why is the death penalty inhumane essay

The Inhumanity of the Death Penalty

In America, the history of the criminal justice system—and of executions—is inseparable from white supremacy.

Fifteen years ago, Clayton Lockett shot Stephanie Neiman twice , then watched as his friends buried her alive. Last week, Lockett was tortured to death by the state of Oklahoma. The torture was not so much the result of intention as neglect. The state knew that its chosen methods—a triple-drug cocktail—could result in a painful death. (An inmate executed earlier this year by the method was heard to say, "I feel my whole body burning.") Oklahoma couldn't care less. It executed Lockett anyway.

Over at Bloomberg View, Ramesh Ponnuru has taken the occasion to pen a column ostensibly arguing against the death penalty. But Ponnuru, evidently embarrassed to find himself in liberal company, spends most of the column dismissing the arguments of soft-headed bedfellows:

On the core issue—yes or no on capital punishment—I'm with the opponents. Better to err on the side of not taking life. The teaching of the Catholic Church, to which I belong, seems right to me: The state has the legitimate authority to execute criminals, but it should refrain if it has other means of protecting people from them. Our government almost always does. Still, when I hear about an especially gruesome crime, like the one the Oklahoma killer committed, I can't help rooting for the death penalty. And a lot of the arguments its opponents make are unconvincing. Take the claims of racial bias—that we execute black killers, or the killers of white victims, at disproportionate rates. Even if those disputed claims are true, they don't point toward abolition of the death penalty. Executing more white killers, or killers of black victims, would reduce any disparity just as well.

Those of us who cite the disproportionate application of the death penalty as a reason for outlawing it do so because we believe that a criminal-justice system is not an abstraction but a real thing, existing in a real context, with a real history. In America, the history of the criminal justice—and the death penalty—is utterly inseparable from white supremacy. During the Civil War, black soldiers were significantly more likely to be court-martialed and executed than their white counterparts. This practice continued into World War II. "African-Americans comprised 10 percent of the armed forces but accounted for almost 80 percent of the soldiers executed during the war," writes law professor Elizabeth Lutes Hillman.

In American imagination, the lynching era is generally seen as separate from capital punishment. But virtually no one was ever charged for lynching. The country refused to outlaw it. And sitting U.S. senators such as Ben Tillman and Theodore Bilbo openly called for lynching for crimes as grave as rape and as dubious as voting. Well into the 20th century, capital punishment was, as John Locke would say, lynching "coloured with the name, pretences, or forms of law."

The youngest American ever subjected to the death penalty was George Junius Stinney . It is very hard to distinguish his case from an actual lynching. At age 14, Stinney, a black boy, walked to the execution chamber

with a Bible under his arm, which he later used as a booster seat in the electric chair. Standing 5 foot 2 inches (157 cm) tall and weighing just over 90 pounds (40 kg), his size (relative to the fully grown prisoners) presented difficulties in securing him to the frame holding the electrodes. Nor did the state's adult-sized face-mask fit him; as he was hit with the first 2,400 V surge of electricity, the mask covering his face slipped off, “revealing his wide-open, tearful eyes and saliva coming from his mouth ... After two more jolts of electricity, the boy was dead."

Living with racism in America means tolerating a level of violence inflicted on the black body that we would not upon the white body. This deviation is not a random fact, but the price of living in a society with a lengthy history of considering black people as a lesser strain of humanity. When you live in such a society, the prospect of incarcerating, disenfranchising, and ultimately executing white humans at the same rate as black humans makes makes very little sense. Disproportion is the point.

The "Hey Guys, Let's Not Be Racist" switch is really "Hey Guys, Let's Pretend We Aren't American" switch or a "Hey Guys, Let's Pretend We Aren't Human Beings" switch. The death penalty—like all state actions—exists within a context constructed by humans, not gods. Humans tend to have biases, and the systems we construct often reflect those biases. Understanding this, it is worth asking whether our legal system should be in the business of doling out an ultimate punishment, one for which there can never be any correction. Citing racism in our justice system isn't mere shaming, it's a call for a humility and self-awareness, which presently evades us.

I was sad to see Ponnuru's formulation, because it so echoed the unfortunate thoughts of William F. Buckley. In 1965, Buckley debated James Baldwin at the Cambridge Union Society. That was the year John Lewis was beaten at the Edmund Pettus Bridge, and Viola Liuzzo was shot down just outside of Selma, Alabama. In that same campaign, Martin Luther King gave, arguably, his greatest speech. (" How Long? Not long. Truth forever on the scaffold. Wrong forever on the throne. ")  In whole swaths of the country, black people lacked the basic rights of citizenship—central among them, the right to vote. Buckley spent much of his time sneering at complaints of American racism. When the issue of the vote was raised Buckley responded by saying that the problem with Mississippi wasn't that "not enough Negroes have the vote but that too many white people are voting."

There's something revealed in the logic—in both Ponnuru and Buckley's case—that we should fix disproportion by making more white people into niggers. It is the same logic of voter-ID laws , which will surely disenfranchise huge swaths of white voters, for the goal of disenfranchising proportionally more black voters. I'm not sure what all that means—it's the shadow of something I haven't worked out.

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Should the Death Penalty Be Abolished?

In its last six months, the United States government has put 13 prisoners to death. Do you think capital punishment should end?

By Nicole Daniels

Students in U.S. high schools can get free digital access to The New York Times until Sept. 1, 2021.

In July, the United States carried out its first federal execution in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had in the previous six decades.

The death penalty has been abolished in 22 states and 106 countries, yet it is still legal at the federal level in the United States. Does your state or country allow the death penalty?

Do you believe governments should be allowed to execute people who have been convicted of crimes? Is it ever justified, such as for the most heinous crimes? Or are you universally opposed to capital punishment?

In “ ‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny ,” Adam Liptak writes about the recent federal executions:

In 2015, a few months before he died, Justice Antonin Scalia said he w o uld not be surprised if the Supreme Court did away with the death penalty. These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions. Until July, there had been no federal executions in 17 years . Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

The article goes on to explain that Justice Stephen G. Breyer issued a dissent on Friday as the Supreme Court cleared the way for the last execution of the Trump era, complaining that it had not sufficiently resolved legal questions that inmates had asked. The article continues:

If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015 , one that must have been on Justice Scalia’s mind when he made his comments a few months later. Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination. Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it. Justice Ginsburg, who died in September, had joined the dissent. The two other liberals — Justices Sotomayor and Elena Kagan — were undoubtedly sympathetic. And Justice Anthony M. Kennedy, who held the decisive vote in many closely divided cases until his retirement in 2018, had written the majority opinions in several 5-to-4 decisions that imposed limits on the death penalty, including ones barring the execution of juvenile offenders and people convicted of crimes other than murder .

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March 19, 2024

Evidence Does Not Support the Use of the Death Penalty

Capital punishment must come to an end. It does not deter crime, is not humane and has no moral or medical basis

By The Editors

A death penalty vigil, held in 2021 outside an Indiana penitentiary.

Bryan Woolston/Reuters/Redux

It is long past time to abolish the death penalty in the U.S.

Capital punishment was halted in the U.S. in 1972 but reinstated in 1976, and since then, nearly 1,600 people have been executed. To whose gain? Study after study shows that the death penalty does not deter crime, puts innocent people to death , is racially biased , and is cruel and inhumane. It is state-sanctioned homicide, wholly ineffective, often botched, and a much more expensive punishment than life imprisonment. There is no ethical, scientifically supported, medically acceptable or morally justifiable way to carry it out.

The recent execution of Kenneth Eugene Smith demonstrates this barbarity. After a failed attempt at lethal injection by prison officials seemingly inexperienced in the placement of an IV, the state of Alabama killed Smith in January using nitrogen gas . The Alabama attorney general claimed that this method of execution was fast and humane , despite no supporting evidence. Eyewitnesses recounted that Smith thrashed during the nitrogen administration and took more than 20 minutes to die.

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Opposition to the death penalty is growing among the American public , and the Biden administration must follow through on its promise to end this horror. The Department of Justice must heed its own admission that the death penalty doesn’t stop crime, and our legislators must continue to take up the issue on the congressional floor. The few states that still condemn people to death must follow the lead of states that have considered the evidence and rejected capital punishment.

Programs such as the Innocence Project have shown, over and over, that innocent people have been sentenced to death. Since 1973 nearly 200 people on death row have been exonerated, based on appeals, the reopening of cases, and the entrance of new and sometimes previously suppressed evidence. People have recanted testimony, and supposedly airtight cases have been poked full of evidentiary holes.

Through the death penalty, the criminal justice system has killed at least 20 people now believed to have been innocent and uncounted others whose cases have not been reexamined . Too many of these victims have been Black or Hispanic. This is not justice. These are state-sanctioned hate crimes.

Using rigorous statistical and experimental control methods, both economics and criminal justice studies have consistently found that there is no evidence for deterrence of violent crimes in states that allow capital punishment. One such study, a 2009 paper by criminology researchers at the University of Dallas, outlines experimental and statistical flaws in econometrics-based death penalty studies that claim to find a correlated reduction in violent crime. The death penalty does not stop people from killing. Executions don’t make us safer.

The methods used to kill prisoners are inhumane. Electrocution fails , causing significant pain and suffering. Joel Zivot, an anesthesiologist who criticizes the use of medicines in carrying out the death penalty, has found (at the request of lawyers of death row inmates) that the lungs of prisoners who were killed by lethal injection were often heavy with fluid and froth that suggested they were struggling to breathe and felt like they were drowning. Nitrogen gas is used in some veterinary euthanasia, but based in part on the behavior of rats in its presence, it is “unacceptable” for mammals , according to the American Veterinary Medical Association. This means that Smith, as his lawyers claimed in efforts to stop his execution, became a human subject in an immoral experiment.

Courts have often decided, against the abundant evidence, that these killings are constitutional and do not fall under the “cruel and unusual punishment” clause of the 8th Amendment or, in Smith’s appeal , both the 8th Amendment and the due process protection clause of the 14th amendment.

A small number of prosecutors and judges in a few states, mostly in the South, are responsible for most of the death sentences being handed down in the U.S. today. It’s a power they should not be able to wield. Smith was sentenced to life in prison by a jury before the judge in his case overruled the jury and gave him the death sentence.

A furious urge for vengeance against those who have done wrong—or those we think have done wrong—is the biggest motivation for the death penalty. But this desire for violent retribution is the very impulse that our criminal justice system is made to check, not abet. Elected officials need to reform this aspect of our justice system at both the state and federal levels. Capital punishment does not stop crime and mocks both justice and humanity. The death penalty in the U.S. must come to an end.

This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American .

5 Death Penalty Essays Everyone Should Know

Capital punishment is an ancient practice. It’s one that human rights defenders strongly oppose and consider as inhumane and cruel. In 2019, Amnesty International reported the lowest number of executions in about a decade. Most executions occurred in China, Iran, Saudi Arabia, Iraq, and Egypt . The United States is the only developed western country still using capital punishment. What does this say about the US? Here are five essays about the death penalty everyone should read:

“When We Kill”

By: Nicholas Kristof | From: The New York Times 2019

In this excellent essay, Pulitizer-winner Nicholas Kristof explains how he first became interested in the death penalty. He failed to write about a man on death row in Texas. The man, Cameron Todd Willingham, was executed in 2004. Later evidence showed that the crime he supposedly committed – lighting his house on fire and killing his three kids – was more likely an accident. In “When We Kill,” Kristof puts preconceived notions about the death penalty under the microscope. These include opinions such as only guilty people are executed, that those guilty people “deserve” to die, and the death penalty deters crime and saves money. Based on his investigations, Kristof concludes that they are all wrong.

Nicholas Kristof has been a Times columnist since 2001. He’s the winner of two Pulitizer Prices for his coverage of China and the Darfur genocide.

“An Inhumane Way of Death”

By: Willie Jasper Darden, Jr.

Willie Jasper Darden, Jr. was on death row for 14 years. In his essay, he opens with the line, “Ironically, there is probably more hope on death row than would be found in most other places.” He states that everyone is capable of murder, questioning if people who support capital punishment are just as guilty as the people they execute. Darden goes on to say that if every murderer was executed, there would be 20,000 killed per day. Instead, a person is put on death row for something like flawed wording in an appeal. Darden feels like he was picked at random, like someone who gets a terminal illness. This essay is important to read as it gives readers a deeper, more personal insight into death row.

Willie Jasper Darden, Jr. was sentenced to death in 1974 for murder. During his time on death row, he advocated for his innocence and pointed out problems with his trial, such as the jury pool that excluded black people. Despite worldwide support for Darden from public figures like the Pope, Darden was executed in 1988.

“We Need To Talk About An Injustice”

By: Bryan Stevenson | From: TED 2012

This piece is a transcript of Bryan Stevenson’s 2012 TED talk, but we feel it’s important to include because of Stevenson’s contributions to criminal justice. In the talk, Stevenson discusses the death penalty at several points. He points out that for years, we’ve been taught to ask the question, “Do people deserve to die for their crimes?” Stevenson brings up another question we should ask: “Do we deserve to kill?” He also describes the American death penalty system as defined by “error.” Somehow, society has been able to disconnect itself from this problem even as minorities are disproportionately executed in a country with a history of slavery.

Bryan Stevenson is a lawyer, founder of the Equal Justice Initiative, and author. He’s argued in courts, including the Supreme Court, on behalf of the poor, minorities, and children. A film based on his book Just Mercy was released in 2019 starring Michael B. Jordan and Jamie Foxx.

“I Know What It’s Like To Carry Out Executions”

By: S. Frank Thompson | From: The Atlantic 2019

In the death penalty debate, we often hear from the family of the victims and sometimes from those on death row. What about those responsible for facilitating an execution? In this opinion piece, a former superintendent from the Oregon State Penitentiary outlines his background. He carried out the only two executions in Oregon in the past 55 years, describing it as having a “profound and traumatic effect” on him. In his decades working as a correctional officer, he concluded that the death penalty is not working . The United States should not enact federal capital punishment.

Frank Thompson served as the superintendent of OSP from 1994-1998. Before that, he served in the military and law enforcement. When he first started at OSP, he supported the death penalty. He changed his mind when he observed the protocols firsthand and then had to conduct an execution.

“There Is No Such Thing As Closure on Death Row”

By: Paul Brown | From: The Marshall Project 2019

This essay is from Paul Brown, a death row inmate in Raleigh, North Carolina. He recalls the moment of his sentencing in a cold courtroom in August. The prosecutor used the term “closure” when justifying a death sentence. Who is this closure for? Brown theorizes that the prosecutors are getting closure as they end another case, but even then, the cases are just a way to further their careers. Is it for victims’ families? Brown is doubtful, as the death sentence is pursued even when the families don’t support it. There is no closure for Brown or his family as they wait for his execution. Vivid and deeply-personal, this essay is a must-read for anyone who wonders what it’s like inside the mind of a death row inmate.

Paul Brown has been on death row since 2000 for a double murder. He is a contributing writer to Prison Writers and shares essays on topics such as his childhood, his life as a prisoner, and more.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws "the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so "harsh, freakish, and arbitrary" as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that "the punishment of death does not invariably violate the Constitution." The Court ruled that the new death penalty statutes contained "objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death." ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court's 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society's control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to "guided discretion." Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment's severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn't solve our society's crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called "war on drugs." The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because "a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. "

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty "does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states." Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court's ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that "the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions." A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist "legacy of slavery." Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation's death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one's conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that "the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims." (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was "a constitutionally significant risk of racial bias...." (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was "best presented to the legislative bodies," subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : "Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision" and that "race of victim influence was found at all stages of the criminal justice system process..."

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet "approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.") Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , "One searches our chronicles in vain for the execution of any member of the affluent strata in this society"(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. "Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination."(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted "… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court "do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce."

