I write this out of my European perspective, whereby I should note that capital punishment was abolished in the Netherlands in 1870. The Dutch Senate deliberated for seven days and determined that the punishment was cruel and unusual and should be banned in a civilized country. Gun ownership is also limited and was first restricted by law in 1890.
The issue of capital punishment, or better said the “death penalty,” raises an important question:
“Should a civilized society tolerate this cruel, inhuman, or degrading treatment punishment, or even torture, which is in violation of human right and international law?”
What is at stake is the integrity of human life and the main question is this: Can there be any justification in killing another human being. Whereby the main moral question that needs to be answered concerns those who are innocent and wrongfully executed.
Voltaire asked this question rather eloquently in his 1747 story Zadig.
“It is to Zadig that Nations owe the great principle that it is better to risk sparing a guilty man than it is to condemn an innocent one. He believed Laws were made as much to protect citizen as to deter them”.
In a civilized society, the death penalty must simply be abolished. This is also demanded by the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly on December 10th, 1948 and the International Bill of Human Rights, which was completed in 1966 and came into force in 1976 following ratification.
Given the consensus reached in the UDHR on one the most fundamental principles of human right law that life is a human right the Death Penalty is not consistent with agreed fundamental human rights principles.
Although considered by the international community to be a binding part of international law the Supreme Court of the United States, in Sosa v. Alvarez-Machain (2004), concluded that the Declaration “does not of its own impose obligations as a matter of international law.”
On a global scale capital punishment is viewed differently especial under Sharia law and in authoritarian regimes, where it is used as a form of terror management and is a rather symbolic punishment.
But there can be no doubt that the death penalty is being abolished. In 1966, when the bill of rights was signed, 12 countries had abolished the death penalty. According to the United Nations, today, out of the 198 countries in the world, 150 have rejected or do not carry out executions.
Today there is a global movement to abolish the death penalty. The main countries still opposing a ban on the death penalty are China, India, Iran, North Korea, Pakistan, Saudi Arabia, Syria, the United States and Zimbabwe.
In 2016, at least 25 countries were known to have carried out about 1,032 judicial executions according to Amnesty international. Most confirmed executions in 2016 took place in China (1,000+); Iran (567+); Pakistan (87) Saudi Arabia (154+); and Egypt (44+).
In general there are four key arguments against capital punishment
1. excessive cost and poor use of funds, which could otherwise be spent on law enforcement
2. failure as an effective deterrent or law enforcement measure
3. wrongful executions of innocent defendants
4. replacement of the death penalty with life imprisonment without parole, which in itself is a form of cruel, inhuman or degrading treatment or punishment.
In America the stated goal of capital punishment is “deterrence, retribution, and incapacitation.” But as a form of punishment, it is morally dubious, very expensive and widely repudiated.
The US criminal justice system is in practice a revolving door system that focuses on criminalization and incarceration. Rehabilitation is limited. The question is, are prison terms the means of rehabilitation or an instrument of punishment and/or vengeance?
Vengeance is not what the punishment should be about. Vengeance is a primitive, cheap, wasted and hollow emotion and, hence, capital punishment should be abolished on moral and ethical grounds. It’s also doubtful that an execution will bring closure, although some, not necessarily the most advanced thinkers, do seem to enjoy this spectacle. Those who celebrate the killing of another human must realize that they no longer have integrity of character.
The criminal justice system in the US is unbalanced. For instance, we see how the system treats juvenile offenders and which treatment has lasting consequences. The prison system is also based on the commercial interest of private enterprises. As Democratic presidential candidate Hillary Clinton noted during a keynote address at Columbia University about the criminal justice system and the need for broad criminal justice reforms.
“It’s a stark fact that the United States has less than five percent of the world’s population, yet we have almost 25 percent of the world’s total prison population. The numbers today are much higher than they were 30, 40 years ago despite the fact that crime is at historic lows.”
Part of the problem is functional illiteracy in society, which relates to the inability of an individual to use reading, writing and computational skills in everyday life. This problem is also present in the corrective institutions.
According to the Department of Justice, “the link between academic failure and delinquency, violence, and crime is welded to reading failure.” The statistics back up this claim: 85 percent of all juveniles who interface with the juvenile court system are functionally illiterate, and over 70 percent of inmates in America’s prisons cannot read above fourth grade level.
