Death Penalty Phenomenon

Article 7 of the ICCPR provides that "[n]o one shall be subjected to torture or to cruel, inhuman, or
degrading treatment or punishment." Other human rights treaties contain identical language. See, e.g.,
European Convention on Human Rights, art. 3; American Convention on Human rights, art. 5; African
Charter on Human and Peoples Rights, art. 5; Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, art. 16.

Over the last two decades, a rich body of jurisprudence has developed in support of the notion that
prolonged incarceration on death row (also known as "death row phenomenon") constitutes cruel,
inhuman, or degrading punishment. See, e.g., Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR
995, 2 AC 1, 4 All ER 769 (Privy Council 1993) (en banc); Soering v. United Kingdom, 11 Eur. Hum. Rts.
Rep. 439 (1989) (European Court of Human Rights). These decisions have prompted scores of articles by
legal commentators and mental health experts.

In Pratt and Morgan, the Privy Council held that a delay of 14 years between the time of conviction
and the carrying out of a death sentence in the case of a Jamaican prisoner was "inhuman punishment." 2
A.C. at 33. The Privy Council further concluded that "in any case in which execution is to take place more
than five years after sentence there will be strong grounds for believing that the delay is such as to
constitute 'inhuman or degrading punishment.'" Id. In Soering, the European Court found that prisoners
in Virginia spend an average of six to eight years on death row prior to execution.

The court determined that "[h]owever well-intentioned and even potentially beneficial is the
provision of the complex post-sentence procedures in Virginia, the consequence is that the condemned
prisoner has to endure for many years the conditions on death row and the anguish and mounting
tension of living in the ever-present shadow of death." 161 Eur. Ct. H.R. (ser. A) at 42 (1989).

More recently, the Supreme Court of Canada considered evidence that death-sentenced inmates in
the state of Washington (United States) took, on average, 11.2 years to complete state and federal post-
conviction review, in weighing the legality of extraditing two men to the United States to face capital
charges. The Court acknowledged a "widening acceptance" that "the finality of the death penalty,
combined with the determination of the criminal justice system to satisfy itself fully that the conviction is
not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma."
Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001) (at para. 122). Relying in
part on this evidence, the court held that the Canadian Charter of Rights and Freedoms precluded the
defendants' extradition, absent assurances the United States would not seek the death penalty.
 The Ugandan Supreme Court has also embraced these arguments, holding that a delay of more
than three years between the confirmation of a prisoner's death sentence on appeal and execution
constitutes cruel, inhuman or degrading treatment or punishment in violation of their national
constitutions. Kigula and Others v. Attorney Gen., 2006 S. Ct. Const. App. No. 03, at 56-57 (Uganda 2009).
The Zimbabwe Supreme Court has held that delays of 52 and 72 months between the imposition of a
death sentence and execution constitute inhuman punishment. Catholic Comm'n for Justice & Peace in
Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993 (reported in 14 Hum. Rts. L. J. 323
(1993)) (available athttp://www.unhcr.org/refworld/country,,ZWE_SC,,ZWE,,3ae6b6c0f,0.html). And in
2010, the European Court on Human Rights expanded its decision in Soering in Al Saadoon and Mufdhi v.
UK. There, the Court found that the United Kingdom had violated its obligations under article 3 of the
European Convention merely by exposing the applicants to the threat of capital punishment.

Arguably, the prohibition against cruel, inhuman, or degrading treatment has attained binding
force as customary international law. See Declaration of Tehran, Final Act of the International Conference
on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal
Declaration of Human Rights, including prohibition against cruel, inhuman or degrading treatment, as
customary international law). Accord De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397
(5th Cir. 1985) (noting that the right not to be subjected to cruel, inhuman, and degrading treatment
constitutes universally accepted international law).

In the United States, the lower federal courts have rejected the reasoning in Pratt and Morgan and
Soering, see, e.g., McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995); White v. Johnson, 79 F.3d 432 (5th Cir.
1996). The Supreme Court has not yet reviewed this question. Former Justice Stevens and Justice Breyer
have voiced support for such arguments. See Knight v. Florida, 120 S. Ct. 459 (1999) (Breyer, J.,
dissenting from denial of certiorari); Elledge v. Florida, 119 S. Ct. 366 (1998) (Breyer, J., dissenting from
denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).

