Death to Death Penalty

By: Jitesh Dudani |

What says the law? You will not kill. How does it say it? By killing. -Victor Hugo

 International Perspectives on the Death Penalty

Opposition to the death penalty has emerged globally under the developing concept of human rights. The international movement for the abolition of capital punishment arose after the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. According to Article 3 of the UDHR, imposition of the death penalty is in conflict with the right to life, which is the most basic human right. Although the UDHR is legally non-binding, the General Assembly of the United Nations has made efforts since 1959 to promote the respect for the right to life and the desirability of abolishing capital punishment. Many international instruments, most notably the International Covenant on Civil and Political Rights (ICCPR), prohibit the imposition of the death penalty. One of the major steps towards achieving the goal of abolishing the death penalty was the adoption of the Second Optional Protocol to the International Covenant on Civil and Political Rights on December 15, 1989, by the General Assembly with the help of the UN Human Rights Commission. The Optional Protocol aims to abolish the death sentence as a punishment for crime. Similarly, a Protocol to the American Convention on Human Rights to abolish the death penalty was concluded in 1990. More recently, in December 2007, the United Nations introduced a moratorium on execution with a view to abolish the death penalty. Presently, more than two-thirds of countries in the world have abolished the death penalty in law or practice. Ivan Simonovic, the UN Assistant Secretary-General for human rights, recently said in an address to the Human Rights Council in Geneva that about 160 countries have abolished the death penalty to date, either legally or in practice. This piece will explore why all countries in the world should strive to achieve the aims of the UDHR with respect to capital punishment and should instead turn to alternative methods, most notably restorative justice.

Arguments for Abolition of the Death Penalty

The death penalty is not an effective deterrent. Simonovic, in a 2015 presentation to the Human Rights Council, highlighted studies showing that the death penalty does not deter crime. Rather, a higher administration of the death penalty may lead to a greater occurrence of murders and other violent crimes. In the United States, states in the south are responsible for imposing eighty percent of death penalty punishments, yet these states have a higher murder rate than the states in the north. Thorsten Sellin, an American socialogist and pioneer of scientific criminology, in his studies, found that New York, California, and Texas, respectively, had 0, 1, and 239 executions from 1989 to 2002; however, they had the same murder rate from year to year, with Texas boasting the highest average.

Additionally, the death penalty once executed, is irreversible and irremediable. If a person’s innocence is discovered after he has been executed, there can be no suitable remedial measure which can be taken to correct the harm. The human institutions for criminal justice are not infallible. However, if the death penalty is enforced before the mistake is realized, all possibilities of remedying the harm die. Since 1973, 123 people have been released from death row based on later-discovered evidence of their innocence. If, in these cases, the state managed to expeditiously carry out the sentences, these people would have been executed and there would be no opportunity of correction of the mistake.

Moreover, the death penalty denies the opportunity for redemption. Archbishop Desmond Tutu, once famously said, “No one is beyond redemption.” No person is born a criminal, but becomes one due to the treatment he faces at the hands of society. As a result, society has the burden to take measures to reform him. Claiming that a person is beyond reformation is a recourse adopted by the state to avoid the hassle of reforming someone. Billy Moore, a death row inmate who was later released due to the victim’s family’s petition, among other efforts, is a living example along with many others that people on death row are not beyond reformation.

Perhaps most significantly, the death penalty is cruel and inhumane and can be considered institutionalised murder by the state justified on notions of retribution. It has also been seen as a violation of the Convention against Torture (CAT). The UN Special Rapporteur on Torture stated that according to the evolving international standard, the death penalty is a violation of CAT, which prohibits torture and other cruel, inhumane, and degrading treatment. Additionally, notion that death penalty is illegal and in violation of Art. 1 and 16 of the CAT is developing as a part of customary international law. In 2007, the lethal injections mechanism was put on hold in several US states to scrutinize the process. In 2005, Lancet, a British Medical Journal, found serious mistakes in the way lethal injections were being administered and found out that in forty-three percent of the cases, the anaesthetic levels were so low that the subjects were almost in a conscious state when being administered these injections.

