Death Penalty Series Part I: Walking a tightrope

While the debate on whether India should still have the death penalty on the statute books rages on, the multi-layered processes involved in saving someone from going to the gallows remain largely unnoticed.

This series on death penalty attempts to bring to the fore the strategic processes and personal experiences of those providing legal representation to condemned prisoners, and even the tale of a man who spent six years on death row before he was acquitted.

In the first of this three-part series on the death penalty, Bar & Bench's Aamir Khan takes a closer look at what goes into providing effective representation to death row prisoners.

Maitreyi Misra said it was one of the happiest days of her work life when a court used terms like “traumatic events” and “adverse childhood experiences” in a death penalty case. For someone who has been advocating for a law to recognise the grim realities of convicts on death row, the progression felt rewarding.

Misra leads the work on mental health, criminal justice and mitigation at Project 39A, National Law University, Delhi. She and her colleagues have been actively working towards providing legal assistance to those condemned to the death penalty.

The efforts of the organisation recently prompted the Supreme Court to examine the issue of mitigating circumstances of death row prisoners in India. This recognition to provide a proper mitigating opportunity to death row prisoners has been Project39A’s areas of focus for many years now.   

Poverty as a function of crime: A chasm of privilege

In Misra's experience, people on death row have by and large led lives different to hers, or those of people in her milieu. 

“We also need to understand that we come from a position of privilege,” she says.

Her first exposure to the lives of death row prisoners was through prison visits and meeting their families for a field project called Deathworthy. The project focused on empirical data on mental illness and intellectual disability among death row prisoners in India.  

"You have seen poverty, you have seen homeless children around you; you have seen homeless children getting beaten up around you, but you have never really confronted the reality of what it feels like when you are a child to be left with no parents, so that was a bit of a difficult realisation,” she says.

There are different struggles faced by prisoners and their families. Sometimes there ties between a death row prisoner and their family are strained. On many occasions, the prisoner has come to Project39A at a belated stage or has had poor prior legal representation.

"Such complexity and variation is wide across the spectrum – prisoners hate their families, families hate the prisoner, prisoner doesn’t have a family — all sorts of complexities of human relationships have to be navigated. And it falls on the people on the frontline to navigate it. And if you don’t navigate it, you can’t do the job you are meant to do," said Dr Anup Surendranath, executive director Project39A and professor at NLU Delhi.

Misra points out that though people discuss poverty as a social issue, they don't discuss how it affects a prisoner's adult life.

“I think what it made me realise personally was our own complicity in violence as people who have looked away, as people and the State who haven’t paid sufficient attention to neglected children, abused children. When we talk about crime as a social phenomenon, you realise how our own role in turning away from certain realities contributes to crime being a social phenomenon,” she says.

A fine balance between keeping distance and going deep

One of the crucial aspects of the trust building process involves maintaining a certain degree of distance while having emotionally deep conversations with death row prisoners and their families. 

Surendranath views this scenario from the prism of the requirement in a capital punishment case vis-a-vis the dependency a prisoner may develop.

“And one can see over time, the good or bad of that requirement, in the sense that the risk is becoming that you are their support system for everything, and that is a risk. But in a situation like this, when you are representing a person in this situation (death row), the conversation to be had, and which is not being had, is if there is a broader ethical commitment to your client…can you do your job of representation in a case like this, without developing that sense of trust? And the kind of details you are going into as required by the case… it is a confusing space,” he says. 

Misra sees it as an imminent human response and a relationship where one can only listen and not act, owing to the ethical code.

“How can you not develop that relationship with someone to whom you are speaking with every week? Who is telling you the difficulties of their lives. Their families are telling you all sorts of problems. Problems you can’t even interfere in, because of what your ethical code is, but you listen,” she says.

Over time, listening to prisoners express some of their biggest worries also places an emotional burden on mitigation investigators and even perhaps the lawyers who represent them in courts. 

Senior Advocate Rebecca John, one of the leading lawyers in criminal law litigation in India, has seen the criminal justice space evolve in the last three decades.

She underlines a sense of “heightened tension” while representing someone who could potentially be sentenced to death or has already been awarded the death penalty.

“Does it have a long term impact? I think we live in a dark space as it is because we are criminal lawyers - constantly appearing for people whose liberty has been taken away, who are incarcerated, very sorrowful tales of their families...so the space in which we operate is very dark. On top of it, if one of the people we represent has been awarded the death penalty, particularly for some of us who are ideologically opposed to death penalty, it is very difficult,” she says. 

John, who represented one of the death row convicts in the 2012 Nirbhaya gangrape and murder case, said that it could all be very well to say one should remain neutral, but looking at people knocking at the doors of courts at 2 AM or 3 AM reflects the basic human desire to preserve life and do the best one can. 

