Death as a form of punishment has been of interest to various stakeholders namely: The international community, human rights defenders and Governments of various States mainly because, it touches on three basic norms and human rights; namely the right to life, the prohibition of cruel, inhuman and degrading punishment, and the concept of human dignity.  However, despite death as a punishment being associated with violation of basic human rights, such as life and human dignity, a report by the Death Penalty Information Center indicates that 33 of the 50 States in the United States have not abolished the death penalty. Methods of execution are still in practice such as lethal injection, electrocution, gas chambers, hanging and firing squad (Death Penalty Information Center Report, 2012, 3).

Historical Background on the Death as a Penalty for Crimes considered grave in the United States

The English colonist introduced the death penalty, to the United States. He imported their laws into America for Crimes considered grave crimes in England. These crimes include but not limited to Murder, theft, rape, Manslaughter, arson and robbery with violence (Stuart Banner, 2003 pp1). Over 20000 executions since the death penalty in the United States were introduced have been implemented. (Stuart Banner, 2003). It is fascinating to note that despite campaigns and international legislation on the abolition of the death penalty, failure of the criminal justice system of the United States. The United States has specifically placed the reservation on such legislations, such as article 6 of the International Convention on Civil and Political Rights, which encourage the abolition of the death penalty by delivering wrongful convictions. Further, to appreciate the complexity of the law that governs the right to life in the United States, it is essential to note the lack of uniformity in the law. This is inclusive of the variation on the death penalty issue in the different US states.

Land Mark Cases in the Jurisprudence of Death Penalty in the United States that shows the position of the United States on Death Penalty

By the year 1960, 40 of the 50 States in America had legislated authorizing the death penalty. However, it was not until 1972 when the Supreme Court of the United States, in the Case of Furman V Georgia, a landmark case in the death penalty jurisprudence of the United States, overturned a decision of the Supreme Court. Hence abolished the death penalty (408 U.S. 238 1972).

The Court in this case relied on the absence of a uniform moratorium, and clear guidelines directing the jury on either imprisonment or execution, which resulted to arbitrariness and discriminatory sentencing (Barry Latzer et al, 2011 pp37). The Supreme Court in Furman v Georgia held death penalty to be unconstitutional and found that it violated the eighth and the fourteenth amendments which are opposed to punishments that are unusual and cruel (1972). The State of Georgia and others states revised their statutes, and as a result, death as a penalty was reinstated through the landmark case of Gregg v Georgia which upheld the Constitutionality of the Death Penalty applied under the revised statutes.In this high profile case, the appellant argued that the imposition of the death penalty violated the Eighth and Fourteenth Amendments of the United States Constitution (Barry et al, 2011 pp 67).

In reaching its decision, the Supreme Court of the United States held that although the legislature may not impose excessive punishment pursuant to the Eighth Amendment, it is not required to select possibly the least severe penalty. The Supreme Court further held that possibility and the retribution of capital are not considerations that are impermissible, which a legislature should weigh and determine whether there should be an implementation of the death sentence.

Another landmark decision delivered by the United States Supreme Court was in the case of Trop v. Dulles where Brennan, J in concurring with the majority, emphasized the deterrent end of punishment by stating that ‘Rehabilitation is a major purpose of the penal law. Other purposes include the deterrents of the wrongful act. This is by the threat of punishment and insulation of dangerous individuals from the society by imprisonment or execution’ (356 U.S. 86 (1958).

The three cases serve to indicate the position of the United States as a pro-death penalty states and efforts to abolish it, as the cases discussed earlier, such as that of Furman v Georgia have overturned this.

The Irreversibility of Death Penalty in Case of a Mistrial

Chris Patten has written on “the inhumane, unnecessary and Irreversible Character of Capital Punishment”. He opposes the death penalty since it is cruel and unwarranted due to its irreversible nature and the risk of apply the punishment in error (European Commissioner for External Relations).  In support if this argument, Gerald Kogan stated that:

“My mind has no question, and I can pronounce that I have seen the extents of the, criminal judicial, systems over the years. I have acted as a prosecutor; trial judge, defense attorney; and Supreme Court Justice. That shows me that we certainly have executed those people either who did not fit in the criteria for execution in Florida or who, factually, were not guilty of the crime for which they were charged.

The Bill of rights of the United States Constitution provides the presumption of innocent until proven guilty, the right to legal representation and the right to a free and fair trial. Briefly, the bill of rights assures the United States’ citizens of the right to a due process of the law (Saundra Westervelt, 2005, pp 1). Despite this assurance, there has been documentation of numerous cases on wrongful convictions and indeed several of these convictions are punishable by death. In their book Wrongful Conviction, they have stated that, in the early 1990s, reports on 400 cases viewed them as wrongful conviction, 23 executions  of the four hundred convicted were reported, while other had spent several years in prison (Radelet et al. 1992).

