When judges award the death penalty, how relevant is it for them to know about an accused person’s life, their social milieu, education, family circumstances and their personal traumas? What exactly does it take to obtain information about potential mitigating circumstances and how much time is needed to do so?
The top judicial minds of this country may need to deliberate on these questions in light of the September 19 Supreme Court judgment. In their verdict, the three judges referred to a five-judge Constitution bench the crucial matter of framing guidelines for courts to follow when examining potential mitigating factors for convicts faced with the death sentence.
The judges said that “...it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity” to the accused person facing the death penalty to place information about mitigating circumstances on the record.
Today, the hurried hearings on a sentence, leading to the imposition of the extreme penalty of death, are a travesty of justice. This has been very clear to us, with our experience investigating and presenting such details in court.
The process of investigating mitigating factors and life circumstances of a convict requires considerable time. For the process to be effective, there must be greater access to interview prisoners whose life histories need to be investigated. The process requires building rapport with the accused person and documentary proof to be collected.
Confusion in death sentencing
Under the Indian death penalty law established by the Supreme Court in a verdict in 1980 in the case of Bachan Singh vs the State of Punjab, a court can impose a sentence of death only after assessing mitigating factors of the crime to determine whether the alternative punishment of life imprisonment is “unquestionably foreclosed”.
In practice, lawyers representing clients facing the death sentence often resort to merely presenting a checklist of mitigating factors for the court during sentencing hearing without contextualising why such factors may be relevant to the person facing the gallows. Research shows that human behaviour is a product of a complex interplay of individual and social factors.
The absence of such a holistic approach, which is due to the lack of its recognition and explanation in law, often results in the excessive imposition of the death sentence. This year alone trial courts in India have sentenced 128 prisoners to death, according to the data gathered by Project 39A.
Who are mitigation investigators?
If India is to devise a just approach to the death penalty, it should consider incorporation mitigation investigators into the process. Mitigation investigators are specialists trained in the social sciences, such as sociology, psychology, social work and criminology, who work with lawyers representing death row convicts or those at risk of being sentenced to death. Their primary role is to investigate the life circumstances of such individuals and present mitigating factors before the court.
These circumstances could include information about their family life before arrest like family structure and dynamics, socioeconomic deprivation, details of their access to education and healthcare and other opportunities, mental health concerns and exposure to trauma, abuse and violence. For instance, if an individual has experienced childhood neglect, then the mitigation investigator would contextualise it to the person by exploring reasons for the lack of parental engagement, understanding its possible consequences on a child’s psyche and their thinking as adults.
This exercise needs considerable time to conduct interviews, analyse information and present these findings in court.
Constraints of the law
The limited imagination of capital defence as being restricted to only a lawyer has severely constrained the ability of the law to appreciate important aspects of a person’s life. Unlike in the United States, Mitigation investigators in India have not been institutionally recognised as part of the defence team in death penalty law except in a few ad hoc orders of the Supreme Court in specific cases.
As a result, most states do not allow access to non-lawyers to conduct interviews with the accused. Even a full recognition of mitigation is absent in the law, though the Supreme Court in May demonstrated a more robust understanding in the case of Manoj vs State of Madhya Pradesh ruling that the lawyers on behalf of the State and the accused must collect and present in the court additional information ranging from early family background to social behavior, mental ailment, alienation of the individual etc. in a time bound manner.
Constraints of the field
Obtaining crucial information from the accused people about their lives and how they perceive the world requires long and sustained contact, to gradually build a rapport and allow space for sharing information that may be sensitive and intimate.
Often, these conversations trigger unpleasant thoughts and may potentially cause trauma again. This necessitates holding these interviews in conditions that are conducive to such conversations, given that the person is not only required to share information with a stranger – the mitigation investigator – but knows that such information will be presented to a larger audience in court.
There are similar problems working with the families of death row convicts. With a long period of time having elapsed, families find it hard to recall information about the infancy or childhood of the accused. Repeated interviews need to be conducted with the families to get crucial information.
In some cases, wherever the mitigation investigator is able to access old family photographs, they are used during the interviews to get more information about the early life of the accused. But often, due to the impoverished conditions in which many of these families live, proper documentation is rare.
Data on the demography of the death row population indicates that an overwhelming majority are from socio-economically vulnerable and marginalised sections of society. A large section of this population remains undocumented, making it difficult to validate the information collected.
This becomes especially difficult in cases involving a history of physical and mental health issues that have had a significant impact on the individual. It is important to triangulate and verify information through multiple detailed qualitative interviews with the accused and other informants, and engage experts.
Constraints of ethics
While these interviews are being conducted, there are ethical challenges at play as well. While mitigation investigators are involved in providing effective representation to the accused during sentencing, it is also important to give a full disclosure to everyone they interview about how this information will be used.
Families and others interviewed for mitigation must be supported in informed decision making with respect to their involvement in the process. Mitigation investigators must also be able to understand cultural beliefs and practices and keep personal biases against certain crimes or indeed against certain communities or cultures at bay.
While conducting mitigation, the investigator is presented with an enormous amount of information about the life of a person facing the gallows. From our experience, we know it is impossible to find circumstances that place the individual as solely responsible for their actions.
This must force the system to un-see these individuals as people who made “bad choices” unhindered by their circumstances and instead see redemption and human spirit as something that should be nurtured rather than extinguished.
The authors are Mitigation Associates at Project 39A, National Law University Delhi. Project 39A was involved in the proceedings that resulted in this reference.