“Ultimately, there is the satisfaction that you did the best you could, but the process has taken over, and you have no control. But it puts you back, it does take a toll on you,” she explains.

For Misra, it feels like a rollercoaster of emotions, and often a deeply traumatic space into which one needs to refrain from venturing too deep.

"That becomes your priority. So you don’t necessarily even deeply process your feelings and it just piles on, because you keep working with more and more clients who are facing the same conundrum.” 

However, she feels more resilient now.

“It has made me in a good way. It has made me aware of human nature, in a way that books would not necessarily reveal. It has made me much less judgmental. It does change you as a person,” she says.

Building trust with the abandoned

Lawyers and mitigation investigators, whose work involve prison visits and talking to families, often wonder how much information would suffice and be relevant in a court of law, especially when a lot of these conversations involve going deep into the prisoners’ childhood and developmental history.

After a Supreme Court order this year, mitigation investigators are allowed to speak directly with death row prisoners. For accuracy, there has to be constant cross checking of information.

“We know through various studies, psychology or mental health field that certain experiences in a person’s life are important and can have long term consequences. Or health or behaviour or the way you perceive the world — so you necessarily need to collect that information," Misra points out.

There are cases where experts have found death row prisoners suffering from intellectual disability, a factor that can determine how application of death penalty is viewed in India.

One of the challenges that lawyers and mitigation experts face during their interviews with prisoners or their families is the lack of trust; people who have been alienated might not be willing to share some of their deepest, closest secrets with strangers.

Building trust to understand the circumstances of a convict, with a view to using their experiences as mitigating factors, becomes a time and resource-intensive exercise.

A key finding of a 2016 study conducted by Project39A (then known as Centre on the Death Penalty) underscored the lack of interaction between lawyers and prisoners or their families who face alienation socially and from the criminal justice system. 

For proper and effective legal assistance, it is sometimes imperative for lawyers to adopt an immersive approach to understand the influence of different circumstances on the various stages of a prisoner’s life. 

How and why prisoners and their families should trust complete strangers who claim to provide legal assistance for free of cost, is a challenge, Surendranath explained. 

“Imagine somebody coming and asking you to bare all feelings, secrets, experiences — good, bad, ugly — of your life just because they came and met you once. Nobody is going to do it. Doesn’t matter if you say I am your lawyer, I want to represent you in the Supreme Court, I am going to do this. For you to do that, you need to build that trust," says Surendranath, outlining that death row prisoners are largely those who have experienced abandonment at various levels and intensity.

According to Misra, writing inland letters to prisoners and their families has helped the team in the trust building process. The practice involves writing letters to prisoners not only at the time when there is a development in the case, but also otherwise.

Prisoners receive story books, and conversational letters, inquiring and asking about their opinion, offering a sense of validation.

“Why is their opinion important? Somebody is having a conversation with them, and asking them about their opinion. It is the last thing anybody would think of doing — aap kya sochte hain iske baare mein? Aapki opinion ki validity hai (What do you think about this? Your opinion matters),” says Misra. 

The feeling of being heard, not as somebody who needs pity, but just as another human, has gone a long way in building trust for Misra. Sometimes, giving an honest, open, frank answer to prisoners makes them open up more and more, she says.

Is commutation a victory?

Surendranath said that while the world views death row prisoners as “demons” or “shameless people”, they are the ones who grapple with the idea of how they are perceived - a complicated terrain for an external intervenor in that scenario - especially when cases end in commutations and prisoners continue to be jailed.

According to official data from the last three years, death penalties in 132 cases were commuted to life imprisonment. But viewing these cases as victories can depend on individual perspectives. 

Although Surendranath's colleagues may not view commutations by the Supreme Court as victories, he feels that at his position, these are all strategic victories.

"Every death sentence that is not confirmed is a strategic victory to show that the Supreme Court is lesser and lesser inclined about the death penalty. But there is also a very human side. Because my colleagues are people who have spoken to these people endlessly. For them, a sentence which says — tum 30 saal aur band raho (remain imprisoned for 30 more years)— they are like what the hell is this? That this is not a victory for the client,” he says.

Shreya Rastogi, a lawyer spearheading the Project39A's death penalty litigation work, points out that the commutation of a death penalty often feels like one has just settled. 

“For that person, it's equivalent to a punishment. That's one thing. The second is also, because you would've dug up so much on the case, you know of the numerous injustices that have happened,” she says. 

The second part of this series will showcase the experiences of those working on the frontlines for effective mitigation, be it a courtroom or a prison cell.