Death Penalty, Its Feasibility and Legitimacy

The death penalty as capital punishment in the modern world is seen rather as an unnecessary measure associated with ethical concerns. In the United States, this practice is authorized in some states, while in most of the country it has been abandoned. The dominant part of the Western world proclaims the supremacy of human rights, in particular the right to life. However, this right is still regulated by the legislative field, which is noted in various international acts. Thus, the consideration of the practice of the death penalty, as well as the debate about its feasibility and legitimacy, must be pragmatic, not ethical.

From the point of view of human rights, life is a paramount value that must be protected and preserved. European Convention on Human Rights (Council of Europe, n.d), which was adopted back in 1950 confirms this provision in one of its articles. In particular, Article 2 indicates that the human right to life must be protected by law (Council of Europe, n.d). At the same time, it emphasizes that “no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime” (Council of Europe, n.d, p. 6). The International Covenant on Civil and Political Rights, adopted in 1966, adheres to the same view (Office of the High Commissioner, n.d). This document also postulates the value of human life but also allows for the punishment of death for certain crimes. Thus, the right to life is enshrined in the most authoritative international acts. However, they also indicate the right to sentence and execution of the death penalty.

The death penalty is currently legal in some states of the USA. As of 2019, the death penalty is legal in 32 states as capital punishment (U.S. Department of Justice, 2021, p. 6). The basis for the death penalty in most states is an intentional murder or homicide with aggravating factors (18 U.S. Code § 3592, n.d). Desai and Garrett (2019) despite a gradual decrease in the number of death sentences, none of the abolished states was the leader in terms of their number. Currently, there is a precipitous decline in the number of prisoners sentenced to death, which in 2020 reached a record 18 cases (Death sentences, n.d). Compared to the 1990s, when hundreds of people received capital punishment every year, this figure seems astonishing (Desai & Garrett, 2019, p. 1258; Sentencing data, n.d). However, the reasons for this phenomenon are ambiguous and can be of both legal and social nature.

Currently, all over the world, there is a process of abolition of the death penalty and the recognition of this punishment as inhumane. However, within the US, the patterns of the current decline in the number of executions have more complex reasons. Primarily, the number of homicide episodes can influence the number of capital punishment sentences. However, Desai and Garrett (2019) note that in different states, as murders fall, the number of executions can either decline or remain the same. Thus, this factor is not determining and does not explain the present situation. It is noteworthy that researchers identify a strong influence in the expansion of capital defense resources as the main reason for the decrease in the number of death sentences (Desai & Garrett, 2019). It is important that various changes in federal legislation, including life without parole statutes, did not have a significant impact on the current situation.

As already noted, there is currently a trend towards the abolition of the death penalty as a possible punishment for even the most atrocious crimes. For example, on April 1, 2021, Bill was presented in Congress, which calls for abolishing capital punishment at the federal level for violating any federal laws (H.R.97 — 117th Congress, 2021). This document is referred to as the Federal Death Penalty Abolition Act of 2021 and states “to abolish the death penalty under Federal law” (H.R.97 — 117th Congress, 2021, para. 3). Such a bill fully explains the current attitude of the public and lawmakers regarding the death penalty in modern society. In this situation, the death penalty is abolished even for murder with aggravating circumstances, which proclaims the complete freedom of the individual to defend the right to life. Undoubtedly, within the judicial system, it is impossible to establish criteria that would enable judges and the law to pass such sentences. Thus, in the current state, the problem of the death penalty is not controversial but is moving in the direction of a complete rejection of capital punishment.

From a historical perspective, the death penalty, especially in the United States, has a long legal history that has led to peaks and troughs in the use of capital punishment. In this way, the Eighth Amendment to the US Constitution, which was adopted back in 1791, states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Eighth Amendment, n.d, p. 1565). The use of the death penalty without consideration of factors and without the use of guiding principles is perceived in this case as cruelty. Thus, already in the 18th century, it was recognized the need for a thorough investigation of all aspects of the case in order to impose a sentence of capital punishment.

In the 20th century, the death penalty in the United States at different times was perceived by the state and legislators in different ways. Steiker and Steiker (2020) note that the period from the 1970s to the 1990s was marked by a sharp rise in the number of executions due to the weakening of the federal and control authorities (p. 230). Additionally, until 1972, capital punishment was a relatively simple constitutional practice (Eighth Amendment, n.d, p. 1573). However, after a number of cases, new opportunities opened up for constitutional review, and the principles of considering aggravating and mitigating circumstances were revised. Thus, the status of the death penalty was viewed as constitutional throughout the entire existence of the practice but met with a number of controversies. One of the main problems associated with the modern death penalty in the United States is the question of the need to abolish it, as all developed Western countries have done.

