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Death penalty is the deliberate taking of human life as state-sanctioned punishment. In recent years, a majority of the world’s countries have further restricted or abolished executions all together. Abolition of the death penalty in many countries has occurred in a context of momentous political, social, and legal changes. Newly established nations have embraced abolition, moreover, because powerful European institutions (e.g., the European Union) have made abolition a requirement for membership. At the same time, the European campaign has been less successful in China – the world’s far and away leading executioner. China’s complex politicolegal structure makes death penalty abolition exceedingly difficult.
- Justifications for the Death Penalty
- Historical Context: Reach, Retention, and Rejection
- Rejecting the Death Penalty
- Retaining the Death Penalty
- Death Penalty in the United States
- Death Penalty in China
There are currently 58 countries worldwide that retain the death penalty both in law and in practice (Bohm, 2013). Of these, only two – the United States and Japan – are members of the Organisation for Economic Cooperation and Development, the body that represents the world’s 36 industrialized nations (Bohm, 2013; Organisation for Economic Cooperation and Development, n.d.), and only 21 conducted an execution in 2012 (Amnesty International, 2013). At one time, the use of the death penalty was widespread, but the practice began to fall into disfavor in the final quarter of the twentieth century as nations began to recognize and emphasize human rights, especially in Europe. Article 5 of the United Nations Universal Declaration on Human Rights, which was ratified in 1948, bars the use of ‘cruel, inhuman or degrading treatment or punishment,’ and in recent years, majority world sentiment has generally concluded that the punishment of death is cruel and degrading.
This research paper addresses this momentous change in death penalty support from a global perspective. We begin with a discussion of the theoretical justifications for the death penalty, the origins of the death penalty, and its proliferation and subsequent abolition in most of the world’s nations. We will then take a more in-depth look at the two retentionist countries: the United States and China. These case studies point to important directions for future research on death penalty abolition and highlight the limitations of privileging one perspective – international, national, or local – over the other (Miao, 2013).
Justifications for the Death Penalty
There are three primary theoretical justifications for the penalty of death: retribution, incapacitation, and deterrence. The idea of retribution is that the offender deserves to die because he or she has harmed society in some way and must sacrifice his or her life to compensate for this harm. He or she owes society a debt; the crime of murder deserves the penalty as just deserts for the pain and suffering caused to the victim(s). The theory of incapacitation is based on the goal of physically preventing offenders from committing future criminal acts. The ultimate incapacitation, therefore, is death. By killing those who have killed, we render them unable to prey upon and kill anyone else. In fact, there is evidence from a program of empirical research from the United States called the Capital Jury Project (Bowers, 1995) that capital jurors use this type of vicarious self-defense to justify their death verdicts. The less time that jurors think a capital defendant not sentenced to death will spend in prison before being released, the more likely they are to vote for death (Bowers and Steiner, 1999). Moreover, jurors who believe that the defendant will be dangerousness in the future are predisposed to vote for death (Vartkessian, 2012). Last, the theory of deterrence suggests that humans are essentially rational actors who weigh the costs and benefits of performing an action. By making the punishment for murder severe enough, people can be convinced not to kill out of fear of being killed themselves. This justification for the death penalty has received the most scholarly attention in the United States. However, an extraordinarily detailed review of more than three decades of deterrence studies of capital punishment in the United States seriously challenges the validity of this body of research as a whole and thereby any empirical claim that the death penalty deters murderers (Nagin and Pepper, 2012).
Historical Context: Reach, Retention, and Rejection
Hood and Hoyle (2008) and William Schabas (2002) have published the most detailed historical and empirical assessments of the death penalty from a global perspective. The purpose of this section is then to briefly highlight the most enduring themes in the use of the death penalty worldwide – namely, its reach, retention, and rejection. Beginning with the Ancient Laws of China, the death penalty was established as a punishment for numerous crimes. In the eighteenth-century BC, the Code of King Hammurabi of Babylon listed over 20 different crimes as punishable by death (Slanski, 2013). Adultery, harboring escaped slaves, and robbery were all punishable by death under the Code but murder was not. The Bible first codified the death penalty’s reach as extending to murder as well as a wide array of offenses such as violation of the Sabbath, adultery, homosexuality, incest, and rape, among dozens of other offenses. The first documented narrowing of crimes punishable by death occurred under Jewish Talmudic Law. Some rabbis called for its very limited use and some even called for abolition (Erez, 1981).
The death penalty had its most unprecedented and brutal expansion during the Middle Ages. Not only were the number of death-eligible crimes expanded but executions were invariably accompanied by torture. A woman convicted of high treason was burned alive and men were hanged or drawn and quartered. In terms of documented numbers, a high water mark for executions may very well have been under the reign of Henry VIII. It is estimated that at this time an astonishing 72 000 executions occurred (Randa, 1997).
