by Kay Danes OAM
Abstract This paper explores the proposition that capital punishment is a cruel and unusual punishment against a legal, moral, socio-cultural and human rights framework. There are no best standards for inflicting capital punishment, regardless of whether in either Western or non-Western society. The foundation of human rights is the inherent dignity and value of all human life.
During the 5th to 15th century, more commonly referred to as the Middle Ages, the use of pain and torture was commonly accepted for both punishment and interrogation. A form of attraction for a society deprived of entertainment in favour of feudal and religious duties (Impara 2016). Cheers could be heard from a gathering crowd as a criminal’s body was torn apart or their eyes gouged out. Women would be burned alive for high treason, men hanged, drawn and quartered, people tortured on the rack for stealing food or impaled on crosses for religious beliefs. Some were burnt alive for simply healing with herbs, while others faced beheadings as common place among the upper and peasant classes (Gershman 2005). Mankind has a history of violence, a tendency to be fascinated by the macabre: provoking revulsion and curiosity. Medieval drama continued well into the 18th Century, with a wave of executions plunging France into what became known as the Reign of Terror that saw thousands of people subjected to arrest and execution without trial (Encyclopædia Britannica 2015).
Sadly, mankind’s fascination with the macabre in the 21st century suggests that not a great deal has changed. In some cultures, a State can sentence a person to death for the mere suggestion of impropriety (Standish 2014). For instance, when two families in Northern India discovered the secret romance of two young sweethearts, Vishal (16) and his 17-year-old girlfriend Sonu, they executed the pair one after the other, on the roof of a house in front of a crowd of villagers. They were accused of bringing shame on their families (Rowe 2001). Vishal merely wanted to marry below his station. This is a familiar story in India and many other parts of the third world.
Fortunately, however, nearly two-thirds of countries around the world today have abolished capital punishment in law or practice. It is almost universally agreed, that it is not conducive to a civilised society (Flanders 2013). There do remain however a number of governments that continue to enforce it, in varying forms. Many of these represent functional democracies with well-educated populations. Among them, the United States, Japan, Singapore, St. Kitts & Nevis and Taiwan.
Generally, the countries that impose capital punishment do so for the most serious crimes and normally in accordance with the law in force at the time of the commission of a crime. According to Amnesty International, at least 1,634 people were executed in 2015 across just three countries; Iran, Pakistan and Saudi Arabia (Amnesty International 2016).
What is a most serious crime or cruel and unusual punishment?
There is no definitive statement on the meaning of most serious crimes however. Because of this, many retentionist states use this loosely interpreted language as a justification to apply execution to ‘offences’ that in a civilized world would not constitute an offence. Some Islamic states regard adultery and apostasy as the most serious crimes, while other states believe drug offences, or political and economic offences rate as the most serious crimes. And so the notion of a serious crime varies according to regions, religions, political perspectives and cultures (Lovegrove 2006).
The United Nations has attempted to define a most serious crime as an act that deprives a person of their life, liberty and security (United Nations 1948). Under international law, article 6 of the International Covenant on Civil and Political Rights (ICCPR) addresses the right to life and introduces the formulation of most serious crimes (Office of the High Commissioner 1966). International law however does not prohibit capital punishment and not all countries are signatories to the ICCPR, therefore there are arguments around enforcement. Nonetheless, Article 6 sets the direction for the spirit of universality as a guide for countries to progressively restrict the use of capital punishment.
For as long as humans continue to commit the most serious crimes against other humans, there will always be moral, religious or practical arguments for and against capital punishment and what exactly constitutes it as a cruel and unusual punishment.
The phrase cruel and unusual punishment was first derived from the English Bill of rights of 1689. The most essential predicate is that punishment must not be degrading to human dignity. This is a view that has raised considerable challenge to contemporary discourse on capital punishment, impacting on Western and non-Western legal practice and penal philosophy. According to the Universal Declaration of Human Rights adopted by the United Nations in 1948, capital punishment breaches two essential human rights: the right to life and the right not to be subjected to cruel, inhuman or degrading treatment.
