Author: Sydney Sanders
January 24, 2025
Trigger Warning: The following article contains graphic violence and death.
During September 2024, in one week alone, five different states in the U.S. (South Carolina, Missouri, Texas, Oklahoma, and Alabama) executed inmates on death row.
The execution of Khalil Divine Black Sun Allah (Freddie Eugene Owens) in South Carolina was the state’s first execution in 13 years, and it took place after a decade-long legal fight within the state to resume executions, a practice which had prior been paused. In May 2024, South Carolina passed a shield law, which legally protects witnesses from revealing certain information, especially in court, to protect the identity of pharmaceutical companies and their executives in the case that these companies assist in securing lethal injection drugs for executions. Generating significant media coverage, this event could continue to impact death penalty executions in other states, as South Carolina is the latest in a string of states to enact shield laws to secure lethal injection drugs.
Meanwhile, Khaliifah ibn Rayford Daniels (Marcellus Williams) was executed in Missouri on September 24, despite his steadfast maintenance of his innocence, objections from the victim’s family, his team’s efforts to exonerate him, and support from influential politicians and institutions, including Rep. Cori Bush (D-Mo.), The Innocence Project, Ilhan Omar (D-Minn.), and Alexandra Ocasio-Cortez (D-N.Y.).
Of the 25 executions that took place in the U.S. this past year, these five cases across five different states have focused the public’s attention back to this historically controversial topic, with the first U.S. death penalty abolition movement taking place in the late 1700s.
The controversy over the death penalty, or capital punishment, in the U.S. likely stems from a lack of agreement on whether or not the death penalty should be abolished; the nation’s death penalty laws are governed by the states, thus leaving the general opinion surrounding capital punishment to vary drastically. Currently, 23 states have abolished the death penalty, leaving it still legal in 27 states. The U.S. Government and Military similarly maintain the death penalty. Not all of the states which still permit capital punishment are actively sentencing people to death, nor are these states necessarily conducting any executions. For example, California, Oregon, Pennsylvania, Arizona, and Tennessee have placed moratoriums, or temporary holds, on executions. There is also currently a federal moratorium on the death penalty, imposed by President Biden in 2021. Nevertheless, many states continue to conduct executions, as the Federal moratorium only applies to Federal crimes.
Although progress has been made towards full abolition of the death penalty in the U.S.—several states, including Delaware, Nebraska, Washington, New Hampshire, Colorado, and Virginia, abolished the death penalty within the last 10 years—however, other states continue to practice it. Perhaps a new approach would be needed to persuade the remaining states to change their stance.
Current Strategies for Advocating Against the Death Penalty
A major factor in recent steps taken to abolish the death penalty could be an increase in understanding of the common criticisms of capital punishment. International human rights organizations, like Amnesty International and Human Rights Watch, have publicly opposed the death penalty and conducted public awareness campaigns against it. Additionally, the United Nations Human Rights Office advocates for the universal abolition of the death penalty on a global scale.
There are several widely recognized arguments used in opposition to the death penalty, centered around the myth of deterrence, racial discrimination, and wrongful convictions.
Myth of Deterrence
A primary argument in favor of capital punishment is that it can deter people from committing crimes that may be eligible for the death penalty. Modern deterrence theories are rooted in classical criminology, referring to the work of 18th-century philosophers of legal reform that founded their ideas on the concept of rational choice. Advocates for the death penalty commonly rely on this argument to advocate against abolition.
However, research conducted both globally and within the U.S. simultaneously refute this argument. For example, a survey on the relationship between the death penalty and murder rates, conducted via the United Nations in 1988 and updated in 1996, found no proof that executions had a greater deterrence than life imprisonment. In the U.S., the National Research Council came to a similar conclusion in 2012, noting that research to date cannot conclude whether capital punishment decreases, increases, or has no effect on homicide rates. Moreover, the increase of legislation being passed for the abolition of the death penalty across states within the U.S., in conjunction with a significant decrease in violent crimes, contradicts this argument.
