The death penalty presents a controversy on ending a life to uphold human rights or protecting a life to protect human rights. The thin line between what is wrong and what is right in the face of human rights has continuously sparked debates amongst legal experts, human rights advocates and activists and the public on the legality of the death penalty.

This article acts as a thought provoking piece exploring both sides of the controversy.

A Necessary Evil

“Life is precious is indeed, precious and I believe the death penalty helps affirm this fact.” – Edward I. Koch

Proponents of the death penalty argue that this form of punishment promotes the law of retribution based on the law of retaliation (lex talionis) as well as the ancient and Biblical phrase “an eye for an eye and tooth for a tooth” that emphasizes the notion that retribution is the idea of seeking punishment equal to the crime. Kant goes on to exemplify that:

“If… he has committed a murder, he must die. In this case, there is no substitute that will satisfy the requirements of legal justice. There is no sameness of kind between death and remaining alive even under the most miserable conditions, and consequently there is also no equality between the crime and retribution unless the criminal is judicially condemned and put to death.” (Immanuel Kant, The Metaphysical Elements of Justice (99–107); Ak 331–337)

This indicates that the idea behind the notion of retribution is that the offender must suffer punishment equal to the victim’s suffering. Thereby begging the question why should the law rush to the aid of a gruesome and intentional, killer, rapist, defiler,* terrorist who did not bat an eye in the face of ending another or inflicting inhumane and degrading treatment on another.

Pro-death penalty argue that the death penalty promotes deterrence and re-offending. Koch illustrates the fact that offenders participate in crime knowingly because of the impossibility of the death penalty. He goes on to consider the tragic death of Rosa Velez, who was at home and was killed by Luis Vera, who burglarized her apartment in Brooklyn, eventually admitting, “Yeah, I shot her.” “She knew me, and I knew I wouldn’t go to the chair.” Findings by various authors also seem to affirm that the death penalty deyers the commission of an offence or crime. For instance, upon reading Stephen G.Michaud’s “Ted Bundy: Conversations with a Killer”, it can be seen that Ted Bundy, a serial killer and rapist, avoided the State of California and other death penalty States opting for Colorado and Florida without death penalties at the time. Findings from Ann Rule’s “Green River Turning Red” about the Green River Killer, Gary Ridgway, indicate that Gary confessed to avoiding Idaho and Oregon because of their death penalties instead dicusing on the state of Washington. Earnest van de Haag, a professor at Fordham University argues that even though statistical demonstrations are inconclusive, and perhaps cannot be conclusive, capital punishment is most likely to deter more than other punishments as people fear death more that anything else. [Death Penalty Information Center (2000).]

With regard to preventing re-offending, proponents of the death penalty argue that the death penalty eradicates the threat to others’ lives in entirety. Vladimir Antyufeuev re-echoes this agreement emphasizing that introducing the death penalty is not revenge, it is the highest form of social protection. [The Moscow Times, “Donetsk Separatists introduce the Death Penalty for Treason”.] This raises the question, is the death penalty a necessary evil, or should we really protect the life of a serial or gruesome criminal at the risk of society?

A Redundant Violation

“We need to acknowledge that the death penalty is broken beyond repair.” – George Gascon

International** and Regional*** Human Rights Instruments including conventions, treaties and agreements unequivocally enshrine the right to life as an inalienable right for all persons, thereby imposing a duty on the States or countries to protect, respect and fulfill this right. This reaffirms the basis of opponents of the death penalty emphasizing that the death penalty is a savage and immoral institution that undermines the moral and legal foundations of society.

Amnesty International and other anti-death penalty supporters reason that the death penalty is discriminatory as it is often used against the most vulnerable in society, such as the poor, ethnic and religious minorities, opponents of the government as well as people with mental or intellectual disabilities, further arguing that there is a high risk of executing innocent people. Amnesty International highlights that since 1973, for example, more than 197 people sent to death row in the USA have later been exonerated or released from death row on grounds of innocence and others have been executed despite serious doubts about their guilt. Is the death penalty really worth the chance or is it merely a redundant violation that has outlived its stay?

Abolitionists of the death penalty argue that the death penalty does not deter crime and that on the contrary commission of crime spikes in areas where the death penalty was/is implemented. A case in point are the statistics provided by Amnesty International wherein it recorded at least 1,153 executions in 16 countries in the year 2023, an increase by 31 % from 2022 when there were at least 883 executions, indicating that despite the implementation of the death penalty, offenders still committed the offences and the crime rates increased, thereby proving Akers and Radelet’s brutalization effect that is cause by the death penalty. Martin Luther King once remarked that ‘Returning violence for violence multiplies violence, adding darkness to a night that is already devoid of stars’. This begs the question as to whether the death penalty is really a worthwhile and effective punishment.

