The death penalty is on the decline, if not yet on its deathbed. As death sentences and executions have declined globally,¹ the number of countries that have abolished capital punishment, either in law or in practice, has grown substantially in the last several decades.² Annual statistical data compiled by Amnesty International in 2021 shows that only a small fraction of the world’s countries now actively use executions.³ Decades earlier, in December 1977, Amnesty International had led the way by convening a major international conference on capital punishment in Stockholm, Sweden, to coincide with the group’s acceptance of the Nobel Peace Prize in Oslo, Norway.⁴ That conference resulted in the Declaration of Stockholm – a declaration expressing “total and unconditional opposition to the death penalty.”⁵ The world has more than 190 countries,⁶ but globally, executions are becoming more and more of an outlier. Amnesty International’s 2018 annual report on capital punishment recorded executions in only twenty nations,⁷ with Amnesty’s 2020 annual report reflecting that, for that year, the number of executions decreased by 26 percent in comparison to 2019 and the number of known executing countries fell to eighteen. “The significant drop,” the 2020 report observed of state-sanctioned executions, “was primarily linked to important reductions in executions in two of the countries that have historically reported high execution figures, Iraq and Saudi Arabia; and to a lesser extent some hiatuses that took place in response to the Covid-19 pandemic.” “The global total of newly imposed death sentences known to Amnesty International (at least 1,477),” the 2020 report added, “fell by 36% compared to 2019, partly because the Covid-19 pandemic caused disruptions and delays in criminal proceedings across the world.”⁸

The vast majority of the world’s highly industrialized countries, including in Europe, have now either outlawed capital punishment or no longer use it.⁹ Although Japan and the United States (or, more accurately, certain American jurisdictions) remain notable holdouts, all of Europe, except Belarus and Russian-occupied portions of eastern Ukraine, has become a death-penalty-free zone.¹⁰ In addition, many developing nations, national constitutions, and judicial systems around the globe no longer permit executions. The Hungarian Constitutional Court and the Constitutional Court of South Africa, for example, declared the death penalty unconstitutional in 1990 and 1995, respectively, with many other countries, including Mexico (2005), Albania (2007), Rwanda (2007), Bolivia (2013), Mongolia (2015), and Chad (2020), abolishing capital punishment in subsequent decades.¹¹ Already, many countries (e.g. Austria, Colombia, Ecuador, Germany, Honduras, Iceland, Italy, Mozambique, The Netherlands, Nicaragua, and Panama) explicitly prohibit the death penalty’s use in their constitutions.¹² In a 2017 amicus brief submitted to the US Supreme Court in support of Abel Daniel Hidalgo’s challenge to Arizona’s death penalty law, Amnesty International emphasized that – at that time – 105 countries had abolished the death penalty, more than two-thirds of the world’s nations had ceased using executions (either in law or practice), and fifty-six countries that had repealed the death penalty for all crimes had enshrined the death penalty’s abolition in their national constitutions.¹³

This represents a sea change with respect to state practice. According to Amnesty International, the number of abolitionist countries stood at just eight in 1945, the year the United Nations was founded, and at only sixteen in 1977, when Amnesty International was awarded the Nobel Peace Prize for its “defence of human dignity against torture, violence, and degradation.”¹⁴ It was in the 1970s that Amnesty International launched its global campaign against capital punishment,¹⁵ ultimately leading to the landmark Declaration of Stockholm (1977). The declaration proclaimed that “[a]bolition of the death penalty is imperative for the achievement of declared international standards”; called upon “[a]ll governments to bring about the immediate and total abolition of the death penalty”; and asked “[t]he United Nations unambiguously to declare that the death penalty is contrary to international law.”¹⁶ Two years earlier, the World Medical Association’s Declaration of Tokyo (1975) – which physicians later reaffirmed¹⁷ – had declared that doctors “shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offense of which the victim of such procedures is suspected, accused or guilty” and that doctors “shall not be present during any procedure during which torture or other forms of cruel, inhuman or degrading treatment are used or threatened.”¹⁸ In spite of a perception of long odds, even by its own front-line organizers, Amnesty International’s campaign proved to be highly successful.