If the death penalty does not deter people from committing crimes, its primary function becomes to punish under the archaic idea of ‘an eye for an eye.’ Ivan Šimonovi´c, a death penalty abolitionist, argues that without the effect of deterrence, “[the continued application of the death penalty] may be out of ignorance, or deterrence may be a fig leaf covering other motives: the desire for talionic revenge, or to protect dominant social groups and their interests…”. It perpetuates the cycle of violence and does not protect communities from violent offenders; it is a tool of oppression whose “premise remains rooted in power and retribution rather than rehabilitation.”
Racial Discrimination
Historically, the death penalty was mired by racial biases. 35 years ago, the U.S. General Accounting Office found evidence of racial disparities in the charging, sentencing, and imposition of the death penalty. Since then, and still today, countless studies support the concept that the death penalty is discriminatory.
The racially charged biases associated with capital punishment are exemplified by the difference in likelihood of a criminal to face executions when the victim of the crime committed is white. Specifically, 75% of homicide cases involving the death penalty in the U.S. involve the murder of white victims, even though white victims make up about 50% of all homicide victims in the country, according to the Death Penalty Information Center (DPIC). Even when the crime committed is comparable in almost all aspects, the death penalty was the more likely sentence for defendants if they committed a grievous act against a white person.
According to the DPIC, groups central to criminal proceedings, such as law enforcement officers, witnesses, and jurors, hold implicit racial biases, allowing for harsher punishment of minorities, even without legal sanction or even blatant, conscious intention. DPIC maintains that unfair utilization of the death penalty could be stopped by removing it as a sentencing option completely. The Center for Constitutional Rights affirms this by stating that, “People of color have accounted for a disproportionate 43% of total executions since 1976 and 55% of those currently awaiting execution—while they only account for approximately 27% of the general population.”
The Supreme Court ruled on the issue of racial disparity in the application of capital punishment in McCleskey v. Kemp (1987), a case where a Black man (McClesky) was sentenced to death after being convicted of murder. After sentencing, McCleskey argued with statistical data that the death penalty was applied disproportionately when a Black person killed a white person, and therefore, capital punishment was unconstitutional under the Eighth Amendment, as it violated equal protection. However, the Court ruled that studies alone could not provide the required proof of racial discrimination in a particular defendant’s case.
On the other hand, the U.N. Human Rights Committee (UNHRC) acknowledged in 2006 that the death penalty, as currently applied, violates the non-discrimination requirement found in the international human rights legislation that governs the United Nations; specifically, the issue of racial discrimination in the United States. In response to the continued use of the death penalty in the U.S., the UNHRC recommended that the nation assess the disproportionate use of the death penalty on ethnic minorities and low-income populations, as well as the reasons for this, and appropriately address the problem. Moreover, The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is signed and ratified by the U.S., ensuring by law the right to non-discrimination for all people. This means that the U.S. has, for example, legally agreed to not engage in, support, or defend any act or practice of racial discrimination, as well as review its policies and laws to ensure that they do not result in racial discrimination. Therefore, in regards to capital punishment, the U.S. should take special measures to insure marginalized groups are not discriminated against in the criminal justice system.
Wrongful Convictions
No justice system in the world, even the most sophisticated, is exempt from human error. Wrongful convictions occur in all legal systems and at every level of legal processing, despite a governing body’s level of investment in its legal systems. If this problem persists in advanced, well-resourced legal systems, the opportunity for wrongful convictions in less advanced legal systems with fewer protections is even greater. Ultimately, all states and systems are susceptible to error and miscarriage of justice. International human rights law recognises that susceptibility by mandating fair trial guarantees in all death penalty cases and those facing the death penalty should have special protection and guarantees to ensure they receive a fair trial above and beyond those in non-death penalty cases. Too many countries continue to enact the death penalty without upholding these mandates. The death penalty’s finality does not allow for rectification after the punishment has been enacted. When the death penalty is carried out in imperfect legal systems, which all legal systems are, it strips the wrongfully convicted of their chance to be exonerated.
