The death penalty is fraught with many issues. Below are some of the most egregious:
1. Cruel and Inhuman Treatment or Punishment
Many countries view capital punishment as inherently arbitrary and discriminatory. These factors—as well as the unique psychological and physical trauma associated with the time leading up to and actual infliction of this punishment—make the death penalty cruel, degrading, and inhumane, according to a majority of nations. Although the U.S. Constitution's Eighth Amendment specifically prohibits “cruel and unusual” punishment (evaluated based on “evolving standards of decency”), the U.S. Supreme Court has opined that capital punishment does not constitute a per se violation this clause—rendering the United States in the minority of countries that still deems such punishment permissible.
2. Scope of Death-eligible Offenses
Most nations do not permit the death penalty under any circumstances. Among those that do, many agree that capital punishment should be limited to the most serious crimes, such as murders occurring under particularly egregious circumstances. Nonetheless, in some countries, even non-violent crimes—including drug offenses, economic crimes, espionage, and treason—remain death-eligible offenses. Furthermore, individuals may be subject to the death penalty in some countries, including the United States, in cases in which they are mere accessories or accomplices to a crime (e.g. non-triggermen) as opposed to direct perpetrators.
3. Juvenile Offenders
Of the nations that still permit capital punishment, most prohibit the application of this penalty to individuals who were “juveniles” at the time they committed a capital offense. Individuals are generally deemed juveniles if they are below 18 years of age. A primary reason for the exclusion is that research indicates juveniles are not fully developed cognitively; in turn, they lack maturity and responsibility and are prone to reckless conduct, as compared to adults. While countries such as Iran, Pakistan, and Democratic Republic of Congo have executed youths age 14 or younger since the beginning of 2000, each of these nations has either adopted or is presently considering laws that would abolish the death penalty for juveniles under the age of 18.
4. Mentally Ill Offenders
Of the nations that still permit capital punishment, some prohibit the application of the penalty to the “mentally ill” or people deemed to be legally “insane” at the time execution is scheduled to occur. In order to qualify for this exclusion in the United States, individuals must be found incapable of understanding the nature of and rationale for their punishment at the time execution is scheduled. Under this narrow definition of “insanity,” many individuals remain subject to the death penalty despite suffering from severe mental illnesses recognized by the medical community.
5. Intellectually Disabled Offenders
Of the nations that still permit capital punishment, many prohibit the application of this penalty to individuals who are “intellectually disabled” (formerly referred to as “mentally retarded”). However, this term may be narrowly defined by some nations, leaving many cognitively impaired individuals—who have diminished capacity to discern right from wrong or to rationally evaluate decisions generally—subject to the death penalty.
6. Use of Torture
While the majority of nations have banned capital punishment as cruel, degrading, and/or inhumane treatment, such punishment has not yet been officially defined anywhere in the world as “torture.” In recent years, human rights experts (including Juan E. Méndez, United Nations Special Rapporteur on Torture) have called for the inclusion of capital punishment within the scope of international prohibitions on torture. Researchers assert that “death row phenomenon”—which encompasses a range of factors (such as prolonged solitary confinement, anxiety caused by lengthy periods awaiting execution, etc.) that produce severe mental and physical trauma for death row inmates—warrants defining capital punishment as torture.
7. Foreign Nationals
Foreign nationals may be subject to discrimination, loss of due process, and other biases and/or disadvantages when accused of capital offenses outside of—and without the protections of—their home countries. Under the Vienna Convention on Consular Relations, foreign nationals charged with crimes within signatory nations are entitled to assistance from their consulate. Despite the protection afforded under the Vienna Convention, foreign nationals may be denied the right to consular assistance, even in nations who are party to the Convention. Many foreign nationals denied this right are currently on death row in signatory nations, including the United States, raising questions about the validity of their sentences.
8. Methods of Execution
While there are many methods of execution, the most common include form is hanging. Other methods include shooting, firing squad, beheading, lethal injection, electrocution, gassing, stoning, and falling from an unknown height. International safeguards, which human rights and other organizations have promulgated to mitigate the cruel, degrading, and inhuman aspects of capital punishment to the extent possible, advocate for methods of execution that inflict the “minimum possible suffering.” Most human rights organizations have not opined on whether any specific execution methods constitute cruel, inhuman, or degrading treatment. However, the U.N. Human Rights Committee has singled out execution by gas asphyxiation and stoning as particularly cruel and inhumane.
9. Public Executions
A public execution is a form of capital punishment in which members of the community may attend voluntarily. Most countries have outlawed the practice because it is deemed to be uncivilized and potentially damaging to witnesses.
