“Even the worst criminal offenders also enjoy an inherent and inalienable dignity that is violated if they are put to death” – EU Memorandum on the Death Penalty[1]
The practice of capital punishment is no doubt one of the most controversial issues in the political sphere as well as in the discourse of human rights. Many consider it to be an egregious violation of human dignity, as well as an ineffective penalty that “undermines the legal values and institutions constituent of democracy.”[2] At this point in history, nearly all Western democracies have abolished the death penalty, and many other countries have restricted its use to heinous violations of law.[3] The United States however, does not fall into this category. In 2005, 94% of all executions took place in four countries; China, Japan, Saudi Arabia, and the United States.[4] Statistics of this kind have led scholars to ask a number of questions about the use of capital punishment as a deterrent for crime, and why the United States, a country founded upon the many principles of democracy has not joined in the abolitionist movement. There is an array of arguments used as attempts to motivate the removal of the death penalty from the United States’ judicial system. The two most relevant for the purposes of this paper however, are the negative image that has been created through the nation’s refusal to abolish capital punishment, and the sheer violation of fundamental human rights as a continuing practice of law.
One of the most common and effective arguments against the use of capital punishment in the United States, is not only the fact that there is no solid empirical evidence that supports the value of the death penalty as a deterrent for crime, but many claim that the practice is inherently racist as well as egalitarian, severely deflating democracy.[5] As Robert Badinter, a French Senator and former Justice Minister writes: “Useless as an instrument to fight crime, capital punishment brings with it all the evils of Western society: racism, social injustice, economic and cultural inequality.”[6] To support this claim Badinter brings forth a number of facts. In America, the African-American and Hispanic communities are most at risk to being placed on death row, and the majority of the prisoners awaiting the death penalty come from prominently poverty stricken classes. In addition to these numbers, for nearly two decades after the death penalty was reinstated, the overall percentage of prejudicial error in the capital punishment system was 68%.[7] These statistics not only represent the burden that the practice of the death penalty may carry with it, but also reflects why many countries have abolished it, and are waiting still, for the United States to do so. Not only is the practice falling short of judicial success, but the idea of America as a great democracy is being challenged. Badinter believes that this should serve as the motivation for change in the United States: “I don’t believe that Americans fully understand how their use of the death penalty has profoundly degraded the country’s image in the eyes of other democratic nations.”[8]
Eric Neumayer, a professor at the London School of Economics and Political Science argues that the death penalty, not only contradicts the basic principles of democracy, but in fact, a democracy cannot fully be so while practicing it.[9] Neumayer uses the examples of various countries that have gone through the process of democratization following military coups or civil wars. “As a corollary, democratization, that is a regime change towards democracy, is often an important factor advancing the abolition of the death penalty. Germany for example, took this step when it became democratic again in 1949…South Africa abolished the death penalty during its transition from the Apartheid to a democratic regime in the 1990s despite a high and rising rate of violent crime.”[10] Neumayer continues by stating that in transitions such as these, abolishing the death penalty serves as “a conscious act of distancing the new democracy from the old regime.”[11] It is clear, by the opinions of many scholars that the death penalty works against the many values and goals that democracies work to achieve. Roger Hood argues that “[capital punishment] is not an option for democratic states bound by the rule of law and concern for humanity.”[12] Similarly, Corey Brettschneider writes, “the death penalty violates human dignity derived from free and equal citizenship in a democratic regime.”[13] Why then, does the United States fall into the same category as the many dictatorships and totalitarian states that continually make vigorous use of this practice?
Certainly the foundations of democracy are essential in understanding the negative impact that the use of the death penalty is having on the United States’ reputation across the globe. It is in my opinion however, that the many violations of human rights should be the central focus of the argument against it. The European Union, perhaps the entity most dedicated to the preservation of human rights has spoken on numerous occasions about its opposition to the death penalty. In its 2000 Demarché to the United States on the Death Penalty the EU wrote that it regards the death penalty as “a denial of human dignity” and that “the abolition of the death penalty contributes to…the progressive development of human rights.”[14] In the same document the EU declares that it is “opposed to the death penalty in all cases and accordingly aims at its universal abolition.”[15] These statements reinforce what the EU proclaims in its 1998 Guidelines to EU Policy Towards Third Countries on the Death Penalty where it asserts that the EU “has now moved beyond” abolition within its own jurisdiction and “espouses abolition for itself and others.”[16]
]The EU is not alone in this movement; the United Nations, the Council of Europe, and the General Assembly of the Organization of the American States have all joined the trend toward universal abolition of the death penalty. This is reflected through a number of covenants and protocols including; the Second Optional Protocol to the International Covenant on Civil and Political Rights (adopted by the U.N. in 1989)[17], the Protocol to the American Convention on Human Rights[18], and Protocols No. 6 and No. 13 to the European Convention on Human Rights[19]. Each of these international treaties recognizes and addresses the death penalty as violating inherent human rights. From this perspective, abolishing capital punishment is not simply an action with the purpose of restoring and maintaining democracy, it is “the logical result of a process of humanizing the penal system…forming part of a process of civilization and modernization.”[20] The disagreement about this practice between the United States and Western European countries continues to grow. Countries in Western Europe who have abolished the death penalty typically no longer extradite prisoners to the United States, whether they are their own citizens or not, unless “it is guaranteed that they will not be executed.” This remains true “even if the prisoners are suspected or convicted terrorists.”[21]
It is clear that the debate over the relevance, success, and need for the death penalty will not be resolved anytime in the near future. The number of arguments that surround it are vast and varied, and many of them are aimed at the United States. Surely, democracy is being impinged upon, but to a far less extreme than the basic rights and entitlements of those that fall victim to capital punishment. It is a penalty unlike any other. It is “the ultimate, most consequential, and totally irreversible penalty.”[22] It does not leave room for error, and continues to widen the gap between countries, politically as well as civilly.
