The basic question that this paper seeks to address is the validity of the statement. In examining the statement “The death penalty, when preceded by long confinement and administered bureaucratically, dehumanises both the agents and recipients of this punishment and amounts to a form of torture,” it is important to explore the aims and justifications of prolonging the punishment, the extent to which it is dehumanizing to the recipients and the agents of the punishment.
Even as death penalty is to be applied quite sparingly, with special reasons reserved for cased of brutal murders or more severe offences against the state. Debates on retention or abolition of the capital punishment have predominantly existed for years causing some countries to consider prolonged delays that precede execution, mostly allowing the condemned person reasonable time to appeal. Such prisoners are condemned to dehumanizing conditions in “death row” units that have been criticized for transforming humans to caged animals. Penologists and criminologists have been actively engaged in extensive researches to find the answers to perennially baffling issues on prolonged delays that today precede execution.
The question of whether the prolonged delays can serve a just cause and whether they should be retained has in itself been a subject of debate among human rights lawyers, legal scholars, jurists, judges and social theorists the world over. Whether the delays aptly serve the real purposes of punishment, whether eliminating the delays can promote the rights of the prisoners or violate them, and what message the brutal existence can send to the society are issues that this paper attempts to address.
Social arguments against brutality preceding execution
In all, the dehumanizing conditions serve to portray the prisoners are being secluded from the society. Even as human rights activists have held that they should be reformed and corrected to make them sober citizens, studies have showed that such prisoners who undergo brutal conditions are made to be worse. Such situations view the pre-arranged and proportional punishment as in conformity with Bentham’s theory of penal objectives which suggest that the pain of the offender should be higher than the pleasures he enjoys following the commission of the crime. However, the element of “higher” must be proportional and uniform.
Even as legal and moral philosophers and scholars have examined the various objectives or justifications for death penalty, social scientists have focused more on explaining the effects of the punishment on the society. With this in mind, a number of social scientists have attempted to clarify the shift from physical punishment – such as execution of body mutilations – to mental punishments – such as forms of custodial punishment. The prolonged confinements that precede the death penalty fall under the second cluster.
Even as many legal and social theorists widely believe that death penalty naturally violates human rights, unusual punishments such as prolonged sentences and lack of guarantees of due process of law as well as equal protection by the law are likely to cause dehumanizing effects to the agents and the recipients of the punishment. The elementary justice and the constitutional due process demand that the legal functions of trial and sentencing be accomplished with elemental fairness and promptly, particularly where the irreversible sentence of capital punishment is involved.
However, there have been substantial evidences indicating that courts have in many occasions pronounced death penalties in a manner that is random and unfair so that while others take weeks to take effect, others are put in death row that take as much as 5 to 10 years. In the 1950s in England the procedure in capital cases often demanded that the sheriff determine the execution death in the fourth week after the death sentence had been imposed. In Scotland, the court was to fix the execution death under section 2 of the Criminal Law (Scotland) Act 1830.
If the death penalty had been imposed south of the Forth, it would be fixed between the fifteenth and the 21st day, and north of the Forth, then between the twentieth and the twenty seventh day. In both countries however, the Court of Appeal had to hear the appeals within three weeks following the day the verdict was pronounced, and if the appeal failed to go through, the next date of execution was set within 14 days or not more than 18 days after the day in which the appeal was rejected. Overall, it is difficult to picture any situation in England in which a prisoner who had been condemned to death would be held in custody for years while awaiting final execution.
Inhuman, brutal degrading conditions
Overall, those condemned to death must endure a lesser or greater extent of inhumane conditions on what is commonly termed as “death row.” Besides, the individual may be condemned to emotional and physical isolation, this amount to great psychological trouble, especially with regards to the unbearable wait for imminent execution. Moreover, the forms of execution, whether through lethal injection, hanging, bullet in the head or electric chair, are all inhumane.
In this context, can the death penalty when preceded by death row dehumanize the recipients or the agents as well as surmount to torture? It is however important to remember that the death penalty is not considered as an inhuman treatment in international law. Indeed, the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) have not banned the death penalty. In addition, the European Court of Human Rights (ECHR), the Inter-American Court of Human Rights (ICHR) and the United Nations Human Rights Committee (UNHRC) have concluded that the death penalty does not amount to degrading or inhuman treatment.
Nevertheless, even as the international law fails to recognise the degrading and inhuman element of death penalty, the reality still suffices. The punishment exposed the recipients to a lengthy legal procedure, which often are characterized by lengthy and uncertain outcome as well as to agony, which ultimately robs them of their humanity. This piece of reality and its impact, as unavoidable and as irreversible as they are can clearly be perceived as adding up to cruel and inhuman treatment.