The global shift in attitudes was dramatic. By 1980, the number of abolitionist countries had expanded to approximately sixty, although in the years ahead, many nations and their leaders – clinging to habit and tradition – chose to retain capital punishment even as more and more nations abandoned that practice or restricted its use to limited circumstances. As Egyptian-American law professor M. Cherif Bassiouni (1937–2017), then president of the International Association of Penal Law, wrote in 1993 of the death penalty’s status:

By 2012, Juan Méndez – the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – had this to say: “Although it may still be considered that the death penalty is not per se a violation of international law, my research suggests that international standards and practices are in fact moving in that direction.” As Méndez explained of the state of the law he observed: “International law decidedly encourages abolition of the death penalty but does not require it. There is evidence, however, of an evolving standard within regional and local jurisprudence and state practice to frame the debate about the legality of the death penalty within the context of the fundamental concepts of human dignity and the prohibition of torture and CIDT.”²⁰ “CIDT” is the standard abbreviation of “cruel, inhuman or degrading treatment.”

In the twenty-first century, death sentences are increasingly the exception rather than the rule. By 2020, a record 123 nations voted in favor of a UN General Assembly resolution calling for a global moratorium on executions.²¹ In that year, the number of known executions around the globe fell to the lowest level that Amnesty International had recorded in at least a decade.²² After the plenary session of the UN General Assembly adopted the moratorium resolution in December 2020, Rajat Khosla, an Amnesty International representative, had this to say: “Countries which still practice the death penalty must treat this as a wake-up call – state-sponsored executions have no place in the modern world, or in any society committed to upholding human rights.” “This resolution brings us one step closer to consigning the death penalty, the ultimate cruel, inhuman and degrading punishment, to the history books,” he said. “We call on states that retain the death penalty,” he added, “to immediately establish a moratorium on executions, as a first step towards abolishing its use completely.”²³ In 2021, Malawi’s highest court declared capital punishment unconstitutional and Sierra Leone became the twenty-third African country to abolish it, with its critics calling the death penalty a vestige of colonialism.²⁴ In signing the bill, Sierra Leone’s president, Julius Maada Bio, called capital punishment “inhumane,” observing: “As a nation, we have today exorcised horrors of a cruel past.” Sierra Leone’s last executions were carried out in 1998, when twenty-four military officers were executed after a coup attempt.²⁵

The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm details why international law and domestic legal systems should no longer tolerate capital punishment. In particular, the book explains why the death penalty – still seen by a dwindling number of retentionist countries, in modern parlance, as a “lawful sanction”²⁶ – violates an individual’s right to life and is at odds with human dignity, the concept at the very heart of the world’s international human rights regime.²⁷ After all, if an individual is treated as sub-human and deprived of the right to life, that individual will have been deprived of all rights. The book also explains why capital punishment violates longstanding legal prohibitions against arbitrary, discriminatory, and excessive or disproportionate punishments, and how the death penalty is totally incompatible with the Rule of Law ideal and the existing bar on torturous punishments.

Twenty-first-century lawmakers and jurists – guided by human rights principles and using their own moral consciences – must abolish and outlaw capital punishment everywhere. The book argues that since the publication of the Italian philosopher Cesare Beccaria’s Dei delitti e delle pene (1764), the first published text to make a comprehensive case against capital punishment,²⁸ the law’s protection of human rights has evolved to a point such that the death penalty should be absolutely barred throughout the world in both peacetime and wartime. As Victor Hugo, the author of the novel Le Dernier Jour d’un Condamné (The Last Day of a Condemned Man, 1829), himself elegantly sought more than a century and half ago in an 1848 speech to France’s Constituent Assembly: “l’abolition pure, simple et définitive de la peine de mort” (the pure, simple, and definitive abolition of the death penalty). In a preface to the 1832 edition of his novel, Hugo – calling the death penalty’s abolition “the highest, holiest, most noble aim” – gave specific credit to Beccaria for condemning the practice that had “loomed over Christianity for centuries.”²⁹ In short, the global community, through the mechanism of international law, additional national constitutions, judicial decisions, and the passage or repeal of domestic laws, should insist on the death penalty’s total abolition and finally relegate executions to the past.³⁰