The aforesaid may go towards justifying an argument put forward that the death penalty is cruel and degrading and goes against the International Convention on Torture, Cruel, Inhumane and degrading punishment on the account that it causes death row syndrome’. The circumstances existing on death row and physical deterioration of prisoners serving death sentence and awaiting their execution receive its description using the Row syndrome.  (Hanowsky et al, 2010). This phenomenon is an effect of the callous conditions that an inmate experiences while, on death row, the duration that such conditions is experienced, and the anxiety of awaiting one’s own execution. The syndrome relates to the prolonged periods on death row, which amounts to cruel, inhumane or degrading treatment. Other Scholars have accredited the Death Row Syndrome to the stress associated with death sentences (Schabas, 1994). “The keen result observed was that the mental suffering that is inflicted on the condemned Prisoner leads to destruction of their spirits, undermining of sanity, and mental trauma…” (Leone, 1972).

This can be evidence by injustice in the case of Carter v Rafferty. In the case, Carter was incarcerated for a period of nineteen years. This was because he received allegations of murder, something that he did not do. After 19 years of imprisonment, he was released (Saundra Westervelt et al. 2005).  The experience of an innocent person under goes in prison before execution amount to the so referred death syndrome and this is a clear violation one freedom from torture and inhumane and degrading treatment.

Similarly, in the case of Kerry Cook v the State of Texas, Cook, having served twenty years in Texas’s death house for sexual molestation and murder, received his freedom (Saundra Westervelt). He was tried three times yet it was after the many years that the Court of Criminal Appeal ruled that the conviction was legally flawed and that the prosecution (Saundra Westervelt, 2010) “accepted to gain conviction that was based on fraud and rejected  its duty on seeking the truth” (McCloskey, 1999). In addition, the court found “…illicit manipulation evidently, on the part of the State. Allowed the entire investigation of the murder” (McCloskey, 1999). It was before his fourth trial that Cook pleaded no contest, is a plea of guilty, yet two months after his plea; he received exonerations of all charges on newly submitted DNA evidence. It is amusing to note despite the clear failure in the Criminal Justice system, the State is still adamant to abolish the death penalty due to its irreversible nature.

Notably, the United States Constitution and the Criminal Justice system’s structure is in a way that reassures that only the only people convicted in the above cases are the guilty. However, in the above cases, this is not true. The intentional and non- intentional mistakes of the law enforcers has not protected the innocent. It is evident from the various wrongful convictions, which convey that Constitutional safeguards are sometimes inadequate to protect the innocent. This is due intentional mistakes of the law enforcers such as in the case of Kerry Cook v the State of Texas.  The court noted that the prosecution had interfered with the evidence and hence the conviction was obtained on flawed evidence is a clear example. While, on the other hand, unintentional mistakes may occur resulting to wrongful conviction and consequently execution in case of death sentences.

Saundra Westervelt in her book notes various factors that have been reported to lead to wrongful; conviction of innocent people. These factors include; “Police mistakes; identification; false confessions; unreliable informants; mistaken eyewitness, and flawed forensic science” (Humphrey et al 6). Police focus on suspects prematurely ignoring evidence that does not support their case, coerce false confession, conduct and administer biased lineups. They also focus on culturally or racially marginal groups withholding exculpatory evidence from prosecutors” (Humphrey et al 2009, 9).

In support to the aforementioned, in September 1999, an officer who was awaiting retrial on charges of stealing cocaine made a deal with the prosecutor in exchange of information on crimes committed by other officers in the Community Resource Against Street Hoodlums in  Los Angeles Police department who in turn fabricated evidence that pointed to innocent suspects. In his confession, Officer Perez stated that officers often lied in arrest reports of killing but, on the other hand, accused innocent bystanders (Samuel R. Gross, 533-4). At least a hundred criminal defendants were exonerated but not to forget hundreds of others had been dismissed by the Judges and the Jury and subsequently executed on crimes they did not commit.

A publication in the Columbia Human Rights Law Review by a Columbian Law School Professor outlined a study describing how Texas had an innocent man named  Carlos DeLuna was executed in 1989. He faced execution for the death of Wanda Lopez. The real Murder, Carlos Hernandez had been named in DeLuna’s defense, yet the prosecution did not go deep to substantiate the two suspects who resembled each other and as a result, an innocent man was executed (David, the Guardian, 21st May, 2012).