Currently, against the background of a decrease in the number of death sentences, the debate is spreading regarding the abolition of the death penalty as a punishment. First of all, it is necessary to consider the reasons that may become the basis for abandoning this practice. Steiker and Steiker (2020) underline that the cost of the death penalty has increased significantly since the increase in constitutional review and exceeds the cost of life imprisonment. Nevada Legislative Auditor, Performance Audit reports that “capital punishment cases from arrest through the end of incarceration cost about $532,000 more than murder cases” (National Conference of State Legislatures, 2019, p. 6). Additionally, the cost of various legal and judicial procedures, including appeals against the verdict, translates into $ 137.7 million in annual costs for this system (National Conference of State Legislatures, 2019, p. 5). Thus, the death penalty is viewed as unnecessarily expensive, as well as fraught with a number of ethical dilemmas that make this practice highly controversial in the modern world.

Life without parole sentence can be a viable alternative to capital punishment. In particular, opponents of the death penalty and supporters of the need for its abolition appeal to this type of punishment as the most appropriate option (Steiker & Steiker, 2020). However, while life imprisonment is seen as a victory against the backdrop of the likelihood of a death penalty, the question of its humanity remains open. It is likely that the abolition of the death penalty can also lower the bar on ethical and moral standards and start considering the severity of life imprisonment as capital punishment. In any case, the abolition process of the death penalty can “mark the success of an increasingly global postwar international human rights agenda and the general acceptance of the concept of human dignity as part of a new global common law” (Steiker & Steiker, 2020, p. 312). However, even if this practice is abandoned, there will be debate about other extreme methods of capital punishment. Thus, in the United States, this issue is more pragmatic than ethical in nature.

The debate on the death penalty also needs to consider how the practice generally affects the judicial system and legal processes. Steiker and Steiker (2019) argue that changes in constitutional oversight of this practice since the 1970s may also lead to generally positive changes in the noncapital justice system. A particularly important factor in this regard is a more detailed examination of the evidence in search of possible mitigating factors. This judicial practice encourages both lawyers and judges to conduct more thorough proceedings, which is important not only in capital cases. Moreover, when considering the likelihood of capital punishment, judges need to weigh the proportionality of the sentence, which also improves the evidence review process. In this case, the system for considering capital punishment by the Supreme Court can be a prototype for building a more effective noncapital judicial system. This aspect is not an argument about the need to preserve this type of punishment but rather calls for a more detailed examination of the causes and consequences of its existence.

Modern society is increasingly appealing to the need to abolish the death penalty as an example of disrespect for the human right to life. The main argument is the possibility of an innocent person being sentenced to capital punishment (Sarat et al., 2017). Others argue that, in individual cases, the death penalty can be morally justified and should be retained as an exceptional practice (Sarat et al., 2017). Such cases may include, for example, terrorism, which is a global public threat (Public Law 104–132, 1996). However, even in this respect, the debate about the legality of such decisions remains open and does not offer an unambiguous solution.

Apart from the discussion of the moral reasons for the death penalty, it is necessary to understand how society can endow such decision-making power. Ichinose (2017) asks the important question of how to decide who can be trusted to make such decisions. On the one hand, this right should belong to society as a whole, since the death penalty is one of its institutions. However, Ichinose (2017) also makes the unexpected point that in order to be a punishment, the convict must fully understand the justification of the capital sentence. Thus, the death penalty can be used as a measure of punishment only if the convicted person fully accepts it, otherwise, this practice becomes similar to cruelty.

Again, there is no unambiguous solution to this issue, since society is diverse and at the same time, there are both supporters and opponents of the death penalty. However, within the framework of the legal framework, capital punishment is justified solely by legislative foundations. As part of the consideration of the issue from this side, it is necessary to discuss how to improve the process of considering the evidence, including aggravating and mitigating factors. Undoubtedly, the global community calls on modern society to assert the ultimatum value of human rights, including life. In this situation, the death penalty for death looks inhumane and to some extent meaningless. Moreover, it is not known how effective this practice of capital punishment is in preventing homicides.

Currently, there is a rapid decline in the number of executions in the United States. This fact may indicate the abolition of this practice in the future. However, this aspect is associated not with a decrease in the number of murders, but with the transformation of legal processes when considering capital cases. From a historical perspective, the attitude towards the death penalty has changed significantly, but the trend towards the assertion of the supremacy of human rights remains persistent. In the United States, the scope of this practice generally depends on the legal field, both state and federal. Thus, the debate about the need to abolish the death penalty is practical and pragmatic, rather than considering ethical principles.


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