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge's instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. "Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law."

Even if the jury's sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor's decision to prosecute for a capital or lesser crime, the court's willingness to accept or reject a guilty plea, the jury's decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant's sanity, and the governor's final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be "a haphazard maze of unfair practices."

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual "constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime." (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me." Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler's explanation of the child's cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs' death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state's witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury's recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian's behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian's conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants' innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, "One of you two is going to hang for this." Looking at Brandley, the officer said, "Since you're the nigger, you're elected." In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley's aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant's previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

"At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans' body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans' left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans' face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

"The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans' body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes." Afterwards, officials were embarrassed by what one observer called the "barbaric ritual." The prison spokesman remarked, "This was supposed to be a very clean manner of administering death."

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a "cruel and unusual punishment." Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

"When the fumes enveloped Don's head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

"At this point Don's body started convulsing violently.... His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don's face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

"After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don's left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

"Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die." ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is "substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation." ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

"The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death."

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 "the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser." In 1988, during the execution of Raymond Landry, "a tube attached to a needle inside the inmate's right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses."

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. "I was ashamed," writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. "I was an intruder, the only member of the public who had trespassed on [the condemned man's] private moment of anguish. In my face he could see the horror of his own death."

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

"If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The 'last mile' seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. 'No more. I don't want to do this anymore.'" 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. "I received more than seven hundred applications for the position, many of them offering cut-rate prices." (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: "The death penalty cannot be useful, because of the example of barbarity it gives men." Beccaria's words still ring true – even if the death penalty were a "useful" deterrent, it would still be an "example of barbarity." No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, "For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life." (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – "making the punishment fit the crime." If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, "As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder." (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

"I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn't want the killer, in turn, to be killed. I remember lying in bed and praying, 'Please, God. Please don't take his life too.' I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief."(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims' Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James' killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment."

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out "You can't fight murder with murder . . .(l)ife in prison would have been fine. I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. "The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.") A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., "Capital Losses" 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs "approximately 42 percent more than a case resulting in a non-death sentence." In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation's most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence." (David von Drehle, "Capital Punishment in Paralysis," Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina's capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, "My frustration is more about the fact that the death penalty does not serve any useful purpose and it's very expensive." Don Heller, a Republican and former prosecutor, wrote "I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility." Heller emphasized that he is not "soft on crime," but that "life without parole protects public safety better than a death sentence." Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. "Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety." [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. "Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent." The only way to make the death penalty more "cost effective" than imprisonment is to weaken due process and curtail appellate review, which are the defendant's (and society's) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty "resource centers" charged with providing counsel on appeal in the federal courts. (Carol Castenada, "Death Penalty Centers Losing Support Funds," USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that "the facts clearly show that the death penalty is regarded in Europe as something of an anachronism…." 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to "progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment." By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an "inhumane" punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met--executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

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The Death Penalty: A Cruel, Inhuman and Arbitrary Punishment

• Document source : Amnesty International
• Date: 1 May 1995
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The death penalty is a violation of human rights. Executions violate the right to life. The death penalty is the ultimate cruel, inhuman and degrading punishment. Apart from the USA, Japan is one of the few industrialized countries which has not yet abolished the death penalty. Between 1983 and 1990 five prisoners who had spent decades under sentence of death were released after courts acquitted them at retrials. Conditions of detention for prisoners sentenced to death are often harsh. Daily prison routine is often strictly enforced and even small breaches of discipline, such as shouting or lying down outside rest hours, are liable to punishment. Closed-circuit cameras are installed in some cells of prisoners under sentence of death. This very harsh regime is not substantially relaxed even for prisoners who have spent several years or decades under sentence of death. This document describes the legal provisions governing the use of the death penalty in Japan and the way it is used in Japan; sets out Amnesty International's concerns about the death penalty in general; summarizes arguments which have been made in recent years by abolitionists in Japan; and describes cases of prisoners who have been executed or currently face execution. Some of these prisoners may have been convicted unfairly. Amnesty International calls on the Japanese government immediately to end the use of the death penalty and to abolish the death penalty in law as a matter of urgency. Pending abolition of the death penalty it calls on the government to end all forms of cruel, inhuman and degrading treatment or punishment of prisoners under sentence of death and to commute all death sentences.

1) INTRODUCTION

The death penalty is a violation of human rights. Executions violate the right to life. The death penalty is the ultimate cruel, inhuman and degrading punishment. Amnesty International opposes the death penalty in all cases and is working for its abolition worldwide. Some 96 countries today, nearly half the countries in the world, have abolished the death penalty in law or practice. Japan is one of the few industrialized countries which has not yet abolished the death penalty: with the exception of the USA, all other states of the Organization for Economic Cooperation and Development (OECD), and the other members of the "Group of Seven" largest industrialized nations, have abolished the death penalty.

Between 1983 and 1990 five prisoners who had spent decades under sentence of death were released after courts acquitted them at retrials. They included Menda Sakae, who believes that other prisoners may have been executed despite their innocence.

Seven prisoners were executed in Japan in 1993, more than in any other year since 1976. This spate of executions ended a de facto moratorium on executions that lasted more than three years, from November 1989 to March 1993.

In March 1993 the Minister of Justice signed warrants for the execution of three men: Tachikawa Shujiro, Kawanaka Tetsuo and Kondo Seikichi. The three were executed on 26 March at detention centres in Osaka and Sendai. It is not known why the Ministry of Justice chose to break the three-year moratorium and go ahead with executions at all; it is also unclear why, of almost 60 prisoners then under sentence of death, these three were selected for hanging. One of the three prisoners was suffering from a mental illness.

The rate of violent crime went down during the moratorium. In fact the rate of violent crime in Japan dropped by two-thirds between 1970 and 1990 and has continued to drop since: more than 1,100 days without executions did not affect that downward trend.

Advocates of abolition of the death penalty maintained that the executions were carried out to show a strong political will to retain the death penalty, at the expense of human lives. Ministry of Justice bureaucrats had reportedly wished to make it clear that the death penalty was still in force, despite more than 1,100 days without executions. The advocates also reported a perception that a growing section of the Japanese public supported abolition and accused the Ministry of Justice of attempting to slow this evolution by carrying out executions.

The executions caused a strong public reaction. Dozens of politicians, several newspapers, as well as lawyers and respected personalities expressed strong opposition to the executions. Many were concerned that by "stopping the clock" of the moratorium, the government had taken the risk of causing a public uproar in order to allow for more executions to take place in future.

The fear of further executions was confirmed on 26 November 1993, when four prisoners were executed on the same day - one in Tokyo Detention Centre, two in Osaka Detention Centre and one in Sapporo Detention Centre. It was the first time in decades that four executions had taken place on the same day. Those executed included a 70-year-old man who had been awaiting execution for over ten years.

Two prisoners were executed in December 1994, days after the government had published the results of an opinion poll indicating that over 70% of the population still support capital punishment. The executions were ordered without giving abolitionists an opportunity to study the results. Past opinion polls have been criticized for asking leading questions and have been used by the government as a justification for executions.

One of the two prisoners executed in December 1994, Sasaki Kazumi, was aged 66. The other, Ajima Yukio, had been under sentence of death for 16 years and had recently filed a civil law suit against the government for denying him access to his foster parents. There is no apparent reason why these two prisoners were singled out for execution.

Conditions of detention for prisoners sentenced to death are often harsh. They can receive visits from only a very small number of people - some have even been denied access to foster parents or children - and the number of letters they may write is strictly limited.

While conditions vary from one detention centre to another, opportunities for these prisoners to meet and talk to other prisoners are strictly limited, as is access to television. Daily prison routine is often strictly enforced and even small breaches of discipline, such as shouting or lying down outside rest hours, are liable to punishment. Some prisoners are not allowed to speak with or meet anyone in prison, except guards and visitors, not even other prisoners. Closed-circuit cameras are installed in some cells of prisoners under sentence of death. This very harsh regime is not substantially relaxed even for prisoners who have spent several years under sentence of death.

This document describes the legal provisions governing the use of the death penalty and the way it is used in Japan; sets out Amnesty International's concerns about the death penalty in general; summarizes arguments which have been made in recent years by abolitionists in Japan; and describes cases of prisoners who have been executed or currently face execution. Some of these prisoners may have been convicted unfairly.

Amnesty International calls on the Japanese government immediately to end the use of the death penalty and to abolish the death penalty in law as a matter of urgency. Pending abolition of the death penalty it calls on the government to end all forms of cruel, inhuman and degrading treatment or punishment of prisoners under sentence of death and to commute all death sentences.

2) FACTS ABOUT THE DEATH PENALTY

Japanese law provides for the death penalty for 17 offences but since 1967 it has been imposed only in cases involving murder, usually murder with robbery or abduction, or homicide caused by explosives. Capital offences are normally heard in the first instance by a district court. Decisions of a district court may be appealed twice - to a high court and to the Supreme Court. After all appeals have been exhausted the prisoner is then treated as a prisoner under "finalized" sentence of death.

After a sentence has been finalized by the courts it is possible to reopen the procedure by requesting a retrial if new evidence indicating innocence is discovered or if evidence on which the original judgment is based is proved false. Prisoners may also apply to the government for individual amnesty of their sentence.

Prisoners often spend several decades under sentence of death. Execution is by hanging and is carried out in secret on the order of the Minister of Justice. Executions are not announced and the authorities do not confirm the names of executed prisoners. The Ministry of Justice maintains that such secrecy is necessary to protect the family of the prisoner from the shame of having it known that their relative has been executed and also to prevent adverse influence on other prisoners under sentence of death.

Defendants aged under 18 at the time of the alleged offence may not be sentenced to death, and if the prisoner is insane or pregnant, executions must be stayed until recovery or childbirth. Executions take place in one of the seven detention centres where prisoners sentenced to death are held: they are Hiroshima, Sapporo, Sendai, Tokyo, Nagoya, Osaka and Fukuoka. At the time of writing there are some 90 prisoners under sentence of death, including 57 whose sentences have been finalized. The youngest is aged 21 and the oldest is 77 years old; three are over the age of 70. There are three women under finalized sentence of death. At least four prisoners have been under sentence of death for over 20 years.

3) AMNESTY INTERNATIONAL'S CONCERNS

Amnesty International opposes the death penalty in all cases on the grounds that it is a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment, as proclaimed in the Universal Declaration of Human Rights and other international human rights instruments.

As part of its international campaign against the death penalty, Amnesty International has repeatedly appealed to the Japanese Government to cease executions and to abolish the death penalty for all offences. Some of Amnesty International's principal concerns about the death penalty in Japan are described below.

Prisoners selected on an arbitrary basis for execution

"It was scary. Cold sweat chilled my body, but I couldn't help staring at the officers' faces from the small window of my cell. . . The sound [of officers opening the door of another cell] released me. Every time I heard it, I thanked God I'd made it through another day".

Menda Sakae, acquitted in 1983 after 34 years under sentence of death, describing his daily fears. In recent years the courts in Japan appear to have applied criteria for the imposition of a death sentence put forward in July 1983 by the Supreme Court in a ruling in the case of Nagayama Norio. The court ruled that:

"Under the present legal system which retains the death penalty, when various circumstances are considered such as the nature of the crime, its motivation and its mode, especially the persistency and the cruelty of the method of killing, the significance of the result, especially the number of victims, the impact on society, the offender's age, criminal record and circumstances after conviction, if its liability is considerably heavy and the death penalty is regarded as unavoidable from the point of view of proportionality as well as deterrence, the imposition of the death penalty is allowed".

This ruling implies a careful application of death sentences by the courts. However while this may be the case with the imposition of death sentences, executions appear to have been carried out on an arbitrary basis. Under the Code of Criminal Procedure "the death penalty shall be executed under an order from the Minister of Justice" (Article 475). Once an order is given, "such execution shall be carried out within five days" (Article 476). Thus, after all judicial proceedings are exhausted, it is the Minister of Justice in practice who decides when a prisoner is to be executed. This appears to be a significant factor in the timing of executions, which are carried out at irregular intervals. To outside observers the timing of executions appears to be directly linked to the personal decision of the Minister of Justice and to the political situation. Evidence to support this is detailed below. The selection of prisoners for execution also appears to be random. There is no apparent reason why the three men executed in March 1993, or the four others in November 1993, were selected.

Several former Ministers of Justice have abstained from signing execution orders, thus effectively suspending executions. Between November 1989 and March 1993 two Ministers of Justice reportedly declined to sign execution orders on account of their own personal opposition to the death penalty.

Gotoda Masaharu, who became Minister of Justice in November 1992, ordered three executions in March 1993. Gotoda Masaharu was appointed in the last cabinet led by the Liberal-Democratic Party (LDP), which stepped down following the LPD's defeat at the general elections of July 1993. Soon after his appointment he made clear that he supported the use of capital punishment. He told reporters:

"Judges hand down capital punishment under the existing system and it is wrong for justice ministers not to carry out decisions out of political considerations. . . If they were not aware of their responsibility, they should have resigned when they realized it".

"If they [did not authorise executions] because of personal beliefs or philosophy or religious reasons, it was a mistake for them to have accepted the post".

The four executions in November 1993 were ordered several weeks after the UN Human Rights Committee had considered a report submitted in 1991 by the Japanese Government under the terms of the International Covenant on Civil and Political Rights (ICCPR). The Committee had recommended to the Japanese Government that it take steps towards abolition of the death penalty. The decision to order executions at this particular time appeared to be a signal to the domestic abolitionist movement and to the international community that Japan had no intention of complying with the UN Human Rights Committee's recommendation.

The two executions in December 1994 were carried out one week after the government had published the results of its latest public opinion poll on the issue. The poll appeared to show that a majority of the general public approved of the death penalty. The two executions seemed to be a hasty response to this poll and an attempt by the government to show the growing abolitionist movement that it would continue to use the death penalty.

Forced confessions; denial of access to lawyers; inadequate system of judicial review

==================

"A total of 58 convicts are currently listed as death row inmates in this country. Do the gallows await them all? Some have been there for years, despite the provision of the Code of Criminal Procedure that a death sentence is to be executed within six months of the final verdict. If recent history is any guide, at least a few of these convicts may be acquitted on appeal and freed. It is no longer rare for convictions based on forced confessions and circumstantial evidence to be overturned by higher courts".

Editorial, The Japan Times, 12 April 1994

"The death penalty is a very cruel punishment even when the condemned person is really guilty of the crime. But if we consider that whenever the death penalty system is applied it is inevitable that innocent people will sometimes be executed as a result of misjudgment, the death penalty becomes the ultimate epitome of inhumanity and cruelty."

Former Supreme Court judge Dr Dando Shigemitsu, The case against capital punishment, paper given at the Forum '90 Conference in Tokyo, 1 December 1990.

=======================

Amnesty International believes that some prisoners under sentence of death may not have received a fair trial. It has received reports that some prisoners were ill-treated during police interrogation and that some were denied access to lawyers. In spite of a number of acquittals after retrial in recent years, it is very difficult for a convicted prisoner to obtain a judicial review of his or her sentence once it has been finalized.

At least 11 prisoners under finalized sentence of death claim to have been ill-treated during police interrogation and/or forced to make a "confession". At least 13 have denied some or all of the charges against them. A questionnaire sent to prisoners under finalized sentence of death by the Japan Federation of Bar Associations (JFBA) in February 1993 showed that most of those questioned had experienced difficulties in gaining access to a lawyer after their arrest. In most cases this was either because they did not know of their right to seek counsel from a lawyer or how to request such a counsel or because they were denied permission to do so by police investigators. Some commented that an early meeting with a lawyer might have made a difference to their convictions. Many did not see a lawyer until after they had been charged.