It is broadly accepted that everyone may have the right to life but not everyone agrees on this principle. So for those who feel compelled to take a life in order to teach others that it is wrong to kill, or that mistakes must never go unpunished, then there must be a standard.
In America, the most humane capital punishment process is considered to be by lethal injection. It is the designated primary method of execution in capital cases in 32 of America’s 50 states that have the death penalty. It involves a three-step injection process that renders the inmate unconscious prior to paralysis and finally death. Lawyers have argued that the entire process violates the victim’s rights under the eighth amendment that prohibits cruel and unusual punishment (Kuo and Ellis 2014). This argument is substantiated by research that shows that at least 3% of all executions in the United States are botched. Lethal injections in particular, have the highest botched rate of 7% (Smith 2012).
Sodium thiopental is supposed to put the inmate to sleep within 30 seconds, pancuronium bromide stops their breathing and potassium chloride stops the heart. The main supplier of sodium thiopental in America has however ceased production to States that adopt capital punishment by lethal injection. Other suppliers have similarly banned its use.
So pro-lethal injection States began using pentobarbital ─ a barbiturate that depresses the central nervous system, seldom used on humans, but often used by veterinarians to anesthetise or euthanize animals (Belluck 2011). The company that supplied the drug opposes the death penalty and has since halted its distribution to US prisons undertaking capital punishment by lethal injection. Dozens of other major pharmaceutical suppliers followed suit.
The solution has been to turn to compound pharmacies to supply synthesized drugs. But because they fall outside the regulatory scope of the Food and Drug Administration (FDA), a wide variety of untested, undisclosed and unregulated lethal cocktails are now in use across the United States for capital punishment cases.
Do good intentions count?
According to the US Supreme Court, the intent during execution is to avoid inflicting unnecessary pain – an isolated mishap does not violate the eighth amendment because the State undertakes the execution with the intention to be humane (Denniston 2014). If therefore, the intention to be humane is the precipice by which the action is considered not a cruel and unusual punishment, then the same argument could be made by countries like Saudi Arabia, where beheadings have existed as a normative, societal practice since the introduction of Islamic doctrine. Beheading by sword is the most common practice of capital punishment in the middle-east and is intended to achieve death within seconds of decapitation (Al-Sulami 2014). It is a State sanctioned practice imposed by a legal judiciary and is not considered by middle-eastern populations to be a cruel and unusual punishments. It is intended to deliver swift and humane justice. Such should not be compared to the unlawful practices of belligerent groups who may share a like-minded religious ideology but who intentionally murder innocent people in order to serve an extremist, political agenda created around fear and shock. Either way, whether capital punishment is undertaken by belligerent groups or the State, there is an inevitability that a degree of suffering will occur. Arguably, by comparison to Western capital punishment practices which are legally administered by a State, decapitation is no crueler or more unusual than any other execution practices that have been adopted by the United States or France’s ‘guillotine’ ─ abolished in 1981 when capital punishment itself was abolished in that country (Donovan 2014).
What could be considered cruel however is the inherent long wait leading up to an execution. Both Western and non-Western comparisons show that death row inmates can spend a considerable amount of time in solitary confinement. Some spending as much as 23 hours a day in their cell prior to execution. Research has shown that many inmates in the United States who spend years on death row can suffer ‘Death Row Syndrome’ that leads to ‘agitation’, ‘psychotic’ and ‘self-destructive’ behaviour (Carter 2008). It is difficult to find comparable data in a non-Western context but it can be safely assumed that prisoners on death row would experience similar behavioural issues, given that judicial processes in countries like Saudi Arabia also impose time stipulations, through appeal processes, before actual sentencing. While the length of time spent on death row may be considered by some to be a cruel and unusual punishment, others argue that it is necessary because there are multiple steps in the appeals process. An execution may be postponed to allow for a final review of proceedings, or to verify legislation in respect to such appeals, and in deciding a final outcome either to proceed with the execution, commute to a lesser sentence (a life sentence) or grant a full pardon resulting in release. Countries like Saudi Arabia do not impose the death penalty without observing strict procedural governance. Those who commit capital punishment offences are not simply arrested then executed. Capital punishment cases in the middle-east can take many years and execution is not always inevitable.