THE DEATH PENALTY APPROACHES

May 27, 2014 - By: Roy Speckhardt
The death penalty is being kept in the national spotlight because of its inherent failures and
barbarism. This is emphasized by such stories as the one about Tennessee bringing back the electric
chair now that there is a chronic shortage of the execution drugs, as well as the one about the a botched
execution using new and unproven drugs on an inmate resulting in an agonizing death.
 But humanists have long been opposed to Capital Punishment. The birth of the modern humanist
movement began in the early part of the 20th Century, during which time Charles Francis Potter founded
the First Humanist Society of New York along with, John Dewy, Albert Einstein and Julian Huxley. Back in
1938 Potter concisely wrote that “The deliberate taking of human life by the State is too grave a matter to
be justified by any or all the flimsy arguments which can be advanced for capital punishment.”
Humanists have a natural opposition to the death penalty. Not only do we recognize that we are
not instruments of divine retribution, but for humanists this life is the only one we have to live, there is
no afterlife or rebirth, making death final. This punishment therefore raises the issue of whether or not it
is just to punish a person for a finite crime with an infinite sentence. We shouldn’t deny people the
opportunity to reform, nor should we deny the opportunity for someone to eventually prove their
innocence, and a final irreversible sentence does just that.

Being practical and reason orientated, humanists are convinced by the numerous studies showing
that the death penalty is simply not an effective deterrent for criminals, and that the cost of housing a
criminal on death row and eventually executing them is far more expensive than imprisoning someone
for decades or even for life. Simply stated, when we evaluate the policy of executing criminals from a
reasonable perspective, capital punishment just isn’t worth it because it fails to prevent crimes and costs
taxpayers dearly.
These arguments are reason enough to oppose the death penalty, but there is an additional
concern based on the role of government that should give all death penalty proponents a reason to
question their previous support of the practice. Humanists are wary of concentrations of power, be they
economic or political, and providing the state with the permission to execute those it represents is a
dangerous line, a line which is far past time to be uncrossed.

Humanists have a responsibility to work for the change we’d like to see, and therefore we must work
against the dogmatic “an eye for an eye” approach to punishment that characterizes the death penalty
and other unjust stabs at retribution. It’s simply unfitting for the modern age. As Humanist of the Year
Steven Pinker wrote about in Better Angels of Our Nature, violence is on the decline across human
history, let’s help our justice system catch-up to this reality.

REFLECTION OF THE DEATH PENALTY

Different societies and groups possess a variety of traditions and norms that influence various
aspects of their lives. While some traditions are acceptable to all members of a community, other
traditions arouse diverse views due to their nature and perceived effects on the people who participate in
them. In this regard, some traditions undergo erosion while others remain strongly integrated in the
society due to their wide acceptance. Although most traditions have ancient history, the invention of
some traditions occurs purposely in response to certain aspects in the society of concern. This may be
due to personal, political, commercial or social motivation. Traditions may also arise due to highly
publicized events that gradually gain attention among individuals and societies.

The story, “The Lottery”, mirrors the society’s system of capital punishment in which most of the
supposed offenders are innocent people. The consideration that Tessie Hutchinson meets predicament
solely because she lived in a village whose traditions composed of a yearly stoning practice of one of its
inhabitants highlights injustices systems within the society (Jackson 219). The author highlights a
misadvised justice structure that has less consideration for justice and ethics at the expense of portraying
the notion that is meeting the stipulated expectations. The case of Tessie depicts a system that does not
have a defined framework upon which it executes its functions. The obscurity in the scope of functioning
of the lottery leaves many loopholes that individuals manipulate and use to serve their own purpose and
that of the society.

The traditions concerning punishments for heinous crimes are considerably old practices.
Punishment by death dates back to the eighteen-century B.C., as described in the Code of Hammurabi, a
legal document from the ancient Babylon (Guernsey 9). This code stipulated twenty-five crimes that
attracted punishment by death. Some of the crimes included adultery and abetting illegal acts such as the
escaping of slaves. Furthermore, the Hebrew bible stipulated rules concerning appropriate responses to
criminal acts. This document described the need to respond in measures which are equal to the
committed crime by promoting the “eye for an eye” rule. The methods used to execute death sentences
varied among different societies. They included crucifying, drowning, stoning or beating to death and
impalement of the offenders.