Hakamada Iwao, aged 59, was reportedly interrogated for 50 days after his arrest in August 1966. During this time he was reportedly beaten, denied food and water for lengthy periods and subjected to sleep deprivation. He was reportedly allowed to see his lawyer only three times during this interrogation period. Hakamada Iwao claims that he was forced to make a confession and has applied for a retrial without success.

Tomiyama Tsuneyoshi, aged 77, says that he was denied access to a lawyer during police interrogation in November 1963. His application for a retrial was rejected. Akiyama Yoshimitsu, aged 65, was reportedly subjected to long interrogation sessions after his arrest in September 1975 during which he was beaten and threatened. Arai Masao, aged 67, was arrested in December 1971 and claims to have been denied access to a lawyer and to have made a confession under duress.

Amnesty International has received reports that many criminal suspects, including those held on charges which may result in a death sentence, are held in police custody prior to indictment and have suffered cruel, inhuman or degrading treatment at the hands of police officers. Police detention facilities, known as "substitute prisons" (daiyo kangoku) are sometimes used to hold criminal suspects for up to 23 days prior to indictment. Suspects held in daiyo kangoku have been coerced into confessing to crimes they did not commit. Nominally separate police departments appear to be in charge of the custody and the interrogation of suspects in daiyo kangoku. But in practice interrogators are allowed unlimited access to detainees and are able to deny them adequate rest and access to the outside world for weeks on end.

Despite the concern that some prisoners under sentence of death may not have had a fair trial, it is extremely difficult for a prisoner to obtain a retrial once his or her sentence has been finalized. This requires the submission of new evidence indicating innocence or showing that evidence on which the original judgement was based has been proved false. Amnesty International knows of seven prisoners currently under sentence of death whose applications for a retrial have been turned down by the courts, in some cases years later. Thirteen prisoners currently under sentence of death have made applications for a retrial which were either rejected or are still pending.

Hakamada Iwao applied for a retrial in 1981 and this was rejected 13 years later, in August 1994. The court ruled that there was insufficient evidence to justify a retrial, although there is evidence which casts doubt on the original ruling before Shizuoka District Court in 1968. Shizuoka District Court reportedly rejected 44 out of 45 different written "confession" statements by Hakamada Iwao which were submitted to it, but does not seem to have queried whether he was forced by the prosecuting authorities to write the successive confessions.

Kawanaka Tetsuo was executed in March 1993. He had given his lawyer power of attorney to prepare for a retrial - a fact of which the Osaka Detention House authorities were aware when they carried out his execution. The execution of Kawanaka Tetsuo appears to have violated point 8 of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the United Nations (UN) Economic and Social Council (ECOSOC) in 1984, which states that:

"Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence".

Amnesty International is concerned that many prisoners under sentence of death may have been denied the possibility of retrial, even though their lawyers have argued consistently that the original trial may have been unfair. These include cases where prisoners were reportedly ill-treated during interrogation, denied early access to lawyers, or where new evidence has cast some doubt on the original conviction. The general failure of the Japanese courts to address these problems heightens the inherent risk of executing an innocent person.

Five retrials between 1983 and 1990 resulted in acquittals of prisoners under sentence of death. Akahori Masao was sentenced to death in 1958 on charges of rape and murder. He had consistently claimed that he was innocent of the charges against him and that he only confessed under duress during police questioning. In January 1989 the Supreme Court acquitted him, ruling that his confession lacked credibility and that no other evidence linked him to the crime. In appealing against his death sentence in the Tokyo High Court in 1959, Akahori Masao stated: "the interrogators hit me on the head, almost strangled me with their hands and kicked me. . . I decided to agree with all their questions because I could not put up with the torture." Following the Supreme Court's confirmation of his death sentence in 1960, he filed three unsuccessful applications for a retrial. The authorities accepted his fourth application, filed in 1969, and his retrial began in October 1987. Akahori Masao was 25 when he was arrested; when he was acquitted, at the age of 59, he had spent over 30 years under sentence of death.

=========================

"Everyone makes mistakes and recognizing a mistake after someone has been put to death is worthless".

Menda Sakae, acquitted in 1983, after 34 years under sentence of death.

==========================

Menda Sakae was acquitted in 1983, having spent 34 years under sentence of death during which time he had applied for retrial six times before his application was accepted. Since his acquittal Menda Sakae has campaigned to raise public awareness about the death penalty and is an active campaigner for abolition. In 1984 Taniguchi Shigeyoshi and Saito Yukio, sentenced to death in 1952 and 1957 respectively, were both acquitted. Shimogami Norio was acquitted in July 1990, having been under sentence of death since 1975.

"The evidence against Shimogami Norio was contradictory and the evidence based on his accomplice's confession was untrustworthy . . . It is strongly suspected that the Nagoya High Court did not examine the facts well, made wrong judgments on evidence and misinterpreted the facts".

Supreme Court judgement on the case of Shimogami Norio, acquitted in July 1990 after 15 years under sentence of death.

Prisoners may apply to the government for individual amnesty. However, in contrast to some other countries where the executive power of clemency is generously applied, in Japan commutations of death sentences are extremely rare. Only three prisoners have had their death sentences commuted by individual amnesties, in 1969, 1970 and 1975. The amnesties were granted on the grounds of illness, old age, repentance, and forgiveness on the part of the victim's family. The last general amnesty in which death sentences were commuted was in 1952.

The death penalty imposed on the elderly and mentally ill

Some of the most vulnerable members of society are under sentence of death in Japan. Several prisoners over the age of 70 await execution. Others are believed to be suffering from mental illness.

Seventy-year-old Deguchi Hideo was executed in November 1993 after spending 10 years under finalized sentence of death, never knowing which day would be his last. Japan is virtually alone among the countries of the world in executing such old prisoners. In 1993 Japan also executed another man suffering from mental illness

In 1989 the UN Economic and Social Council (ECOSOC) recommended in resolution 1989/6:

"that Member States take steps to implement the safeguards and strengthen further the protection of the rights of those facing the death penalty, where applicable, by. . . establishing a maximum age beyond which a person may not be sentenced to death or executed."

Three prisoners aged 70 or over remain under sentence of death in Japan. Tomiyama Tsuneyoshi, aged 77, has been under sentence of death since 1966 - for over 28 years. He has made two applications for a retrial, one of which is still pending. Ishida Tomizo, aged 73, was sentenced to death in 1980 but claims to be innocent of some of the charges against him. He says that after his arrest he was subjected to lengthy interrogation and forced to make a "confession". At the time he was unaware of his right to seek counsel from a lawyer.

Japanese law prohibits the execution of prisoners suffering from mental illness and excludes imposing death sentences on people who were under the age of 18 at the time of the offence. The UN Safeguards Guaranteeing the Protection of the Rights of those Facing the Death Penalty state:

"Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane" (Safeguard 3).

ECOSOC resolution 1989/6 recommends:

"that Member States take steps to implement the safeguards and strengthen further the protection of the rights of those facing the death penalty, where applicable, by . . . Eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution".

In March 1993, however, Japan executed a man who was mentally ill. Kawanaka Tetsuo's lawyer had obtained authorization from Osaka Detention centre for the prisoner to be examined by a medical doctor. After making his examination the doctor told the lawyer that Kawanaka Tetsuo was on the verge of becoming schizophrenic and that he was hallucinating. According to his lawyer, Osaka Detention House personnel were fully aware of Kawanaka's mental illness and he was under medical supervision. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions raised the case of Kawanaka Tetsuo with the Japanese authorities, expressing concern at reports that the prisoner had been mentally ill at the time of his execution.

In several other cases, death sentences have been imposed on people who were reportedly mentally ill or mentally retarded. Ohama Matsuzo is said to have been mentally ill at the time of the offence. He was sentenced to death in 1975 and his sentence was finalized in 1976. Expert evidence from a psychiatrist attesting that he had not been responsible for his actions had been submitted to the courts.

Nagayama Norio was aged 19 at the time of his arrest and conviction. In 1981 his death sentence was commuted by the High Court, largely on the grounds of his young age and the fact that he was considered to have had a mental age lower than 18 at the time of the crime. But this ruling was overturned following a further appeal by the Public Prosecutor's Office and the death sentence was reinstated.

In a similar case, Kanagawa Hajime's lawyers argued that he had a mental age of less than 18 years at the time of offence and that this rendered his written confession unreliable. He was sentenced to life imprisonment in 1982 but when he appealed to the High Court in 1983 it overturned the lower court's decision and sentenced him to death.

Cruel, inhuman and degrading treatment of prisoners under sentence of death

"The Committee further recommends that Japan take measures towards the abolition of the death penalty and that, in the meantime, that penalty should be limited to the most serious crimes; that the conditions of death row detainees be reconsidered; and that preventive measures of control against any kind of ill-treatment of detainees should be further improved".

Excerpt from recommendation of the UN Human Rights Committee, October 1993. The recommendation was made after the Committee had considered the Third Periodic Report submitted by the Japanese Government under the International Covenant on Civil and Political Rights (ICCPR). Japan's Prison Law states that prisoners sentenced to death shall be treated like unconvicted prisoners. However, in recent years the authorities have imposed arbitrary restrictions on contacts with the outside world by prisoners under sentence of death, in particular on those under finalized sentence of death. In its Third Periodic Report submitted in December 1991 under Article 40 of the International Covenant on Civil and Political Rights, the Japanese Government stated:

"The Prison Law provides that the warden of the institution decides whether the persons sentenced to death receive visitors on a case-by-case basis according to the purpose of the detention (Article 45, paragraph 1 of the Prison Law). In practice the persons sentenced to death are allowed to receive visitors such as their family members and lawyer in the presence of officials, except where there is a probability of obstructing the realization of the purpose of the detention such as jeopardizing the security of the custody".

Some prisoners can only meet close relatives and may only correspond with those allowed to meet them. In most cases prisoners under finalized sentence of death are not permitted to receive letters from friends and supporters. Some relatives by adoption have filed lawsuits alleging that they were prohibited from meeting prisoners under sentence of death. The authorities state that this practice is justified as it helps to keep the prisoner emotionally "stable".

The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment states (Principle 19) that:

"A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations".

Ajima Yukio, sentenced to death in 1978, was not permitted to meet his foster parents. He filed a civil law suit against the Ministry of Justice to obtain access to them. He was executed before the court's verdict rejecting the suit, in December 1994.

Kanegawa Hajime has no family but one of his supporters was adopted by him in 1989. Since then, his adopted daughter has only been allowed to visit and correspond with him once every four months.

Prisoners under sentence of death are subjected to unnecessary and largely arbitrary restrictions. Most of them can meet only some of their relatives, at the discretion of the director of their detention centre. Daidoji Masashi, sentenced to death in 1989, can see only his mother, adopted younger sister and a cousin. Two adopted sisters tried to see him and were denied access.

Not only are meetings restricted, so is the sending of articles from outside the prison: for example, only the three relatives who can meet Daidoji Masashi are allowed to send articles to him. Others cannot do so, following a decision to that effect reportedly made orally, without official record, by the Director of the Tokyo Detention Centre, where Daidoji Masashi is held.

A guideline (not legally binding) from the Ministry of Justice, dating back to the 1960s, reportedly forbids prisoners under sentence of death from meeting anyone. The guideline being informal, its text is not publicly available, but Ministry of Justice officials have indicated to Amnesty International that access to visitors by prisoners sentenced to death is restricted in order to ensure that these prisoners remain "quiet".

Daidoji Masashi is not allowed to speak with or meet anyone in the detention centre, except guards and visitors, not even other prisoners. Closed-circuit cameras are installed in some of the cells of prisoners under sentence of death.

According to lawyers, all prisoners sentenced to death are held in cells where the lights are never switched off, only dimmed at night. Sometimes, to accommodate the need for light for the surveillance cameras, lights are not dimmed. A lawyer working on behalf of prisoners under sentence of death told Amnesty International that cameras are reportedly installed in the cells of prisoners who "do not accept" their death sentence: those who appeal against their sentence, or are deemed likely to commit suicide.

There are strict rules on every aspect of prison life, including on how prisoners under sentence of death sit in their cell during the day. Prisoners must sit in the centre of their cell, they are not allowed to walk freely, to lean on the wall of the cell or to lie down outside sleeping time. They may sit in one of three positions only: cross-legged; in the seiza position (sitting on one's heels when kneeling on the floor); or sitting on the floor with legs on one side. To sleep outside normal hours, prisoners need special permission. Prisoners normally exercise outside their cell for 15 minutes, twice a week, sometimes in a courtyard if the weather is good.

Prisoners who disobey these rules are liable to punishment, which may include solitary confinement (keiheikin) for many days, or cancellation of visits, of permission to send letters or to receive reading material. Most prisoners sentenced to death have experienced keiheikin.

Horie Morio, sentenced to death in September 1988, developed symptoms of mental illness from March 1991. For one year, until March 1992 when he was diagnosed as mentally ill, he suffered hallucinations and shouted in his cell. He was punished for disregarding prison rules. In March 1991, he was first sent to a "protection cell" (hogobo), a cell with protective material on the walls normally intended for prisoners who are deemed likely to commit suicide. He was kept in hogobo for five days, wearing a leather strap tying his hands. As he persisted in disregarding the rules, he then underwent a cycle of punishment in keiheikin and hogobo, the longest being 20 days' keiheikin. In 1992, he was finally diagnosed as mentally ill and punishment stopped. Before his illness was diagnosed, he had received only sleeping pills and sedatives; his condition was not considered as amounting to illness, and he was therefore considered punishable. According to Horie Morio's lawyer, the detention centre authorities failed to diagnose the illness. It was only formally acknowledged when an outside psychiatrist designated by the Supreme Court was able to meet with the prisoner.

Some detention centres allow prisoners under sentence of death occasional access to television and organize some events where prisoners can speak to each other. In Nagoya Detention House, for example, prisoners under sentence of death were able, according to reports in 1993, to see one video film per month and 30 minutes of television per week. They could not talk to each other while watching television or films, but they could talk at a weekly "tea party". Prisoners sentenced to death held in Tokyo Detention Centre can watch television twice every month and see a film and have a luncheon with other prisoners once every two months. None of these facilities are reportedly available in Sapporo Detention Centre, whose director apparently argued that there was insufficient space.

Long-term imprisonment under sentence of death

===============

"There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time".

Judicial Committee of the Privy Council in England, judgment of 2 November 1993 in the case of Pratt V. Jamaica.

"The cruelty involved in capital punishment is not concerned only with the execution itself. The marginal psychological situation experienced by condemned persons while they are waiting to be killed may well be even more cruel than the execution itself.. . . Among those who are condemned to death, there are some who can attain a state of spiritual enlightenment, peace or purity of mind. However, these people are few in number. How pointless it is to execute such people."

Dr Dando Shigemitsu, The case against capital punishment, paper given at the Forum '90 Conference in Tokyo, 1 December 1990.

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The very long periods that some prisoners have been under sentence of death in Japan exacerbate the already cruel, inhuman and degrading experience of being under sentence of death. At least four prisoners in Japan have been under sentence of death for over 20 years. Tomiyama Tsuneyoshi, aged 77, has been under sentence of death for 28 years; Hakamada Iwao and Oda Nobuo for 26 years each; Okunishi Masaru for 25 years; Ohama Matsuzo and Akiyama Yoshimitsu for 19 years each. Others have spent between ten and 20 years awaiting execution. These prisoners are some of the world's longest serving prisoners under sentence of death.

In Japan the 57 prisoners whose sentences have been finalized awaken each day not knowing whether it will be their last. Executions are carried out in secret and no advance warning is given to prisoners, their relatives or their lawyers. Tomiyama Tsuneyoshi's sentence was finalized in 1976; each day for the past 19 years could have been the day of his execution. Hakamada Iwao's sentence was finalized in 1980 - he has been forced to spend the last 15 years in a state of perpetual fear. Oda Nobuo's sentence was finalized in 1970 and he has spent 25 years awaiting his execution, never knowing when it will be.