With the advancement of DNA testing, the prevalence of wrongful convictions has been brought to light. Since 1973, 200 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that put them there, according to the Death Penalty Information Center. Notably, the United States is the only country where there has been such a large group of people whose innocence has been clearly proven by DNA tests years after their conviction. Kirk Noble Bloodsworth, the first person in the United States to be exonerated from a capital conviction through DNA testing, posits, “Even in the midst of fear and anger, a great country must ensure that its criminal justice system is effective and accurate. If a great country cannot ensure that it won’t kill an innocent citizen, it shouldn’t kill at all.”
The Death Penalty as a Violation of Human Rights
The aforementioned criticisms of the death penalty have worked to achieve abolition in states like Virginia, where racial discrimination was a major factor in gathering support. However, these arguments do not address this fundamental problem with the death penalty, nor have they been successful in swaying states that appear to be steadfast in their maintenance that capital punishment is unjust due to the impact of racial bias on the sentencing process. At its core, the death penalty is a violation of human rights; specifically, it violates one’s right to life and to live free from torture or cruel, inhumane, or degrading treatment or punishment. Approaching abolition from this lens could be the avenue advocates in the remaining states have been looking for.
In December 1948, when the UN General Assembly adopted without dissent the Universal Declaration of Human Rights (UDHR), all member states pledged to promote fundamental rights as the foundation of freedom, justice, and peace. It proclaimed that these rights are inherent in every human being, are not privileges that may be granted by governments for good behavior, and they may not be withdrawn for bad behavior.
Legally, the United States has agreed to uphold these human rights by signing and ratifying the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the United Nations General Assembly in 1966 that outlines the civil and political human rights that should be respected, protected, and fulfilled by all member states. Along with the International Covenant on Economic, Social, and Cultural Rights, these treaties commit ratifying member states to legal obligations to uphold the rights laid out in the UDHR.
Article 6 of the U.N. ICCPR affords that all human beings have the inherent right to life. This right is inalienable and should be protected by the laws of all states. No one’s life should be arbitrarily taken from them. The very act of enacting the death penalty deprives people of their right to life, whether or not they are guilty of a crime.
The death penalty also violates Article 7 of the ICCPR, freedom from torture or cruel, inhuman or degrading treatment or punishment, in a couple of ways. First, the living experience of American death row inmates fits the international legal definition of torture. According to the Center for Constitutional Rights, the vast majority of the approximately 3,250 prisoners on death row in the U.S. will serve years in solitary confinement and undergo other crippling conditions while awaiting execution.
The Death Penalty Information Center (DPIC) mirrors this claim, noting that the time between sentencing and execution in the U.S. has increased significantly, causing the living conditions for death row inmates to come under closer scrutiny. They posit that some Supreme Court Justices have raised constitutional concerns about the physical and psychological effects of being held in solitary confinement for a considerable time.
Additionally, the methods of execution currently used for the death penalty in the United States are forms of torture in themselves. The main forms in the U.S. are currently electrocution, the gas chamber, the firing squad, and lethal injections. Although The Supreme Court has never found a method of execution to be unconstitutional, some methods have been declared unconstitutional by state courts.
In an interview about his book, The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice and the Emerging Abolitionist Norm, John Bessler, a professor at the University of Baltimore School of Law, lays out his argument that the death penalty should be classified as torture in the following statement: “...the death penalty is really just a series of credible death threats. So, if you have a capital charge, that’s a death threat. If you have a death sentence, that’s just a more credible death threat. And of course, if you have an execution, in the period leading up to the execution, that also constitutes a very imminent death threat.”
Bessler argues that sentencing someone to death is itself a form of mock execution, where, in some cases, it is actually carried out, making it an even more severe form of psychological torture, which is already considered a classic example of torture in international law. Because the U.S. has signed and ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits both physical and mental forms of torture, the death penalty should be classified as such due to the emotional and mental toll it takes on those who are awaiting their execution on death row; this psychological impact might be considered a form of torture under certain guidelines.
