The Impact of Dehumanising Language on Death Penalty Discourse

By Ashna Devaprasad

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Summary:

The article focuses on:

•  The normalisation of dehumanising language in death penalty trials

•  The adverse effects of using such narratives vis-à-vis the application of capital punishment

•  The need for empathetic judging in capital trials

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Introduction:

Over the years, courts have been increasingly employing dehumanising language in

death penalty cases; a practice that has led to the ‘othering’ of capital defendants.

Studies show that the death penalty disproportionately affects individuals belonging

to disadvantaged classes and communities.[1] This article argues that the use of

dominant, discriminatory narratives inside the courtroom perpetuates misconceptions

about capital defendants and validates their cruel treatment. The article highlights

how the prolonged use of dehumanising language and emotionally charged rhetoric

in capital trials violates the human dignity of persons on death row, denies them the

right to a fair trial, and increases the likelihood of harsher, arbitrary sentences.

Use of discriminatory language:

Research from across the world reveals how capital punishment is marred by the

prevalence of wrongful convictions, racial and socio-economic discrimination,

inconsistent precedent and serious concerns about the right to a fair trial.[2] The

inherent biases informing its application exacerbate existing bio-psychosocial

vulnerabilities, making persons on death row powerless beings in existential limbo,

deprived of opportunities and meaningful lives.[3] For the longest time, courts have

normalised the practice of referring to capital defendants as ‘beasts’, ‘cold-blooded’,

‘monstrous creatures’, ‘sex-perverted assailants’, ‘animals’, ‘non-reforming savages’,

‘demons beyond redemption’ and a ‘menace to society.’[4] These animalistic

portrayals reduce them all to one meaningless, homogenous mass and deny them of

their basic human dignity.[5]

Dispassionate language in judicial decisions also allows stakeholders in the criminal

justice system to evade accountability for their failures to address structural and

systemic flaws in sentencing and correctional institutions. Therefore, it is no

coincidence that countries with some of the highest execution rates also have

draconian punishment policies, neglected prisons and high rates of custodial

violence.[6] The use of linguistic and racial profiling further aggravates the problem.

These techniques allow investigating agencies and witnesses in criminal cases, to

draw inferences about the identity of suspects based on their manner of speech,

dialect, race, and ethnicity. Although widely used, such methods can rely on

stereotypical labels that may explicitly or implicitly influence judicial decisions.[7] As

a consequence, the burden of the State is erased, and capital defendants become

the victims of an apathetic and inherently biased justice system. They are deprived

of uniquely human attributes, following sentencing. For instance, choice, self-

determination, and the right to live and participate as members of a community

capable of fostering social relationships.[8]

Impact of dehumanising narratives:

Expressive language in death penalty judgments turns the discussion away from its

arbitrary application towards extra-legal considerations that focus on its symbolic and

communicative importance.[9] This results in commanding narratives that mix up

intuitive misconceptions with available evidence and runs the risk of distorting

objective facts.[10]

More broadly, the systematisation of such linguistic practices can significantly shape

public discourse on crime and punishment. As Professor Kennedy argues, the use of

the ‘monstrous offender’ label affects the public’s trust in the criminal justice system

by blaming ‘soft-hearted judges’ for being excessively concerned about the rights of

the offender and failing to protect the ‘neglected victim’.[11] The commutation of a

death sentence is perceived as “yielding to spasmodic sentiment, unregulated

benevolence and misplaced sympathy.”[12] As a result, two dangerous counter-

narratives have emerged: first, the misconception that the rights of victims must

come at the cost of the rights of defendant, second, the inclusion of public sentiment

as a legal manifestation of vigilante justice. For instance, recent judicial trends on

capital punishment in India use society’s ‘collective conscience’ as a justification to

award death sentences.[13]

Building empathy in judging:

The presence of mitigating factors shed light on how past life experiences or

traumatic relationships influence and contribute to future conflicts with the law.[14]

The effective presentation of mitigation evidence by defence lawyers and how courts

analyse this evidence often becomes the determining factor in awarding a sentence

of imprisonment over death. Presenting judges with comparative empirical data will

help them acknowledge differences in judicial temperament and the presence of

innate biases that affect their decision-making.[15] Infusing cognitive empathy in

judging presents an opportunity for a situational engagement with facts to debunk

misguided assumptions and avoid using discriminatory narratives.[16]

Taking steps to increase the diversity in the judiciary will also help overcome

empathic blind spots.[17] This means that appointing judges from a range of

personal backgrounds with divergent life experiences will inculcate a skill of

‘perspective taking’ by seeking assistance from peers to better contextualise the life

circumstances of capital defendants before interpreting mitigation evidence.[18] Most

significantly, judges must be trained to mandatorily engage with mitigation evidence.