4) JAPAN'S OBLIGATIONS UNDER INTERNATIONAL LAW

Japan has often repeated it's appreciation of, and willingness to abide by, international human rights standards. In 1993, Japan's representative at the World Conference on Human Rights in Vienna stated that "human rights conventions and international mechanisms to ensure their observance are part of the precious heritage of mankind".

International Covenant on Civil and Political Rights

Japan has ratified the International Covenant on Civil and Political Rights (ICCPR) and is therefore bound by its terms.

Article 6 of the ICCPR states that:

(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.

Article 7 of the ICCPR states that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 14 (3) of the ICCPR states that:

In the determination of any criminal charges against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(d) To be tried in his presence and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right and to have legal assistance assigned to him. . .

(g) not to be compelled to testify against himself or to confess guilt.

In October 1993 the UN Human Rights Committee considered the Third Periodic Report submitted by the Japanese Government under the ICCPR. The Committee expressed concern about the use of the death penalty, stating that:

"The Committee is disturbed by the number and nature of crimes punishable by the death penalty under the Japanese Penal Code. The Committee recalls that the terms of the Covenant tend towards the abolition of the death penalty and that those States which have not already abolished the death penalty are bound to apply it only for the most serious crimes. . .

"The Committee recommends that Japan becomes a party to both Optional Protocols to the International Covenant on Civil and Political Rights and to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Second Optional Protocol to the ICCPR

The Second Optional Protocol to the ICCPR, referred to by the Human Rights Committee, was adopted by the UN General Assembly in December 1989. Aiming at abolition of the death penalty, it states under Article 1:

(1) No one within the jurisdiction of a State party to the present Optional Protocol shall be executed.

(2) Each state Party shall take all necessary measure to abolish the death penalty within its jurisdiction.

The Second Optional Protocol entered into force in July 1991. Twenty- six states to date have become parties to the Second Optional Protocol and five others have signed it, indicating their intention to become parties at some future date. Amnesty International is urging the Japanese Government to sign and ratify the Second Optional Protocol.

Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment

The Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment was adopted by the UN General Assembly on 9 December 1988. In many cases, the treatment of prisoners under sentence of death in Japan has contravened the following principles:

Principle 1

All Persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

Principle 6

No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstances whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.

Principle 17

(1) A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.

Principle 21

(1) It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

(2) No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement.

5) THE DEATH PENALTY DEBATE IN JAPAN

Public opinion polls.

"Most members of the public have been found to possess very limited knowledge about the circumstances in which murder takes place, the characteristics of murderers and all aspects of capital punishment. Without such knowledge their immediate opinions are a dubious basis upon which to form policy."

Roger Hood, The Death Penalty, a Worldwide Perspective, A Report to the United Nations Committee on Crime Prevention and Control (1989), Chapter 7, para 181. The Japanese Government's main argument for retaining the death penalty is that public opinion supports it, yet experience from other countries has shown that public opinion on the death penalty is often based on an incomplete understanding of the relevant facts. If the public were given more information about the cruelty surrounding the death penalty in Japan and the very real possibility of a miscarriage of justice, they may choose to support abolition.

Public opinion polls on the death penalty in Japan and in other countries have been found to be superficial and misleading; results have differed according to how the questions were asked. According to the criminologist Roger Hood (The Death Penalty, A Worldwide Perspective),

"[opinion polls] record immediate opinions and responses which are, of course, affected by the nature and specificity of the questions posed, their order in the sequence of questioning and the context within which the survey takes place". (Chapter 7, para 181)

Public opinion polls conducted by the Japanese Government have been criticized by abolitionists as being imprecise and not fairly interpreted. Of the 71% of respondents to a 1967 poll conducted by the Prime Minister's office, 61% thought the death penalty should be retained because of its (unproven) "deterrent" effect and 74% favoured retention on the basis of their inaccurate assumption that the rate of violent crime was increasing. The rate of violent crime reportedly decreased by two thirds in Japan from 1970 to 1990. A total of 49% of respondents agreed with the idea of temporary suspension of the death penalty.

Another opinion poll by the Prime Minister's office was carried out in 1989 and suggested that 66.5% of the population supported capital punishment. However, the poll was carried out shortly after a series of violent crimes had been reported in the media and appeared to play on people's fears by asking them whether they felt violent crime would increase if the death penalty was abolished. In response to one question, 90.8% of respondents said they thought that violent crime had increased, but in actual fact the crime rate had gone down in recent years - a fact of which respondents were not made aware.

"The death penalty is not a deterrent force to protect our society from the danger of murderers as, before their crime, the subjects, despite their knowledge of the existence of the death penalty, were incapable, because of their impulsiveness and their inability to live except in the present, of being inhibited by the thought of capital punishment".

Prison psychiatrist Dr Kogi Sadataka, quoting his study of 145 people convicted of murder from 1955 to 1957. He found none who remembered having thought before committing the crime that he or she might be sentenced to death.

Since the mid-1950s the number of homicides in Japan has fallen steadily from a peak of 3,081 in 1954 to 1,233 in 1993. The rate of homicides has likewise fallen from 3.5 per 100,000 inhabitants in 1954 to 1.2 per 100,000 inhabitants in 1988. On the basis of the figures available it is impossible to establish any clear relationship between the very small and varying annual number of executions and the decline in homicides that would indicate that the death penalty has any unique deterrent effect on homicide. In relation to the total number of homicides per year, the probability of execution is so tiny that the death penalty cannot have other than a symbolic purpose. (See Table 4).

Results of the government's latest opinion poll were published on 25 November 1994 and suggested that 73.8% of the population felt the death penalty was unavoidable in certain circumstances. Abolitionists argued, however, that the poll also showed a rising number of respondents who thought the current death penalty system should be reviewed. A high proportion of the 73.8% who felt the death penalty to be unavoidable in certain circumstances agreed that it could be abolished if circumstances changed in the future. The total number of abolitionists and "conditional" abolitionists was higher than the number of people in favour of retention. These figures coincide with the results of a public opinion poll conducted by the television station NHK. The results of this poll showed that 47% of respondents supported abolition, including a number whose support was conditional upon the imposition of a life sentence; 43% supported retention.

The executions of two men on 1 December 1994 appeared to be a hasty response to the latest poll's results and abolitionists said that they had been given insufficient time to analyze the results. They are concerned that the authorities may have commissioned the opinion poll at this time in order halt the growth of the abolitionist movement and to justify continued use of the death penalty.

Ministry of Justice views

"I was Minister of Justice for ten months until [November 1991] and I am known to the public for not having signed an execution order during my term of office. I am a Buddhist priest . . . and I refused to sign mindful as a religious person of the importance of human life."

Sato Megumu, Minister of Justice (1990/91).

"Judges hand down capital punishment under the existing system and it is wrong for justice ministers not to carry out decisions out of political considerations. . . If they [did not authorise executions] because of personal beliefs or philosophy or religious reasons, it was a mistake for them to have accepted the post".

Gotoda Masaharu, Minister of Justice (1992/93), reported comments following executions in March 1993.

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In July 1994 Maeda Isao took office as Minister of Justice. Asked for his views about the death penalty he said that it should be carried out "prudently and strictly" in accordance with court decisions and that his own personal feelings should not interfere. However, he acknowledged the growing calls for abolition saying:

"I am aware that various opinions have been expressed about the system. I would like to tackle the issue on a long-term basis and find a future direction that reflects the majority opinion".

In November 1994 he said that the government would consider releasing more information about the death penalty in future. In a meeting with Amnesty International's Secretary General, Pierre Sané, in November 1994 Minister Maeda said that he hoped the death penalty discussion would deepen, but that he felt the death penalty should be retained unless a majority of public opinion called for abolition. Growth of the abolitionist movement

In recent years the abolitionist movement in Japan has gained strength and generated a vigorous public debate of the issue.

A former Supreme Court judge, Dr Dando Shigemitsu, has campaigned for several years for an end to capital punishment. Dr Dando began to have serious doubts regarding the death penalty when he was appointed justice to the Japanese Supreme Court in 1974 and took charge of cases involving capital punishment. In November 1991 he published On Abolishing the Death Penalty (Shikei Haishi-ron) which sold 10,000 copies within the first three weeks of its publication.

Political parties in Japan have not adopted an abolitionist position officially, with the exception of the Japan Communist Party which has openly declared its support for abolition. However, a growing number of individual members of parliament have joined the abolitionist movement. In April 1994 a group of Diet (parliament) members in favour of abolition was established, with over 120 members from a range of political parties. Its purpose is to encourage discussion about the death penalty and to promote abolition through making representations to the government, discussion in the Diet and the introduction of legislation. After the two executions in December 1994, the Minister of Transport, Kamei Shizuka, called for executions to be suspended pending the outcome of a national debate on capital punishment.

A growing number of lawyers have joined the abolitionist movement. Although its current president is an abolitionist, the Japanese Federation of Bar Associations has not taken an official position for or against capital punishment but it has set up a working group to study the issue. In June 1994 a survey of members of the Tokyo Bar Association showed that the majority of Tokyo lawyers (61%) believe the death penalty should be abolished. They gave as their main reasons the possibility of a miscarriage of justice and humanitarian concerns.

There are some 50 organizations working for the abolition of the death penalty in Japan. Forum 90, a coalition of non-governmental organizations (NGOs) working against the death penalty, was established in February 1990 by the Conference to Stop Executions, the Japanese Council of Crime and Delinquency, Lawyers Against the Death Penalty and Amnesty International's Japanese Section. Since 1990 it has tried to increase public awareness about the death penalty by holding public events, lobbying and generally taking an active part in the death penalty debate. Forum 90 has over 5,000 members, including a large number of parliamentarians and lawyers.

For many years Amnesty International has called for the abolition of the death penalty in Japan. In October 1983 Amnesty International published its first major document on the death penalty in Japan: The Death Penalty in Japan (ASA 22/02/83). This report, based on the findings of a research visit to the country, was widely disseminated in Japan and throughout the world. The report concluded that there was no reason to retain the death penalty.

Over a decade later, in 1995, the need for abolition is more pressing than ever before. The death penalty is still a cruel and inhuman treatment, prisoners still spend decades under sentence of death and executions are still arbitrary. Since 1983 Amnesty International has published many other reports and appeals about the death penalty, including: Japan, the death penalty and the need for more safeguards against ill-treatment of detainees (ASA 22/11/90) issued in 1991.

Amnesty International's Japanese Section is a leading member of the abolitionist movement. Working alongside other abolitionist organizations in Japan, it has helped to keep the death penalty debate alive through an extensive program of publicity, campaigning and lobbying work.

6) CONCLUSIONS AND RECOMMENDATIONS

The death penalty is a denial of the fundamental right to life. It is the ultimate cruel and inhuman punishment. It has no unique deterrent value. It denies the possibility of rehabilitation. It may be inflicted on the innocent.

The way in which the death penalty has been inflicted in Japan exacerbates the cruelty of this punishment. Prisoners often spend decades under sentence of death, often in poor prison conditions with restricted access to the outside world. Those subjected to death sentences and executions include people over the age of 70 and people with mental illness.

Executions are carried out in secret without the prisoner being informed in advance and they appear to be carried out in an arbitrary fashion, upon the orders of the Minister of Justice. The difference between one prisoner who is executed and another who is not depends not only on the crime but also on the decision of the Minister of Justice. The evidence suggests that in recent years this decision has sometimes been based upon personal conviction or political expediency.

Prisoners under sentence of death who claim to have been ill- treated and denied access to lawyers during police questioning are being denied the opportunity for retrial. The current legal system makes it extremely difficult for prisoners to have their cases reviewed, and yet in five cases since 1983 prisoners who managed to obtain a retrial were acquitted. It is possible that other prisoners who are applying for a retrial, or whose application for retrial has been rejected, may be innocent.

Public opinion polls commissioned by the government have been used to justify the continued use of capital punishment. But these opinion polls have not given the public a true picture of the death penalty and the way it is carried out in Japan. The death penalty is unnecessary and has not proved to be an effective deterrent. Studies throughout the world have shown that the death penalty is not a uniquely effective deterrent.

The death penalty has a brutalizing effect on all who are involved in the process. An execution can place a terrible burden on those who are required to carry it out and can present serious moral dilemmas.

On the basis of its extensive research on the subject of the death penalty in Japan and throughout the world, Amnesty International makes the following recommendations to the Japanese Government:

–All executions should cease permanently, no further death sentences should be imposed and all existing death sentences should be commuted.

–The death penalty should be abolished in law for all offences.

–Pending the commutation of all death sentences, the Ministry of Justice should ensure that the treatment of prisoners under sentence of death conforms to international human rights standards and does not exacerbate the already cruel, inhuman and degrading experience of being under sentence of death. In particular, the regulations and practices which permit long-term solitary confinement and which give detention authorities a wide scope to restrict access to outside visitors should be rescinded.

–The government should order an independent inquiry into reports of illegalities at the pre-trial stage, including reports of ill- treatment, coerced confessions and inadequate access to legal counsel.

–The Japanese Government should sign and ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at worldwide abolition of the death penalty.

–In preparation for abolition of the death penalty, the Japanese Government should lead the death penalty debate by giving the public information about the use of the death penalty in Japan, including information provided by Amnesty International and other abolitionist groups.

7) CASE STUDIES

The following pages contain case studies of 10 prisoners under sentence of death in Japan. They are followed by a list of prisoners under finalized sentence of death. Amnesty International opposes the death penalty in all cases and is seeking the commutation of all death sentences in Japan.

The cases featured in this document are illustrations of the cruel and inhuman nature of the death penalty as a form of punishment. They are also intended to show cruel and arbitrary way in which this penalty has been inflicted in Japan.

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HAKAMADA IWAO

Hakamada Iwao has been under sentence of death for 26 years. He may have been convicted unfairly, on the basis of a confession extracted under ill-treatment which may have amounted to torture. His family are concerned about his mental health because of his years of confinement under sentence of death.

Hakamada Iwao, aged 59, has been in prison for 28 years and under sentence of death for 26 years. He was once a boxer and then left sport to work in a miso (fermented soybean) plant in the city of Shimizu, Shizuoka Prefecture. He was arrested on 18 August 1966 on charges of murdering the managing director of the miso plant, his wife and two children and setting fire to their home.

Following his arrest Hakamada Iwao was reportedly held in a police cell for some 50 days. He was interrogated over a period of 23 days for periods lasting on average some 12 hours a day, with one period alleged to have lasted over 16 hours.

During interrogation he claims to have been denied food or water, refused access to a toilet, kicked and punched, his arms and ears were twisted and he was dragged by the hair. He also said he was subjected to sleep deprivation and denied access to medicine and medical treatment for a sinus and middle ear infection. He only met his lawyer three times during the interrogation period: on 22 August for seven minutes and on 28 August and 3 September for 15 minutes on each occasion.

According to his supporters Hakamada Iwao said:

"I was interrogated for an extremely long time, during which time I was not allowed to go to the toilet. I told them I urgently needed to have a bowel movement, but they said: 'We'll only allow you to go to the toilet if you say you did it. If you want to go, sign here'. When I said, 'No', they said, 'then do it right here on the floor. Sign, and we'll bring a potty for you to do it in right here.'"

In a letter to his sister on 15 March 1977 Hakamada Iwao said:

"I could do nothing but crouch down on the floor trying to keep from defecating. At that moment one of the interrogators put my thumb onto an ink pad, drew it to a written confession record and ordered me, 'write your name here!', shouting at me, kicking me and wrenching my arm. Thus, they robbed me of my signature."