To date, doubts on the justifiability and ethicalness of the death penalty continue to arouse
debates among individuals and different domains of knowledge. Scholars such as Beccaria wrote an
argument against the death penalty asserting that it was a barbaric act. Beccaria hypothesized that
threats emanating from the set down rules on capital punishment were unlikely to discourage criminals
from committing offenses in the future (Guernsey 10). Although, both the proponents and opponents of
the death penalty agree that there is the need to punish errant behaviors, award justice to victims of
crime and promote a secure society, they possess diverse opinions concerning the most appropriate ways
to punish offenders.
 The proponents of the death penalty argue that it is a highly effective means to discourage heinous
acts in the society. In this regard, the assertion is that once criminals realize that their acts could lead to
their own death, they will avoid engaging in criminal acts. Furthermore, the supporters of the death
penalty believe that it provides appropriate levels of justice to the victim of the crime. Research
illustrates that the execution of a death penalty deters an estimated 18 murders from occurring. Various
surveys in England, since the abolishment of the death penalty, highlight a substantial increase in the
murder rate largely attributed to previously convicted killers.

A research on the trends of rape in South Africa indicates that rapists largely target the youth and
young children due to the notion that these two groups are less likely to have HIV/AIDS infection. Sources
from various respondents indicate that the small number of cases of rape attacks on grown up women is
largely due to the fear by offender concerning contracting HIV/AIDS infection. This clearly demonstrates
that the realization of the fatal outcomes associated with certain acts could deter criminal acts.

On the other hand, opponents of the death penalty argue that it is an ineffective and highly flawed
approach for crime deterrence with gender and racial bias. Statistics on executions in America since the
1930s indicate that a significant portion of the people who are legally executed constituted of blacks,
although data on crimes indicated that they had committed less than half of the offenses (Kudlac 23). In
addition, various studies indicate higher instances of the death penalty among the poor and members of
minority groups in comparison to affluent offenders convicted similar crimes. Opponents of the death
penalty believe that there are better ways to promote a safer society.

They suggest the adoption of life imprisonment as a substitute to the death penalty due to two
major reasons. Firstly, life imprisonment will extract criminals from the society and thus guarantee
public safety. Secondly, it will provide an opportunity for any new evidence that may prove the innocence
of a convicted person. The death penalty does not accommodate the second consideration since the
execution is irreversible. It does not provide an opportunity for the offender to rehabilitate and adopt
appropriate behavior. Statistics indicate that a review of cases of about 13 inmates on death row led to
the withdrawal of the death penalty imposed on them.

Thus, the execution of such individuals could have resulted in the loss of 13 innocent lives.
Another argument by the opponents of the death penalty concerns the disregard for the human rights of
convicted offenders. They argue that the premeditated killing of a person by the state or any other entity
violates the provisions on the right to life as stipulated in the Universal Declaration of Human Rights.
 Throughout history, the society has had individuals who engage in acts that cause suffering to
others, and sometimes the loss of life. Although some criminal acts possess some form of justification
such as in the case of self-defense, some people coldly plot and execute criminal acts. Measures against
criminal acts should apply relative to the degree of the committed crime. The argument concerning
human rights overlooks the fact that the offender in question violated the rights of his or her victims.
Effects relating to crimes such as murder are irreversible.

They leave indelible marks on the family members and cause years of constant suffering after
their commission. Justice should be neutral in such a manner that no side enjoys any form of leniency.
However, the drafting of various provisions and laws should not leave any loopholes that allow those
responsible for executing justice to manipulate systems to meet personal opinions and objectives such as
was the case with the “lottery”.

A non-biased justice system should respond in equal measures to crimes and ensure justice for
both the criminal and the offender. However, before serving any form of sentencing on the offender, there
should be substantial evidence regarding a case to avoid punishing an innocent person. In addition, the
execution of the death penalty should adopt humane procedures that do not cause unwarranted torture
on the offender.

Approaches that the one used on the winners of the lottery are inappropriate, especially concerning the
level of publicity of the execution. The execution of the death penalty should be a private procedure using
more humane and effective ways such as lethal injection. However, it should be a warranted exercise
devoid of form of bias.