This article has been written by Mr. Mustafa Khan, a 1st year LLB student, at Integral University.
Introduction
The subject of gender and the death penalty has been up for discussion and debate for many years. Men are more likely than women to be given the death penalty. The implementation of the death penalty differently for men and women has provoked debates among legal experts, decision-makers, and proponents of human rights. The American legal system, like those in other nations, is intended to be fair and unbiased. Only the most heinous offences, like murder or treason, are subject to the death penalty. There are worries that gender prejudice may affect who is given the death penalty, despite the legal system’s efforts to ensure that justice is done. The Death Penalty Information Centre reports that there were 53 women and 2,530 males respectively on death row in the United States as of 2021. As a result, women account for slightly more than 2% of all inmates on death row nationwide. Only 16 women have actually been put to death in the United States since 1976, compared to 1,535 men. This gender gap in the execution rate presents significant legal issues regarding justice, fairness, and equality before the law. The execution or application of the death penalty to a woman is unusual and unorthodox. It is culturally unacceptable to deliberately kill women, even those who have been found guilty of the most heinous crimes, because doing so violates the equal treatment under the law premise. Since there are so few female killers on death row and they are an exception in terms of culture, many people question whether there is a bias against them. Executing a person becomes less likely due to mitigating circumstances. Their presence serves as evidence of the gravity of the offence and the defendant’s character. One rather frequent mitigating circumstance is the fact that the offender acted in a way that made the likelihood of receiving the death penalty lower. When the victim was under duress or emotionally unstable, the murder was carried out. As far as I can tell, this shows that it is frequently exceedingly difficult. Judges and juries are more likely to find signs of duress or mental strain in female murderers than in male offenders under these circumstances. Compared to male criminals, most female criminal offenders are better able to express their emotional side, which gives the defence attorney an edge in presenting this mitigating circumstance even during the initial examination. Judges and juries are more likely to find signs of duress or mental strain in female murderers than in male offenders under these circumstances. Compared to male criminals, most female criminal offenders are better able to express their emotional side, which gives the defence attorney an edge in presenting this mitigating circumstance even during the initial examination. There are worries that gender prejudice may affect sentencing judgements despite the justifications for the gender differences in the implementation of the death penalty. Legal professionals and proponents of human rights contend that there is evidence suggesting that women are given lighter penalties than men for the identical offences. This prejudice may result from societal norms and assumptions that hold women to be more benevolent and less threatening than men.
In conclusion, the subject of gender and the death penalty is complicated and contentious and presents significant legal issues of justice, fairness, and equality before the law. The causes that contribute to the gender difference in the application of the death penalty must continue to be studied by legal professionals and policymakers, who must also seek to guarantee that the legal system functions impartially and equitably, regardless of gender.
Exploring the Gender Disparities in Capital Punishment: A Comprehensive Analysis
The use of the death penalty has always been a source of controversy. The difference in sentences for men and women is one of the most divisive features of the death penalty. Men are more likely than women to be sentenced to death in numerous nations, including the US. Important legal concerns about fairness, justice, and equality under the law have been brought up by this gender disparity. A thorough analysis is required to better understand the differences between men and women who receive the death penalty. The social, political, and historical settings that have influenced the gender discrepancies in sentencing should be examined in this analysis. It should also investigate all the potential contributing circumstances, including the type of crimes committed, the race of the offender, and the gender of the victim. The nature of the crimes committed is one of the main causes of the gender differences in capital punishment. Men are more likely than women to commit violent crimes like murder, which are more likely to carry the death penalty. Men are also more likely than women to commit crimes that are punishable by the death penalty, such as murdering a police officer or killing someone while being kidnapped or robbed. The defendant’s race is another element that contributes to the gender discrepancies in the death penalty. According to research, defendants of colour are more likely than white defendants to be sentenced to death. Due to the fact that males of colour are more likely to receive a death sentence than white women, there may be a racial prejudice in sentencing that contributes to gender discrepancies. Few academics have attempted to learn more about the crimes for which they were found guilty and why they were sentenced to death, as well as their lives prior to their capture and confinement, making studies on women on death row unusual. As a result, there is a lack of empirical information on women who are sentenced to death, which makes it challenging for activists to comprehend patterns in capital sentencing and how gender prejudice affects the criminal justice system. Researchers came to the conclusion that gender discrimination had helped women who were on death row. India has carried out 755 executions since gaining its independence. With the most recent executions, there have now been 759 unofficial deaths related to the Nirbhaya Rape Case. At the time of the research, 373 prisoners (excluding those in Tamil Nadu State) had death warrants outstanding, and 12 of those prisoners had previously received death sentences. The principles of punishment that underpin Indian criminal law combine deterrence and reformation. The criminal should be given a chance to reform even while the sanctions are implemented to create deterrent among the offenders. The courts must document the particular justifications they utilised when imposing a death sentence. The death sentence is a sanctioned punishment under a number of legislative Acts, including the Indian Penal Code of 1860.
