CRJ425 – Criminal Law
Colorado State University Global
Death penalties go back as far as the Eighteenth Century B.C., to King Hammurabi of Babylon (Death Penalty Information Center). Britain played a big part in America’s use of the death penalty, more than any other country. The first recorded use of capital punishment in the United States dates back to 1608 with the execution of Captain George Kendall for being a Spanish spy. Back then, capital punishment could be used for incidents as minor as stealing a small piece of fruit (DPIC). In today’s society, the death penalty is seen as an inhuman form of punishment all over the world, though there are still some country that use this form of punishment. The death penalty is a form of retribution; it is intended to satisfy the desires of society and the victim by punishing the offender appropriately for their crimes (Lippman, 2016). Currently, the biggest argument against the death penalty is dignity.
Dignity’s “doctrinal significance” has surfaced in recent years, largely in part to the Supreme Court’s decisions in U.S. v. Windsor and Obergefell v. Hodges (Barry, 2016). In both of these cases laws prohibiting same sex marriages were dismissed “as a deprevation” of dignity under the Fourteenth Amendment (Barry, 2016). Dignity can be, and has been, used as an argument against the death penalty. Kenji Yoshino (2011), a New York University School of Law professor, discussed that the concept of dignity, in context to the Fourteenth Amendment, embodies concerns for both liberty and equality; they are like two “horses that run in tandem” (Barry, 2016). Reva Siegel (2008), a Yale Law professor, argued that “life” is also a concern when it comes to the concept of dignity. Barry (2016), states that we as individuals have “intrinsic value (dignity of life)”, “equal value to others (dignity of equality)” and “certain freedoms as human beings (dignity of liberty)”.
In the argument against the death penalty, dignity of life means that this form of punishment should “not be imposed on less culpable offenders… for less serious crimes” (Barry, 2016). The dignity of equality, Barry (2016) explains, means not singling out individuals specifically to harm them and the delivering of the punishment must not be capricious. The dignity of liberty means having autonomy, with respect to certain actions, and being free from cruel and unusual punishment (Barry, 2016).
In the argument for the death penalty, Chief Justice Roberts and Thomas argue that dignity has no place in law, stating that there is no “dignity clause” in the Constitution, Obergefell v. Hodges, 135 S. Ct. 2584, 2616 (2015). In the cases of Obergefell and Windsor, both resulted in the death penalty being followed through, and both were argued that they were denied dignity, but neither case was unconstitutional. Dignity derives from the Latin word “dignitas”, which referred to honor and worth of ancient Roman officials (Malkani, 2017). During the Enlightenment Era, Europe came to believe that all people should be treated as worthy and with respect, but “America has never recognized this concept of aristocracy” (Malkani, 2017), therefore, dignity remains a vague concept and is open to a myriad of definitions. For many, the absence of the term “dignity” in the U.S. Constitution is enough for the Supreme Court to exclude consideration of dignity.
On an international scale, dignity has been invoked by a number of legal authorities when it comes to explaining why the death penalty needs to be abolished. Malkani (2017), explains that the Preamble to the Second Optional Protocol to the International Covenant on Civil and Political Rights states that “abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights.”
On March 3, 2015 the Parliament of Suriname abolished the death penalty, replacing it with a new criminal code (Parliamentarians for Global Action, 2015). Suriname was a Dutch colony up until 1975, when it gained its independence. Under Dutch law, though, the death penalty was not permitted. After gaining its independence, the death penalty became a part of their ciminal code but no crimes had been committed that were so serious that they warranted an execution (Associated Press, 1982). In 1980, the small South American country fell under a military dictatorship and the death penalty was used abundantly to control political opposition (AP, 1982). The last execution that took place in Suriname was in 1982 when 15 prisoners were shot without a trial (AP, 1982).
China is the world leader when it comes to the death penalty. Murder and drug trafficking are the top two crimes that will likely face this punishment, which will come in the form of lethal injection or firing squad (Chen, 2013). While it seems very unlikely that the country will ever abolish capital punishment, in 2007 China established its “death sentence with reprieve” revision The reprieve is not a replacement for the death penalty though and is meant to emphasize the seriousness of certain crimes, and show the courts “mercy” (Trevaskes, 2008).
In comparison to other countries, the United States really isn’t that bad when it comes to the death penalty. Because each state has its own statutes, not every state enforces capital punishment. Twenty-two states have repealed the death penalty; Fifteen states still perform executions to this day; Seven states still have the death penalty in their statutes, but have suspended exectution; Five stateshave the death penalty in their statutes, but have had no recent executions; and one state has the death penalty in their statutes, but special circumstances apply (Rogers & Chalabi, 2011).
Associated Press. (1982, March 14). Around the World; Rebel Leader’s Execution Announced by Suriname. Retrieved March 28, 2020, from https://www.nytimes.com/1982/03/14/world/around-the-world-rebel-leader-s-execution-announced-by-suriname.html
Barry, K. M. (2016). The Death Penalty & the Dignity Clauses. SSRN Electronic Journal, 383–396. doi: 10.2139/ssrn.2777847
Chen, J. (2013). Criminal Procedure Law of the PRC. Criminal Law and Criminal Procedure Law in the Peoples Republic of China. doi: 10.1163/9789004234451_008
Death Penalty Information Center (DPIC). (n.d.). Early History of the Death Penalty. Retrieved March 28, 2020, from https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty
Lippman, M. R. (2016). Contemporary criminal law: Concepts, cases, and controversies. Thousand Oaks, CA: Sage Publications.
Malkani, B. (2017). Dignity and the Death Penalty in the United States Supreme Court. Hastings Constitutional Law Quarterly, 44. Retrieved from https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2035&context=hastings_constitutional_law_quaterly
Parliamentarians for Global Action. (2015, March 6). Capital punishment abolished in Suriname. Retrieved March 28, 2020, from http://www.worldcoalition.org/suriname-abolition-death-penalty-caribbean-america-parliament-pga.html
Obergefell v. Hodges, 135 S. Ct. 2584, 2616 (2015)
Rogers, S., & Chalabi, M. (2011, March 29). Death penalty statistics, country by country. Retrieved March 28, 2020, from https://www.theguardian.com/news/datablog/2011/mar/29/death-penalty-countries-world
Siegel, R. B. (2008). Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart. The Yale Law Journal, 117(8), 1694. doi: 10.2307/20454694
Trevaskes, S. (2008). The Death Penalty in China Today: Kill Fewer, Kill Cautiously. Asian Survey, 48(3), 393–413. doi: 10.1525/as.2008.48.3.393
Yoshino, K. (2011, January 20). The New Equal Protection. Retrieved March 28, 2020, from https://harvardlawreview.org/2011/01/the-new-equal-protection/