Introduction
The death penalty is one of the most controversial topics related to criminal justice. Usually reserved for the gravest crimes of all, it is the harshest punishment recognized by the legal systems of many countries. An interesting thing about the death penalty is its geographic pervasiveness: it is present throughout the world, and neither national and cultural nor economic concerns may serve as a predictor. It is legal and used in some of the most totalitarian states, such as North Korea, and Western liberal democracies, such as the United States (Ziebertz & Zaccaria, 2019). It is present on every populated continent – even in Europe, where the vast majority of countries have abolished it by now, Belarus still retains it (Ziebertz & Zaccaria, 2019). However, this geographic pervasiveness does not mean that there are no national variations in implementing the death penalty – there a different issues with it depending on a given country’s legal system. Capital punishment emphasizes the shortcomings inherent in a given legal system, be that flawed jury selection or racial profiling, and promotes fatal mistakes, which is why it has to be abolished.
Main body
One of the central points in the argument surrounding the death penalty it contradicts the right to live directly. Perhaps the most important document considering human rights in the contemporary world is the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations. This document refers to the right to life in article 6 and guarantees that every person has it and should not be deprived of his or her life arbitrarily (Ziebertz & Zaccaria, 2019). Notably enough, the Covenant criticizes the death penalty explicitly but does not ban it outright. Instead, the document stresses that the penalty may only be a final measure that concludes the proceedings of a competent court in full accordance with domestic and international law (Ziebertz & Zaccaria, 2019). Hence, the International Covenant on Civil and Political Rights stops just short of banning the death penalty but does not try to mitigate the controversy surrounding it. By putting a remark to the death penalty in Chapter 6, the document unequivocally emphasizes that this type of punishment contradicts a fundamental human right.
Another source of controversy in the case of the death penalty is its inherently irredeemable nature. Many of the legal punishments may be compensated for – for instance, fines may be reimbursed, and confiscated property returned. Even the prison sentences are not fatal – should the new evidence absolve a convict, no one can return the years already served, but a new verdict may prevent him or her from serving the rest. However, no such possibility exists in the case of the death penalty: once a convicted person is executed, there is nothing that can change the fact of his or her death. This impossibility to make amends is what makes capital punishment the harshest measure known to legal justice. It is also the obvious reason why the United Nations urges the countries of the world to limit the use of the death penalty to the bare minimum and only employ it for the most serious crimes (Ziebertz & Zaccaria, 2019). The grave nature of the punishment is the factor that amplifies any actual or potential downside with the death penalty – and there is more than one.
No system of criminal justice is impervious to errors, and convicting an innocent person is always a possibility even if every element of the system strives to follow the proper procedure impeccably. In death penalty cases, there have been instances when a supposed victim turned out to be alive and well (Garrett, 2019). Technically speaking, capital punishment is not an exception in this regard – there have been errors in criminal cases as long as there have been criminal cases. However, there are at least two reasons why errors in the cases potentially involving the death penalty deserve particular attention. First of all, as mentioned above, execution once carried out, cannot be reversed or compensated for. Secondly, there is also a possibility that death penalty cases may be more error-prone. Garrett (2017) points out that capital punishment cases account for as much as 75 percent of false convictions in known exoneration cases. Naturally, it can mean that death penalty cases are scrutinized more thoroughly, but the possibility of them being error-prone remains as well – and such errors, if left unchecked long enough, are beyond fixing.
Apart from the honest mistakes brought by either overzealous prosecution, not-so-competent defense, or swaying jurors, death penalty cases also highlight the imperfections of a given criminal justice system. For instance, the conviction rate in death penalty cases may become a vehicle for racial profiling. Ulmer and Hanrath (2019) point out that the practice of sentencing in death penalty cases in the United States is not as unprejudiced as it should ideally be. According to them, there are notable racial and ethnic disparities in sentencing, meaning that race and ethnicity remain a factor in decision-making even when justice is supposed to be color-blind (Ulmer & Hanrath, 2019). As with the above-mentioned errors, this problem is not exclusive to capital punishment, as racial profiling is widely recognized as an issue in many domains of criminal justice. However, just as the death penalty is the most serious penalty of all, the consequences of racial profiling in capital punishment cases are the gravest. The death penalty is not responsible for the problem per se, but it provides a significant outlet for it to manifest.
