English
中文Illustrate your essay with specific examples
The death penalty, also known as capital punishment, is the sentence that can be given to a convicted criminal by the state for certain crimes commonly known as capital crimes. The death penalty, where it is practiced, is used for a plethora of crimes including; murder, treason, rape and even for adultery and sodomy. Although not all choose to practice capital punishment, of the fifty States of America thirty seven of them still have the death penalty as a legitimate punishment. The United States is in fact the last major industrialised country to use the death penalty.
Despite arguments that capital punishment is not a human rights issue the death penalty has been one of the biggest concerns of human rights NGOs for the past few decades. This paper shall address what the core human rights issues are in relation to the death penalty. It shall also outline what mechanisms, if any, there are prohibiting violations of such rights. The campaigns of NGO’s, such as Amnesty International and Human Rights Watch, and their efforts to abolish the death penalty shall also be assessed along with the theory of American Exceptionalism.
The biggest human right issue in regards to the death penalty is highlighted in the Universal Declaration of Human Rights 1948 (Article 3) that:
“Everyone has the right to life, liberty and security of person.”
The ‘Right to Life’ has been the defining point in many of the early and most influential human rights documents. In fact, the United States Declaration of Independence codified the notion that the ‘right to life’ is an inalienable one. This right is the very purpose for the creation of government, so that they may protect citizens from anyone trying to violate their ‘right to life’, and if the government violate this right that it is the ‘duty’ and ‘right’ of the citizens of that state to overthrow the government.
The Universal Declaration of Human Rights also sets out another key human rights issue in regards to the death penalty in Article 5:
“No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
The essence of this article finds its roots in the English Bill of Rights 1689 and stated that the government could not inflict “Cruel and unusual punishment” which the Eighth Amendment of the US Constitution adopted verbatim. The US argues that the use of the death penalty is not breaching the Constitution or indeed infringing upon any rights. “The federal courts’ consideration of the death penalty begins with the assumption that it is constitutional and that it is not a “cruel and unusual punishment”. That is chiefly because the death penalty clearly existed as a legal punishment at the time the Eighth Amendment was adopted in 1791, thereby demonstrating the founding fathers’ constitutional approval.” (Richard C. Dieter p8) This immediately begs the questions; why do the federal courts believe that the founding fathers were infallible and why do they unquestioningly accept the moral code of what is right and wrong of men who are no longer able to justify their position?
In the State of Florida it would be seen as “unconstitutional” to torture a prisoner by electrocuting him but as an acceptable method of execution. It would logically follow that if a practice is cruel in the case where the prisoner is alive after then it would also be cruel if the prisoner were to die as a result.
Other reason that it is seen as a “cruel”, “unusual”, and “degrading” is because of the arbitrary nature of when the sentence is given. It is widely reported by NGO’s such as Amnesty International that the determining factors of when, for example a murderer, is given the death penalty or not is not wholly to do with the circumstances of the crime but; the quality of the defendant’s legal representative (thus making prejudice against those who cannot afford expensive lawyers) as well as race. According to Amnesty International although there are roughly equal numbers of white and black murder victims that of those on death row 80% of them, their victims have been white.
Whilst the various UN reports condemn the use of the death penalty the organisation has had much difficulty in passing any resolutions or treaties that would lead to its’ abolition. Even as more and more states are abolishing capital punishment in domestic law on a global scale, whilst there is the Second Optional Protocol to the International Covenant on Civil and Political Rights which aims at abolishing the death penalty, it has not been signed and ratified by all. There are, however, guidelines on when and how the death penalty can be used although the US has breached some of these rules. Up until 2005 the US allowed the execution of juveniles (16 and 17 year olds) which is contrary to Article 37 (a) of the UN Convention on the Right of a Child which states that; “[No] capital punishment… shall be imposed for offences committed by persons below eighteen years of age.”
There are many organisations whose sole purpose, or one the main purposes, of its being is to persuade and lobby governments and the UN to pass legislation that will lead to the global abolition of the death penalty. Two of the most notable of these organisations are Amnesty International (AI) and Human Rights Watch (HRW). AI have various ways in which they campaign and try to change laws; “Our members, supporters and staff around the world mobilize the public to put pressure on governments and others with influence to stop the abuses. Activities range from public demonstrations to letter-writing; from human rights education to fundraising concerts; from approaches to local authorities to lobbying at intergovernmental organizations; from targeted appeals on behalf of a single individual to global campaigns for global change.” (http://www.amnesty.org/) The extensive research done by HRW also aims to be publicised heavily in the media so as to embarrass governments who are abusive as well as setting up meetings with domestic officials as well as international organisations such as the UN to inform them and urge them to do all they can to change policies and laws. One such recent campaign, by AI, was to encourage people to sign a petition that would show support for a proposed moratorium on all executions. In a vote at the UN’s General Assembly 99 voted in favour of the resolution on the 15th November 2007 and is expected to endorse the decision in December 2007. It will not be legally binding on states but, as with all UN Resolutions, carries a significant amount of moral and political weight meaning those who fail to comply can be ‘named and shamed’ which leads to embarrassment of the state and encourages yet more pressure to be put on the state to comply and halt the use of the death penalty. From this we can conclude that these organisations do play a vital role in the effort to try and abolish the death penalty from; getting members of the public to lobby their local politicians, to urging those at an international level that the death penalty is not only unconstitutional but a violation of basic human rights.
The last point we shall briefly assess is the theory of American Exceptionalism. The issue is a vast and complex one but in brief the term ‘American Exceptionalism’ came about due to the fact that when faced with international human rights issues the US has been a leader in trying to eradicating violations but at the same time has been guilty of violating internationally recognised human rights on a domestic level. The consensus appears to be that they will only abide by international law when it suits the ‘interests’ of the government of America. The reason as to why some Americans believe that they do not have to adhere to international human rights is varied; some believe God had chosen the land and people and deemed them special, other believe it is because the US has been one of the leading forces in technology etc therefore making the American way the right way. If we accept this theory of moral relativism it can become a slippery slope for any state to not act in any way that they choose if they believe that a higher power has chosen them to be special or because they are the leaders in various types of technology. Most would not like to be likened to a moral relativist and therefore it cannot be the case that the death penalty is wrong and a violation of the right to life in one country but not in America.