International law, or the “law of nations,” is the set of laws and norms governing relations between countries.³¹ It emerged to guide diplomacy, war, and trade, but it also articulates general principles of human rights. Already, international law strictly prohibits various vile and atrocious acts, such as genocide, slavery, war crimes, and torture, because of their grotesque cruelty and inhumanity. Such legal prohibitions, reflected in UN conventions, customary international law, and other sources of law, are generally accepted to embody jus cogens norms that bind all nations, notwithstanding any treaties or domestic laws to the contrary.³² The jus cogens terminology has its roots in Roman law and describes peremptory norms from which no country can deviate no matter the circumstances.³³ As Black’s Law Dictionary defines jus cogens, the Latin phrase for “compelling law”: “A mandatory or peremptory norm of general international law accepted and recognized by the international community as a norm from which no derogation is permitted.”³⁴ In 2017, Nils Melzer, the UN Special Rapporteur on Torture, opined that:

With more and more countries abandoning capital punishment, the international community may be on the cusp of renouncing the death penalty’s use in all circumstances, although the decades-old International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966, still purports to allow executions for “the most serious crimes.” Certainly, premature predictions of the death penalty’s demise have been made over time. It’s worthwhile, however, to recall the way things once were and just how far the global community has come since World War II as regards abolition. Thirty years after the Paris Peace Treaties (1947), Amnesty International, the London-based NGO that now has regional offices throughout the world, was instrumental in producing the Declaration of Stockholm. Despite its present-day global reach, the NGO has decidedly humble origins and was initially not even focused on convicted offenders who’d been sentenced to death. It was formed in 1961 by British lawyer Peter Benenson after he read a newspaper on the London Underground about two individuals who’d been arrested, tried, and sentenced to terms of imprisonment in Portugal. They had, according to some accounts, simply raised their glasses at dinner in a toast to freedom. As Benenson recalled in a 1962 interview with BBC radio over what drew his ire in late 1960 about the plight of the Portuguese citizens: “The only evidence against them was that over the dinner table they’d conspired to overthrow the government. I thought then ‘what a crazy world this is, when two friends can’t have dinner together without being arrested.’”³⁶

Amnesty International’s work originally focused exclusively on the release of prisoners of conscience – persons imprisoned around the globe for the nonviolent expression of their political beliefs.³⁷ Eventually, that core mission expanded to address more human rights abuses, including those pertaining to all offenders condemned to death.³⁸ In 1971, the NGO requested that the United Nations and the Council of Europe “make all possible efforts” to eliminate executions worldwide. Three years later, the organization pledged to oppose “by all appropriate means the imposition and infliction of death penalties and torture or other cruel, inhuman or degrading treatment or punishment of prisoners or other detained or restricted persons whether or not they have used or advocated violence.”³⁹ And then came its much-publicized international campaign against capital punishment, with more than 200 delegates from Africa, Asia, Europe, the Middle East, North and South America, and the Caribbean producing the Declaration of Stockholm (1977). That declaration specifically recited that “[t]he death penalty is the ultimate cruel, inhuman and degrading punishment and violates the right to life.”⁴⁰