According to the IPC, eleven offences are death penalty eligible. If you are proven guilty of murder, among other things. If you assisted a suicide by a minor or insane person, dacoity with murder, or a similar crime, you could be sentenced under the Army Act of 1950, the Air Force Act of 1950, the Navy Act of 1956, the Commission of Sati (Prevention) Act of 1987, the Narcotics Drugs and Psychotropic Substances (Amendment) Act of 1988, or the Scheduled Castes and Scheduled Tribes Act. The court has the power to impose a death sentence if it is necessary. Congress is now debating the subject of judicial independence. The Supreme Court has wavered and rendered numerous opinions on death penalty-related matters over the past 25 years. In the case of Mohd. Chaman, the court observed that consistency in the use of judicial discretion is virtually impossible. First of all, it is impossible to measure someone’s level of guilt. Second, there are countless, unanticipated, and unpredictable variances, making it impossible to categorise criminal situations. This designation means that the procedure of punishment will no longer be judicial. Last but not least, such consistency or discretion in sentencing is a policy matter that belongs to the legislature and is independent of the duties of the court. Following the 1973 amendments to the Criminal Procedure Code, death sentences are now the exception rather than the rule. As a result, the death sentence is only used under special conditions, as stated in Article 354(3) of the Criminal Procedure Code. The Supreme Court of India upheld the legality of the death penalty in India in Bachan Singh v. the State of Punjab in May 1980, but a five-judge bench also established a stringent sentencing framework, requiring sentencing judges to impose the punishment only in the rarest of rare circumstances. Courts must define the “rarest of rare concept” in the Bachan Singh case in order to consider aggravating and mitigating circumstances while determining whether the death penalty is an appropriate punishment. The rarest of rare framework was expanded upon and an attempt was made to explore the concept of the rarest of rare in 1983, three years after Bachan Singh v. State of Punjab. It was Machhi Singh v. State of Punjab in that case. In the Bachan Singh case, the Supreme Court’s suggested sentencing guidelines were updated and reemphasized. The two issues that needed to be resolved before applying the death penalty in certain cases were outlined by the court. Was the crime done so horrible that no other punishment would suffice? The second query is whether these facts support the use of lethal injection even after accounting for the mitigating factors. Judges are required to compile a balance sheet that analyses the aggravating and mitigating characteristics of the offence and the defendant before choosing between the death penalty and a life sentence.
On the other hand, the Supreme Court decided that the death sentence may be used in situations where the general public is outraged and expects the courts to impose the death penalty. It then listed five circumstances in which the death sentence is appropriate.
What happened when the crime was committed?
1 The motive behind the criminal act: It is a crime of great severity when a murder is carried out in an egregiously gory, grotesque, diabolical disgusting, or severe manner that incites the community to retaliate forcefully and furiously. Murder performed for a goal or purpose that displays absolute depravity and meanness.
- The motive behind the criminal act: Murder performed with a goal or intent that shows utter depravity and meanness
3 The nature of the crime: a murder that provokes social outrage
- The gravity of the crime: Numerous murders of a family or multiple members of a specific caste, community, or region, and
5v. The victim’s status
mourning the loss of an innocent child, a helpless woman, an elderly or disabled person; the murder of a victim by a killer who is in a position of power or dependence; or the killing of a public figure who is widely admired and respected by the community for the services he has rendered and who is killed for reasons other than personal gain. It adopted a “crime-centric approach to the sentencing process” and highlighted the criminal aspects. The Bachan Singh ruling mandated that the death penalty only be applied when life in prison is anticipated, which increased the frequency of death sentences. The rationale for the death sentence based on the manner, nature, and seriousness of the crime had been permitted to be applied without taking the circumstances of the offender into account as a result of this precedent and subsequent lines of cases. For the 1990s murders of numerous children, the Indian Supreme Court executed Renuka Shinde and Seema Gavit[8] in 2006. For offences covered by Section 302 read in conjunction with Section 120B of the Indian Penal Code, the appellants received death sentences. Their clemency plea was denied in 2014, eight years after they were sentenced. It is clear that there has been an unacceptable amount of delay since the two women were initially given death sentences in 2001. To further comprehend why the death penalty does not function from a gender justice viewpoint, we need to examine how gender influences crime and punishment for women on death row. In the Amroha murder trial, Shabnam and Salim were convicted responsible for the deaths of seven Shabnam family members in 2008l9]. The event also involved the strangulation of a 10-month-old baby. The awful atrocities were the result of a planned and carried out illegal love affair. Both defendants were found guilty by the Sessions Court in July 2010 and given the death penalty, according to court records. The Supreme Court upheld the death penalty on the same day, May 15, 2015. Within six days, execution warrants for the prisoners were issued. On May 27, 2015, the Supreme Court ruled that the arrest warrants were invalid because the offenders had not pursued every available legal remedy. Death warrants can only be issued under specific circumstances, and this decision was significant because it outlined those conditions. The death sentence was upheld by the Indian Supreme Court in 2015 and 2020, and the woman’s appeal for mercy was denied by then-President Pranab Mukherjee in 2016. The review verdict for Shabnam and Salim is still pending. If Shabnam is found guilty and executed, she will be the first woman to die in India since 1955. It is still too soon to predict the result. The fact that all three courts have upheld the death penalty indicates that the “nature of the offence has definitely played a substantial role in determining sentence allocation. The fact that this sentence was imposed shows that it