Early into the Enlightenment period, Montesquieu was one of the first proponents of limiting the death penalty to murder. However, the modern abolition movement did not begin until Cesare Beccaria published On Crimes and Punishments. This revolutionary legal treatise had an enormous influence on legal systems across the globe. In the United States, for example, Pennsylvania adopted degrees of murder with one singular objective: to limit the death penalty’s reach (Bedau, 1998). Many other jurisdictions in the Northern United States eliminated the death penalty for rape, robbery, burglary, and arson. By 1860, only treason and murder were death-eligible crimes. Only 4 years later, Michigan became the first US state to abolish the death penalty permanently. The Southern states also limited the number of capital crimes for whites but maintained the death penalty for numerous crimes for both free and enslaved blacks. Under the region’s infamous ‘Black Codes,’ blacks could be executed for offenses such as rebellion, arson, burglary, and assaulting a white woman (Higginbotham, 1980).
In 1863, Venezuela became the first nation in the world to abolish the death penalty; the tiny Republic of San Marino in Southern Europe became the second in 1865. Numerous Latin American nations followed suit in the late nineteenth and the early twentieth centuries, including Costa Rica, Brazil, Ecuador, Uruguay, Colombia, and Panama (Bohm, 2013; Schabas, 2002). However, any momentum toward abolition came to a screeching halt with the rise of totalitarianism, specifically the rise of Nazi Germany. The Nuremberg war crimes tribunals would document Hitler and the Nazi regime’s insatiable appetite for the death penalty. In the genocidal aftermath of the Second World War, criticism of the death penalty by human rights experts was a pivotal moment for an already galvanized international abolition movement. In the years leading up to 10 December 1948, the historic date when the United Nations General Assembly adopted the Universal Declaration of Human Rights, the abuse of the death penalty was of primary concern. However, the death penalty for Nazi war criminals was authorized as an exception. Continued retention for the so-called most atrocious crimes would be the primary “dialectic that confronted those who first proclaimed, in international law, a ‘right to life’” (Schabas, 2002: p. 6).
If the death penalty for the most atrocious crimes created exceptions even in the midst of evidence of extraordinary abuses, then it is not surprising that a majority of countries retained it, at least in some form, for many decades after World War II. Only six nations – Germany, Honduras, Monaco, Dominican Republic, Austria, and Vatican City – abolished the death penalty between the end of World War II and 1970 (Bohm, 2013). However, only a few decades later, the tide would dramatically turn. Indeed, by the twenty-first century, a once historically elusive international consensus against the death penalty became a reality (Hood and Hoyle, 2008).
Rejecting the Death Penalty
The final quarter of the twentieth century and the early part of the twenty-first century saw rapid acceleration in the number of abolitionist countries. By the beginning of 1980, only 20 countries had abolished the death penalty, but by the beginning of 2013, this number had nearly quintupled – 97 nations had abolished the death penalty for all crimes and a total of 140 nations had ceased conducting executions for at least 10 years (Bohm, 2013). Perhaps the most compelling explanation for this radical decline has been the assimilation of international human rights norms calling for the worldwide abolition of the death penalty as prerequisite for membership to the Council of Europe and the European Union. Given the recent adoption of democratic constitutions and capitalist imperatives in former Eastern and Soviet Bloc nations, membership in these powerful institutions has been an important catalyst for widespread abolition. As Hood and Hoyle (2008: p. 25) explain, quoting the Parliamentary Assembly of the Council of Europe:
Fundamentally important was the message that had been conveyed: a principled (emphasis in original) opposition to the death penalty as a violation of fundamental human rights. Both the Council of Europe and the European Union have declared that ‘the death penalty has no legitimate place in the penal systems of modern civilized societies, and its application may well be compared with torture and be seen as a inhuman and degrading punishment.’ The language is uncompromising.
Beyond a commitment to abolition as a membership requirement, the European Union has also engaged in aggressive diplomatic efforts with retentionist countries to abolish the death penalty. The European Union has, moreover, funded training for anti–death penalty lawyers and policy makers and has promoted empirical research to study the administration of the death penalty in retentionist countries. In South America and Mexico, the path to abolition has stemmed from a combination of factors, including the fall of authoritarian regimes, rise of anti-death-penalty religious imperatives, and the creation of national penitentiary systems (Hood and Hoyle, 2008: p. 62).