Amnesty International’s two-day conference in Stockholm, Sweden, in December 1977 began with a twenty-four-hour public vigil against capital punishment, with the conference’s stated goal – as Amnesty International’s Secretary General Martin Ennals announced – to produce a declaration against the death penalty. Its opening session was chaired by former Rhodesian Prime Minister Garfield Todd, who’d been detained for five and a half years by a successor government – that of Prime Minister Ian Smith – after he’d become critical of white minority rule.⁴¹ Activists and prominent public figures from more than fifty nations took part in the conference. Among them: Swedish Premier Thorbjörn Fälldin, Swedish Foreign Minister Karin Soder, and 1974 Nobel Peace Prize winner Seán McBride from Ireland. From the United States: Henry Schwarzschild (a leader of the ACLU’s Capital Punishment Project who, in 1976, founded the National Coalition to Abolish the Death Penalty), Hugo Adam Bedau (a leading academic and the author of The Death Penalty in America), Deborah Leavy (the director of the ACLU’s Capital Punishment Project), and former US Attorney General Ramsey Clark.⁴² An outspoken critic of capital punishment, Clark had written a report railing against the increasing use by governments of “summary executions under color of law to eliminate opposition, deter dissent and protest and to terrorize the populace.”⁴³ In 1976, before the Subcommittee on Criminal Law and Procedures of the US Senate Judiciary Committee, Clark had said that executing a criminal “will not undo the crime, prevent other crimes, or bring justice to the victim, the criminal or society.” “Executions cheapen life,” he’d observed.⁴⁴

In promoting the Stockholm Declaration, Thomas Hammarberg, Amnesty International’s Swedish chairman, said at a press conference in December 1977 that the group’s campaign against torture had gained initial support because governments were ashamed of using torture.⁴⁵ He predicted, however, that the NGO’s global campaign against capital punishment would “not be popular.” “Nowadays,” he said, “most countries are ashamed of using torture and do not readily admit to that.” “But many,” he observed, “seem almost proud to declare they apply the death penalty and look upon executions as a demonstration of power.”⁴⁶ With Amnesty International calling executions an “act of violence which fosters further violence,” the 1975 Nobel Peace Prize laureate, nuclear physicist, dissident, and Soviet Union human rights advocate, Andrei Sakharov, weighed in with a letter, declaring: “I fully support the basic arguments advanced by opponents of the death penalty.” He said that abolition was “especially important in a country as ours, with its unrestricted dominance of state power and uncontrollable bureaucracy and its widespread contempt of law and moral values.” Although the number of executions in the Soviet Union was unknown, Sakharov said “there are grounds to suspect that it now comprises several hundred persons per year.”⁴⁷ Meanwhile, Amnesty International’s Martin Ennals braced for a long and arduous fight. “It’s more than just the start of a campaign,” he observed, asserting: “A campaign has a beginning and an end. The fight to abolish the death penalty is something more.”⁴⁸

In tracking the world’s emerging anti-death penalty norm, this book contemplates that, in time (and hopefully, in very short order), international law will bar the death penalty without any exception, even in wartime. It’s impossible to predict the future, unknowable when death sentences and executions will finally wither away and disappear worldwide. And it’s hard to forecast when capital punishment might be absolutely prohibited by international law’s highest level of protection for human rights: a jus cogens norm. But there’s a growing consensus at the United Nations that executions should be prohibited, and multiple jus cogens norms already protect fundamental human rights – a fact that indicates a strict prohibition on the death penalty is not only possible, but plausible. “The legal literature,” DePaul University law professor, M. Cherif Bassiouni, the godfather of international criminal law, wrote back in 1996 of the law’s then-existing state, “discloses that the following international crimes are jus cogens: aggression, genocide, crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture.” “Sufficient legal basis exists to reach the conclusion that all these crimes are part of jus cogens,” he said, adding:

Existing legal scholarship on international law and universal jurisdiction reveals that a well-settled consensus exists that the bars against apartheid, crimes against humanity, crimes against peace, extrajudicial killing, forced disappearances, genocide, maritime piracy, murder, prolonged arbitrary detention, racial discrimination, slavery, torture, and war crimes have already achieved jus cogens status.⁵⁰ In The Treatment of Prisoners under International Law (2009), one international law expert, the late Nigel Rodley, wrote of one of those jus cogens norms: “[T]he prohibition of torture has been widely recognised as being not only a rule of customary international law, but one of the very few jus cogens or peremptory norms of general international law, and there is evidence too that this status extends to the whole of the prohibition of torture and other cruel, inhuman and degrading treatment or punishment.”⁵¹ The prohibition against torture, Rodley pointed out, has been “recognised by a variety of tribunals and inter-governmental bodies to constitute just such a ‘peremptory’ jus cogens norm.”⁵² The law of armed conflict itself prohibits torture, although whether the widely adopted CIDT prohibition is a jus cogens norm is still contested by some.⁵³ What is very clear: if the death penalty were to be reclassified as a form of torture, as this book asserts it must be, the use of executions would become absolutely prohibited by the existing jus cogens norm barring torture.