A Gray Area

“I believe life imprisonment is far worse than the death penalty.” – Nick Yarris (Former innocent death row convict)

Most jurisdictions have set out an alternative punishment to the death penalty as life imprisonment. The glaring question therefore is whether this form of punishment is more humane compared to the death penalty. Anton Chekhov in his “The Bet” (published January 14, 1889) enunciates that capital punishment kills immediately whereas life imprisonment does so slowly. Which executioner is more humane? The one who kills you in a few minutes, or the one who wrests your life from you in the course of many years? Life imprisonment entails significant psychological effects such as stress, anxiety, depression and mental illnesses that raise questions on the humaneness of the penalty in the long term.****

Furthermore life imprisonment does not seem to present an effective alternative as it give room for offenders or criminals to appeal as well as being released as a result of change in the laws or circumstances in the prisons. For instance, consider the case of Kenneth Allen McDuff, an American serial killer from Texas who had been given three death sentences for the kidnap and murder of 3 teenagers but avoided execution after the 1972 U.S. Supreme Court ruling Furman v. Georgia (408 U.S. 238 (1972)). As a result of an overflow of prisoners, McDuff was paroled and released in 1989, to the unsuspecting members of society and between October 1989 and March 1992, Mcuff raped and killed at least six women, receiving another death sentence and was later executed in 1998. This therefore highlights the ineffectiveness of life imprisonment. It should also be noted that though some States have tried to mitigate the harshness of life imprisonment by stipulating a maximum period of years, some of these sentences are too lenient compared to the offences committed.

Conclusion

“For good ideas, and true innovation, you need human interaction, conflict, argument, debate.”

The debate between the proponents and abolitionists is one that remains suspended on a balance between mercy and justice. As such the article seeks to evoke further thoughts on the legality and illegality of the death penalty raising crucial aspects on human rights, justice, and morality. Is the death penalty an effective deterrent or does it promote a cycle of violence? Can a society that values human rights reconcile its moral outrage with the act of a State sanctioned killing? What could be the best alternatives to the death penalty and life imprisonment to ensure justice and uphold human rights.

References

• Edward I. Koch, “Death and Justice: How Capital Punishment Affirms Life”.
• Immanuel Kant, The Metaphysical Elements of Justice (99–107); Ak 331–337.
• State of West Virginia v Benjamin R. Taylor No 20-222 (Jackson County 18-2016-F-91).
• Death Penalty Information Center (2000).
• .The Moscow Times, “Donetsk Separatists introduce the Death Penalty for Treason”.
• The Universal Declaration of Human Rights.
• The International Covenant on Civil and Political Rights.
• African Charter on Human and People’s Rights (1981).
• The African Chater on the Rights and Welfare of the Child (1990).
• The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003).
• Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities (2018).
• The European Convention on Human Rights.
• The American Covention on Human Rights.
• The New York Times Review, “The Death Penalty” by Andrei Sakharov, February 9, 1978 issue.
• Amnesty International, “Death Penalty”.
• Michael L.Radelet and Ronald L. Akers, “Deterrence and the Death Penalty: The Views of the Experts” 87 J. Crim. L. & Criminology 1 (1996).
• Martin Luther King: “Where Do We Go from Here?: Chaos or Community” 1967 also reviewed by Center for Conscience and War, “Essays on Non-Violence and Conscientious Objection”.
• Anton Chekhov, The Bet, published January 14, 1889.
• Furman v Georgia 408 U.S. 238 (1972).

Marie Patricia Natakwa

* For instance, Benjamin Taylor, the man who was raped a 10 month year old baby subsequently leading to her death, was only sentenced to life without mercy. State of West Virginia v Benjamin R. Taylor No 20-222 (Jackson County 18-2016-F-91).

** Article 3 of the Universal Declaration of Human Rights; Article 6 of the International Covenant on Civil and Political Rights.

*** Article 4 of the African Charter on Human and People’s Rights(1981); Article 5 of the African Chater on the Rights and Welfare of the Child (1990); Article 4 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (2003); Protocol to the African Charter on Human and People’s Rights on the Rights of Persons with Disabilities (2018); Article 2 of the European Convention on Human Rights; Article 4 of the American Covention on Human Rights, to mention but a few.

**** Mumia Abu-Jamal emphasizes that “Prison is a second by second assault on the soul, a day to day degradation of the self, an oppressive steel and brick imbrella that transforms seconds to hours and hours to days”.