In the year 2000, the then governor of Illinois George Ryan brought in an introduction on the death penalty and he expresses his disappointment and disagreement of the huge number of exoneration as opposed to execution by the States (Leo, 2005). On the Contrary, shortly after, “the U.S Senator Patrick Leahy introduced the Innocence Protection Act and states that miscarriage of justice comes at a high price” (Jones, 2012). He referred to the consequences of miscarriage in justice would result to low confidence in the justice system and at the same time innocent people suffer (Jones, 2012).

Why is Death Penalty at the Center Point of Wrongful Conviction?

Having established that innocent individuals receive death sentences in the United States, it shows whether deaths as a penalty is still valid due to its irreversible nature and further what purpose is it meant to serve and if it serves that purpose does it serve? Abolitionist of the death penalty argue that death as a punishment violates the right to life,  the right to human dignity and further due to the method of execution inflicts torture on the victim.

On the contrary, attorney is who argue in support of the death penalty argue that it serves in preventing future capital offences due to fear it instill on potential murders or criminals and as retribution. Those who argue for retribution argue it to be the only way to strike a balance between the lives lost and hence achieve justice, while those who argue for deterrence state that it is the only crime serious enough to deter crime such as murder. Haag, a professor in the University of Fordham once noted that:

“Though statistical demonstrations are not conclusive, and perhaps they are not a capital punishment, they are likely to deter more than any other punishments since individuals fear death. They are afraid of death deliberately inflicted by law and scheduled by Courts. Whatever people fear most is likely to deter most… the death penalty is often the only kind penalty that could deter prisoners who serve a life sentence. Perhaps they may not be deterred. Nevertheless, certainly not be deterred by anything else. All protectors exposed to unusual risk, should be given all the protection that they need” Hagg, 1986).

In Response, scholars and International Organization fighting for the abolition of the death penalty argue that by executing those sentenced to death, it does not deter more than a sentence of life imprisonment would show. As Nolasco Kubasu, a philosopher and conflict management specialist says that the death sentence is barbaric and advocates for its abolishment. Kubasu argues that courts should give correctional sentences to convicts. He further maintains, “The State, in taking the high moral ground, should correct wrongs by passing life sentence where it deems fit and not killing”. Kubasu also notes that the State destroys another life, by creating bitterness and not remorsefulness when it takes away life of a convict and more so of an innocent convict.

Amnesty international has further observed that, in the United States, death penalty has not led to deterrence of potential offender.  Hence, its position that there is no substantiation of crime is deterred more efficiently than other kinds of punishment by the death penalty. Graeme Simpson & Lloyd Vogel man in their article ‘The Death Penalty in South Africa’ argues, “When someone kills, the consequences of being apprehended do not occur to them. All they are likely to think about is the escape. Most of them would rethink about their actions if given a chance to consider the consequences of their actions”.

Does Death Penalty amount to torture, cruelty and inhumane punishment?

Having established the wrongful conviction and executions taking place in the United States, it would be more justifiable that an execution of such innocent person amount to torture. Article 1 of the Convention against torture defines torture as the intentional infliction of mental or physical suffering or pain on a person with the consent or a public official or any individual who acts in an official capacity (Article 1 of the International Convention Against Torture, Inhumane, cruel and degrading punishment, 1984). This goes towards the method of execution. In an article titled ‘The Case against the Death Penalty’, the writer argues that the death penalty itself is barbarous, crude and gruesome’ (Bedau, 1997).  As a result, the method of enforcing the death penalty disgraces once persona as they inflict unwarranted distress on a defenseless person. This is evident from the number of years from the cases earlier cited some of the suspects had served on death sentence before they were exonerated.

In the case of California v Anderson, the California Supreme Court condemned capital punishment holding  “the process of carrying out a verdict of death is often  brutalizing and degrading to the human spirit  to constitute psychological torture” (406 U.S. 958, 1972).  This Case served to show that coming to terms with one’s death could be exceedingly wearisome and psychologically debilitating situation, which could have an adverse toll on one’s mind and sense of self-resulting in a condemned innocent prisoner not just to being physically isolated but emotionally and mentally devastated.

Persons exonerated having been sentenced to death is on the increase in the United States and this only proves that the Criminal justice system and the Constitution of the United States are not sufficient to protect innocent person from execution from innocent or intentional mistakes of the law enforcers. It is therefore prudent that the criminal system of each State goes through a revision on issues such as informants and eye witnessing identification.  Police officers conspiracy and tampering with evidence to get a conviction, is a matter that should be checked upon. In the United States, the federal and the National States that still uphold the death penalty issue, may consider its abolition, but place a reservation for notorious crimes such as terrorism, leaving no room for arbitrariness.

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