Retaining the Death Penalty
A total of 58 countries – less than a third of the world’s nations – retains the death penalty in practice. A majority of these nations are located in Africa, the Middle East, the Caribbean, and Southern Asia. Only one European nation (Belarus), one South American country (Guyana), and one North American country (the United States) retain the death penalty (Bohm, 2013), and only two retentionist nations – the United States and Japan – are industrialized. When looking at actual executions, the numbers get even more concentrated. Only 21 nations carried out an execution in 2012. China continues to be far and away the world’s leading executioner. Although no official data exist, Amnesty International (2013) surmises that China executes thousands of people every year. The reach of its death penalty today cannot be underestimated: “China is only a single entry in the 197-nation scorecard for recording death penalty status, but estimates since the 1990s suggest it probably accounted for more than 90% (emphasis added) of executions worldwide during that period” (Johnson and Zimring, 2009: p. 10).
Death Penalty in the United States
To claim that the United States is a retentionist nation is slightly misleading. Although there were 39 executions in 2013 and 77 death sentences imposed in 2012, bringing the total number of persons on death row in the United States to 3108, the number of death sentences and executions has been in steady decline. While there was a high of 315 death sentences in 1996 and 98 executions in 1999 (Death Penalty Information Center, 2013), the number of death sentences imposed today is at an all-time low (Liebman and Clarke, 2011; Fleury-Steiner et al., forthcoming). Furthermore, 18 of the 50 states in the United States have abolished the death penalty and two more states have not executed anyone since the Supreme Court lifted a nationwide death penalty moratorium in 1976. Three US states – Texas, Virginia, and Oklahoma – account for the majority of executions carried out since 1976 (Bohm, 2013) and 85% of American counties have not been responsible for a single execution since 1976 (Dieter, 2013). In other words, it can be concluded that the death penalty as practiced in the United States today is a phenomenon confined to a decidedly localized minority (Liebman and Clarke, 2011).
A closer look at the United States’ death penalty as a phenomenon carried out by a small minority of locales is quite revealing. About 15% of US counties account for all executions carried out since 1976, and a miniscule 2% of the nation’s more than 3000 counties account for a majority of its executions (Dieter, 2013). Extensive empirical research documents that prosecutors in these locales are more likely to seek death sentences and more likely to find juries willing to impose death sentences (Berk et al., 2005; Paternoster et al., 2003; Poveda, 2006; Pierce and Radelet, 2005). In other words, who gets sentenced to death is more a function of where the crime is committed than a function of the facts of the case. But why these counties? For example, one explanation for the dramatic recent spike in death sentences in New Castle County, Delaware, is the sweeping change to the death penalty process that makes a death sentence far more likely to be imposed. Specifically, since 1991, jurors act only in an advisory role in death penalty cases – a move that caused the number of death sentences and executions in the state to skyrocket (Johnson et al., 2012). Importantly, this change to Delaware’s death penalty scheme was catalyzed by a racially charged incident involving four black men who escaped execution for the robbery–murder of two white armored car guards after a single juror refused to vote for a death sentence (Fleury-Steiner et al., 2009). Recent empirical research on Delaware death penalty jurors suggests that this ‘advisory’ role leads capital jurors to describe themselves as less responsible for imposing the death sentence (Kleinstuber, 2013a) and to give only very cursory evaluations of mitigating evidence (Kleinstuber, 2013b).
More recent studies have used county-level data to confirm the centrality of race in maintaining the death penalty. According to Poveda (2006), counties with more black residents and a long tradition of executions are more likely to sentence people to death and more likely to execute them. Liebman and Clarke (2011) have, moreover, concluded that these counties are more insular and thus are characterized by a more visceral fear of nonwhite outsiders. Indeed, Fleury- Steiner et al. (forthcoming: p. 3) argue that these aggressive death penalty locales are driven by ‘an enduring local defense of racial boundaries.’
Despite the few remaining active death penalty locales in the United States, its recent decline nationally cannot be underestimated. In the wake of a myriad of scandals, including the imposition of erroneous death sentences (Gould, 2009) and even wrongful executions in Texas (Liebman et al., 2012), it appears that the United States’ appetite for the death penalty has diminished greatly and it is moving in the same direction as the majority of the world’s nations. Indeed, six states have abolished the death penalty since 2007 and, as of this writing, numerous others are debating abolition. The US Supreme Court has also recently narrowed the scope of who is eligible to be sentenced to death and in the process, relied upon numerous foreign legal judgments (Dennington, 2006). In 2002, the Court outlawed the execution of the mentally challenged, noting that ‘the world community … overwhelmingly disapprove[s]’ of the execution of mentally challenged offenders (Atkins v. Virginia, 2002: p. 316, n. 21), and in 2005, it barred the use of the death penalty for offenders who were under the age of 18 years at the time of the crime; the decision noted that the United States was the only nation in the world still permitting juvenile executions (Roper v. Simmons, 2005).
