This article compares and contrasts the United States and Indian criminal justice systems’ roles in containing dissidence and use of the death penalty. The US, a country with 3,108 inmates on Death Row, holds 25 per cent of the world’s overall prisoner population despite only constituting 5 per cent of the world’s population, and over half of the federal inmate population have been convicted of drug-related offences. The author argues that the failed US War on Drugs acts as a smoke screen for a war on the underclass. In India, by contrast, the criminal justice system and the War on Terror are used, inter alia, to intimidate Kashmiri dissidence as acutely demonstrated in the controversial execution of Mohammad Afzal Guru. Rather than addressing class and ethnic concerns in order to reduce crime, the US and Indian criminal justice systems have, instead, resulted in the aggravation of violence and maintenance of large prisoner populations.
For figures showing that the US incarcerates 716 citizens per 100,000 of the national population, see http://www.prisonstudies.org/world-prison-brief. By contrast, India incarcerates only thirty citizens per 100,000 and ranks 217th of the 223 countries represented in the table.
In June 2012, Indian President Pratibha Patil, near the end of her five-year term as president, commuted the death sentence of as many as thirty-five convicts to life, including four on the same day, which created a storm of protest because many of those pardoned had raped and murdered. See Himanshi Dhawan, ‘President Pratibha Patil goes on mercy overdrive’, The Times of India (22June2012), available at: http://articles.timesofindia.indiatimes.com/2012-06-22/india/32367604_1_pardons-mercy-petitions-molai-ram.
In a criminal case in Oklahoma, only the jury can impose a sentence if there is a jury trial. Thus, it is seen that similar crimes can result in vastly different sentences; the range for Manslaughter First Degree, for example, is four years to life. Further, judges can choose to run sentences for multiple crimes either concurrently or consecutively. One of my clients was acquitted of murder but convicted of four counts of suborning perjury; the judge ran those sentences consecutively, for a total of eighty years.
6.
Twenty-one of the fifty states have sentencing guidelines, but in only four are the guidelines mandatory or in any way restrictive of judicial discretion. Nor is parole abolished in those states. See the statistical analysis and substantive comments on the Pew Trusts website, available at: http://www.pewtrusts.org/uploadedFiles/NCSC_Sentencing_Guidelines_profiles_July_2008.pdf.
7.
Title 28, United States Code § 2254. This is applicable to almost all death row inmates in the United States, as relatively few (fifty-nine) are on death row for federal crimes. The Death Penalty Information Center (DPIC) holds more information about the figures on those on death row, available at: http://www.deathpenaltyinfo.org/changes-federal-death-penalty-statistics. Since the reinstatement of the federal death penalty in 1988, seventy defendants have been sentenced to death of whom three have been executed and eight have been finally removed from death row. Three other defendants have had a jury recommendation for death, but no death sentence by the judge. Two of those three have now received lesser sentences. The third (John Wayne Johnson) has not been sentenced and is not on death row. See:www.deathpenaltyinfo.org/federal-death-row-prisoners#list.
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An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim either resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the US; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. For a comprehensive but accessible discussion of the emasculation of habeas corpus in the United States, see Lincoln Caplan, ‘The withered writ’, The American Prospect (15July2013), available at: http://prospect.org/article/withered-writ.
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‘The only engine which meets all the requirements [as to the meaning] is the lock on St. Peter’s door . . . It was two-handed in the sense of having two purposes, to admit the worthy and exclude the unworthy.’ Arthur TurnerW., The Journal of English and Germanic Philology (Vol. 49, no. 4, 1950), p. 564.
10.
For inclusion on DPIC’s Innocence List, defendants must have been convicted, sentenced to death and subsequently either been acquitted of all charges related to the crime that placed them on death row; had all charges related to the crime that placed them on death row dismissed by the prosecution; or, been granted a complete pardon based on evidence of innocence. The DPIC’s Innocence List is available at: http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row.