Finally, the death penalty is discriminatory in its application. Across the world, discrimination runs through the administration process of the death penalty. In some countries, discrimination occurs on basis of class, while some countries have discrimination on the basis of race. In the United States, African Americans are sentenced to the death penalty at a rate significantly higher than the white Americans. Additionally, those who kill white people are given the death penalty at a significantly higher rate than those who kill African Americans. According to a study by David Baldus from Iowa State University, in Georgia in the 1980s, the death penalty was sought for seventy percent of African American defendants with white victims, while only for fifteen percent of white defendants with African American victims. Though African Americans constitute about fifty percent of victims year after year, only in fourteen percent of the cases where the victims were African Americans was the death penalty administered, compared to eighty percent of the cases where there were white victims.

Restorative Justice as an Alternative Model

 As an alternative to capital punishment, states should consider restorative justice as a model for criminal justice reform. The basic aim of punishment should be to reform and reinstate devious element of the state. The purpose is not to end the criminal but the crime. Criminals need to be reformed and not killed. Rather than using the death penalty as a tool of retributive justice, society should move to the restorative justice model, which advocates for repairing the harm caused or inflicted by the criminal behavior. This form of justice is achieved by cooperative mechanisms involving all stakeholders. The aim of restorative justice is to identify the harm and take steps to redress the harm rather than punishing the criminal. This is based on the theory of justice which considers harm to be a wrong against the individual or community and not the state. John Braithwite defined restorative justice as:

 …a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.

Howar Zehr distinguishes restorative justice from traditional criminal justice by saying that the former asks the following questions: “Who has been hurt? What are their needs?, Whose obligations are these?, What are the causes?, Who has a stake in the situation?, What is the appropriate process to involve stakeholders in an effort to address causes and put things right?” while the latter relies on three primary questions, namely: “What laws have been broken? Who did it? What do the offender(s) deserve?”

There are three primary models associated with restorative justice: victim offender conference, family conferences and circle approaches. Similar in the basic outline and objectives, the models differ in the mechanism of facilitation, and the number and category of the participants.

Victim Offender Conferences (VOC) are primarily held between the victim and the offender. After being referred and obtaining the consent of both parties, these conferences proceed. These conferences are facilitated by trained personnel who guide the process in a skilled and balanced manner. Second, Family Group Conferences (FGC) extend the participants who can take part in the meetings. In these conferences, the family of the offender is especially encouraged to participate, as this model requires the offender to realize his mistake, take responsibility for it, and then alter his behaviour. The presence of his/her family has a very important role in supporting him through this process. The victim’s family is also encouraged to support the victim. Legal personnel, including police officers, are generally present at the FGC meetings, particular ones determining the legal outcome of the case.

Finally, in the Circles Approach, participants are comparatively more involved than the above two models. The participants sit in a circle and a piece of paper known as a “talking paper” is passed around. Paticipants speak in the order delineated on the paper. One or two people in the circle serve as “circle facilitators” who facilitate the discussions and encourage people to speak and assist the offenders to admit their mistake, take responsibility for it, take measures to provide comfort to the victim and his family, and subsequently take steps to redress the harm. In this approach, apart from the victim, offender, and their families, the community members are encouraged to participate.

The restorative model aims to achieve the following three objectives: acknowledgement of the wrong or injustice, restoring the equity, and addressing future intentions. Rather than punishing the criminal, this approach focused on repairing the harm, helping to victim or his family, and reforming the criminal. It has various benefits for the victim, namely giving the victim or his family a chance to be heard, having a voice in meaningful accountability for the offender, expressing their feelings and impact of the harm, and asking questions and seeking relevant information that can assist them in healing and closure. It also helps the offender to take on the challenging but important task of taking responsibility, experiencing and expressing genuine remorse, making amends, and working towards the goal of providing comfort to their victims or their families. Further, the process has numerous benefits of its own, namely: it focuses on redressing the harm and reforming the criminal rather than punishing him, it helps the parties involved to understand each other’s situation and work together toward the justice sought but not mandated, and it is based on accountability and repairing the harm.

As the above description indicates, restorative justice can serve as a strong counterweight to retributive justice models in the face of crimes, even heinous ones. Returning, then, to the issue of capital punishment, and keeping all the above arguments and international instruments in mind, in the interest of civilized society and its obligation to reform its devious elements, the death penalty should be abolished as a violation of CAT and an aberration of justice. Instead, society should move to a more restorative form of justice, which can help heal the victim, the criminal, and society at large.

Jitesh Dudani is an LL.M. candidate at Berkeley Law.  He is a student contributor to Travaux.

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