Death Penalty in China
According to Miao (2013), the use of the death penalty in modern China may be divided into three relevant periods: the first three decades (1949–79), the Strike Hard era (1980– 2003), and the Hu-Wen era (2004–12). The high water mark for executions occurred in this first period under Mao Zedong. Drawing on historical records located in Beijing’s Central Press of Historical Records, Miao (2013: p. 3) estimates that a massive 3-year (1950–53) crackdown on counterrevolutionaries resulted in approximately 710 000 executions. Over the next three decades, the country experienced a marked decline in executions. As the country began to adopt capitalist market-based reforms in the 1970s, a pronounced fear of disorder led to the now infamous “Strike Hard” Campaigns. While this period resulted in significantly fewer executions than under Mao Zedong, “approximately 24 000 offenders were sentenced to death and around 1 027 000 were convicted of criminal offences” (Miao, 2013: p. 4). China’s post-counter revolutionary history of state-sanctioned executions occurred in a conflicted politicolegal landscape:
This pattern of ebb and flow in the past can be explained partly by the constant tension between a utilitarian view that the death penalty is an expedient instrument to achieve short-term political goals and a stricter adherence to the rule of law, penal regulation, and due process when dealing with capital cases. In the most recent Hu-Wen era, such an uneasy relationship in penal ideology takes the form of contradictions between the populist impulses of revenge and retribution and a serious commitment to restrain and civilize the use of capital punishment. (Miao, 2013: p. 4)
Similar to strong popular sentiment that has driven pro-death-penalty activity in US locales (Simon and Spaulding, 1998), a robust ‘penal populism’ (Roberts et al., 2003) seems to be present in China today. In response, in 2010, China adopted Rules to Exclude Illegal Evidence in Criminal Cases and Guidelines to Scrutinize and Analyse Evidence in Capital Cases, the country’s first formal attempts to provide defendants in death penalty cases due process protections. By early 2011, China’s President, borrowing from the US Constitution’s restriction on cruel and unusual punishment, ordered the country’s legal system to adopt its own regulations, The Eighth Amendment to the Criminal Law. This new law proposed unprecedented steps to shorten the reach of executions by formally limiting the number crimes punishable by death and by narrowing the death eligibility of defendants over the age of 75 years. In a move doubtlessly inspired by the United States, the President also proposed the goal of adopting lethal injection over shooting as the preferred method of execution.
Recent empirical research involving interviews with 18 national and 18 local legal elites closely involved in the administration of the death penalty in China suggests that these reforms have been slow to take hold in practice (Miao, 2013). On the one hand, it appears as though most national and local-level legal elites support greater regulation of China’s death penalty, but these reformist sentiments have not translated into institutional reform on the ground. For one, China’s top-down reforms have been largely symbolic. Similar to active death penalty locales in the United States (Bright and Sanneh, 2013), the resources needed to enforce greater regulation at the local level – where death sentences and executions take place – have not been provided. Moreover, there has been resistance to death penalty reform by a majority of Chinese lower level judges and government officials. One of the provincial court judges Miao interviewed also expressed fear of overturning death sentences as betraying the wishes of victims’ families and catalyzing public suicides and rioting if the reforms of national legal elites were put into practice: “If I sentence someone to death, my verdict may be overturned. It is easier for the people ‘at the top’ to talk; but it is us who are stuck in a position between the devil and deep blue sea” (quoted in Miao, 2013: p. 11).
Overall, the European influence on global abolition cannot be underestimated. A majority of countries have either dramatically curtailed the use of executions or banned them altogether. However, Asia has been far less receptive to such efforts (Johnson and Zimring, 2009). The limits of international human rights campaigns seem, at least as of this writing, to have been largely symbolic in China. Indeed, despite its very recent adoption of European-inspired reforms intended to limit the reach of its death penalty, thousands of executions are carried out annually in Chinese provinces in secret (Amnesty International, 2013). Although China has made significant efforts at the national level to limit the use of the death penalty, national elites have not provided needed resources to realize such reforms at the local level. Local elites have, moreover, steadfastly resisted such attempts at systemic change. In this way, future empirical research on China’s death penalty generally and other death penalty retentionist countries in particular must “take into consideration a complex web of interactions between actors at the international, national and lower levels” (Miao, 2013: p. 16). Attending to jurisdictional complexity and institutional dynamism is clearly important for future research. Any assessment of a nation’s future with the death penalty must attend to the particularities (e.g., politics, legal structures, and religious beliefs) of the death penalty as it is carried out on the ground.
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