Alice Edwards, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Morris Tidball-Binz, the Special Rapporteur on Extra-Judicial Summary or Arbitrary Executions, posit that these methods of execution are incompatible with legal obligations to refrain from torture and ill-treatment in addition to inflicting severe pain and suffering.
For example, lethal injection, the current most common method of execution in the U.S., has been used in nearly 90% of the total [executions] carried out since 1976. However, lethal injection, as well as most other methods of execution, are not perfect. It is estimated that 3% of all U.S. executions in the period from 1890 to 2010 were botched. Lethal injection specifically has a botched rate of 7.12%.
Botched executions either involve unforeseen issues or delays that cause unnecessary suffering for the prisoner or reflect the incompetence of the executioner. For example, inmates catch fire while being electrocuted, are administered the wrong dosages of specific drugs for lethal injections, or are strangled during hangings (instead of having their necks broken).
Even when executions are performed successfully, inmates can experience intense pain. In 2016, Dr. Joel Zivot and colleagues at Emory University Hospital in Georgia found evidence of suffering during the autopsies of inmates executed by lethal injection. “The autopsy findings were quite striking and unambiguous,” Dr. Zivot believed that lethal injection induced a quick death and did not damage a prisoner’s body; however, the autopsies proved this incorrect. He found that the death penalty inflicted both physical and psychological torture on those on death row and executed by the state.
Freedom from The Death Penalty is Not Just for the Innocent
The death penalty, at its core, takes the life of human beings. Mustafa Ali-Smith argues, “By valuing vengeance over rehabilitation and institutionalizing killing as a form of punishment, the state legitimizes the very behavior it seeks to condemn.”
There is only one solution to address the main criticisms and concerns over the death penalty given the current state of the U.S.’ judicial system, and that solution, at least in terms of this day and age and the related understanding of the death penalty’s flaws, is abolition. The justice system in the United States, or in any nation, will never be perfect due in part to human error—people will always fall through the cracks and be wrongfully convicted. The death penalty will not deter violent people from committing violent crimes. Similarly, until justice becomes restorative in the U.S., it will continue to target communities of color disproportionately.
It makes sense why wrongful convictions in capital punishment cases are commonly used to call for abolition; Carol and Jordan Steiker argue that, largely because of cognitive bias, claims of innocence have lots of power in persuading public opinion. It is difficult for the general public to view themselves as vulnerable to someday ending up in the criminal justice system, much less sentenced to death. Thus, in order to elicit empathy and ignite passion for the abolition of the death penalty, advocates commonly used the wrongfully convicted as a way to help the general public empathize with those on death row.
However, those in favor of getting rid of the death penalty should not have to rely on the wrongfully convicted to advocate for abolition. Although progress has been made toward the abolition of the death penalty, 27 states have yet to eliminate it. As we saw in September 2024, controversial, contested executions are still taking place.
Criticisms against the death penalty are not just voiced by abolitionists. Also, public opinion of capital punishment is shifting in the United States. According to the DPIC, the Gallup Crime Survey has collected data on opinions about the fairness of the death penalty in the U.S. since 2000. While between 2000 and 2015, 51% to 61% of Americans said they thought capital punishment was applied fairly in the U.S., this number has been dropping since 2016. For the first time, the October 2023 survey showed that more Americans believe the death penalty is applied unfairly (50%) than fairly (47%). Although a majority of Americans still support the death penalty (53%), the 47% was a historic low in Gallup’s history of death penalty polling since March 1972.
It is worthwhile to consider an alternative approach to capital punishment in the United States. The death penalty will always violate the human rights of those sentenced to it and executed under it, and that should be enough to believe its existence in the United States should no longer continue. “Death is irrevocable: it is a common and thoroughly respectable concern about the death penalty that executions cannot be undone.” The only way to definitively protect and uphold the human rights of those sentenced to the death penalty is to abolish it completely.