Sentencing itself is only the last part of the criminal proceedings, and the cases involving capital punishment provide other opportunities for the exercise of individual or institutional racism. A notable example is the jury selection process in the United States. While there are legal norms intended to prevent racial discrimination in jury selection, the use of peremptory challenges is beyond the influence of racial motives. Any reason for removing a potential juror from the pool except for an explicitly racist statement – as in “I do not want this juror because of his or her race” – is treated as race-neutral (Price, 2015). While this works on paper, Price (2015) suggests that prosecution and defense may construct their technically race-neutral questions in a race-sensitive way, thus allowing them to exclude potential jurors of a selected race. Just like the racial profiling in sentencing discussed above, this problem is not exclusive to the death penalty cases. However, capital punishment cases imbue this exercise of racism with the gravest consequences, thus making the death penalty an enhancer of an already discriminatory practice.
While racial profiling and discriminative juror selection as problems exceed death penalty cases, there are also procedural issues directly related to the nature of the punishment. The controversy surrounding the death penalty makes choosing the jurors who are qualified to reach a decision of such a matter more complex than usual. In the United States, Supreme Court has long ruled that if a person has substantial doubts regarding capital punishment, he or she is not qualified to be a juror in the death penalty cases (Garrett, 2017). After Witherspoon v. Illinois, where an Illinois judge staffed the jury with the proponents of capital punishment, the Supreme Court also ruled out that the practice of such unlimited exclusion gave too much bias in favor of the prosecution (Garrett, 2017). Yet, for all the efforts to mitigate it, the bias in favor of the death penalty still persists in another form. Many jurors mistakenly think that they are obligated to impose capital punishment if the defendant is found guilty in a death penalty case (Garrett, 2017). Thus, the bias toward execution may be inherent in the very practice of capital punishment.
One of the arguments against the outright abolition of the death penalty is that it will inevitably provoke a strong backlash. The Supreme Court landmark decision in Furman v. Georgia rendered the death penalty unconstitutional across the entire United States due to the manner in which it was imposed. While many hailed it as the end of capital punishment in the country, many states reintroduced the death penalty anew, this time in a manner compliant with the Constitution (Sarat et al., 2020). Public opinion was also divided, with many people opposing the ruling. The perspective of backlash is a strong and valid argument against outright abolition and, as such, should not be ignored. However, one should not overestimate it, as people usually accept even the most controversial rulings on landmark cases over time. For example, only 53 percent of US citizens supported the decision in Brown v Board of Education in 1954, but this percentage rose to 87 by 1994 (Sarat et al., 2020). One may assume that, should the definitive abolition of capital punishment ever happen, the public and the policymakers will eventually come to terms with it.
Conclusion
As one can see, there are numerous reasons to abolish the death penalty. To begin with, the very existence of capital punishment stands is in sharp contradiction with the fundamental right to life, which makes it a dubious measure at best. Additionally, the death penalty, once imposed, cannot be undone or adequately compensated for. As the harshest punishment in existence, the death penalty emphasizes the flaws of the criminal justice system to the greatest extent. Judicial errors, racial profiling, and biased juror selection are not exclusive to the death penalty cases, but capital punishment makes all of these shortcomings fatal and irredeemable. Moreover, many potential jurors share the erroneous idea that they are required to impose a death sentence should the defendant be found guilty in a death penalty case, thus creating a prosecution bias. Admittedly, the abolition of the death penalty will likely provoke a strong backlash, as it already did in the 1970s after Furman v. Georgia. However, history shows that public opinion and policymakers eventually accept the landmark decisions on controversial issues, and the perspective of backlash should not overshadow the numerous shortcomings inherent in capital punishment.
References
Garrett, B. L. (2019). Innocence and the global death penalty. In C. S. Steiler & J. M. Steiler (Eds.), Comparative Capital Punishment (pp. 201-215). Edward Elgar Publishing.
Garrett, B. L. (2017). End of its rope: How killing the death penalty can revive criminal justice. Harvard UP.
Price, M. J. (2015). At the cross: Race, religion, and citizenship in the politics of the death penalty. Oxford UP.
Sarat, A., Blackman, C., Boyntion, E. S., Chen, K., & Perez, T. (2020). After abolition: Acquiescence, backlash, and the consequences of ending the death penalty. Hastings Journal of Crime and Punishment, 1(1), 33-78.
Ulmer, J, T., & Hanrath, L. (2019). Disparities in death penalty prosecution and punishment. In Spohn and P. Brennan (Eds.), Handbook on sentencing policies and practices in the 21st century. Routledge.
Ziebertz, H.-G., & Zaccaria, F. (2019). The right to life questioned. Introductory remarks. In H.-G. Ziebertz & F. Zaccaria (Eds.), Euthanasia, abortion, death penalty and religion – the right to life and its limitations (pp. 1-12). Springer.