-appointed lawyer at trial, considering their opposing defenses.

The fairness of their prosecution was jeopardized by this conflict of interest. The suspects shared a counsel on appeal all the way to the Supreme Court of India, which upheld their death sentences in 2015. This added to the questions about fair trials. Trisha, a daughter who is usually expected to “bear the responsibility of being the caregiver[s] for her parents, even more than a sibling,” killed seven members of her family, according to the Supreme Court. “[The daughter] is a caregiver and a supporter, a gentle hand and a responsible voice, an expression of valued ideals in our community in whom a parent puts blind faith and trust,” the Court said.

SUGGESTIONS:

The United States’ capital punishment system is in direct contrast with how all penalties and sentences are calculated and enforced throughout the legal system in the United States. Whether knowingly or unconsciously, the Supreme Court has effectively made this point. Most states have sentencing systems that are similar to federal sentencing guidelines and mandatory minimum penalty rules. Both opponents and supporters of the death penalty support sentencing mechanisms that aim to promote uniformity because they believe state sentencing processes discriminate based on race, class, and gender.

CONCLUSION:

The American people are incapable of applying the death penalty equally. This isn’t a problem with the people; rather, it’s a problem with the process. It demonstrates how people’s consciences often circumvent inequitable and poorly enforced rules. No matter how well-crafted a framework is, it will fail if it is based on uniform rules that are open to individual interpretation.

This lack of justice severely jeopardizes the credibility of many of the court’s decisions, as well as the public’s willingness to put their faith in the system. Unfortunately, many criminal justice systems lack the most fundamental elements of justice.


[1]https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1137&context=jgspl

[2]Professor Mary Welek Atwell, Death Penalty Information Center, Podcast: Women and the Death Penalty. Last visited 25th march,2021

[3]UN Office of the High Commissioner for Human Rights, Death penalty disproportionately affects the poor, UN rights experts warn, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=22208&LangID=E

[4]§354(5) of Cr.P.C.

[5] “Law Commission of India Recommends Abolition of the Death Penalty: A Historic First Step”. (last viewed on 26 march,2021)

[6]Indian Express, https://indianexpress.com/article/explained/explained-the-case-of-amrohas-shabnam-the-first-woman-likely-to-hanged-after-independence-7195194/, (Last visited Apr. 11, 2021)

[7] 815 P.2d 869 (Ariz. 1991), cert. denied 502 U.S. 405 (1992).

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