Capital punishment, once a key issue in U.S. presidential races, has hardly been mentioned in this one. That is testament to the fact that America, like the rest of the world, is moving away from the death penalty. Most of the work for abolition in the U.S. is happening in the states, but there are steps the federal government should take to hasten the death penalty’s end.
In June the Supreme Court ruled 5-4 in Glossip v. Gross that Oklahoma’s use of the sedative midazolam in lethal injections did not violate the Eighth Amendment’s prohibition of “cruel and unusual punishments.” But in a lengthy dissent, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, argued that it is time for a “full briefing on a more basic question: whether the death penalty violates the Constitution.”
Justice Breyer writes that the death penalty today “involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.” Perhaps that is why, he continues, “most places within the United States have abandoned its use.”
Since 2007 seven U.S. states have abolished capital punishment, taking the number of states without a death-penalty statute to 19 plus the District of Columbia. Nearly three-quarters have either abolished the death penalty or haven’t carried out an execution in at least eight years.
While executions are becoming less frequent—with 35 executions in 2014 compared with 98 in 1999—the U.S. is still one of the five most prolific executing countries in the world, in the company of China, Iran, Saudi Arabia and Iraq. This has high symbolic value world-wide. Countries with much less circumspection in their legal processes invariably justify their use of the death penalty by citing the U.S.
Yet after decades of investigation by researchers, there remains no proof that the death penalty has any higher deterrent value than the alternatives. An extensive study in 2009 by criminologists at the University of Texas at Dallas revealed the flaws in earlier studies claiming a deterrent effect and “found no empirical support for the argument that the existence or application of the death penalty deters prospective offenders from committing homicide.”
Despite the sophistication of the U.S. legal system, in the past 20 years more than 100 individuals on death row in federal and state prisons have been exonerated. And despite scientific efforts to implement capital punishment in a “humane” fashion, time and again executions have resulted in degrading spectacles, including the botched lethal injection in April 2014 that took more than 40 minutes to kill Oklahoma inmate Clayton Derrell Lockett and prompted Glossip v. Gross.
Clearly, even with modern advancements, the death penalty is inherently flawed. U.S. government officials often say their hands are tied, since this is a matter largely decided by state law. Yet the U.S. could declare a moratorium on the death penalty for federal crimes. Some would argue that an unofficial moratorium is already in place. The federal government hasn’t executed anyone in 12 years, since Louis Jones Jr. in 2003, despite 50 federal death sentences having been handed down since then.
Adopting an official federal moratorium on the death penalty, through executive order if need be, would send a powerful message about the value of life and the inhumane and flawed nature of executions.
Source: WSJ, Christof Heyns, Juan Mendes, November 4, 2015. Mr. Heyns is U.N. special rapporteur on extrajudicial, summary or arbitrary executions and a law professor at the University of Pretoria in South Africa. Mr. Mendez is U.N. special rapporteur on torture and a law professor at American University in Washington.