United States Backsliding on Death Penalty

R​eaders will have heard the phrase “life, liberty and the pursuit of happiness” more times than they can count. As we know, Thomas Jefferson famously wrote those words in the Declaration of Independence. We’ve also heard the phrase “with liberty and justice for all”. Of course, that comes from the Pledge of Allegiance.

What does the right to life entail? Too often, we hear it applied narrowly by the anti-abortion lobby. More accurately, the right to life is about the security of the person. In English Common Law, we first see the provisions that underlie the right to security of the person in the English Bill of Rights of 1689. One of the provisions reads, “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

We talked about the phrase “cruel and unusual punishment” in an earlier post. As we said there, the same phrase appears in the 8th Amendment to the US Constitution, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It also appears in the Canadian Charter of Rights and Freedoms, and in countless human rights instruments in countries around the world.

All governments impose sentences on citizens who break the law. When are those sentences considered “cruel and unusual punishment”? We’ve noted before that this changes as societies progress. For example, the earlier post where we took up this topic dealt with solitary confinement. We’ve learned over time that solitary confinement, when used excessively, is tantamount to torture. More and more governments are limiting, and even eliminating its use in prisons.

A similar trend is arising in another area of sentencing. That trend involves capital punishment. Fifty years ago, most countries used the death penalty. Today, the overwhelming majority do not. Of the 193 member states in the United Nations, 160 have abolished or stopped practicing the death penalty. That’s 83%. We can see a clear trend toward global abolition of capital punishment. UN Secretary General Antonio Guterres has said “the death penalty has no place in the 21st century”.

Yet, we see a disturbing trend in one country, where progress has been backsliding on human rights law generally. That country is the United States. This week, we heard that US Attorney General William Barr has ordered the Bureau of Prisons to resume executions. They will begin again in December. These executions apply to 5 of the 61 people on death row in federal prisons. Although the death penalty is still on the books in the United States, there hasn’t been an execution at the federal level since 2003.

President Trump has always been a strong advocate for capital punishment. He gives two reasons for his position. He says that it’s an effective deterrent and a proper punishment. As on most other topics, he is wrong on both counts.

A recent study by the Abdorrahman Boroumand Center shows that the murder rate actually declines after countries abolish the death penalty. Earlier studies confirm this. As we have seen, most countries have concluded that capital punishment is not a proper punishment. They agree with the Secretary General that it’s cruel and unusual punishment by modern standards.

Another troubling aspect of capital punishment is the risk of getting it wrong. Death is final. If we execute the wrong person, we have no remedy for our mistake. A study from the Proceedings of the National Academy of Sciences conservatively estimated that 4% of prisoners on death row are not guilty. Based on that, the odds suggest that the United States may be executing 10 innocent people per year. When courts retry capital cases, 7% of defendants are acquitted and 80% have their death sentence commuted to life imprisonment.

Given all these issues, why is the Trump Administration doing this? Trump needs votes. Most Democrats oppose capital punishment and most of Trump’s base supports it. Trump sees this as a wedge issue that he can use to motivate voters and cling to power. This has nothing to do with deterrence or justice. The people sitting on death row have become a political football.

If you are opposed what William Barr is trying to do, you can contact him to protest. Here is the contact form.

We believe that that the Attorney General needs a reminder of what the rights to “life, liberty and the pursuit of happiness” mean.

Learn More:
Rate of false conviction of criminal defendants who are sentenced to death
21 Wrongfully Convicted Death Penalty Statistics


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