Death Penalty: The Controversy

The concept of the death penalty is habitually associated with injustice since it violates human rights, namely the right to life. The major debate at stake concerns the challenges of grey areas in human rights violation, ‘objective’ standards, and ‘greater good.’ Examples of the United States, Indonesia, and China are evaluated to support the empirical conclusions. Considering the numerous variants of legal culture that influence court outcomes, it is not justifiable for the courts to continue applying terminal sentence as a principle. In the framework of focusing on the right of life, all nations should abolish the death penalty de facto and de jure.

Understanding the underlying problems of the American practice of capital punishment requires consideration of history. For instance, the Southern embrace of the death penalty largely results from slavery’s racial legacy, with the contemporary state map of capital punishment representing the former Confederacy (Sigler). Indeed, the Court has effectively sidelined race as a consideration in capital punishment by ruling that the presence of racial bias does not automatically establish it in each case (Sigler). Such a ruling is concerning since today, when official manifestations of overt racism are rare, it would be difficult for defendants to prove it on a case-by-case basis.

Another issue is a lack of clarity in determining the systemic purpose of a terminal sentence. The Court regularly refers to “the two distinct social purposes served by the death penalty: deterrence and retribution,” regularly confusing the two (Sigler 81). Deterrence implies punishment reducing the frequency and severity of the crime, while retribution suggests that imposing a proportionate punishment is inherently good, regardless of achieving other social goals (Sigler). Sigler criticizes the Court consistently failing to distinguish retribution from revenge and vigilantism, still recognizing those as legitimate punishment justifications. Therefore, given the perpetual confusion, there seems to be little justification for validating terminal sentences.

Furthermore, the information analysis for death penalty decisions is criticized. In regulating the death penalty, the modern Court operates in terms of society’s “evolving standards” and “objective” parameters, including statutes and jury decision-making patterns, nonetheless leaving room for its “own judgment” (Sigler 81). In practice, this process entails the Court tracking statutory trends, jury decisions, and noting opposition from professional organizations(Sigler). Unfortunately, the law designed to protect minorities does so by limiting the majority power; therefore, using the majority’s value judgments to protect minorities does not make sense (Sigler). Thus, the Court essentially abdicates its duty to make independent judgments, undermining the whole process.

Lastly, there is an issue of the Court’s ‘own judgment’ with judges referencing international practice to determine the ‘evolving standards.’ The critical question is how to assess the legal significance of these international trends. While judges who cite international consensus generally concede that international opinion and practice do not bind the Court to follow, they are still influential (Sigler). However, merely pointing out that other countries have a particular practice is not a self-sufficient argument. Thus, since the Court does not identify the reasons underlying sentencing practices in various countries, it is impossible to assess whether foreign policy choices are consistent with American values and practices.


One of the problems facing Indonesia nowadays is rampant drug abuse. To combat the issue, the Indonesian government targets syndicates and drug traffickers by imposing harsh legal sentences, including the death penalty (Lestari). The arguments can be divided into formal judicial reasons, human rights, and justice. The legal argument of the Indonesian government references the potential issues with the Constitution. Regarding the right to life for every citizen, the Constitutional Court has expressly stated that the death sentence is not unconstitutional in the context of the narcotics law (Lestari). However, the mere constitutionality does not sufficiently justify the moral obligations of upholding the right to life principle.

The next justification concerns the human rights aspect of the death penalty. According to Lestari, the introduction of the death penalty for drug traffickers is consistent with the human rights requirements. Lestari argues that drug abuse among youth is on the rise because of drug dealers, and the growth of these deviations may pose a danger to the nation’s future survival. In referencing the Human Rights Act, Lestari argues that any act unlawfully limiting or depriving a person’s human rights will not receive a fair legal settlement. The crimes committed by drug dealers deprive Indonesian youth of their human rights; therefore, lethal punishment of drug traffickers is within the human rights framework. However, such an argument seeks to shift the blame for drug abuse solely on the shoulders of drug dealers. On the contrary, there may be a deeper underlying problem that the population seeks to solve with drug use, and drug traffickers are merely facilitating the trade.