What is not commonly reported is that under Islamic law, an accused person has similar legal privilege as that found in a Western judicial system. In countries like the Kingdom of Saudi Arabia, a prisoner has the same right to legal counsel during an investigation and throughout trial stages as their Western counterpart. [i] [ii] Sentences are appealable by either the convicted person or their representative and decisions may be reversed by a higher court. [iii] [iv] Due process is afforded to those who claim wrongful detainment or imprisonment.[v] When an execution order is given and when all appeals are exhausted, then judgment is pronounced by a three judge panel and then subject to review by the High court which comprises of a five judge panel for capital punishment cases (Ansary 2008). Similarly, as in the West, public executions in the Kingdom of Saudi Arabia and most other Islamic states (excluding Iran) are usually only public, in so far as those ‘witnesses’ who are required to attend to ensure the sentence is carried out according to the law, such as judiciary officials, police, government officials, the victim’s and the perpetrator’s family (Ansary 2008). Though from time to time there have been a number of executions made public by uncensored use of digital technologies. But for the majority of executions in Saudi Arabia today, they are performed inside prisons across the Kingdom either through firing squad or by the sword. Photos or video footage of executions are not released publicly as it is prohibited by law (Reuters 2016). Capital punishment, when applied, should be determined by a strict legal practice to ensure all of the legal rights owed to a person at the time of arrest, detainment and conviction are upheld (Huda 2014). On this both Western and non-Western judiciaries agree.
Retribution without death – bloody money?
Drawing on other capital punishment comparisons, both Western and non-Western legal traditions set provisions for retribution without imposing a death sentence ─ a royal pardon or a stay of execution may be granted through appeal. But where the two processes completely differ, is that under the Islamic legal system, compensation payments can be sought by the heirs of the victim as a means of extracting retribution without death. This practice is based on the premise that it is preferable for people to forgive and show mercy (Qur’an 64:14). That the practice empowers victims and their families and provides them with an opportunity to reclaim a modicum of control over an event that was otherwise beyond their control. It is as though they have participated in a just outcome. The victim’s family may be given a choice to insist on the death penalty or show mercy by allowing the perpetrator an opportunity to have their sentence reduced or commuted (Qur’an 2:178). Although compensation payments are quite common in capital punishment cases, in Islamic legal systems, there is some concern as to whether they make way for financial exploitation. For example; in 2007, Miss Satina binti Jumadi Ahmad of Indonesia was arrested in the Kingdom of Saudi Arabia and placed on death row for stealing from and murdering her employer (Jakarta Post 2014). Through diplomatic intervention, the Indonesian government was able to delay her execution several times until the family of the victim agreed to accept compensation for the amount of $2.1 million dollars. Contributions from Indonesian businesses and a local Indonesian company that represented Indonesian migrant workers to the Kingdom of Saudi Arabia contributed to the family of the convicted.
According to a report filed in an Australian newspaper, the amount of $1.2 million dollars raised was well short of the compensation payment so the Indonesian Government paid the remaining shortfall in order to stop the impending execution (Sydney Morning Herald 2014). It is yet to be seen whether Indonesia’s political intervention will make for higher monetary demands in the future, particularly when, as of July 2014, over 33 Indonesian migrant workers remain on death row in the Kingdom of Saudi Arabia (Khan 2014).
Capital punishment and its impact on society
Every society has at one time or another imposed capital punishment on its population (Melusky and Pesto 2011). And while some countries have agreed to abolish capital punishment, Australia included, others, like America, have chosen to retain it. The existence of capital punishment in any society raises the question: is the justice system of that country established on a system of rehabilitation or retribution? It may well be the ultimate warning to deter crime but death denies an offender any opportunity to rehabilitate, particularly first time offenders and juvenile offenders who might otherwise access rehabilitation programs to transform themselves (Meghan J. Ryan 2013). If capital punishment is meant to deter crime, then why do so many people still murder others and if the whole goal of capital punishment is enforced to teach people in society that it is wrong to kill, then should the justice system kill? The simple fact is that there is no humane way to kill another human being. Nor are there best standards for inflicting death on another because there inevitably remains a distinct possibility that human error might condemn an innocent life to death. Or worse, make a martyr out of someone who seeks execution as a reward for doing harm. The evidence of that statement lies in the actions of Ali Amrozi bin Haji Nurhasyim who sought a martyr’s death for his part in the bomb that killed 202 people in Bali in 2002 (Goodsir 2003).