Hakamada Iwao has consistently claimed that he was forced to confess to the charges of which he was convicted. During his trial at the Shizuoka District Court in December 1966 he retracted his confession and claimed he was innocent. He is said to have made 45 written statements during the period he was under interrogation. All were submitted by the prosecution at his first trial before the district court - the court apparently accepted just one of the confessions. On 11 September 1968 Hakamada Iwao was sentenced to death.

His sentence was upheld by the High Court on 18 May 1976 and finalized by the Supreme Court on 19 November 1980. He applied for a retrial and had to wait 13 years for the result of his application - a rejection of which he received on 9 August 1994. His lawyers had submitted new evidence that reportedly challenged the validity of his confessions but the court rejected the new evidence on the grounds that it was not sufficient to justify a retrial.

Hakamada Iwao and his lawyers have not given up; on 12 August 1994 they filed a further application for a retrial.

Hakamada Iwao is detained in Tokyo Detention Centre. He is said to be in poor health as a result of his long imprisonment.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Hakamada Iwao. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is calling on the Japanese authorities to order an investigation into reports that Hakamada Iwao was ill-treated during interrogation and forced to make a confession, factors which may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Hakamada Iwao has spent 26 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

Oda Nobuo has been under sentence of death for 26 years. He may have been convicted after an unfair trial. Four applications for a retrial have been rejected. Oda Nobuo, aged 47, was a car mechanic. He was sentenced to death by Fukuoka District Court on 24 December 1968 on charges of murder, robbery and arson. Oda Nobuo claims to be innocent of some of the charges against him. He says he did not know of his right to see a lawyer after his arrest and that during interrogation he was threatened and intimidated by police officers. During one interview they apparently told him that a surviving victim of an arson attack had implicated him. Later he told lawyers:

"It was unavoidable for me to confess under such coercion and intimidation. I thought that it would be all right to make a retraction during the trial, even after making a confession. I found out later that the victim died of smoke inhalation. If I had had advice from an attorney at the time, I believe I would not have confessed so readily."

An article in the Asahi Shimbun of 30 September 1983 reported a Fire Prevention Department official who said that "[the] investigation indicated that the fire [Oda Nobuo] was accused of having started may have been caused accidentally".

Oda Nobuo's sentence was finalized by the Supreme Court on 12 November 1970. Between 1973 and 1978 he unsuccessfully requested a retrial four times. He is held in Fukuoka Detention Centre.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Oda Nobuo. It opposes the death penalty in all cases as the ultimate cruel and inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is calling on the Japanese authorities to order an investigation into reports that Oda Nobuo was forced to make a confession and that this may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Oda Nobuo has spent 26 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

OKUNISHI MASARU

Okunishi Masaru is 68 years old and has been under sentence of death for 25 years. He may have been convicted after an unfair trial.

Okunishi Masaru was arrested on 2 April 1961 on charges of murdering five people and poisoning 12 others. He made a confession but retracted it on 24 April 1961 saying that it was made under duress while under interrogation by the Tsu District Public Prosecutor. At the time he did not know of his right to see a lawyer.

Okunishi Masaru was acquitted after his first trial in December 1964 on the grounds that there was insufficient evidence to prove that he carried out the crimes. But the prosecution appealed against this sentence and in September 1969 the Nagoya High Court sentenced him to death. His death sentence was finalized by the Supreme Court on 10 June 1972.

Okunishi Masaru has made five unsuccessful appeals for a retrial, the last of which was filed in May 1977 and rejected by the Nagoya High Court on 15 December 1988. His lawyers had apparently provided new evidence which cast doubt on the key evidence which was instrumental in Okunishi Masaru's conviction but the High Court ruled that this evidence was not sufficient to obtain a retrial.

In December 1988 his lawyers filed an appeal against the High Court's decision to reject a retrial, but this in turn was rejected by the Nagoya High Court in March 1993. Okunishi Masaru and his lawyers continue to appeal for a retrial.

Okunishi Masaru is detained in Nagoya Detention Centre.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Okunishi Masaru. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is calling on the Japanese authorities to order an investigation into reports that Okunishi Masaru was forced to make a confession and that this may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Okunishi Masaru has spent 25 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

TOMIYAMA TSUNEYOSHI

Tomiyama Tsuneyoshi is 77 years old and has been under sentence of death for 28 years.

Tomiyama Tsuneyoshi worked for a small manufacturing company making boxes. He was arrested in November 1963 on charges of murdering his wife's cousin to obtain insurance money. He was denied access to a lawyer during police questioning.

Tomiyama Tsuneyoshi claims to have been wrongly convicted. His supporters have pointed to several discrepancies including testimony given to the courts by an insurance agent which, they maintain, was not taken into account. Tomiyama Tsuneyoshi was sentenced to death by the Mito District Court on 24 December 1966 and his sentence was finalized by the Supreme Court on 1 April 1976. He applied for a retrial in April 1981 but three years later, in January 1984, it was rejected by the High Court. A further application for a retrial has been lodged.

Amnesty International is concerned that any indication that Tomiyama Tsuneyoshi's trial may have been unfair should be fully investigated.

Tomiyama Tsuneyoshi is detained in the Tokyo Detention Centre. He is only permitted to meet immediate family members. Pending a full retrial, Amnesty International is calling on the Japanese Government immediately to commute Tomiyama Tsuneyoshi's death sentence, as a matter of humanitarian concern in view of his advanced age.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Tomiyama Tsuneyoshi. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is concerned about the 28-year detention under sentence of death of a 77-year-old man. In view of the advanced age of this prisoner, his sentence should be commuted immediately.

–Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

OHAMA MATSUZO

Ohama Matsuzo is 66 years old and has been under sentence of death for 19 years. He was reportedly suffering from mental illness at the time of his arrest.

Ohama Matsuzo was a carpenter and day labourer at the time of his arrest in 1975 on charges of murdering three of his neighbours. He is believed to have been suffering from mental illness at the time the crime was committed.

Ohama Matsuzo was sentenced to death by Yokohama District Court in October 1975. An appeal was lodged with the High Court by his lawyer based on psychiatric testimony by a court psychiatrist that Ohama Matsuzo was insane and was not responsible for his actions at the time he committed the murders. He had apparently said that he carried out the murders because he could not stand the noise of his neighbours playing the piano. At the time of the murders he was under psychiatric care for an obsessive sensitivity to noise. According to his lawyer, he believed the family were trying to kill him with their piano scale- playing and he had acted in self-defence.

Ohama Matsuzo withdrew his appeal in December 1976, despite his lawyer's objection. His lawyer filed an appeal against the withdrawal, but it was unsuccessful. On 11 April 1977 Ohama Matsuzo's death sentence was finalized by the High Court. When delivering its verdict the court apparently said that Ohama Matsuzo's wish to die was genuine. Ohama Matsuzo is detained in Tokyo Detention Centre.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Ohama Matsuzo. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is concerned at reports that Ohama Matsuzo was suffering from mental illness at the time the crime was committed and is urging the government to take these reports into account in deciding to commute his death sentence.

–Amnesty International is concerned that Ohama Matsuzo has spent 19 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

AKIYAMA YOSHIMITSU

Akiyama Yoshimitsu is 65 years old and has been under sentence of death for 18 years. He may have been convicted after an unfair trial on the basis of a coerced confession.

Akiyama Yoshimitsu was arrested on 5 September 1975 and charged with the murder of a friend and factory owner and, with his brother Akiyama Taro, of stealing ¾10,000,000 to pay off debts. He claims to have been wrongly convicted.

Akiyama Yoshimitsu was held in a police cell during police questioning and denied access to his lawyer. There he claims to have been ill-treated and forced to make a confession. His supporters say that he was interrogated continuously for 12 hours on 5 September and for 16 hours on 6 September in the basement of the police station. Interrogators are said to have shouted, threatened and pushed him about. Later, when questioned at the Public Prosecutor's Office, Akiyama Yoshimitsu tried to retract his confession but was intimidated by the presence of a policeman who reported what he had said to the police.

At the time of arrest Akiyama Yoshimitsu was in poor health. He was suffering from a head injury - the result of an assault in June/July 1975 for which he had been hospitalized. During questioning he complained of a headache and fatigue but his complaint was apparently ignored. On 12 September he was admitted to hospital suffering from a heart condition, but questioning resumed the following day. Akiyama Yoshitmitsu told Tokyo District Court that he had been ill-treated and forced to make a confession. However, the court sentenced him to death on 16 December 1976 and his sentence was finalized by the Supreme Court on 17 July 1987. He is detained in Tokyo Detention Centre.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Akiyama Yoshimitsu. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is urging the authorities to order an investigation into reports that Akiyama Yoshimitsu was ill-treated during interrogation and forced to make a confession, factors which may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Akiyama Yoshimitsu has spent 18 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

Arai Masao is 67 years old and has been under sentence of death for 18 years. He may have been convicted after an unfair trial.

Arai Masao, manager of a fish restaurant and sushi bar, was arrested on charges of murdering a man and his family after the former had refused to lend him money. He was denied access to a lawyer during police questioning and claims to have been forced to make a confession.

Arai Masao was sentenced to death by Yokohama District Court on 25 September 1976 and this sentence was finalized by the Supreme Court on 16 October 1990. The court's verdict was said to have been based largely upon Arai Masao's own confession. Supporters also point to a lack of material evidence and to the fact that Arai Masao is handicapped which would have made it very difficult for him to carry out the alleged crime.

In January 1991 Arai Masao applied for a retrial. He is currently imprisoned in Tokyo Detention Centre and his contacts with outsiders have been severely restricted.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Arai Masao. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is urging the authorities to order an investigation into reports that Arai Masao was forced to make a confession and that this may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Arai Masao has spent 18 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

HARUYAMA HIROMOTO

Haruyama Hiromoto is 60 years old and has been under sentence of death for 16 years. He may have been convicted after an unfair trial.

Haruyama Hiromoto, a machine operator, was charged with the rape and murder of two women and sentenced to life imprisonment by the Sapporo District Court on in June 1976. Three years later, in April 1979, the High Court reversed the decision of the lower court and sentenced him to death.

Haruyama Hiromoto was held in a police cell during interrogation. He is said to have been interrogated for 22 days, during which time he was not told of his right to contact with a lawyer. He did not see his court-appointed lawyer until he had been charged. During police interrogation he claims to have been shouted at, threatened and pushed about. He was also given very little food. During questioning he made some 30 confessions which he claims were made under duress and which were used as evidence.

At his High Court trial Haruyama Hiromoto told the court that he had been ill-treated during interrogation and forced to make a number of confessions. Haruyama Hiromoto had voluntarily presented himself for questioning at a police station about a different crime. It was during interrogation on this matter that he reportedly confessed to the rapes and murders.

The Supreme Court finalized Haruyama Hiromoto's sentence on 13 September 1990, 11 years after the appeal was made. The Supreme Public Prosecutor's Office was reported to have said that an inadequate report submitted by local police was the reason the appeal trial had been prolonged.

Haruyama Hiromoto is held in Sapporo Detention Centre. His lawyers are preparing to apply for a retrial.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Haruyama Hiromoto. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment.

–Amnesty International is urging the authorities to order an investigation into reports that Haruyama Hiromoto was ill-treated during interrogation and forced to make a confession, factors which may have jeopardized the fairness of his trial.

–Amnesty International is concerned that Haruyama Hiromoto has spent 16 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

NAGAYAMA NORIO

Nagayama Norio has been under sentence of death for 15 years. He was 19 years old at the time of his arrest. His trial and appeals lasted 21 years.

Nagayama Norio, aged 45, is a former coffee shop waiter. He was arrested in April 1969 and charged with armed robbery and the murder of four people. After a trial lasting some 10 years, Nagayama Norio was sentenced to death by the Tokyo District Court on 10 July 1979.

On 21 August 1981 at the High Court in 1981 his sentence was commuted to life imprisonment. The court's verdict was based on evidence indicating that Nagayama Norio had a mental age of less than 18 years at the time he committed the crimes and was not mentally responsible for his acts. The court also heard that he had repented and had contributed some ¾7,000,000 to the families of the four victims, part of the royalties he earned on six books he had written in jail. It also noted that the defendant was 19 years old at the time he committed the crimes, only a year older than the legal age limit for the imposition of a death sentence.

In an unusual step, the Tokyo Public Prosecutor's Office appealed to the Supreme Court and on 8 July 1983 the Supreme Court rejected the High Court's ruling. In March 1987 the High Court reversed its own decision and reinstated the sentence of death imposed by the district court.

Nagayama Norio's lawyers appealed to the Supreme Court against the reinstatement of the death penalty but on 17 April 1990 the Supreme Court rejected the appeal and the death sentence was finalized. In his summing up, the presiding judge is reported to have said: "in the light of the nature of the crimes, their motives and results, and fully considering the childhood of the accused and his age at the time of the crime, I nevertheless cannot help but allow the death penalty to be upheld."

Nagayama Norio, who was born in the northern island of Hokkaido, is said to have had an under-privileged childhood. Although almost illiterate when he was arrested, he has since become a student of philosophy and has published a number of books and poems which have achieved literary acclaim.

He is held in Tokyo Detention Centre.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Nagayama Norio. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment and a violation of the right to life.

–Amnesty International is concerned that Nagayama Norio has spent 15 years under sentence of death. Conditions of detention for prisoners awaiting execution are extremely harsh and may amount to cruel, inhuman and degrading treatment.

ISHIDA TOMIZO

Ishida Tomizo is 73 years old and has been under sentence of death for 15 years. He is said to have been ill-treated during interrogation and may not have had a fair trial.

Ishida Tomizo, a construction worker, was arrested in October 1974 and sentenced to death for the murder of two women. He has denied some of the charges against him and may not have had a fair trial.

After his arrest Ishida Tomizo was reportedly held and interrogated in a police station for several months, during which time he claims to have been interrogated for long periods, denied the right to take regular exercise and coerced into making a confession. He did not know of his right to see a lawyer. Ishida Tomizo admits to one murder, but says it was not intentional. He denies involvement in the second murder.

Ishida Tomizo was sentenced to death by the Urawa District Court on 30 January 1980 and the sentence was finalized by the Supreme Court on 13 June 1989. He is held in Tokyo Detention Centre. In 1991 his lawyers applied for a retrial.

–Amnesty International is urging the Japanese Government to commute the death sentence imposed on Ishida Tomizo. It opposes the death penalty in all cases as the ultimate cruel, inhuman and degrading punishment.

–Amnesty International is urging the authorities to investigate reports that Ishida Tomizo was ill-treated during police interrogation and that this may have jeopardized the fairness of his trial.

–Amnesty International is concerned about the 15-year detention under sentence of death of a 73-year-old man. In view of the advanced age of this prisoner, his sentence should be commuted immediately.

TABLE 1: List of prisoners under finalized sentence of death

(Prisoners under finalized sentence of death who have exhausted their appeals and are awaiting execution. Dates are given as day/month/year)

Akiyama Yoshimitsu (m), aged 65, 17/07/87, 18 years, Claims to have been ill-treated and denied access to lawyer during police interrogation and to have made a coerced confession.

Arai Masao (m), aged 67, 16/10/90, 18 years, Claims to have been denied access to lawyer and forced to make a confession. Applied for a retrial.

Daidoji Masashi (m), aged 46, 24/03/87, 15 years, Claims pressure was put on him not to request a lawyer. Application for retrial rejected. Visitors restricted to members of immediate family and lawyer.

Fujinami Yoshio (m) aged 63, 09/09/93, 12 years,

Fujii Masayasu (m) aged 52, 13/10/89, 18 years, Reportedly denied access to lawyers during police interrogation.