Lastly, the death penalty law for drug traffickers may be argued to serve the goal of justice. Lestari argues that with Indonesia being a democracy, its current law must reflect and represent the sense of justice that persists in society. Therefore, since the Indonesian community supports the idea of using the death penalty as a part of criminal law, it is justified in its application (Lestari). However, it is unclear what subsection of the Indonesian community truly believes this statement since no concrete data was given. Furthermore, the argument of people wanting justice may be insufficient to support the judicial system’s executive decisions since it threads the territory of lynching and vigilantism.

In the context of China, the legal outlook on the issue of terminal punishment looks different from that of Indonesia and the U.S. Chinese legislation, under the Constitution of China, must reflect the Communist Party (CPC) outlook and achieve its policies (Huang). China is still under an authoritarian regime, where the government’s highest level decisions and the times’ demands influence decisions about whether a particular policy, including the death penalty, will be implemented (Huang). Thus, in examining China’s death penalty reform from a human rights perspective, one should focus on the CPC’s approach to human rights and related policies rather than Western human rights standards.

Nonetheless, the relationship between the views of the CPC on human rights and the death penalty appears to be a false dichotomy. First, Huang argues, the concept and standards of human rights should be the same throughout the world, so the CPC should not have its views on this issue. Second, if the first principle is true, then the link between the human rights approach and the death penalty would be met with great skepticism because of judicial independence (Huang). In other words, it would be impossible to identify a link between the Party’s views and a particular death penalty system, particularly the specific penalties adopted.

However, the most crucial concept to understand about the Chinese approach to the death penalty is the concept of the public will. Although the CPC recognizes and accepts human rights in China, it focuses on different aspects of those rights (Huang). The CPC emphasizes that satisfying the interests and demands of ‘the overwhelming majority of the people” takes top priority (Huang 145). This has always been vital to the overall interests of keeping the Party in power. Similarly with the Indonesian outlook, ensuring the people’s rights to subsistence and development is the primary and most vital human rights protection (Huang). Therefore, someone who has committed crimes against the people’s interest cannot be contained within the scope of human rights protection. Therefore, if the CPC continues to prioritize people’s rights to existence and development over the right to life, achieving the abolition of the death penalty seems hardly feasible.

The death penalty is often seen as the most dramatic measure against crime, with the public expecting the authorities to suppress crime and the rulers striving to protect public order most effectively. Arguably, these expectations on the part of society and authorities have shaped the main justification for the death penalty – ‘the greater good. However, this essay presented several arguments against this position by evaluating three case studies.

The case study of the American legal system has emphasized the unreasonableness and inconsistency of the U.S. practice of the death penalty. Specifically, the Court’s speculative ‘evolving standards,’ inconsistent reasons for punishment, and questionable reference to international opinion were criticized. Finally, the analysis considered the unclear retributive effects of the death penalty. The case study of Indonesian law analyzed the suggested justification of the death penalty when applied to a specific kind of crime, namely drug dealing. However, such justification for the terminal punishment may have missed other underlying factors and thus was insufficient.

Similar to Indonesia, China emphasized the human rights of the majority and did not recognize the rights of criminals. The CPC emphasized national security and stability over individual human rights. In analyzing these cases, the use of the majority’s judgment and interests for sentencing the minority in the light of individual human rights was criticized, and a call for death penalty abolition was supported.

Works Cited

Huang, Gui. “The Communist Party of China’s Approach to Human Rights and the Death Penalty.” Asia-Pacific Journal on Human Rights & the Law, vol. 18, no. 2, July 2017, pp. 117–54. EBSCOhost, Web.

Lestari, Dewi Indah. “The Imposition of the Death Penalty for Drug Dealers in the Perspective of Human Rights.” Semarang State University Undergraduate Law and Society Review, vol. 1, no. 1, 1, Jan. 2021, pp. 35–50., Web.

Sigler, Mary. “Principle and Pragmatism in the Death Penalty Debate.” Criminal Justice Ethics, vol. 37, no. 1, Jan. 2018, pp. 72–86. Taylor and Francis+NEJM, Web.

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DemoEssays. "Death Penalty: The Controversy." December 24, 2022.