In 1977 during the Stockholm Declaration, the countries that took part in the International Conference of Abolition of Death Penalty proclaimed that this form of punishment is the most inhuman, cruellest as well as most degrading punishments in existence contravene the right to life. The same principle has been replicated ever more in regional and local low courts across Europe. In fact, international agencies such as the UN Human Rights Committee have attempted to identify the particular scenarios where death penalty could be considered as degrading, cruel and inhuman treatment. This include the death row syndrome, which is characterised by prolonged delay, and the methods of execution.
Death row syndrome
The death row syndrome refers to a traumatic stress subjected to the recipient by having him wait on prison units reserved for those sentenced to death. It consists of the long wait that that a person condemned to death has to endure, often characterized by dehumanizing conditions. Even as the term death row is usually used with precision, a proper definition should consider both the conditions of imprisonment and the delay.
The element of delay
The element of delay is fairly a recent phenomenon. In the 19th century, the actual executions were implemented within hours or days following the imposition of death penalty. Delays have however dramatically increased in length and are currently measured in terms of years. In the United States for instance, the average period between sentence and execution has risen from about 51 months in the late 1970s to 133 months in the late 1990s. Today, it takes over 10 years for a prisoner on death row to be executed.
Globally, the delays are mostly caused by three factors. First, the support for death penalty is increasingly diminishing, thus governments are more careful in their approach towards the penalty. Secondly, there is an increase in laws that protect the rights of prisoners. Incongruously, prolonged detention after imposition of the death sentence, which may itself described as a violation of human rights, results from the efforts aimed at limiting and ultimately abolishing the death penalty, which is directly attributable to the impacts of modern-day human rights laws. Thirdly, the prisoner’s readiness to accept and sometimes even promote the delay is also a predominant cause of delays. Ironically, even as the delays comprise dehumanizing and brutal conditions, the individuals condemned to death are often disinclined to accelerate the processes that lead to their final execution.
Prisoners who facing prolonged delays preceding their executions may often be condemned to “death row” units, which refers to areas within the prison designed to house those prisoners awaiting execution. They are suitably described as a prison within a prison given the maximum security and minimized freedoms that characterize them. The units are often described as institutionalized hell. However, the recipient prisoners have often justified the conditions by claiming there is nothing to lose. Terms including brutal, harsh and cruel are used interchangeably to describe the conditions, although they cannot aptly describe or capture the prisoner’s conversion to a caged animal from a normal human.
Terrifying images of the death row have been severally invoked by horrifying narrations from the recipients. For instance, the particular prisoners are often held in small cells for nearly 23 hours, where contact with others is virtually impossible. In such situations, social theorists have tried to explain that the subject’s mind has nothing or little to think about except chances of their appeals, regret the crimes committed and the forthcoming execution. More often, the prisoners will ultimately confront the moment of final execution only to have the last minute stay granted. This would force them yet again to experience the anguish until the next date of execution. Psychologists have agreed that such conditions have the capacity to cause mental and physical degradation. Some legal scholars have viewed such a prisoner as more vegetable now than a human, and that hanging a vegetable does not constitute death penalty.
Execution of such an individual is fairly inconsistent with the objective of death penalty, as the imposed punishment was precisely death, and not death preceded by torture. In Pratt and Morgan v Attorney General of Jamaica et al, it was observed that a state that looks to retain the capital punishment must take the responsibility of making sure that the execution is prompted after the sentence is pronounced, while at the same time allowing for a reasonable time to appeal. If the appellate procedure prolongs the hearing over several months or even years, then the fault would be attributable to the appellate system that advocates for such delays and not to the prisoner who leverages on the time.
Despite these factors, the prolonged delays amount to the cruelty of death sentence. In the 1998 report on torture, the UN Special Rapporteur observed that if the individuals who had been sentenced to death had to be subjected to prolonged delays to know whether the sentence would be ultimately carried out or not, then the adverse psychological effects could be associated with long-suffering that often result in adverse physical complaints.
The United Nations
Death penalty is a contentious issue globally. The dehumanizing and degrading treatments that characterize prolonged confinement preceding the eventual execution have made the debates even more unpalatable. The UN General Assembly acknowledges that when capital punishment is imposed, then there is need for every country to observe high standards of fair trial. This means that procedures that follow before execution must be fair, reasonable and just. For instance, in 1996, the UN Economic and Social Council (ECOSOC) No. 15 of 1996 persuaded member countries to abolish death sentence and proposed that those countries that retain it must ensure that the those individuals sentenced are taken through fair and speedy trial.
Thus prolonged delays are seen to violate this principle. Beside, Article 5 of the Universal Declaration of Human Rights 1948 maintains that no person should be subjected to cruel, torture, degrading or inhuman punishment or treatment. Further, Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966 maintains that no person should be tortured or treated inhumanly.
The European Union
The 6th protocol to the EU convention on Human Rights 1982 advocates for the total abolition of death sentence in peacetime by all members. Further, in 1994, the Assembly of the Council of Europe advocated for the complete abolition of death penalty even in war time and under the Military Laws. In 2002, the 13th protocol to the European convention to protect Human Rights and Fundamental Freedoms, which advocated against death penalty as well as its manifestations such as prolonged delays, endorsement by member countries was open for endorsement, most Member States in the EU abolished death sentence since.