In my opinion, and the words of many activist groups as well as intergovernmental organizations, the severity of the death penalty is indeed a human rights issue rather than a political issue. The death penalty has been viewed as “a barbaric punishment and the archetypal form of state-authorized premeditated homicide,”[23] and in this case, one would expect democracies to be more accepting of its abolition. In this context, America is largely failing to uphold its status as a global defender of human rights, and is instead freely exercising the one power that sets government aside; the power to take a life. The Economist writes: “While this country lays claim to the title of ‘the world’s leading democracy,’ the other nations on this [capital punishment] list are three of the globe’s most totalitarian regimes. It’s troubling enough that the U.S. keeps such bad company. What is worse is that the U.S. has a disturbing record of failed justice when it comes to those who have been sentenced to die.”[24] However one chooses to view this issue, whether from a political or human rights standpoint, they will soon find the two inextricably intertwined, however, the violation of the rights inherent to the individual, must prevail as the driving force behind the argument for abolition, lest we lose sight of the individual altogether.
[1] European Union. “EU Memorandum on the Death Penalty”. (2000). Accessed on December 1, 2010. http://www.eurunion.org/legislat/deathpenalty/eumemorandum.htm
[2] Austin Sarat. When the State Kills: Capital Punishment and the American Condition. 2001. (Princeton, NJ. Princeton University Press).
[3] Ibid.
[4] Amnesty International. “Death Penalty Statistics 2005”. (2006). Accessed on December 3, 2010. http://www.amnestyusa.org/document.php?lang=e&id=engact500122007
[5] Robert Badinter. “Death Be Not Proud”. Time Europe. May 21, 2001. Vol. 157, Issue 20.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Eric Neumayer. “Death Penalty: The Political Foundations of the Global Trend Towards Abolition”. Human Rights Review. April 2008. Vol. 9, Issue 2. p.241-268
[10] Ibid.
[11] Ibid.
[12] Roger Hood. “Capital Punishment”. In The Handbook of Crime and Punishment. 1998. (Oxford. Oxford University Press).
[13] Corey Brettschneider. “Dignity, Citizenship, and Capital Punishment: The Right of Life Reformulated”. Studies in Law, Politics, and Society. 2002. Vol. 25. p. 119-132
[14] European Union. “EU Demarche on the Death Penalty to the United States”. (2000). Accessed on December 1, 2010. http://www.eurunion.org/legislat/deathpenalty/Demarche.htm
[15] Ibid.
[16] European Union. “Guidelines to EU Policy Towards Third Countries on the Death Penalty”. (1998). Accessed on December 1, 2010. http://www.eurunion.org/legislat/deathpenalty/Guidelines.htm
[17] Office of the United Nations High Commissioner for Human Rights. “Second Optional Protocol to the International Covenant on Civil and Political Rights.” (1989). Accessed on December 1, 2010. http://www2.ohchr.org/english/law/ccpr-death.htm
[18] Organization of American States. “Protocol to the American Convention on Human Rights to Abolish the Death Penalty”. (1990). Accessed on December 1, 2010. http://www.oas.org/juridico/english/sigs/a-53.html
[19] European Court of Human Rights. “European Convention for the Protection of Human Rights and Fundamental Freedoms”. (2010). Accessed on December 1, 2010. http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf
[20] Neumayer. 265
[21] Ibid. 261
[22] Ibid. 241
[23] William A. Schabas. The Abolition of the Death Penalty in International Law. 2nd ed. 1997. (Cambridge: Cambridge University Press).
[24] “Death and the American”. The Economist. June 21, 1997. Vol. 343, Issue 8022.