Capital punishment is an arbitrary, excessive, discriminatory and dehumanizing punishment as Donald P. P. Judges of the University of the Arkansas School of Law concluded in his paper “Scared to Death: Capital Punishment as Authoritarian Terror Management.”
In general, the American court system has seen unbalanced and arbitrary court proceedings or executions due to lack of uniformity in standards in the capital punishment system, with defendants who were not intellectually up to par or being underage. In some jury trials, politics have also been a motivating factor to seek the death penalty.
What is intolerable, is the fact that people have been executed based on a majority ruling by the jury. This is the case in Florida, which is one of only three states — along with Alabama and Delaware — that does not require unanimous jury recommendations for death sentences to be imposed. Thanks to a recent ruling, Hurst v. Florida, of January 2016, by the Supreme Court, Florida now requires unanimity on jury death penalty trials. This recommendation was passed into law in 2017.
But as 10th Judicial Circuit Assistant Public Defender Pete Mills stated “unanimous jury recommendations is only one step in a long journey, Florida’s death penalty still has problems of constitutional magnitude, including but not limited to the failure to limit the scope of its application, racial disparities, geographic disparities and execution of the mentally ill.”
Since 1973, more than 155 people have been released from death row due to evidence of their innocence, according to the Staff Report, House Judiciary Subcommittee on Civil and Constitutional Rights, 1993. From 1973-1999, there was an average of three exonerations per year. From 2000-2011, there was an average of five exonerations per year.
As to the statistics, according to the Death Penalty Information Center (DPIC), nineteen states have abolished capital punishment, and four have enacted a moratorium. Thirty-one states have legalized executions, as do the US Government and US Military.
There have been since 1977 a total of 1466 executions, while the total Number of Death-Row Prisoners as of July 1, 2017 are 2,817. Since 2000 the number of executions years have slowly decreased, over the last 5 years (2013-2017) there have been 145 executions, with a yearly average of 19 executions. Most execution take place in the South.
According to the Cornell Law School Death Penalty Worldwide (DPW) which was founded in 2011 by Professor Sandra Babcock, Clinical Professor of Law and Director of the International Human Rights Clinic at Cornell University Law School, in partnership with the World Coalition Against the Death Penalty different methods (hanging, lethal injection, shooting, gas chamber and electrocution) have been used. Today the United States is the only country to authorize both electrocution and gas chamber
According to DPW: “From January 2001 through February 2014, 673 of 683 executions were carried out by lethal injection. In 2013, 38 out of 39 executions in the U.S. were performed by lethal injection, mostly using the relatively new drug pentobarbital either by itself or in conjunction with other drugs. Two executions in Florida were carried out with midazolam hydrochloride for the first time.”
In 1977 there were 423 death row prisoners, an amount has increased yearly to the peak of 3,593 in 2010. It has been decreasing slowly. As a result the death row population is rapidly aging. In 2005, according to DPIC, 137 prisoners were 60 years old or older, compared to 39 in 1996. It will take at least another 150 years to execute all the death-row prisoners, of which an increasing number will pass away naturally.
Mental disabilities, Alzheimer’s, dementia or other age-related afflictions are part of an getting older. Unlike elderly prisoners, death row seniors are not housed in prison geriatric facilities or placed in end-of-life programs.
Until 2005, when the Supreme Court struck down the death penalty for juveniles in Roper v. Simmons. Twenty-two defendants had been executed for crimes committed as juveniles since 1976.
On 1 August 2017, a Kentucky court issued the first judicial ruling in the United States finding that the execution of offenders under the age of twenty-one amounted to cruel and unusual punishment in violation of the Eighth Amendment to the US Constitution.
Severely mentally ill people were executed until in 2002, when the Supreme Court, in Atkins v. Virginia, decided that it is unconstitutional to execute defendants with “mental retardation.”
The statistics also show that the number of death sentences per year has dropped dramatically since 1999, from 279 to 39 in 2017, while the average time between sentencing and execution has increased from 87 months in 1987 to 190 months in 2012.
Time on death row can reach about twenty years. Justices Stephen Breyer and former Justice John Paul Stevens of the Supreme Court have questioned the constitutionality of the long delays. However, the Supreme Court has not yet accepted any case based on the length of a prisoner’s tenure on death row, which can reach twenty years or more.
In 2009, the U.S. Supreme Court declined review in Thompson v. McNeil, but three Justices issued strongly worded statements about the importance of the legal issue raised. William Thompson had been on death row in Florida for thirty-two years. He claimed the excessive time he spent on death row amounted to cruel and unusual punishment under the Eighth Amendment.
