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The chapter traces the origins of human dignity, showing how it was originally used to denote titles of honor but is now seen as a universal human right or as undergirding universal human rights. In the context of discussing dignity rights, the chapter highlights international human rights treaties and national constitutions making refeerence to the concept of human dignity, which, in modern usage, has to do with the inherent worth of a life. The chapter discusses how human dignity is the foundation for many human rights, including the right to life, the right to be free from torture and other forms of cruelty, and the right to be free of discrimination. The chapter describes existing jus cogens norms prohibiting various acts that violate fundamental human rights, concluding that the death penalty must be abolished because it makes use of credible death threats, inflicts psychological torture, and violates an array of basic human rights. The chapter details how non-lethal corporal punmishments have already been abandoned and how the death penalty has been abolished or curtailed in many countries, with international criminal law tribunals precluding the death penalty's use.
The Introduction gives a snapshot of the current status of capital punishment around the globe. It gives current statistics from Amnesty International and describes Amnesty International's anti-death penalty campaign in the 1970s that led to the Declaration of Stockholm, which expressed "total and unconditional opposition to the death penalty." The Introduction describes the divide between retentionist and abolitionist countries, highlighting countries that have outlawed capital punishment in their constitutions or through judicial rulings. After detailing how the death penalty was traditionally seen as something other than torture, the Introduction discusses the law's evolving nature--and how the death penalty is increasingly seen as a torturous and cruel punishment that violates human dignity and fundamental human rights. Noting that death sentences are no longer treated as a "lawful sanction" in many locales, the Introduction describes how the U.N. General Assembly has voted on multiple occasions for a global moratorium on executions. The Introduction summarizes the current state of international law as regards capital punishment and previews the book's content.
This chapter traces the history of the world's anti-death penalty movement, noting how countries moved away from punishments such as breaking on the wheel and burning at the stake and how capital punishment has been abolished or curtailed in various countries and American states. After taking note of early successes of the abolitionist movement, the chapter discusses abolitionist efforts over time, including in the Progressive Era and in the post-World War II period (e.g., in Europe and the Americas). In particular, the chapter discusses American states (i.e., Michigan, Wisconsin and Rhode Island) that abolished capital punishment before the American Civil War, and describes how West Germany outlawed capital punishment in its constitution in 1949. The chapter discusses how international human rights law has evolved in the post-World War II period, with capital punishment coming under increased scrutiny and protocols to international and regional human rights conventions (e.g., the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocols 6 & 13 to the European Convention on Human Rights) abolishing or restricting the death penalty's use.
This chapter notes how ancient societies used capital punishment, highlighting methods of execution and various legal codes (e.g., Draco's Code and the Code of Hammurabi) authorizing executions. The chapter discusses the "divine right of kings," corporal punishments used in prior centuries, and the lex talionis doctrine. It also highlights how punishment practices were tied to religious and societial beliefs, including interpretation of religious texts. The chapter traces the change in the law from the Dark Ages to the Enlightenment, taking note of how judicial torture--a practice associated with contintental European civil law systems--was outlawed in certain locales in the eighteenth century even as harsh systems of punishment (e.g., the English "Bloody Code") persisted. The chapter also describes the Enlightenment thinkers--John Bellers, George Fox, William Penn, Voltaire, Montesquieu, Frederick II, Cesare Beccaria, and William Blackstone--who critiqued torture and capital punishment or called for the death penalty's abolition or curtailment. The chapter describes the death penalty's abolition in Tuscany (1786) and Austria (1787) and how the Enlightenment shaped the law.
This chapter describes the immutable characteristics of capital punishment, which kills people and uses death threats by state actors. Death threats are ordinarily treated as unlawful acts, with threats of impending death treated as psychological torture where a person is helpless to prevent death. The chapter discusses how mock executions and various corporal punishments are already treated as torturous acts, including by laws and legal commentators. After discussing the duty of government officials to protect people, including inmates, from harm, as well as how jurists in multiple jurisdictions have recognized the death row phenomenon (i.e., the suffering associated with prolonged stays on death row), the chapter describes how countries have refused to extradite individuals without assurances that the death penalty will not be sought. The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains a "lawful sanctions" carve-out to the definition of torture, but case law makes clear that lawful sanctions cannot themselves amount to torture. The chapter argues death sentences inflict severe pain and suffering amounting to torture.
The Conclusion summarizes the book's major themes and arguments, concluding that the death penalty has the immutable characteristics and indicia of torture. The Conclusion asserts that capital punishment violates fundamental human rights, including the right to be free from torture. Non-lethal corporal punishments and mock executions have already been prohibited by law, and the Conclusion asserts that capital punishment should be barred by an existing jus cogens norm--the peremptory norm of international law absolutely prohibiting torture--to stigmatize the practice of capital punishment as a torturous one that has no place in the twenty-first century or in law.
The Death Penalty's Denial of Fundamental Human Rights details how capital punishment violates universal human rights-to life; to be free from torture and other forms of cruelty; to be treated in a non-arbitrary, non-discriminatory manner; and to dignity. In tracing the evolution of the world's understanding of torture, which now absolutely prohibits physical and psychological torture, the book argues that an immutable characteristic of capital punishment-already outlawed in many countries and American states-is that it makes use of death threats. Mock executions and other credible death threats, in fact, have long been treated as torturous acts. When crime victims are threatened with death and are helpless to prevent their deaths, for example, courts routinely find such threats inflict psychological torture. With simulated executions and non-lethal corporal punishments already prohibited as torturous acts, death sentences and real executions, the book contends, must be classified as torturous acts, too.
On June 8, 1789, James Madison — then a member of the U.S. House of Representatives — rose in the First Congress to propose a set of amendments to the recently ratified U.S. Constitution. “This day, Mr. Speaker,” he said, “is the day assigned for taking into consideration the subject of amendments to the constitution.” Some of his congressional colleagues thought the discussion premature, but Madison persisted, contending that “[t]he applications for amendments come from a very respectable number of our constituents, and it is certainly proper for Congress to consider the subject, in order to quiet that anxiety which prevails in the public mind.” Madison had sorted through nearly two hundred recommendations for constitutional amendments, and he wanted Congress to act promptly. “I hold it to be my duty to unfold my ideas, and explain myself to the House in some form or other without delay,” Madison stressed.
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