In the second instalment of this three-part series on the death penalty, Bar & Bench's Aamir Khan explores the experiences of those who meet death row prisoners and their families for mitigation and research purposes.

It is not easy to get death row prisoners to talk about feelings they might tend to naturally suppress. It requires a lot of effort on the part of lawyers and mitigation experts to have constant conversations and map the life history of a prisoner. And to abandon the rapport built over time and move on, can be challenging for people on the frontlines. 

Etched in memory

Pratiksha, a lawyer who has been visiting prisoners for the last two years as part of her work, recollects meeting a death row prisoner in Maharashtra who was out on parole after his sentence was commuted.

“I went to his house, I sat with him for many hours. I met him over two days and you come in with this idea of how death row prisoners are. So he had been commuted, but he'd been on death row for quite some time. You have this unidimensional idea of how death row prisoners are supposed to be — all consumed by death — defined by this one moment in their lives.”

While in jail, he had written poems in Marathi, his mother tongue. Pratiksha recollects that one of his poems was about his niece when she was a child. 

When she offered him a copy of his poem, the man got emotional as his niece had grown up and was now a mother. Facing the truth of having lost all those years and not seeing her nice grow hit him hard. 

To understand the trials and tribulations of death row prisoners, experts often enter a deep realm of emotional conflict. At the same time, they have to devise methods to ensure that it is not merely an extraction exercise. 

Shreya Rastogi, a lawyer who heads the litigation work at Project39A, outlines the “ethical conundrum” when people are made to relive the times of their lives they might have suppressed. She underlines the need to apply techniques used in clinical interviewing so that prisoners are not left in a vulnerable position. 

Some years ago, she met a death row prisoner whose family had thrown him out on the streets after their house was set on fire as vengeance for his crime.

Rastogi had scheduled a meeting with prisoner’s old parents outside Arthur Road Jail in Mumbai. Under a heavy July downpour, Rastogi saw a woman in tattered clothes walking back and forth across the road. The woman turned out to be the prisoner’s mother. 

“Then we saw the husband. They told us that they did not have a place to live. The clothes on their back is all they had,” she recalls.

When the meeting was over, and Rastogi was about to leave, the couple offered her tea. Rastogi was surprised to see someone without any possessions offering whatever little they could.

For Shruti, a mitigation investigator who regularly interacts with prisoners and their families, a response to a birthday card she sent to a prisoner made her realise how much small things could mean to people dealing with rejection.

“She wrote back a letter saying no one has ever sent me a birthday card ever. And she said the moment she received the letter, everyone in jail thought 'ki main aaj release ho rahi hoon kyu ki main itna khush thi' (others thought I was getting released because I was so happy).”

Facing difficult feelings

Amid these light-hearted incidents, lawyers and mitigation experts often experience unpleasant moments, especially when they have to break the news of a case's dismissal, or confirmation of a death sentence, or a loss of a family member to death row prisoners.

Rastogi says that such conversations can “shake you”. 

“It could also be things in their personal lives like someone has passed away. So there are a couple of these moments that I don't think I'll ever forget. Then of course, the cases which resulted in executions. I think those ones for sure are very difficult to forget the night before and the morning after,” she says.

Pratiksha has felt angry in situations where the fight to preserve a life, let alone the rehabilitation of a commuted prisoner looking for closure, does not even make it to the discourse.

“What is the kind of support I can provide? The least you can do is hear them out and see where all you can step in, possibly. But I mean, it does take a toll on me, and varies from person to person, but it does take a toll on you...nothing prepares you for just the fact of people not caring at all,” she emphasised. 

During the second wave of the COVID-19 pandemic, like many others, Shruti felt unproductive. Even during such unprecedented times, letters from prisons continued to arrive.

“There is an awareness of what's happening in the outside world. They knew that people were dying. They know that it was grim. After the second wave, we got a series of letters asking us if things are bad in Delhi. They asked how we were and if we were doing fine. We told them that our offices were shut because of the second wave…So I guess it definitely colours the way you look at your problems,” she says. 

The hanging of the December 2016 gangrape convicts impacted the way other death row prisoners viewed their own cases. Shruti had to explain to her clients the difference in the nature of the cases and why they shouldn't be influenced by the outcome of that case.

“For a lot of our clients actually, at least in the recent prison visits when I met them when they'd come out on parole, a lot of them actually said in 2020, when the December 16 convicts were hanged, they were scared. That did something to them. And that was a point when it felt like this is real and this could happen,” she said.

One of the prisoners Shruti interacted with during her mitigation meetings was commuted to a fairly long jail sentence. The prisoner was finding it tough to face the reality of losing her parents by the time she came out of jail.

“It is very difficult, because the nature of the work is such that I do start imagining them as friends at various points because there is always a certain moment in the interview...see the distance between you and them cannot vanish, but it shrinks at various points. You start feeling 'this is exactly like my friend' or 'what this client said is very similar to what I have been told by a friend'...there are moments of relatability,” she says.

A death row prisoner who had spent 18 years in jail before walking out, struggled to come to terms with the changes he saw himself going through. Rastogi feels a sense of attachment to the case, and to the idea of justice that could have been meted out.

Another prisoner got so emotional after walking out of the prison on parole that he couldn’t respond for a few seconds.

“He almost broke down and said he had forgotten how to cross the road. He said he was very careful with everything as he was on parole,” remembered Shruti.

The debate on adopting a restorative approach in death penalty cases as opposed to a retributive one has increased in the last few years. The Supreme Court recently referring the point of “meaningful opportunity” to the death row accused can be seen as a step in this direction.

Restoring the balance

For mitigation experts, talking to prisoners can make them feel like they are restoring humanity and balance in the overall scheme of things.  

“Sometimes you feel like you are doing this because you are kind of somehow restoring the humanity that the entire legal system has taken away from them, because of the way they're treated every single day...they've been deemed death-worthy people, condemned to die. But in interacting with them, you become more human. They restore that humanity,” said Rastogi.

Pratiksha reminds us that many of the people who are facing the gallows come from backgrounds and circumstances that did not afford them the opportunity to be better.

“Think about what makes us good human beings. It's guidance from our parents. It's having friends we can rely on. So how do we punish people who haven't had that, and not necessarily for reasons of their own creation?"

[Read Part I of the series]

A man who spent considerable time as a death row prisoner for a murder he did not commit speaks about his experiences in the final part of this series.