In most cases the Supreme Court will only examine a few cases and just a few specific aspects of a case. It will not, for example, address lying witnesses; incompetent lawyers; corrupt prosecutors; racism.
During this period, prisoners stay daily 23 hours in their cell, with one hour of exercise time, which constitutes in cruel and unusual punishment.
Federal judge Cormac Carney struck down California’s death penalty as unconstitutional (Jones v. Chappell, 2014), but the decision was later reversed by the 9th Circuit on procedural grounds. He concluded, though, that the death penalty
“the death panalaty has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.”
But the punishment is not only immoral, cruel and unusual towards the person being executed but also for the victim’s families, who wait for years and often never see the convict being executed. The process is cruel and stressful.
A better alternative is life in prison with no parole, which is being favored by many and enables the victim’s families to get on with their lives and find some closure.
In the final analysis, the death penalty has no real benefits since it does not reduce crime and is a very expensive system. Police enforcement does not see it as a high priority in crime reduction and do not believe in it as a deterrent. A system with life sentences as the maximum sentences is to be preferred.
Also, once a person is executed, there is no possibility for a person to redeem her / himself. But above all, it does not allow for correcting errors of the court, which is unacceptable.
The fact of the matter is that some state officials have no qualms about executing people by dubious means, even though there are clear doubts about their guilt and whether they have been treated fairly by the justice system.
Neither do state officials have any qualms about using non-approved lethal injection drugs from questionable sources and shady operators. This deplorable practice, which in effect results in torture, is necessary since European drug companies do not wish to be associated with executions and refuse to supply the approved chemicals .
The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez has concluded the following in the ODIHR background paper titled “The Death Penalty in the OSCE Area: Background Pape 2016:”
“Regarding lethal injection as a method of execution used in the United States of America, one of the two retentionist states in the OSCE region, I have repeatedly found that the United States Government violated the right to be free from torture or cruel, inhuman or degrading treatment or punishment by the administration of compound chemicals that cause pain and suffering.”
Our European culture and level of civilization is obviously different. Some states like Georgia and Missouri have enacted laws to shield the information available via the Freedom Information Act regarding the executor identities, and the drug companies involved.
The European Union holds a strong and principled position against the death penalty; its global abolition is a key objective for the EUs human rights policy. Abolition is also a pre-condition for entry into the EU.
Given these objections to this cruel, inhuman, or degrading punishment, European countries only extradite fugitives to the US if assurances are given that the death penalty will not be sought. This is also based on rulings by the European Court on Human Rights which has ruled extradition violates the obligations under article 3 of the European Convention on Human Rights, which prohibits treatment or punishment.
There are other alternatives. A person can be put in prison for life, thereby punishing the person and removing that person from society and protecting society. But a lifelong prison term as stated before is in itself a form of cruel, inhuman or degrading treatment or punishment.
In a civilized society capital punishment should not exist, the death penalty is a cruel, inhuman, or degrading punishment and should be completely abolished.
September 2nd, 2019
William J.J. Houtzager
*Edited by Marton Radkai
-Amnesty International – Death Sentences and Executions Worldwide 2015
-The Death Penalty in the OSCE Area
-The Death Penalty World wide
Cornell Law School http://www.deathpenaltyworldwide.org/
-Kentucky Court Finds Execution of Offenders Aged 18-20 Unconstitutional
-Juvenile Offenders and the Death Penalty
-Death Penalty Information Centre
Bureau of Justice Statistics Bulletin: Capital Punishment
-Hood, Roger. The Death Penalty: A Worldwide Perspective, Third Edition. Oxford: Oxford University Press, 2002.
-Schabas, William. The Abolition of the Death Penalty in International Law, Second Edition. Cambridge: Cambridge University Press, 1997.Rapaport, “A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute,” 77 Brooklyn Law Review 1089 (2012).
-Smith, “THE ANATOMY OF DEATH ROW SYNDROME AND VOLUNTEERING FOR EXECUTION”, Boston University Public Interest Law Journal, 17 B.U. Pub. Int. L.J. 237 (2008).
Democratic presidential candidate Hillary Clinton keynote address at Columbia University about the criminal justice system and the need for broad criminal justice reforms, including mandatory use of body cameras by U.S. police departments and sentencing reform. https://www.c-span.org/video/?325657-1/hillary-clinton-remarks-criminal-justice-reform