The Death of the Death Penalty

Photo via Victoria Prison 域多利監獄開放日',
Photo via Victoria Prison 域多利監獄開放日',

“The issue of the death penalty is associated with two fundamental human rights norms: the right to life and the protection against cruel, inhuman, and degrading punishments.”[1] Currently, more than 70 percent of the world’s countries have abolished the death penalty; however, international law does not prohibit the death penalty, even though most countries consider it a violation of human rights. The countries with the highest rates of capital punishment are Afghanistan, China, India, Iran, Iraq, and the United States. Among these countries the United States remains the only western democratic country to use the death penalty.[2]

Despite its emphasis for human rights on a global scale, the public support for the death penalty in the United States has increased seventy-six percent during the 1990s.[3] While state-level executions have decreased, the federal government put more prisoners to death under President Donald Trump than at any point since the U.S. Supreme Court reinstated capital punishment in 1976.[4] International law scholars hypothesize that this trend is occurring due to the political and media attention on violent crime in America, “inflaming the public’s fears, which generates greater emotional acceptance and support for capital punishment.”[5] Similarly, China employs capital punishment as a means of maintaining social and political control. The Chinese government demonstrated this application of the death penalty during the Tiananmen Square student demonstrations.[6]

There are a number of disagreements that may arise between countries that impose the death penalty and those that do not. Countries without the death penalty are particularly concerned when one of their citizens faces execution in the U.S.[7] Some countries refuse to extradite individuals to the U.S., or even to provide incriminating evidence, if the defendant could face the death penalty.[8] Inconsistency in punishments depending on their citizenship and which country they are located in causes confusion for global travelers and tension amongst conflicting governments.[9]

 International law supports order in the world and the attainment of humanity’s fundamental goals of peace, prosperity, respect for human rights.[10] It is this author’s view that if the United States wants to continue to claim to be an advocate of human rights internationally, then it must confront the human rights violations within its borders, including the continued use of the death penalty. In recent years, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), New Hampshire (2019), Colorado (2020) and Virginia (2021) have legislatively abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole. However, capital punishment is currently authorized in 27 states, by the federal government and the U.S. military.[11] This author advocates for the position that the United States should ban the death penalty as a cruel and unusual punishment for crimes committed within its borders, as its allies and neighboring countries have already done.

[1] William A. Schabas, The Abolition of the Death Penalty in International Law, 23 Suffolk Transnat’l L. REV. 803 (2000).
[2] Id. at 810.
[3]James H. Wyman, Vengeance is whose?:The Death Penalty and Cultural Relativism in International Law, 6 J.Transnat’l L. & Pol’y 552, 553 (1997).
[4] John Gramlich, 10 facts about the death penalty in the U.S., Pew Rsch. Ctr. (July 19, 2021).
[5] See Christy Short, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It Means?, 6 Ind. J. Global Legal Stud. 721 (1999).
[6] See Sonia Rosen & Stephen Journey, Abolition of the Death Penalty: An Emerging Norm of International Law, 14 Hamline J. Pub. L. & Pol’y 163, 173 (1993).
[7] Supra note 3.
[8] Id.
[9] Mary Ellen O’Connell, The Power & Purpose of International Law: Insights from the Theory & Practice of Enforcement, Oxford Univ. Press (2008).
[10] See id.
[11] States and Capital Punishment. Nat. Conf. of State Legislatures. (August 8, 2021).