Fujioka Eiji (m), aged 39, 27/05/83, 12 years,

Fujiwara Kiyotaka (m), aged 45, 17/01/94, 8 years,

Hakamada Iwao (m) aged 59, 19/11/80, 26 years, Reportedly ill-treated during interrogation and denied access to lawyer. Retrial application pending for 13 years before rejection.

Hamada Takeshige (m), aged 67, 08/03/88, 13 years, Claims to have been denied access to a lawyer and forced to make a confession.

Haruyama Hiromoto (m), aged 60, 13/09/90, 16 years, Claims to have been denied access to lawyer, ill-treated and forced to make a confession. Supreme Court appeal lasted 11 years. Applied for retrial.

Hasegawa Toshihiko (m), aged 44, 21/09/93, 9 years,

Hidaka Nobuko (f), aged 48, 14/10/88 (High Court), 8 years, Did not see a lawyer until after indictment.

Hidaka Yasumasa (m), aged 51, 14/10/88 (High Court), 8 years, Claims not to have seen a lawyer for at least 13 days after arrest. Visitors restricted to members of immediate family and lawyer.

Hirata Naoto (m) aged 39, 18/12/87, 14 years, Claims not to have known of his right to see a lawyer and did not see one until after indictment. Visitors restricted to members of immediate family and lawyer.

Hirata Mitsunari (m), aged 58, 23/10/88, 14 years, Claims not to have known of his right to see a lawyer.

Ida Masamichi (m), aged 52, 4/87, 9 years,

Imai Yoshito (m), aged 54, 29/11/85 (High Court), 10 years, Claims not to have known of his right to see a lawyer. Visitors restricted to members of immediate family and lawyer.

Ishida Mikio (m), aged 46 , 01/07/88, 12 years,

Ishida Tomizo (m) aged 73, 13/06/89, 15 years, Claims not to have known of his right to see a lawyer and to have been ill-treated during police interrogation. Applied for a retrial.

Kanda Hideki (m), aged 40, 20/11/89, 8 years, Claims not to have known of his right to see a lawyer.

Kanakawa Hajime (m), aged 44, 03/04/90, 11 years, Reported to have had a mental age of less than 18 at time of the crime. Claims not to have known of his right to see a lawyer and to have been forced to make a confession.

Kimura Shuji (m), aged 44, 09/07/87, 13 years, Claims not to have known of his right to see a lawyer. Visitors restricted to members of immediate family and lawyer.

Makino Tadashi (m), 16/11/93, ,

Masunaga Toshiaki (m) aged 46, 24/03/87, 15 years, Visitors restricted to members of immediate family and lawyer.

Miyawaki Takashi (m), 3/94, 5 years,

Morohashi Akie (f), aged 58, 31/01/91, 14 years, Claims not to have known of her right to see a lawyer.

Morikawa Tetsunori (m), aged 66, 24/09/92, 8 years,

Muratake Masahiro (m), aged 50, 27/04/90, 9 years, Claims not to have known of his right to see a lawyer.

Nata Kosaku (m), aged 44, 29/09/92, 10 years, Claims not to have known of his right to see a lawyer.

Nishio Tatsuaki (m), aged 58, 28/03/89, 14 years, Claims not to have known of his right to see a lawyer.

Nagayama Norio (m), aged 45, 17/04/90, 15 years, Aged 19 at time of crime and reported to have had a mental age of less than 18 years. Entire trial process lasted 21 years.

Nagata Hiroko (f), aged 49, 19/02/93, 12 years, Filed a lawsuit against the government for failure to provide her with proper medical treatment for a brain tumour.

Noguchi Satoru (m), aged 47, 02/02/90, 15 years, Claims not to have known of his right to see a lawyer

Oda Nobuo (m), aged 47, 12/11/70, 26 years, Reportedly ill-treated during interrogation and denied access to Lawyer. Four retrial applications rejected.

Ohama Matsuzo (m), aged 66, 11/04/77 (High Court) , 19 years, Reportedly suffering from mental illness at the time of the crime.

Okunishi Masaru (m), aged 68, 10/06/72, 25 years, Claims to have made a confession under duress and did not know of his right to see a lawyer. Five retrial applications rejected.

Omori Katsuhisa (m), aged 45, 15/07/94, 12 years, Reportedly ill- treated during police interrogation.

Ono Teruo (m), aged 56, 16/06/81, 16 years, Claims he was denied access to a lawyer.

Ota Katsunori (m), aged 49 , 10/12/93, 10 years,

Sakaguchi Hiroshi (m), aged 47, 19/02/93, 12 years,

Sagawa Kazuo (m), aged 43, 29/11/91, 13 years, Claims that police discouraged him from seeing a lawyer. Visitors restricted to members of immediate family and lawyer.

Sasaki Tetsuya (m), aged 41, 30/01/92, 11 years, Claims not to have known of his right to see a lawyer and not to have seen a lawyer until after indictment.

Satoh Masashi (m), aged 57 , 18/02/92, 14 years,

Sawachi Kazuo (m), aged 55 , 31/08/89 (High Court), 7 years, Visitors restricted to members of immediate family and lawyer.

Shimazu Shinji (m), aged 62, 05/02/91, 11 years, Claims not to have known of his right to see a lawyer.

Shinohara Tokujiro (m), aged 67, 20/05/88, 11 years, Visitors restricted to members of immediate family and lawyer.

Suda Fusao (m), aged 54 , 19/01/87 (High Court), 8 years,

Sugimoto Yoshiaki (m), aged 47, 15/04/88, 13 years,

Takada Katsutoshi (m), 7/94, ,

Takeyasu Yukihisa (m), aged 62, 14/12/90, 13 years, Claims to have been ill-treated during police questioning, to have confessed under duress and not to have known of his right to see a lawyer.

Tanaka Shigeho (m), aged 70, 23/10/87, 17 years, Claims he did not know of his right to see a lawyer

Tomiyama Tsuneyoshi (m), aged 77, 01/04/76, 28 years, Denied access to lawyer after arrest. Retrial application rejected. Visitors restricted to members of immediate family and lawyer.

Tsuda Akira (m), aged 53, 11/06/91, 9 years, Claims access to lawyer was discouraged by the police.

Ujikawa Tadashi (m), aged 43, 08/12/89, 16 years, Claims not to have known of his right to see a lawyer. Reported to have been addicted to drugs and to have had no recollection of his alleged crimes.

Watanabe Kiyoshi (m), aged 46, 02/06/88, 16 years, Claims not to have known of his right to see a lawyer.

Watabiki Makoto (m), aged 55, 28/04/88, 15 years, Claims not to have known of his right to see a lawyer. Visitors restricted to members of immediate family and lawyer.

Yokoyama Kazumi (m), aged 41, 15/04/88, 13 years

TABLE 2: Executions in Japan, 1984 - 1994

TABLE 3: Number of defendants sentenced to death by courts of first instance, 1981 - 1992

TABLE 4: Homicides: Reported Cases, Sentences, and Death Sentences, 1981 - 1992

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About The Death Penalty

Arguments for and Against the Death Penalty

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Click the buttons below to view arguments and testimony on each topic.

The death penalty deters future murders.

Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.

For years, criminologists analyzed murder rates to see if they fluctuated with the likelihood of convicted murderers being executed, but the results were inconclusive. Then in 1973 Isaac Ehrlich employed a new kind of analysis which produced results showing that for every inmate who was executed, 7 lives were spared because others were deterred from committing murder. Similar results have been produced by disciples of Ehrlich in follow-up studies.

Moreover, even if some studies regarding deterrence are inconclusive, that is only because the death penalty is rarely used and takes years before an execution is actually carried out. Punishments which are swift and sure are the best deterrent. The fact that some states or countries which do not use the death penalty have lower murder rates than jurisdictions which do is not evidence of the failure of deterrence. States with high murder rates would have even higher rates if they did not use the death penalty.

Ernest van den Haag, a Professor of Jurisprudence at Fordham University who has studied the question of deterrence closely, wrote: “Even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else. They fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter most. Hence, the threat of the death penalty may deter some murderers who otherwise might not have been deterred. And surely the death penalty is the only penalty that could deter prisoners already serving a life sentence and tempted to kill a guard, or offenders about to be arrested and facing a life sentence. Perhaps they will not be deterred. But they would certainly not be deterred by anything else. We owe all the protection we can give to law enforcers exposed to special risks.”

Finally, the death penalty certainly “deters” the murderer who is executed. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in prison is prevented from robbing on the streets. Vicious murderers must be killed to prevent them from murdering again, either in prison, or in society if they should get out. Both as a deterrent and as a form of permanent incapacitation, the death penalty helps to prevent future crime.

Those who believe that deterrence justifies the execution of certain offenders bear the burden of proving that the death penalty is a deterrent. The overwhelming conclusion from years of deterrence studies is that the death penalty is, at best, no more of a deterrent than a sentence of life in prison. The Ehrlich studies have been widely discredited. In fact, some criminologists, such as William Bowers of Northeastern University, maintain that the death penalty has the opposite effect: that is, society is brutalized by the use of the death penalty, and this increases the likelihood of more murder. Even most supporters of the death penalty now place little or no weight on deterrence as a serious justification for its continued use.

States in the United States that do not employ the death penalty generally have lower murder rates than states that do. The same is true when the U.S. is compared to countries similar to it. The U.S., with the death penalty, has a higher murder rate than the countries of Europe or Canada, which do not use the death penalty.

The death penalty is not a deterrent because most people who commit murders either do not expect to be caught or do not carefully weigh the differences between a possible execution and life in prison before they act. Frequently, murders are committed in moments of passion or anger, or by criminals who are substance abusers and acted impulsively. As someone who presided over many of Texas’s executions, former Texas Attorney General Jim Mattox has remarked, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you’ll find that the murder was committed under severe drug and alcohol abuse.”

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of life imprisonment. A 2012 report released by the prestigious National Research Council of the National Academies and based on a review of more than three decades of research, concluded that studies claiming a deterrent effect on murder rates from the death penalty are fundamentally flawed. A survey of the former and present presidents of the country’s top academic criminological societies found that 84% of these experts rejected the notion that research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat to commit violence than other prisoners. Moreover, most states now have a sentence of life without parole. Prisoners who are given this sentence will never be released. Thus, the safety of society can be assured without using the death penalty.

Ernest van den Haag Professor of Jurisprudence and Public Policy, Fordham University. Excerpts from ” The Ultimate Punishment: A Defense,” (Harvard Law Review Association, 1986)

“Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

“Most abolitionists acknowledge that they would continue to favor abolition even if the death penalty were shown to deter more murders than alternatives could deter. Abolitionists appear to value the life of a convicted murderer or, at least, his non-execution, more highly than they value the lives of the innocent victims who might be spared by deterring prospective murderers.

Deterrence is not altogether decisive for me either. I would favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment. Still, I believe the death penalty, because of its finality, is more feared than imprisonment, and deters some prospective murderers not deterred by the thought of imprisonment. Sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers because of the possibility, or even the probability, that executing them would not deter others. Whereas the life of the victims who might be saved are valuable, that of the murderer has only negative value, because of his crime. Surely the criminal law is meant to protect the lives of potential victims in preference to those of actual murderers.”

“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them. Retribution is an independent moral justification. Although penalties can be unwise, repulsive, or inappropriate, and those punished can be pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. The punishment he suffers is the punishment he voluntarily risked suffering and, therefore, it is no more unjust to him than any other event for which one knowingly volunteers to assume the risk. Thus, the death penalty cannot be unjust to the guilty criminal.”

Full text can be found at PBS.org .

Hugo Adam Bedau (deceased) Austin Fletcher Professor of Philosophy, Tufts University Excerpts from “The Case Against The Death Penalty” (Copyright 1997, American Civil Liberties Union)

“Persons who commit murder and other crimes of personal violence either may or may not premeditate their crimes.

When crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated….

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. In such cases, violence is inflicted by persons heedless of the consequences to themselves as well as to others….

If, however, severe punishment can deter crime, then long-term imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states….

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between l973 and l984, for example, lethal assaults against police were not significantly more, or less, frequent in abolitionist states than in death-penalty states. There is ‘no support for the view that the death penalty provides a more effective deterrent to police homicides than alternative sanctions. Not for a single year was evidence found that police are safer in jurisdictions that provide for capital punishment.’ (Bailey and Peterson, Criminology (1987))

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners; the vast majority (84%) were killed in death penalty jurisdictions. During the same period about 2% of all assaults on prison staff were committed by inmates in abolition jurisdictions. Evidently, the threat of the death penalty ‘does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.’ (Wolfson, in Bedau, ed., The Death Penalty in America, 3rd ed. (1982))

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.”

Click here for the full text from the ACLU website.  

Retribution

A just society requires the taking of a life for a life.

When someone takes a life, the balance of justice is disturbed. Unless that balance is restored, society succumbs to a rule of violence. Only the taking of the murderer’s life restores the balance and allows society to show convincingly that murder is an intolerable crime which will be punished in kind.

Retribution has its basis in religious values, which have historically maintained that it is proper to take an “eye for an eye” and a life for a life.

Although the victim and the victim’s family cannot be restored to the status which preceded the murder, at least an execution brings closure to the murderer’s crime (and closure to the ordeal for the victim’s family) and ensures that the murderer will create no more victims.

For the most cruel and heinous crimes, the ones for which the death penalty is applied, offenders deserve the worst punishment under our system of law, and that is the death penalty. Any lesser punishment would undermine the value society places on protecting lives.

Robert Macy, District Attorney of Oklahoma City, described his concept of the need for retribution in one case: “In 1991, a young mother was rendered helpless and made to watch as her baby was executed. The mother was then mutilated and killed. The killer should not lie in some prison with three meals a day, clean sheets, cable TV, family visits and endless appeals. For justice to prevail, some killers just need to die.”

Retribution is another word for revenge. Although our first instinct may be to inflict immediate pain on someone who wrongs us, the standards of a mature society demand a more measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.’

Many victims’ families denounce the use of the death penalty. Using an execution to try to right the wrong of their loss is an affront to them and only causes more pain. For example, Bud Welch’s daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his first reaction was to wish that those who committed this terrible crime be killed, he ultimately realized that such killing “is simply vengeance; and it was vengeance that killed Julie…. Vengeance is a strong and natural emotion. But it has no place in our justice system.”

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of a murderer is a similarly disproportionate punishment, especially in light of the fact that the U.S. executes only a small percentage of those convicted of murder, and these defendants are typically not the worst offenders but merely the ones with the fewest resources to defend themselves.

Louis P. Pojman Author and Professor of Philosophy, U.S. Military Academy. Excerpt from “The Death Penalty: For and Against,” (Rowman & Littlefield Publishers, Inc., 1998)

“[Opponents of the capital punishment often put forth the following argument:] Perhaps the murderer deserves to die, but what authority does the state have to execute him or her? Both the Old and New Testament says, “’Vengeance is mine, I will repay,’ says the Lord” (Prov. 25:21 and Romans 12:19). You need special authority to justify taking the life of a human being.

The objector fails to note that the New Testament passage continues with a support of the right of the state to execute criminals in the name of God: “Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment…. If you do wrong, be afraid, for [the authority] does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer” (Romans 13: 1-4). So, according to the Bible, the authority to punish, which presumably includes the death penalty, comes from God.

But we need not appeal to a religious justification for capital punishment. We can site the state’s role in dispensing justice. Just as the state has the authority (and duty) to act justly in allocating scarce resources, in meeting minimal needs of its (deserving) citizens, in defending its citizens from violence and crime, and in not waging unjust wars; so too does it have the authority, flowing from its mission to promote justice and the good of its people, to punish the criminal. If the criminal, as one who has forfeited a right to life, deserves to be executed, especially if it will likely deter would-be murderers, the state has a duty to execute those convicted of first-degree murder.”