10. Notification to Sentenced People and Their Families about Execution Dates
In some countries, neither prisoners nor their families know in advance the date of execution. They may not be informed until the day the executive is to occur. Many experts maintain that withholding such information is psychologically damaging. It imposes ongoing stress, anxiety, and uncertainty regarding the inmate’s pending death. In addition, loved ones may also not be given the body after execution nor informed of where the body is buried.
Criminal justice systems are not foolproof. Wrongful convictions occur. Inadequate legal representation, faulty evidence, discrimination and prejudice (both on the part of prosecutors and juries), and eyewitness misidentification are only a handful of the myriad of reasons why innocent people are wrongfully executed each year.
12. Discrimination Based on Demographic Factors
Empirical evidence indicates that certain groups— including minorities and members of the LGBTQI community—are more frequently targeted by prosecutors seeking the death penalty and more often sentenced by juries to death. Similarly, individuals are more likely to be charged with a capital offense and sentenced to death where victims are non-minorities or wealthy. In the United States, racial bias is particularly marked; a death sentence is more likely when the victim is white. The accused’s socio-economic status may also impact the likelihood of a capital conviction. This is due to prejudice, as well as the individual’s lack of resources to amass an adequate defense. Despite legal protections against such discriminatory treatment and arbitrary results, it can prove extremely difficult to overturn a capital sentence based on such factors.
13. Arbitrariness of the Death Penalty
Factors other than the crime itself or the offender’s culpability affect prosecutors’ decisions to pursue capital conviction and juries’ decisions to sentence individuals to death. Arbitrary influences such as where the trial is held (and attendant local prejudices); the offender's gender, race, or other characteristics; the victim's gender, race, or other characteristics; and the accused’s access to adequate legal counsel may lead to dramatic differences in the outcome of a capital trial.
14. Costs of the Death Penalty
Death penalty cases are very expensive, both for the defendant and for the legal system at large. Recent studies have shown that state judicial systems are spending millions of dollars on just a few death penalty cases each year.
15. Lack of Compensation for Exonerees
Those who have been exonerated from death row and released from prison face considerable challenges reintegrating into society. Many receive little to no assistance with their reintegration process, nor compensation for wrongful imprisonment and related psychological and physical suffering.
16. Children of Death-sentenced People
The entire legal process—from arrest to sentence to fulfillment of sentence—can be devastating to children of offenders. Children's physical and mental health can be harmed. Many criminal justice systems do not recognize this as a major problem, and fail to offer appropriate resources to aid impacted minors.
17. Right to a Lawyer and Adequate Legal Representation
In most international legal systems, the right to legal representation in criminal cases is fundamental. For such a right to be meaningful, the legal assistance afforded must be adequate and effective. Too often, public defenders assigned to criminal defendants are overburdened with large caseloads and lack the time, experience, and financial resources (as well as financial motivation) necessary to mount a good defense. These factors are of particular import to those facing capital punishment, as an adequate defense requires experienced counsel familiar with any unique aspects of such proceedings (such as the bifurcated proceedings and related mitigation phase arising under U.S. law) and equipped with sufficient time and monetary resources to fully investigate, obtain appropriate experts, and otherwise properly prepare.
18. Conditions on Death Row
Death row conditions can be completely inadequate, resulting in a cruel and inhumane environment in which death row inmates must live indefinitely while they await their execution. Conditions may span from “supermax” facilities that subject inmates to sterile and isolated environments to unsanitary and grossly overcrowded prisons that deprive inmates of basic needs, such as hygiene and nutrition. Because appeals processes in many countries are lengthy, death row inmates frequently are exposed to such conditions for many years while they await final disposition of their cases and execution of their punishment.
19. Right to Appeal
Along with access to courts, the right to appeal is imperative in capital cases. Appeals present courts with an opportunity to remedy procedural or legal errors made at trial or sentencing, and they may afford a critical opportunity for the accused to present new or ignored evidence, fresh witnesses, and/or evidence resulting from advanced technologies. Along with the right to appeal a capital conviction and/or sentence, people in many nations that allow capital punishment also have a right to seek pardon or commutation of sentence.
20. Mandatory Death Penalty
In some countries, conviction of certain crimes automatically results in a death sentence. Offenders do not have access to any kind of appeals process in such circumstances. Moreover, they are not able to present mitigating evidence—such as environmental and physical factors, like abuse during childhood or mental illness—prior to receiving a death sentence. Of the nations that still permit capital punishment, most recognize the significant import of allowing for appeals, presentation of mitigating factors, and other safeguards to ensure this penalty is not issued arbitrarily, inaccurately, or absent the most egregious circumstances.
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