A few weeks ago, people in Lahore had the privilege to witness something quite unusual at every traffic signal of the city. This peculiar thing, actually, should have been a daily state of affairs: observation of traffic rules. However, it was for the first time one could see all of the bikers’ heads covered with red helmets. The reason for this change was the implementation of the Lahore High Court’s order. Lahore High Court had directed the Chief Traffic Officer (CTO) to take strict action against people riding motorcycles without helmets. As a result, police began the crackdown on people violating the law. The results of this exercise were visible to everybody.

What lessons can be learned from this episode and how is this story relevant to the debate on death penalty? A combination of incentives and disincentives governs the human world. An ideal law must incentivise socially beneficial behaviour and disincentive detrimental one. The lessons learned from the successful implementation of the law on bikers are applicable everywhere. Principles of economics will not change with the change of principal actors. Compliance of any law is heavily dependent on deterrence. If there is no deterrence, the compliance of law will take a massive hit. Two main things go into the formula of deterrence: one is quantum of punishment and the second is certainty of punishment.

The tragedy is that people tend to place over-reliance on the quantum of punishment. One turns on any news channel, and there will be some self-proclaimed expert arguing for making the punishments more severe. For example, it is vehemently argued that in order to curb corruption, it should be made punishable with death. In the similar vein, it is asserted that in order to stop rape, the rapists must be publicly hanged and so on. Such people are totally oblivious of the other variable of the deterrence equation, i.e. certainty of punishment.

The above-mentioned success story of traffic police is one of the most compelling evidence against people arguing for the death penalty. In the motorcyclist example, the state did not feel the need to increase the amount of fines imposed. Mere strong headed implementation of the existing law was enough to deter the people. By fining the violators of the law, traffic police gave a strong signal to the citizens that, in case of violation, the punishment was certain. As a result, the cost of the violation exceeded its benefit and, therefore, compliance was ensured. This formula is equally applicable in all cases ranging from theft to murder.

Instead of focusing on giving more and more death penalties, and making more and more crimes punishable with death, in the hope that it will reduce crime by deterring people, the focus must be shifted towards increasing the certainty of punishment. The conviction rate in Pakistan stands below 10 per cent. To get a comparative perspective, the conviction rate in India is 46 per cent; the United Kingdom 84.8 per cent; and Israel, Japan and Canada above 90 per cent. The abysmal statistics of Pakistani conviction rate show the need for immense improvement in this sector. There are many areas which need improvement if the state wants to make punishment more certain. The three principal areas which need improvement are police, prosecution and judiciary.

Police are the first point of contact between a victim and the state. Police have a critical role to play from catching the accused to getting him convicted. The investigation process of the police must be modernised. The forensic and scientific investigation must be encouraged. Investigation officers should be adequately trained. Police must be appropriately incentivised to perform their duties. Consequences must follow if the police officers fail to perform their duties.

Similarly, prosecution is another area which is in need of dire reforms. Public prosecutors are generally not very competent and mostly over-burdened. I have seen one public prosecutor standing on the podium for hours while the private attorneys keep switching every single case. The workload on public prosecutor is beyond human capacity. A bar should be set on the maximum number of cases a public prosecutor can handle. The salaries of public prosecutors must be increased to attract competent people.

Judiciary also needs to undergo urgent and much-needed reforms. Currently, there is no set formula for a judge to move upwards in the judicial hierarchy. Lower courts judges have no incentive whatsoever to perform well. This state of affairs must be put to an end. A formula needs to be devised, comprising of a performance matrix, which will determine the chances of a judge climbing up the ladder of judicial hierarchy. The training of magistrates and sessions judges should be made more rigorous.

The reforms mentioned above are just a tip of an iceberg and much more needs to be done. However, one thing is certain that the present state of affairs cannot continue for long. Something will have to be done. State, opinion-makers and the general public must not follow a reductionist approach by arguing for making the punishments more severe. We must realise there are other variables that go into deterrence equation. Therefore, a sincere effort must be made to make conviction as certain as possible. Doing so will be the single most important factor responsible for the reduction in crime.

The writer is a practicing lawyer and has an
LLM from The University of Chicago.