National Council of Synagogues and the Bishops’ Committee for Ecumenical and Interreligious Affairs of the National Conference of Catholic Bishops Excerpts from “To End the Death Penalty: A Report of the National Jewish/Catholic Consultation” (December, 1999)

“Some would argue that the death penalty is needed as a means of retributive justice, to balance out the crime with the punishment. This reflects a natural concern of society, and especially of victims and their families. Yet we believe that we are called to seek a higher road even while punishing the guilty, for example through long and in some cases life-long incarceration, so that the healing of all can ultimately take place.

Some would argue that the death penalty will teach society at large the seriousness of crime. Yet we say that teaching people to respond to violence with violence will, again, only breed more violence.

The strongest argument of all [in favor of the death penalty] is the deep pain and grief of the families of victims, and their quite natural desire to see punishment meted out to those who have plunged them into such agony. Yet it is the clear teaching of our traditions that this pain and suffering cannot be healed simply through the retribution of capital punishment or by vengeance. It is a difficult and long process of healing which comes about through personal growth and God’s grace. We agree that much more must be done by the religious community and by society at large to solace and care for the grieving families of the victims of violent crime.

Recent statements of the Reform and Conservative movements in Judaism, and of the U.S. Catholic Conference sum up well the increasingly strong convictions shared by Jews and Catholics…:

‘Respect for all human life and opposition to the violence in our society are at the root of our long-standing opposition (as bishops) to the death penalty. We see the death penalty as perpetuating a cycle of violence and promoting a sense of vengeance in our culture. As we said in Confronting the Culture of Violence: ‘We cannot teach that killing is wrong by killing.’ We oppose capital punishment not just for what it does to those guilty of horrible crimes, but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.’1

We affirm that we came to these conclusions because of our shared understanding of the sanctity of human life. We have committed ourselves to work together, and each within our own communities, toward ending the death penalty.” Endnote 1. Statement of the Administrative Committee of the United States Catholic Conference, March 24, 1999.

The risk of executing the innocent precludes the use of the death penalty.

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed, nothing can be done to make amends if a mistake has been made. There is considerable evidence that many mistakes have been made in sentencing people to death. Since 1973, over 180 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 1,500 people have been executed. Thus, for every 8.3 people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A study by Columbia University Law School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors outside of the justice system. Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find another man, who confessed to the crime on videotape and was later convicted of the murder. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.

In other cases, DNA testing has exonerated death row inmates. Here, too, the justice system had concluded that these defendants were guilty and deserving of the death penalty. DNA testing became available only in the early 1990s, due to advancements in science. If this testing had not been discovered until ten years later, many of these inmates would have been executed. And if DNA testing had been applied to earlier cases where inmates were executed in the 1970s and 80s, the odds are high that it would have proven that some of them were innocent as well.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that statistically some workers will be killed during construction; we take great precautions to reduce the number of unintended fatalities. But wrongful executions are a preventable risk. By substituting a sentence of life without parole, we meet society’s needs of punishment and protection without running the risk of an erroneous and irrevocable punishment.

There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk. If improvements are needed in the system of representation, or in the use of scientific evidence such as DNA testing, then those reforms should be instituted. However, the need for reform is not a reason to abolish the death penalty.

Besides, many of the claims of innocence by those who have been released from death row are actually based on legal technicalities. Just because someone’s conviction is overturned years later and the prosecutor decides not to retry him, does not mean he is actually innocent.

If it can be shown that someone is innocent, surely a governor would grant clemency and spare the person. Hypothetical claims of innocence are usually just delaying tactics to put off the execution as long as possible. Given our thorough system of appeals through numerous state and federal courts, the execution of an innocent individual today is almost impossible. Even the theoretical execution of an innocent person can be justified because the death penalty saves lives by deterring other killings.

Gerald Kogan, Former Florida Supreme Court Chief Justice Excerpts from a speech given in Orlando, Florida, October 23, 1999 “[T]here is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, [as] prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.

“And you can make these statements when you understand the dynamics of the criminal justice system, when you understand how the State makes deals with more culpable defendants in a capital case, offers them light sentences in exchange for their testimony against another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony; the use of jailhouse confessions, like people who say, ‘I was in the cell with so-and-so and they confessed to me,’ or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.”

“And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them? Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.”

The entire speech by Justice Kogan is available here.

Paul G. Cassell Associate Professor of Law, University of Utah, College of Law, and former law clerk to Chief Justice Warren E. Burger. Statement before the Committee on the Judiciary, United States House of Representatives, Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases (July 23, 1993)

“Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. The Senate Judiciary Committee has previously found this risk to be ‘minimal,’ a view shared by numerous scholars. As Justice Powell has noted commenting on the numerous state capital cases that have come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’”

“Our present system of capital punishment limits the ultimate penalty to certain specifically-defined crimes and even then, permit the penalty of death only when the jury finds that the aggravating circumstances in the case outweigh all mitigating circumstances. The system further provides judicial review of capital cases. Finally, before capital sentences are carried out, the governor or other executive official will review the sentence to insure that it is a just one, a determination that undoubtedly considers the evidence of the condemned defendant’s guilt. Once all of those decisionmakers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence.”

“Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. The next most serious penalty, life imprisonment without possibility of parole, prevents murderers from committing some crimes but does not prevent them from murdering in prison.”

“The mistaken release of guilty murderers should be of far greater concern than the speculative and heretofore nonexistent risk of the mistaken execution of an innocent person.”

Full text can be found here.

Arbitrariness & Discrimination

The death penalty is applied unfairly and should not be used.

In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a Black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than Black lives. Since the death penalty was reinstated in 1976, 296 Black defendants have been executed for the murder of a white victim, while only 31 white defendants have been executed for the murder of a Black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. Often those who can only afford a minimal defense are selected for the death penalty. Until race and other arbitrary factors, like economics and geography, can be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Discretion has always been an essential part of our system of justice. No one expects the prosecutor to pursue every possible offense or punishment, nor do we expect the same sentence to be imposed just because two crimes appear similar. Each crime is unique, both because the circumstances of each victim are different and because each defendant is different. The U.S. Supreme Court has held that a mandatory death penalty which applied to everyone convicted of first degree murder would be unconstitutional. Hence, we must give prosecutors and juries some discretion.

In fact, more white people are executed in this country than black people. And even if blacks are disproportionately represented on death row, proportionately blacks commit more murders than whites. Moreover, the Supreme Court has rejected the use of statistical studies which claim racial bias as the sole reason for overturning a death sentence.

Even if the death penalty punishes some while sparing others, it does not follow that everyone should be spared. The guilty should still be punished appropriately, even if some do escape proper punishment unfairly. The death penalty should apply to killers of black people as well as to killers of whites. High paid, skillful lawyers should not be able to get some defendants off on technicalities. The existence of some systemic problems is no reason to abandon the whole death penalty system.

Reverend Jesse L. Jackson, Sr. President and Chief Executive Officer, Rainbow/PUSH Coalition, Inc. Excerpt from “Legal Lynching: Racism, Injustice & the Death Penalty,” (Marlowe & Company, 1996)

“Who receives the death penalty has less to do with the violence of the crime than with the color of the criminal’s skin, or more often, the color of the victim’s skin. Murder — always tragic — seems to be a more heinous and despicable crime in some states than in others. Women who kill and who are killed are judged by different standards than are men who are murderers and victims.

The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.

The majority of Americans who support the death penalty believe, or wish to believe, that legitimate factors such as the violence and cruelty with which the crime was committed, a defendant’s culpability or history of violence, and the number of victims involved determine who is sentenced to life in prison and who receives the ultimate punishment. The numbers, however, tell a different story. They confirm the terrible truth that bias and discrimination warp our nation’s judicial system at the very time it matters most — in matters of life and death. The factors that determine who will live and who will die — race, sex, and geography — are the very same ones that blind justice was meant to ignore. This prejudicial distribution should be a moral outrage to every American.”

Justice Lewis Powell United States Supreme Court Justice excerpts from McCleskey v. Kemp, 481 U.S. 279 (1987) (footnotes and citations omitted)

(Mr. McCleskey, a black man, was convicted and sentenced to death in 1978 for killing a white police officer while robbing a store. Mr. McCleskey appealed his conviction and death sentence, claiming racial discrimination in the application of Georgia’s death penalty. He presented statistical analysis showing a pattern of sentencing disparities based primarily on the race of the victim. The analysis indicated that black defendants who killed white victims had the greatest likelihood of receiving the death penalty. Writing the majority opinion for the Supreme Court, Justice Powell held that statistical studies on race by themselves were an insufficient basis for overturning the death penalty.)

“[T]he claim that [t]his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since [this] claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not ‘plac[e] totally unrealistic conditions on its use.’ (Gregg v. Georgia)”

The entire decision can be found here.  

Top 10 Pro & Con Arguments

Life without Parole

Retribution

Victims’ Families

Methods of Execution

Medical Professionals’ Participation

Federal Death Penalty

1. Legality

The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment’s use).

Proponents of the death penalty being legal argue that such a harsh penalty is needed for criminals who have committed the worst crimes, that the punishment deters crime, and that the US Supreme Court has upheld the death penalty as constitutional.

Opponents of the death penalty being legal argue that the punishment is cruel and unusual, and, thus, unconstitutional, that innocent people are put to death for crimes they did not commit, and that the penalty is disproportionately applied to people of color.

Read More about This Debate:

Should the Death Penalty Be Legal?

ProCon.org, “International Death Penalty Status,” deathpenalty.procon.org, May 19, 2021 ProCon.org, “Should the Death Penalty Be Legal?,” deathpenalty.procon.org, Sep. 20, 2021 ProCon.org, “States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums,” deathpenalty.procon.org, Mar. 24, 2021

2. Life without Parole

Life without Parole (also called LWOP) is suggested by some as an alternative punishment for the death penalty.

Proponents of replacing the death penalty with life without parole argue that imprisoning someone for the duration of their life is more humane than the death penalty, that LWOP is a more fitting penalty that allows the criminal to think about what they’ve done, and that LWOP reduces the chances of executing an innocent person.

Opponents of replacing the death penalty with life without parole argue that LWOP is just an alternate death penalty and parole should always be a consideration even if the prisoner never earns the privilege. While other opponents argue that life without parole is not a harsh enough punishment for murderers and terrorists.

Should Life without Parole Replace the Death Penalty?

ProCon.org, “Should Life without Parole Replace the Death Penalty?,” deathpenalty.procon.org, Sep. 20, 2021

3. Deterrence

One of the main justifications for maintaining a death penalty is that the punishment may prevent people from committing crimes so as to not risk being sentenced to death.

Proponents who argue that the death penalty is a deterrent to capital crimes state that such a harsh penalty is needed to discourage people from murder and terrorism.

Opponents who argue that the death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.

Does the Death Penalty Deter Crime?

ProCon.org, “Does the Death Penalty Deter Crime?,” deathpenalty.procon.org, Sep. 20, 2021

4. Retribution

Retribution in this debate is the idea that the death penalty is needed to bring about justice for the victims, the victims’ families, and/or society at large.

Proponents who argue that the death penalty is needed as retribution argue that “an eye for an eye” is appropriate, that the punishment should match the crime, and that the penalty is needed as a moral balance to the wrong done by the criminal.

Opponents who argue that the death penalty is not needed as retribution argue that reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.”

Should the Death Penalty Be Used for Retribution for Victims and/or Society?

ProCon.org, “Should the Death Penalty Be Used for Retribution for Victims and/or Society?,” deathpenalty.procon.org, Sep. 20, 2021

5. Victims’ Families

Whether the death penalty can bring about some sort of closure or solace to the victims’ families after a horrible, life-changing experience has long been debated and used by both proponents and opponents of the death penalty.

Proponents who argue that the death penalty is needed to bring about closure and solace to victims’ families argue that the finality of the death penalty is needed for families to move on and not live in fear of the criminal getting out of prison.

Opponents who argue that the death penalty is needed to bring about closure and solace to victims’ families argue that retributive “justice” does not bring closure for anyone and that the death penalty can take years of media-friendly appeals to enact.

Does the Death Penalty Offer Closure or Solace to Victims’ Families?

ProCon.org, “Does the Death Penalty Offer Closure or Solace to Victims’ Families?,” deathpenalty.procon.org, Sep. 20, 2021

6. Methods of Execution

Because the drugs used for lethal injection have become difficult to obtain, some states are turning to other methods of execution. For example, South Carolina recently enacted legislation to allow for the firing squad and electric chair if lethal injection is not available at the time of the execution.

Proponents of alternate methods of execution argue that the state and federal government have an obligation to carry out the sentence handed down, and that, given the recent botched lethal injection executions, other methods may be more humane.

Opponents of alternate methods of execution argue that we should not be reverting to less humane methods of execution, and that the drug companies’ objection to use of lethal injection drugs should signal a need to abolish the penalty altogether.

Should States Authorize Other Methods of Execution Such as Hanging or the Firing Squad?

ProCon.org, “Should States Authorize Other Methods of Execution Such as Hanging or the Firing Squad?,” deathpenalty.procon.org, Sep. 20, 2021

7. Innocence

Reports indicate over 150 innocent people have been found not-guilty and exonerated since the death penalty was reinstated in 1973.

Proponents of abolishing the death penalty because innocent people may be executed argue that humans are fallible and the justice system is flawed, putting more Black and brown people on death row than are guilty of capital crimes, and that we cannot risk executing one innocent person just to carry about retributive “justice.”

Opponents of abolishing the death penalty because innocent people may be executed argue that the fact that death row inmates have been exonerated proves that the checks and balances to prevent innocent people from being executed are in place and working well, almost eliminating the chance that an innocent person will be executed.

Should the Death Penalty Be Abolished Because Innocent People May Be Executed?

ProCon.org, “Should the Death Penalty Be Abolished Because Innocent People May Be Executed?,” deathpenalty.procon.org, Sep. 20, 2021

8. Morality

Both religious and secular debates have continued about whether it is moral for humans to kill one another, even in the name of justice, and whether executing people makes for a moral and just government.

Proponents who argue that the death penalty is a moral punishment state that “an eye for an eye” is justified to promote a good and just society than shuns evil.

Opponents who argue that the death penalty is an immoral punishment state that humans should not kill other humans, no matter the reasons, because killing is killing.

Is the Death Penalty Immoral?

ProCon.org, “Is the Death Penalty Immoral?,” deathpenalty.procon.org, Sep. 20, 2021

9. Medical Professionals’ Participation

With the introduction of lethal injection as execution method, states began asking that medical professionals participate in executions to ensure the injections were administered properly and to provide medical care if the execution were botched.

Proponents who argue that medical professionals can participate in executions ethically state that doctors and others ensure that the execution is not “cruel or unusual,” and ensure that the person being executed receives medical care during the execution.

Opponents who argue that medical professionals cannot participate in executions ethically state that doctors and others should keep people alive instead of participate in killing, and that the medicalization of execution leads to a false acceptance of the practice.

Is Participation in Executions Ethical for Medical Professionals?

ProCon.org, “Is Participation in Executions Ethical for Medical Professionals?,” deathpenalty.procon.org, Sep. 20, 2021

10. Federal Death Penalty

The federal death penalty has only been carried out 16 times since its reinstatement after Furman v. Georgia in 1988: twice in 2001, once in 2003, ten times in 2020, and three times in 2021. Several moratoriums have been put in place by presidents in the interims. Under President Joe Biden, the US Justice Department has enacted a moratorium on the death penalty, reversing President Donald Trump’s policy of carrying out federal executions.

Proponents of keeping the federal death penalty argue that justice must be carried out to deter crime and offer closure to families, and that the federal government has an obligation to enact the sentences handed down by the courts.

Proponents of banning the federal death penalty argue that the United States federal government should set an example for the states with a ban, and that only a ban will prevent the next president from executing the prisoners on death row.