Glossary
Abolition: the action or an act of abolishing a system, practice, or institution
Appeals: apply to a higher court for a reversal of the decision of a lower court
Arbitrarily: on the basis of random choice or personal whim, rather than any reason or system
Archaic: of an early period of art or culture
Autopsy: a postmortem examination to discover the cause of death or the extent of disease
Botched: carried out badly or carelessly
Classical criminology: refers to the work of 18th-century philosophers of legal reform, such as Beccaria and Bentham, but its influence extends into contemporary works on crime and economics and on deterrence, as well as into the rational choice perspective
Cognitive bias: a systematic error in thinking that can lead to irrational decisions and inaccurate judgments
Conjunction: the action or an instance of two or more events or things occurring at the same point in time or space
Contradict: assert the opposite of a statement made by (someone)
Controversial: giving rise or likely to give rise to public disagreement
Credible: able to be believed; convincing
Death Penalty/Capital punishment: death as a punishment given by a court of law for very serious crimes
Deterrence: the action of discouraging an action or event through instilling doubt or fear of the consequences
Disproportionate: too large or too small in comparison with something else
Dissent: the expression or holding of opinions at variance with those previously, commonly, or officially held
Eighth Amendment: prohibits cruel and unusual punishments, in addition to “excessive fines” and bail
Electric chair: a chair in which criminals sentenced to death are executed by electrocution
Empathy: the ability to understand and share the feelings of another
Exemplify: be a typical example of
Exonerate: (especially of an official body) absolve (someone) from blame for a fault or wrongdoing, especially after due consideration of the case
Firing squad: a group of soldiers detailed to shoot a condemned person
Grievous: (of something bad) very severe or serious
Imminent: about to happen
Inalienable: unable to be taken away from or given away by the possessor
Incompetence: inability to do something successfully; ineptitude
International Covenant on Civil and Political Rights (ICCPR): a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI) on December 16 1966 that outlines civil and political human rights
Irrevocable: not able to be changed, reversed, or recovered; final
Legal sanction: a penalty or coercive action taken against someone who fails to comply with a law, rule, or order
Legislation: laws, considered collectively
Lethal Injection: a method of executing condemned prisoners through the administration of one or more chemicals that induce death
Mock execution: a method of torture where the subject is deliberately but falsely made to feel that their execution or that of another person is imminent or is taking place
Moratorium: a temporary suspension or halt in the use of the death penalty
Multilateral: agreed upon or participated in by three or more parties, especially the governments of different countries
Norm: something that is usual, typical, or standard
Opposition: resistance or dissent, expressed in action or argument
Oppression: the state of being subject to unjust treatment or control
Posit: put forward as a basis of argument
Racial disparity: the unequal treatment of different racial groups in society
Ratify: sign or give formal consent to (a treaty, contract, or agreement), making it officially valid
Rectification: the action of putting something right
Rehabilitation: the action of restoring someone to health or normal life through training and therapy after imprisonment, addiction, or illness
Reprieve: cancel or postpone the punishment of (someone, especially someone condemned to death)
Retribution: punishment inflicted on someone as vengeance for a wrong or criminal act
Second Optional Protocol to the ICCPR: It is a subsidiary agreement to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty
Shield law: a law that protects witnesses from revealing certain information, especially in court
Social groups: a collection of people who share similar characteristics, interact regularly, and feel a sense of unity
Solitary confinement: the isolation of a prisoner in a separate cell as a punishment
Susceptible: likely or liable to be influenced or harmed by a particular thing
Talionic: the system or legal principle of making the punishment correspond to the crime
Torture: means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Unambiguous: not open to more than one interpretation
Universal Declaration of Human Rights: proclaimed by the United Nations General Assembly on December 10 1948 as a common standard of achievements for all peoples and all nations, setting out, for the first time, fundamental human rights to be universally protected
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