The lesson to be taken from all of this is that to take another life is not an action that belongs to a civilised society or to a righteous person, or even in the pursuit of a just cause. As Mahatma Gandhi famously touted: ‘An eye for an eye will only make the whole world blind.’[vi] As a civilised society we must have a responsibility to infuse respect for the sanctity of all human life. If we can so easily take the life of those who do not respect our beliefs, our ideologies or philosophies and laws, then do we not become desensitized to difference? The taking of any life creates consequences for all members of society, not just the victims. It creates a hierarchy of victims where the lives of some are given a separate value over the lives of others (King 2006). Retribution and bloodlust are not legitimate penal objectives. If the foundation of human rights is premised on the inherent dignity and value of all human life, then capital punishment is representative of cruel and unusual punishment. Therefore, our almost universal belief, that we should respect life, ought to align with a universally held belief that capital punishment must be completely abolished worldwide.
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[i] Articles 11,12, and 13 relate to a lawyer’s code of conduct and ethics and the freedom they will have in defending their client without interference. Reference: Code of Law Practice. Part 2 Duties and Rights of Lawyers. http://www.boe.gov.sa/ViewSystemDetails.aspx?lang=en&SystemID=126&VersionID=156
[ii] Article 4 of the Law of Criminal Procedures (2001) is specific in granting the rights to legal counsel during the investigation and trial stages. http://www.saudiembassy.net/about/country-information/laws/CriminalProcedures2001-1of3.aspx
[iii] Article 9: states that sentences shall be appealable by the convicted person or the Prosecutor.
[iv] Article 12: articulates the reversal of decisions in wrongful convictions.
[v] Article 39: articulates strict processes relating to unlawful imprisonment or detention.
[vi] Gandhi International Institute for Peace, (2012). Quotes. Retrieved 08 July 2016 from http://www.gandhianpeace.com/quotes.html
Kay Danes is a PhD candidate at Southern Cross University (Gold Coast). Her PhD thesis is titled ‘Long-term Local and International Strategies for the Protection of Humanitarian Workers in Global Conflict Zones’. In 2014, Kay was awarded the Medal of the Order of Australia for her social justice and human rights work worldwide. She is a member of Civil Liberties Australia.
Author Books and other Publications
Danes, K. 2016. ‘The moral ethic of ADF employment rights,’ Research paper: Council of Civil Liberties Australia. (Source)
Danes, K. 2010, Beneath the pale blue burqa, Australia: Big Sky Publishing. ISBN 978-1-92827-505-6
Danes, K. 2009 and 2011, Standing ground: an imprisoned couple’s struggle for justice against a communist regime. Australia: New Holland. ISBN 978-1-74110-757-9
Danes, K. 2008 and 2011, Families behind bars: stories of injustice, endurance and hope. Australia: New Holland. ISBN 978-1-74110-676-3
 Articles 11,12, and 13 relate to a lawyer’s code of conduct and ethics and the freedom they will have in defending their client without interference. Reference: Code of Law Practice. Part 2 Duties and Rights of Lawyers. http://www.boe.gov.sa/ViewSystemDetails.aspx?lang=en&SystemID=126&VersionID=156
 Article 4 of the Law of Criminal Procedures (2001) is specific in granting the rights to legal counsel during the investigation and trial stages. http://www.saudiembassy.net/about/country-information/laws/CriminalProcedures2001-1of3.aspx
 Article 9: states that sentences shall be appealable by the convicted person or the Prosecutor.
 Article 12: articulates the reversal of decisions in wrongful convictions.
 Article 39: articulates strict processes relating to unlawful imprisonment or detention.
 Gandhi International Institute for Peace, (2012). Quotes. Retrieved 08 July 2016 from http://www.gandhianpeace.com/quotes.html