This article is written by Madhuli Kango, a BLS LLB student from Pravin Gandhi College of Law, Mumbai. The author explains the concept of Death Penalty and how it violates human rights across the globe.
From the start of time, as humans organized into civilizations, there were guidelines and boundaries on which one should pertain. There came in existences rules and laws and where there were regulations, there were offenders, the rebels, the troublemakers, the criminals. And along with it came punishments to deter these acts of violation and their violators. Punishment during these times majorly included death sentence, the first established death penalty laws in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes as far back as in the Eighteenth Century B.C. This penalty was also a part of the Fourteenth Century B.C.’s Hittite Code; in Draconian Code of Athens in the Seventh Century B.C., which prescribed death as the only punishment for all crimes; and in the Roman law of the Twelve Tablets in the Fifth Century B.C., Such death sentences were inhumane and brutal and restricted only to one’s imagination, these included being buried alive, boiled in oil, or crushed under the feet of elephants. [1]
Gradually, in the course of social evolution, as human society evolved over thousands of years, so, did our understanding of the causes of crime, their repercussions and their impact on the society and individuals. It was during the second part of the 20th century that a noticeable change took place regarding the attitude towards death penalty among some of the governments of the world and a consensus formed amongst nations and people that practices such as death penalty can no longer be tolerated. Today in the 21st century, this death penalty is considered by most civilized nations as a brutal, inhuman and plain cruel form of punishment. This initial movement has now spread, to the fact that several nations’ governments have chosen to abolish the death penalty. A world trend is being seen towards the abolishment of death penalty, 106 countries in the world have abolished death penalty for all the crimes and 142 have completely abolished in law and practice.[2]
But at the same time, there are countries like Iran, Saudi Arabia, Iraq and Pakistan which together carry out 84% of the total global executions; with Iran responsible for more than half. In many countries such as Belarus, China and Viet Nam government does not publish information on their use of the death penalty as it is classified as a state secret. During 2017, 23 countries are known to have carried out executions – the same as 2016. This brings down the total count of death penalties till now to 21,919; with at least 2,591 death sentences in 53 countries in 2017 alone.[3]
If we were to formulate a curve based on current trends based on death penalties and executions we will see a fall in the number of cases as compared to last year, while this is a great source of optimism we have to realize that it lacks data from many countries and is therefore not completely accurate. Furthermore, in a society where human actions change trends, we should not rest until death penalty does not completely stop and no more cases come forward. This is the main reason for publishing this essay: it is a part of global action to encourage global abolition of the death penalty.
The reasons why states abolish death penalty vary in increasing numbers but, the moot point remains stagnant; human rights. Spain abandoned the last relics of its death penalty in 1995, saying that: “the death penalty has no place in the general penal system of advanced, civilized societies . . . What more degrading or afflictive punishment can be imagined than to deprive a person of his life..?”[4] Similarly, Switzerland abolished the death penalty because it formed “a flagrant violation of the right to life and dignity. . . .”[5] Justice Chaskalson of the South African Constitutional Court, stated in the historic opinion banning the death penalty under the new constitution that: “Everyone, including the most abominable of human beings, has the right to life, and capital punishment is, therefore, unconstitutional”[6]
Death penalty is opposed to as it is a violation of the fundamental human rights which are also recognized by the Universal Declaration of Human Rights – the right to life and the right to not be subjected to cruel, inhuman or degrading punishment.[7] It is the deliberate killing of a prisoner for punishment and deterrence – a purpose which can easily be met by other means. This cruelty cannot be justified regardless of the gravity of the crime for which the prisoner has been convicted. Furthermore, if we agree that life is a human right, then the provision of death penalty is nothing but an abuse of our most fundamental human right. The cruelty of death penalty diminishes the humanity of everyone it touches; from the prisoner to its family, to the prison guards and to the executioners and even the judges and jury.
There exists no such criminological or scientific justification for death penalty that would outweigh the human rights grounds for abolishing it. The argument that the death penalty is needed to deter crime has become discredited as it is grossly inadequate and largely lacks evidence that it is more effective than other forms of punishments.