This is because it helps humanise defendants within their unique social contexts and

understand how distinct personal backgrounds affect criminal culpability.[19] Courts

can then use this information to arrive at proportionate sentences, while

simultaneously countering demonic media sensationalism.[20]

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Author:

Ashna is a penultimate year law student at the National University of Advanced Legal Studies, Kochi, India with a keen interest in criminal justice policy and death penalty jurisprudence.

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Conclusion:

The continued application of capital punishment is irreconcilable with the idea of

human rights and reformative punishment. It goes against the very substance of

dignified treatment. Professor Bryan Stevenson rightly encapsulates the significance

of dignity in the context of capital punishment: Each of us is more than the worst

thing we have ever done.[21] The language of the law can be a powerful tool of

emotional expression. The use of dispassionate language is rooted in a common

fallacy that perceives the judicial decision making as a process divested of all

emotion. By making use of appropriate sociological research in the form of cognitive

and empirical interventions, judges can adopt empathetic and context-specific

judging. This will help them balance their emotions with legal considerations and

better guide their discretion in sentencing. At its core, the death penalty is oppressive

in many ways. By consciously excluding discriminatory characterisations and actively

participating in mitigation discourse, courts have the power to reconstruct these

narratives. Such a shift from dehumanising narratives to humanising discourses of

punishment is a crucial step towards discouraging vigilantism and ultimately

abolishing the death penalty.

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[1] Fact sheet: Death Penalty and Poverty. World Coalition Against the Death

Penalty. 2017. Available from:

http://www.worldcoalition.org/media/resourcecenter/EN_WD2017_FactSheet.

[accessed 10 December 2020].

[2] Justice Denied: A Global Study of Wrongful Death Row Convictions. The Cornell

Center on the Death Penalty Worldwide. 2018. Available from:

https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Justice-Denied-

A-Global-Study-of-Wrongful-Death-Row-Convictions.pdf [accessed 10 December

2020].

[3] Robert Johnson. Reflections on the Death Penalty: Human Rights, Human

Dignity, and Dehumanization in the Death House. Seattle Journal of Social Justice.

2014; 13(2): 589. Available from:

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1754&context=sj

sj. [accessed 10 December 2020].

[4] Milica Vasiljevic. G. Tendayi Viki. Dehumanization, Moral Disengagement, and

Public Attitudes to Crime and Punishment. In. Paul G Bain, Jeroen Vaes, Jacques-

Philippe Leyens. Humanness and Dehumanization [book on the Internet]. Hove:

Psychology Press; 2013. Available from: https://core.ac.uk/reader/17167153

[accessed 10 December 2020]. See also: Lubhyathi Rangarajan, SC’s 2019 Death

Penalty Record Is Not Popular View. Article 14. Available from: https://www.article-

14.com/post/supreme-court-s-recent-record-on-capital-punishment-goes-against-

popular-opinion [accessed 10 December 2020]; State v. Govindaswamy, Criminal

Appeal No. 149 of 2012; Rajendra Prasad v. State of Uttar Pradesh, 1979 AIR 916.

[5] Martha Grace Duncan. In Slime and Darkness: The Metaphor of Filth in Criminal

Justice. In Romantic Outlaws, Beloved Prisons: The Unconscious Meanings of

Crime and Punishment. [book on the Internet]. London: New York University Press,

1996; p. 121-122. Available from: https://www.jstor.org/stable/j.ctt9qg6p4 [accessed

10 December 2020].

[6] Amnesty International Global Report: Death Sentences and Executions 2019.

