The execution of Afzal Guru on February 9 reopened the question of India's continuing attachment to capital punishment. Like relatively few large industrial democracies, India and the US continue to practise and defend the death penalty. Both recently voted against a UN General Assembly resolution calling for a moratorium on executions with a view to abolition.

The two nations are very different in their practices. India has nearly 500 prisoners on death row, but only four have been executed since 1995. In the US, 43 people were executed in 2012 alone. Capital punishment in the US is a state matter, because the federal government chooses not to use it. However, the number of states in which it is still legal is gradually diminishing, with only nine out of 50 still practising it. My own state, Illinois, abolished the death penalty in 2011.

Attitudes in the US are changing, but not, on the whole, because of inherent objections to the death penalty. Instead, there is a growing conviction, shared by supporters and opponents, that it cannot be justly implemented. For a long time, it has been evident that the penalty in practice has been biased on grounds of class and race. People able to pay for high-powered lawyers almost never get it, and there is evidence that juries at the sentencing phase are apt to tilt towards people who look more like the majority. Bias is probably present in other criminal penalties as well, especially where juries are used, but the irrevocability of capital punishment makes people attend to it more. When the US Supreme Court briefly invalidated the death penalty in 1972, citing these grounds, states hastened to adopt rule-governed procedures that applied the death penalty without discretion to certain classes of murders defined in advance — only to be told by the Supreme Court in 1976 that criminal defendants facing death have a constitutional right to present their individualised histories at the penalty phase, pleading for mercy. If only a rule-bound death penalty can avoid the problem of bias, and if rule-bound penalties are unacceptable for other reasons, one might conclude that the death penalty cannot be fairly implemented, and this is what I believe. But that conclusion was not drawn by the Supreme Court, so at that level the matter remains open.

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