Should the US President Reinstate the Federal Death Penalty?

ProCon.org, “Most Recent Executions in Each US State,” deathpenalty.procon.org, Aug. 26, 2021 ProCon.org, “Should the US President Reinstate the Federal Death Penalty?,” deathpenalty.procon.org, Sep. 20, 2021

People who view this page may also like:

• States with the Death Penalty and States with Death Penalty Bans
• US Executions by Race, Crime, Method, Age, Gender, State, & Year
• Should Euthanasia or Physician-Assisted Suicide Be Legal?

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Human rights violations permeate criminal legal systems that authorize the death penalty. For an overview of death penalty issues The Advocates raises in its advocacy, watch our YouTube video . Here is a summary of the 20 most common human rights violations connected to the death penalty.

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.

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.

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.

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 of execution. In the United States, a person must be found incapable of understanding the nature and rational for their punishment at the time of the scheduled execution. Under this narrow definition, many individuals are subject to the death penalty, despite the criminal legal system subjecting them to pervasive due process violations and failure to accommodate their disabilities throughout their legal proceedings.

Of the countries that still permit the death penalty, many prohibit the application of the death penalty to individuals with intellectual disabilities. But some countries define intellectual disability narrowly and fail to provide reasonable accommodations for those individuals throughout their legal proceedings. The resultant due process violations render executions of people with intellectual disabilities arbitrary.

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 people on death row – warrants defining capital punishment as torture.

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.

While there are many methods of execution, hanging is the most common. 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.

A public execution is a form of capital punishment which members of the public may attend. Most countries have outlawed the practice because it is particularly cruel and degrading to the person being executed and because it may inflict trauma on witnesses.

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 legal systems are not foolproof. Wrongful convictions occur. Inadequate legal representation, faulty evidence, discrimination and prejudice (on the part of prosecutors, judges, and juries), and eyewitness misidentification are only a handful of the myriad of reasons why innocent people are wrongfully sentenced to death and executed each year.

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 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.

Factors other than the crime itself or the offender's culpability affect prosecutors' decisions to pursue capital convictions 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.

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.

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.

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.

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.

Death row conditions can be completely inadequate, resulting in a cruel and inhumane environment in which people on death row 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.

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.

In some countries, conviction of certain crimes automatically results in a death sentence. People accused of such crimes are not able to present mitigating evidence – such as environmental and physical factors, like abuse during childhood or disabilities – prior to receiving a death sentence. In some circumstances, people who are automatically sentenced to death do not have access to any kind of appeals process. Of the nations that still permit capital punishment, most recognize the significant import of allowing presentation of mitigating factors, appeals, and other safeguards to ensure this penalty is not issued arbitrarily, inaccurately, or absent the most egregious circumstances.

To learn more about examples of these human rights violations in specific countries, read our submissions to international human rights mechanisms . 

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Moral arguments

Utilitarian arguments, practical arguments, the abolition movement.

• Capital punishment in the early 21st century

Arguments for and against capital punishment

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Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral , utilitarian, and practical.

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Supporters of the death penalty believe that those who commit murder , because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution , expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. By contrast, opponents of capital punishment, following the writings of Cesare Beccaria (in particular On Crimes and Punishments [1764]), argue that, by legitimizing the very behaviour that the law seeks to repress—killing—capital punishment is counterproductive in the moral message it conveys. Moreover, they urge, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.

Although death was prescribed for crimes in many sacred religious documents and historically was practiced widely with the support of religious hierarchies , today there is no agreement among religious faiths, or among denominations or sects within them, on the morality of capital punishment. Beginning in the last half of the 20th century, increasing numbers of religious leaders—particularly within Judaism and Roman Catholicism—campaigned against it. Capital punishment was abolished by the state of Israel for all offenses except treason and crimes against humanity, and Pope John Paul II condemned it as “cruel and unnecessary.”

Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint. Opponents, however, point to research that generally has demonstrated that the death penalty is not a more effective deterrent than the alternative sanction of life or long-term imprisonment.

There also are disputes about whether capital punishment can be administered in a manner consistent with justice . Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed. By contrast, opponents maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that racial prejudice motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers, and that, because errors are inevitable even in a well-run criminal justice system, some people will be executed for crimes they did not commit. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.

Under the influence of the European Enlightenment , in the latter part of the 18th century there began a movement to limit the scope of capital punishment. Until that time a very wide range of offenses, including even common theft, were punishable by death—though the punishment was not always enforced , in part because juries tended to acquit defendants against the evidence in minor cases. In 1794 the U.S. state of Pennsylvania became the first jurisdiction to restrict the death penalty to first-degree murder, and in 1846 the state of Michigan abolished capital punishment for all murders and other common crimes. In 1863 Venezuela became the first country to abolish capital punishment for all crimes, including serious offenses against the state (e.g., treason and military offenses in time of war). San Marino was the first European country to abolish the death penalty, doing so in 1865; by the early 20th century several other countries, including the Netherlands, Norway , Sweden , Denmark , and Italy , had followed suit (though it was reintroduced in Italy under the fascist regime of Benito Mussolini ). By the mid-1960s some 25 countries had abolished the death penalty for murder, though only about half of them also had abolished it for offenses against the state or the military code. For example, Britain abolished capital punishment for murder in 1965, but treason, piracy, and military crimes remained capital offenses until 1998.

During the last third of the 20th century, the number of abolitionist countries increased more than threefold. These countries, together with those that are “de facto” abolitionist—i.e., those in which capital punishment is legal but not exercised—now represent more than half the countries of the world. One reason for the significant increase in the number of abolitionist states was that the abolition movement was successful in making capital punishment an international human rights issue, whereas formerly it had been regarded as solely an internal matter for the countries concerned.

In 1971 the United Nations General Assembly passed a resolution that, “in order fully to guarantee the right to life, provided for in…the Universal Declaration of Human Rights,” called for restricting the number of offenses for which the death penalty could be imposed, with a view toward abolishing it altogether. This resolution was reaffirmed by the General Assembly in 1977. Optional protocols to the European Convention on Human Rights (1983) and to the International Covenant on Civil and Political Rights (1989) have been established, under which countries party to the convention and the covenant undertake not to carry out executions. The Council of Europe (1994) and the EU (1998) established as a condition of membership in their organizations the requirement that prospective member countries suspend executions and commit themselves to abolition. This decision had a remarkable impact on the countries of central and eastern Europe , prompting several of them—e.g., the Czech Republic , Hungary , Romania , Slovakia , and Slovenia—to abolish capital punishment.

In the 1990s many African countries—including Angola, Djibouti, Mozambique, and Namibia—abolished capital punishment, though most African countries retained it. In South Africa , which formerly had one of the world’s highest execution rates, capital punishment was outlawed in 1995 by the Constitutional Court, which declared that it was incompatible with the prohibition against cruel, inhuman, or degrading punishment and with “a human rights culture.”

US death penalty must be abolished, rights experts urge President Biden

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President Biden should do everything in his power to end death row executions in the United States, UN-appointed independent rights experts  said on  Thursday.

The call comes after a resumption of federal executions in the US in the last year of Donald Trump’s Presidency, in which 13 people were put to death.

UN Special Procedures March 11, 2021

In their appeal to the White House, the rights experts insisted that the death penalty served “no deterrent value and cannot be reconciled with the right to life”.

‘Inherently flawed’

The punishment is “inherently flawed” and disproportionately affected African-Americans and people living in poverty, they maintained.

Due process guarantees were also violated by the practice, the rights experts alleged, before calling on Mr. Biden to grant clemency to 48 people, many on death row for a decade or more.

“This should be only a first step”, the experts declared. “We further urge the president, as well as members of Congress, to strongly support legislative efforts to formally abolish the death penalty at a federal level.”

They argued that the president “should consider all other possible federal-level actions including directing the Department of Justice to stop seeking the death penalty and withdrawing notices of intent to seek the death penalty in ongoing cases.”

Thousands on death row

Thousands more individuals remain on state death rows across the country and several executions are scheduled at state level in 2021.

In their appeal for concrete measures to halt the practice, the experts urged lawmakers to consider linking federal funding to alternative sentencing and banning the sale and transport of chemicals used in lethal injections. 

Although 108 countries have abolished capital punishment, 60 per cent of the world's population live in the 48 countries that retain it, such as China, India and Iran.

“There is no time to lose with thousands of individuals on state death rows across the country”, they said, making clear that they had written to the White House to express their concerns.

The full list of experts involved, is at the bottom of the press statement released by the human rights office, OHCHR ,  here .

The Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the  Special Procedures  of the Human Rights Council . The experts are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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10 facts about the death penalty in the U.S.

Most U.S. adults support the death penalty for people convicted of murder, according to an April 2021 Pew Research Center survey . At the same time, majorities believe the death penalty is not applied in a racially neutral way, does not deter people from committing serious crimes and does not have enough safeguards to prevent an innocent person from being executed.

Use of the death penalty has gradually declined in the United States in recent decades. A growing number of states have abolished it, and death sentences and executions have become less common. But the story is not one of continuous decline across all levels of government. 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.

As debates over the death penalty continue in the U.S. , here’s a closer look at public opinion on the issue, as well as key facts about the nation’s use of capital punishment.

This Pew Research Center analysis examines public opinion about the death penalty in the United States and explores how the nation has used capital punishment in recent decades. 

The public opinion findings cited here are based primarily on a Pew Research Center survey of 5,109 U.S. adults, conducted from April 5 to 11, 2021. Everyone who took part in the survey is a member of the Center’s American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about the ATP’s methodology . Here are the  questions used  from this survey, along with responses, and its  methodology .

Findings about the administration of the death penalty – including the number of states with and without capital punishment, the annual number of death sentences and executions, the demographics of those on death row and the average amount of time spent on death row – come from the Death Penalty Information Center and the Bureau of Justice Statistics.

Six-in-ten U.S. adults strongly or somewhat favor the death penalty for convicted murderers, according to the April 2021 survey. A similar share (64%) say the death penalty is morally justified when someone commits a crime like murder.

Support for capital punishment is strongly associated with the view that it is morally justified in certain cases. Nine-in-ten of those who favor the death penalty say it is morally justified when someone commits a crime like murder; only a quarter of those who oppose capital punishment see it as morally justified.

A majority of Americans have concerns about the fairness of the death penalty and whether it serves as a deterrent against serious crime. More than half of U.S. adults (56%) say Black people are more likely than White people to be sentenced to death for committing similar crimes. About six-in-ten (63%) say the death penalty does not deter people from committing serious crimes, and nearly eight-in-ten (78%) say there is some risk that an innocent person will be executed.

Opinions about the death penalty vary by party, education and race and ethnicity. Republicans and Republican-leaning independents are much more likely than Democrats and Democratic leaners to favor the death penalty for convicted murderers (77% vs. 46%). Those with less formal education are also more likely to support it: Around two-thirds of those with a high school diploma or less (68%) favor the death penalty, compared with 63% of those with some college education, 49% of those with a bachelor’s degree and 44% of those with a postgraduate degree. Majorities of White (63%), Asian (63%) and Hispanic adults (56%) support the death penalty, but Black adults are evenly divided, with 49% in favor and 49% opposed.

Views of the death penalty differ by religious affiliation . Around two-thirds of Protestants in the U.S. (66%) favor capital punishment, though support is much higher among White evangelical Protestants (75%) and White non-evangelical Protestants (73%) than it is among Black Protestants (50%). Around six-in-ten Catholics (58%) also support capital punishment, a figure that includes 61% of Hispanic Catholics and 56% of White Catholics.

Opposition to the death penalty also varies among the religiously unaffiliated. Around two-thirds of atheists (65%) oppose it, as do more than half of agnostics (57%). Among those who say their religion is “nothing in particular,” 63% support capital punishment.

Support for the death penalty is consistently higher in online polls than in phone polls. Survey respondents sometimes give different answers depending on how a poll is conducted. In a series of contemporaneous Pew Research Center surveys fielded online and on the phone between September 2019 and August 2020, Americans consistently expressed more support for the death penalty in a self-administered online format than in a survey administered on the phone by a live interviewer. This pattern was more pronounced among Democrats and Democratic-leaning independents than among Republicans and GOP leaners, according to an analysis of the survey results .

Phone polls have shown a long-term decline in public support for the death penalty. In phone surveys conducted by Pew Research Center between 1996 and 2020, the share of U.S. adults who favor the death penalty fell from 78% to 52%, while the share of Americans expressing opposition rose from 18% to 44%. Phone surveys conducted by Gallup found a similar decrease in support for capital punishment during this time span.

A majority of states have the death penalty, but far fewer use it regularly. As of July 2021, the death penalty is authorized by 27 states and the federal government – including the U.S. Department of Justice and the U.S. military – and prohibited in 23 states and the District of Columbia, according to the Death Penalty Information Center . But even in many of the jurisdictions that authorize the death penalty, executions are rare: 13 of these states, along with the U.S. military, haven’t carried out an execution in a decade or more. That includes three states – California , Oregon and Pennsylvania – where governors have imposed formal moratoriums on executions.

A growing number of states have done away with the death penalty in recent years, either through legislation or a court ruling. Virginia, which has carried out more executions than any state except Texas since 1976, abolished capital punishment in 2021. It followed Colorado (2020), New Hampshire (2019), Washington (2018), Delaware (2016), Maryland (2013), Connecticut (2012), Illinois (2011), New Mexico (2009), New Jersey (2007) and New York (2004).

Death sentences have steadily decreased in recent decades. There were 2,570 people on death row in the U.S. at the end of 2019, down 29% from a peak of 3,601 at the end of 2000, according to the Bureau of Justice Statistics (BJS). New death sentences have also declined sharply: 31 people were sentenced to death in 2019, far below the more than 320 who received death sentences each year between 1994 and 1996. In recent years, prosecutors in some U.S. cities – including Orlando and Philadelphia – have vowed not to seek the death penalty, citing concerns over its application.

Nearly all (98%) of the people who were on death row at the end of 2019 were men. Both the mean and median age of the nation’s death row population was 51. Black prisoners accounted for 41% of death row inmates, far higher than their 13% share of the nation’s adult population that year. White prisoners accounted for 56%, compared with their 77% share of the adult population. (For both Black and White Americans, these figures include those who identify as Hispanic. Overall, about 15% of death row prisoners in 2019 identified as Hispanic, according to BJS.)

Annual executions are far below their peak level. Nationally, 17 people were put to death in 2020, the fewest since 1991 and far below the modern peak of 98 in 1999, according to BJS and the Death Penalty Information Center. The COVID-19 outbreak disrupted legal proceedings in much of the country in 2020, causing some executions to be postponed .

Even as the overall number of executions in the U.S. fell to a 29-year low in 2020, the federal government ramped up its use of the death penalty. The Trump administration executed 10 prisoners in 2020 and another three in January 2021; prior to 2020, the federal government had carried out a total of three executions since 1976.

The Biden administration has taken a different approach from its predecessor. In July 2021, Attorney General Merrick Garland ordered a halt in federal executions while the Justice Department reviews its policies and procedures.

The average time between sentencing and execution in the U.S. has increased sharply since the 1980s. In 1984, the average time between sentencing and execution was 74 months, or a little over six years, according to BJS . By 2019, that figure had more than tripled to 264 months, or 22 years. The average prisoner awaiting execution at the end of 2019, meanwhile, had spent nearly 19 years on death row.

A variety of factors explain the increase in time spent on death row, including lengthy legal appeals by those sentenced to death and challenges to the way states and the federal government carry out executions, including the drugs used in lethal injections. In California, more death row inmates have died from natural causes or suicide than from executions since 1978, according to the state’s Department of Corrections and Rehabilitation .

Note: This is an update to a post originally published May 28, 2015.

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John Gramlich is an associate director at Pew Research Center .

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