In the 1989 case Soering v United Kingdom , the ECHR held that the death row syndrome be a breach of Article 3 of the ECHR, on account of the age and the mental well-being of the individual recipient as well as the conditions and the period of the detention on death row. In this case, for any individual sentenced to death, some aspects of delay between the imposition and the execution as well as the severe depressive conditions that accompany the severe incarceration are unavoidable. Even as some legal scholars agree that the machination of justice can be both arbitrary and unreasonable although they are intended to respect the rule of law as well as protect the defendant during the trial.
Some arguments also hold that subjecting the death row prisoners to very long periods of wait in such extremely cruel and inhuman conditions while awaiting the death penalty would expose the prisoner to inhuman conditions. This is particularly with the prevalent and high risk of anguish that affect the mental state of the prisoner.
Another consideration of relevance of the argument is that in the death row instance, the legitimate objective of extradition can be attained through other means that would not have to involve subjecting the prisoners to long suffering in such exceptional intensity. This in itself is divergent to Article 3 of the ECHR which states that no person should be tortured, or subjected to cruel, degrading or inhuman conditions in the name of punishment.
ECHR confirmed this particular case law in several instances, including in 2000 in the Jabari v Turkey case where the court held that a woman could not be deported to Iran, where she was expected to be sentenced to death through stoning, which was however not in conformity with the Turkish obligation to honour Article 3 of the ECHR.
In another judgment in early 2005 Ocalan v Turkey affair case, the ECHR held that death penalty that was preceded by peacetime was unacceptable and not authorised by Article 2 of the ECHR. The Court pronounced that the condemnation verdict of death penalty on the recipient at the end of the unfair trial before a court with questionable partiality and independence could only be termed as inhuman treatment, which violates Article 3 of the ECHR.
Brutal conditions not deterrent to capital offences
Ideally, deterrence can be described as s function of punishment’s regularity and certainty as well as its severity. A concept that has most often been alluded in support of the death penalty is that the real threat of execution has the potential to influence the behavior of a criminal more efficiently that imprisoning the prisoner. As believable and as credible as it may sound, in veracity, the death penalty can be argued to have failed for a number of reasons, including the fact that it can only serve as an effectual deterrent if it is promptly and consistently imposed and executed. However, if it fails to meet these conditions, then it can be classified as being inhuman and torturous. A reasonable time between the imposition of the death penalty and the final execution is inevitable because of the procedural requirement by the court in such cases that may attract the death penalty. Usually, from the outset of selecting the trial jury, trails for murder characteristically take longer. In addition, post-conviction appeals after the sentence have been found by some studies as being far more frequent than in other criminal cases. Ultimately, these factors have the potential to increase the period of time as well as the cost of overseeing criminal justice.
Some researchers have proposed that these delays and costs can be significantly reduced once the constitutional rights of the convict and the procedural safeguards are discarded, which in effect puts the defendant at high risk of execution even when innocent. Naturally, this is not a realistic viewpoint as the legal system should never contradict itself by denying the defendants the right to appeal or the right to counsel. Even as imposing the death penalty can guarantee that the condemned individual will not commit the crime any further, it fails to demonstrate deterrent effect on other persons. In addition, it is a higher price to pay when the prolonged delays that precedes the final execution and predominantly characterized by dehumanizing and brutal conditions.
When the delays between the final execution and imposition of death penalties converts from days to weeks, to months to more than decades, then this is seen to transform the landscape or capital punishment. Of more particular interest, if the prolonged delays are characterized by conditions that are brutal and dehumanizing, then its beats the logic of punishment as initially, the individuals subjected to these conditions were served with a death penalty rather than torture before death. The anguishes that the prisoners have to undergo as they await execution are arguably more severe than the ultimate execution itself. When the length of the sentence is substantially lengthier than necessary for permit for appellate procedure, then the court should determine whether the execution was not carried in a humane manner, and if determined, then for that reason commute the individual’s sentence to life in prison.
The conditions of long confinement ahead of execution of death penalty are depressing. Studies have showed that recipients of such conditions are confined in cramped cells for close to 24 hours, without an allowance of time to interact with others or exercise. Even though this can be argued as apt for dangerous criminals in accordance with Bentham’s theory, this has often failed to be the case as the prisoners are transformed into more dangerous criminals which beats the logic of changing the society for the better. Further, the argument that such death row prisoners are likely to assault other prisoners as they claim “they have nothing to lose’ appears unfounded. Instead, the brutal conditions that death row inmates are forced to undergo through has often created a sense of despair in the subjects. Indeed, there is apparent evidence that majority of these individuals lack the crucial educational skills to defend themselves during the appellate procedure without due assistance. Incongruously, it is important to note that the long appellate procedure seems the most justifiable reason for prolonged delays.
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