is based on a narrow view of justice that cannot accept the notion that society as a whole carries some of the responsibility for the crime. Both the Shinde-Gavit and Shabnam-Salim instances show how cultural attitudes towards women and criminal behaviour are structurally linked. The Supreme Court had to make a decision regarding the punishment for a woman who had been found guilty of multiple offences, including robbery and attempted murder, in the case State of Himachal Pradesh v. Nirmala Devil101. The 40-year-old woman lived with her three young children. According to Justice Sikri, who emphasised that gender was not always a mitigating factor globally, female offenders must be punished equally with male offenders. In this instance, the Supreme Court upheld the lower court’s two-year sentence due to the defendant’s motherly obligations. He went on to argue that, rather than applying a blanket norm, gender should be evaluated as a mitigating element on an individual basis because compassion is rendered useless when a woman joins a terrorist organisation. The application of the death penalty to women in India after independence has exposed the apparent gender prejudice in not treating male and female offenders equally. This approach, while rational, ignores this fact. Another instance of the Supreme Court showing unjustified clemency to a female offender is in the case of Ediga Anamma v. State of Andhra Pradesh[11]. The Supreme Court’s decision to commute the young woman’s death sentence to life in prison was made by Justice V.R. Krishnalyer. The suspect used a chisel blade to kill the victim and the child. Despite the fact that courts must make a difficult decision, the judge emphasised the lack of complete provisions and adequate equipment for gathering and presenting the perpetrator’s social or personal data to the extent required in the judgement of the punishment. In this case, the court considered mitigating factors such as the mother’s young age—24—the fact that she had never engaged in sexual activity, and the fact that she lived with her only child, who was ten years old at the time. The authors contend that the court erred by overlooking a crucial issue. Jealousy served as the driving force behind a cold-blooded double homicide.
Included as victims were a little child and his mother, which ought to have been enough to persuade the court to execute the defendant. Because judges’ minds are deeply ingrained with feelings of protectionism and paternalism in the majority of these cases, women who commit crimes do not receive the death penalty. Pathological and anti-abolitionist explanations disregard and erase the links between gender and crime as well as fundamental socioeconomic difficulties. Because criminal intent and deed go hand in hand with social influences, it is challenging to distinguish the criminal from the crime. Crimes need to be seen less as something unusual and more as a normal part of life, with gender playing a significant role.
Conclusion
In conclusion, the subject of gender and the death penalty is intricate and multifaceted, requiring thorough examination. The gender differences in the use of the death penalty create significant legal issues of justice, fairness, and equality before the law. There are worries that gender prejudice may affect sentencing judgements even if men are more likely than women to receive the death penalty. explaining why women are killed at a disproportionately low rate and the effects of the death penalty on women. Statistics on women on death row were shown to share a problem with those on men’s death row by reviewing information from 1973 to the present. After examining capital punishment laws in 125 countries, the study discovered a statistically significant relationship between the abolition of the death penalty and women’s legislative participation. The different aspects that contribute to this issue, such as the type of crimes committed, the defendant’s race, and the gender of the victim, must be included in a thorough investigation of the gender discrepancies in capital punishment. Legal professionals and decision-makers must collaborate to ensure that the legal system functions impartially and fairly for all parties, regardless of gender, and to address any potential biases. This study continued until 2007 after a new conversation about discrimination against women and inequalities in the death penalty system started in 2005. We can examine the death penalty from a different perspective by using a sex blas study. There is also a focus on how the gender of the murder victim influences the decisions and sentences of death row inmates. The study was conducted to determine whether similar disparities exist in Japan, a nation that executes people on the spot. American women were less likely than American men to embrace the death penalty. application of the death penalty in a sexist manner, violating the right to equal protection. In the late 1800s and the early 1900s, there was a concerted effort to abolish the death penalty. According to a study, there exist gender biases in state capital legislation when it comes to women’s interest in the law and the death sentence. There has only been one execution of a woman since executions first started in 1977. Furthermore, addressing gender disparities in the death penalty is just one part of a larger initiative to change the criminal justice system in order to make it more just and equitable. More people are becoming aware of how the criminal justice system disproportionately affects low-income communities, communities of colour, and other marginalised groups. In order to ensure that the legal system functions equally for everyone, regardless of gender, ethnicity, or socioeconomic background, reform efforts should concentrate on correcting systemic inequalities.
In the article, the supporting data for the female victim effect are reviewed. It discusses and contrasts a number of situations involving men and women. Studies have revealed that culture and gender have an effect on the use of the death penalty. In extremely rare cases, the guilty party might receive the death penalty. A person’s life or freedom cannot be taken away from him without following a legal process, according to Article 21 of the Indian constitution. Up to 140 countries have now abdicated the death punishment. To guarantee that the legal system functions impartially and fairly, it is crucial to keep researching and correcting gender discrepancies in capital punishment. To address any potential prejudices and advance a more equal and just criminal justice system for everyone, legal professionals, lawmakers, and human rights advocates must collaborate.
Reference
https://deathpenaltyinfo.org/news/studies-gender-bias-in-death-sentencing