Amnesty International. 2020. Available from:

https://www.amnesty.org/download/Documents/ACT5018472020ENGLISH.PDF.

[accessed 10 December 2020].

[7] Abbie MacNeal. Katherine Fiallo. Alexander Jones et al. “Sounding Black”: The

Legal Implications of Linguistic Profiling. Northeaster University Working Papers in

Linguistics. 2019. Available from: https://cos.northeastern.edu/wp-

content/uploads/2016/07/MacNeal-et-al-2019.pdf. [accessed 10 December 2020].

[8] Robert Johnson. Reflections on the Death Penalty: Human Rights, Human

Dignity, and Dehumanization in the Death House. Seattle Journal of Social Justice.

2014; 13(2): 589. Available from:

https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1754&context=sj

sj. [accessed 10 December 2020].

[9] Susan A. Bandes. All Bathwater, No Baby: Expressive Theories of Punishment

and the Death Penalty. Michigan Law Review. 2018; 116(6): 907. Available from:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3152627. [accessed 10

December 2020].

[10] Lisa Kern Griffin. Narrative, Truth, and Trial. Georgetown Law Journal. 2013;

101: 285. Available from: https://core.ac.uk/download/pdf/62565963.pdf. [accessed

10 December 2020].

[11] Joseph E. Kennedy. Monstrous Offenders and the Search for Solidarity through

Modern Punishment. Hastings Law Journal. 2000; 51(5): 905-906. Available from:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=3414&context=hastings

_law_journal. [accessed 10 December 2020].

[12] Govindasami v. State of Tamil Nadu, 1998 (4) SCC 531.

[13] India: Death in the Name of Conscience. Asian Centre for Human Rights. 2015.

Available from: http://www.uncat.org/wp-

content/uploads/2019/05/deathinthenameofconscience.pdf. [accessed 10 December

2020].

[14] Craig Haney. Evolving Standards of Decency: Advancing the Nature and Logic

of Capital Mitigation. Hofstra Law Review. 2008; 36(3): 837-841. Available from:

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2620&context=

hlr. [accessed 10 December 2020].

[15] Terry A. Maroney. James J. Gross. The Ideal of the Dispassionate Judge: An

Emotion Regulation Perspective. Emotion Review. 2014; 6(2): 148-149. Available

from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2688718. [accessed 10

December 2020].

[16] Terry A. Maroney. James J. Gross. The Ideal of the Dispassionate Judge: An

Emotion Regulation Perspective. Emotion Review. 2014; 6(2): 148-149. Available

from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2688718. [accessed 10

December 2020].

[17] Jill D. Weinberg. L. Nielsen. Examining Empathy: Discrimination, Experience,

and Judicial Decision making. Southern California Law Review. 2012; 85(2): 347.

Available from:

https://www.researchgate.net/publication/289349078_Examining_Empathy_Discrimi

nation_Experience_and_Judicial_Decision_making. [accessed 10 December 2020].

See also: Thomas B. Colby. In Defense of Judicial Empathy. Minnesota Law Review.

2012; 96: 2001. Available from: https://www.minnesotalawreview.org/wp-

content/uploads/2019/07/Colby_MLR.pdf. [accessed 10 December 2020].

[18] Jill D. Weinberg. L. Nielsen. Examining Empathy: Discrimination, Experience,

and Judicial Decision making. Southern California Law Review. 2012; 85(2): 325.

Available from:

https://www.researchgate.net/publication/289349078_Examining_Empathy_Discrimi

nation_Experience_and_Judicial_Decision_making. [accessed 10 December 2020].

[19] Craig Haney. Evolving Standards of Decency: Advancing the Nature and Logic

of Capital Mitigation. Hofstra Law Review. 2008; 36(3): 837-841. Available from:

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2620&context=

hlr. [accessed 10 December 2020].

[20] Craig Haney. Media Criminology and the Death Penalty. DePaul Review. 2009;

58(3): 725. Available from: https://core.ac.uk/download/pdf/232966668.pdf.

[accessed 10 December 2020].

[21] Bryan Stevenson. Just Mercy: A Story of Justice and Redemption. One World;

Reprint edition; 2015.