In Canada, the homicide rate had been constantly rising before the abolition of death penalty but we see that after 27 years of abolition, in 2003 the rate had fallen to 1.73 per 100,000 population, 43 per cent lower than it was in 1975 (3.02 per 100,000), the year before abolition. The rate has continued to fall, in 2012 it was 1.56 per 100,000 population, its lowest level since 1966. [8]
The homicide rate in five countries of Central and Eastern Europe (the Czech Republic, Hungary, Moldova, Poland and Romania, all of which abolished the death penalty in the 1990s) declined by 61 per cent from 4.5 to 1.6 per 100,000 between 2000 and 2008. The study also observed that “virtually all countries in Europe where there has been a strengthening of the rule of law and no death penalty have experienced a decline in the homicide rate[9]
Taiwan’s had once observed an unofficial restriction on executions between 2006 to 2010 this gave researchers an interesting opportunity of examining whether the withdrawal of the threat of execution leads to an increase in violent crimes reported to the police or not. Analysis by the Taiwan Alliance to End the Death Penalty showed that in fact, the violent crime rate per 100,000 of the population fell during these four years from 62.9 in 2005 (when there were three executions) to 53.6 the following year and 29.3 in 2009[10]
We cannot deny the fact that there might have been instances where people must have refrained from murder out of fear of execution, this mere assumption in it is an insufficient basis to conclude that the existence of the death penalty and the often remote threat of execution will lead to a lower rate of murder. The issue that we must realize about is not whether death penalty deters some people where the threat of a lesser punishment would not, but whether, when all the circumstances surrounding its use are taken into account, it marginally lowers the rate of death penalty eligible crimes and compared to the next strongest form of punishment-life imprisonment.
Capital punishment has been seen to have several drawbacks that directly counter its supposedly obvious advantages. For example, if the offenders are threatened with death penalty they will take measures to kill the victim to prevent evidence against them. Furthermore, it has been observed that conviction is much easier when the punishment is less draconian compared to death penalty. Evidence to support this comes from the fact that the proportion convicted of murder among all those convicted of a homicide in England and Wales increased from 28 per cent in 1965 (the year that capital punishment was abolished) to 63 per cent in 2005/2006.[11] The same has been true in Canada, where the conviction rate for first-degree (capital) murder, rather than second-degree murder or a lesser charge, has doubled from under 10 per cent when the execution would result, to about 20 per cent.”[12]
Some people believe and say that the death penalty is given out only in the rarest of rare cases and only with the strictest procedural safeguards. But no system or person is perfect, mistakes and errors are bound to happen and in this scenario, the innocent suffer.
We cannot deny the fact that money and greed drive prejudiced and corrupt tribunals or kangaroo courts to bring out unjust convictions in favour of the rich and powerful who walk around free while the innocent poor are trapped and executed. The poor facing a possible death sentence also face gross injustice as they are often misrepresented by inexperienced lawyers, or as it sometimes happens by no lawyer at all. These many times do not understand the charges, the evidence or the legal terminology used, especially if they are not familiar with the language used in court. The facilities provided to them by the state are largely inadequate. Such practices undermine the right to a fair trial and violate standards recognized in international human rights instruments.
The United States is a country that prides itself with having strong constitutional procedural safeguards regulating the capital punishments and has efficient and effective judicial system to ensure deliverance of the correct and just verdict. But even in this jurisdiction, appellate courts have reversed numerous death sentences based on procedural and evidentiary errors in the trial courts. A staggering and mind-numbing study by Columbia Law School reports on the acquittal of many death row convicts using newly available DNA testing technology.[13] If this is the scenario in a country like the United States of America one can only imagine what amount gross injustice must be happening with innocent in other weaker countries where such advance technology and machinery are not available.
Furthermore, if human rights values declare that every human being, every individual has the inherent right to life, the principal guarantor of human rights, the state have no authority to deprive someone of life? Simply putting down “Why do we kill people to show that killing people is wrong?” Moreover, Article 5 of the Universal Declaration of Human Rights (UDHR) says that “no-one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment,” then by what logic and thought does the deliberate and cold-blooded killing of a person be not categorized as cruel, inhuman and degrading?
References
[1] Randa 1997
[2] Amnesty international global report; death sentences and executions 2017
[3] Amnesty international global report; death sentences and executions 2017
[4] R. Hood, The Death Penalty: A World-wide Perspective
[5] Oxford Round Table U.S. Death Penalty and International Law, p. 3
[6] Los Angeles Times; june 7, 1995
[7] Universal declaration of human rights
[8] Susan Munroe, “Abolition of capital punishment in Canada: Canadian murder rate stays low without capital punishment”
[9] United Nations Office on Drugs and Crime, 2011 Global Study on Homicide: Trends, Contexts, Data (Vienna, 2011), p. 33.
[10] A Blow to Human Rights: Taiwan Resumes Executions: The Death Penalty in Taiwan, 2010 (Taipei: Taiwan Alliance to End the Death Penalty, 2011), p. 15.
[11] “Table 1.02: Offences initially recorded as homicide by outcome, 1999/00 to 2009/10”, in Homicide, Firearm Offences and Intimate Violence 2009-10, Home Office Statistical Bulletin 01/11 (2011).
[12] Mark Warren, The Death Penalty in Canada: Facts, Figures and Milestones (London, Amnesty International, 2005).
[13] Jeffrey A. Fagan, Capital Punishment: Deterrent Effects and Capital Costs (New York, Columbia University School of Law, 2014).
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