Both international humanitarian law and international human rights law protect a variety of human rights. From the Geneva Conventions, to the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), to post-UN Charter treaties governing specific topics, provisions of international law – along with regional human rights systems and domestic legal systems – proscribe official and other actions that violate fundamental human rights.⁵⁴ For instance, international law protects the right to life⁵⁵ and the right to “the enjoyment of the highest attainable standard of physical and mental health.”⁵⁶ It also abhors arbitrariness,⁵⁷ discrimination,⁵⁸ slavery,⁵⁹ and torturous and other cruel, inhuman, and degrading punishments⁶⁰ as reflected in specific covenants, treaties, and other provisions of law protecting individual rights.⁶¹ Whereas the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “CAT”)⁶² prohibiting torture and CIDT entered into force in 1987, major UN treaties forbidding racial⁶³ and gender discrimination⁶⁴ entered into force in 1969 and 1981, respectively. All of these legal prohibitions now constitute important norms of international law – norms that should be carefully considered in evaluating capital punishment regimes. The right to life and its associated right, not to be arbitrarily deprived of life, are explicitly codified in Article 6 of the ICCPR, with the ICCPR making clear the right to life is nonderogable.⁶⁵

Because capital prosecutions, death sentences, and executions violate basic human rights, their use, when fairly and objectively considered in light of their inherent characteristics, should be seen as irreconcilable with existing precepts of international law. They violate the all-important right to life (although the ICCPR, on its face, purports to allow death sentences “for the most serious crimes” in countries “which have not abolished the death penalty”), and their arbitrary and capricious use flies in the face of a robust understanding of the Rule of Law and Article 6 of the ICCPR, which declares that “[n]o one shall be arbitrarily deprived of his life.”⁶⁶ The Rule of Law is the foundation of free and democratic civil societies and – properly understood – requires the protection of universal human rights and a fair, even-handed, and nonarbitrary administration of justice.⁶⁷ Capital prosecutions and death sentences, by contrast, deliberately seek to put people to death, thereby dehumanizing them and subjecting them to extreme anxiety and torturous fear of loss of life.⁶⁸ As Dr. Amy Maguire, a lecturer at the University of Newcastle’s law school, writes: “[T]he death penalty is torturous. Not only does capital punishment inflict pain and suffering at the time of execution, but it imposes years of mental anguish on death row inmates.”⁶⁹ The punishment of death certainly produces psychological terror, and, when executions occur, causes lethal bodily harm, too, transgressing the concept of human dignity upon which the UN Charter⁷⁰ and the world’s post-World War II international human rights system is built.⁷¹

These realities make the death penalty ripe for abolition under international law and in countries – these days, mostly totalitarian or authoritarian ones – where executions are still being regularly carried out.⁷² In the twenty-first century, international law should not tolerate the use of torturous, discriminatory, and capriciously inflicted punishments such as executions. Like nonlethal corporal punishments (e.g. ear cropping, the pillory) long abandoned by civilized countries,⁷³ state-sanctioned killing makes a mockery of basic human rights principles. Indeed, an immutable characteristic of any capital punishment regime is that it involves the use of torturous death threats. Because credible death threats intentionally inflict severe pain and suffering, and because executions strip individuals of the right to have rights,⁷⁴ the death penalty must be seen – as it already has been by some – as an illegitimate use of state power. As Judge Sergio García Ramírez, of the Inter-American Court of Human Rights, wrote more than ten years ago in a concurrence in DaCosta Cadogan v. Barbados (2009): “The day must come when universal consensus – which for now does not appear to be near – establishes the prohibition of capital punishment within the framework of jus cogens, as in the case of torture.”⁷⁵

The Death Penalty’s Denial of Fundamental Human Rights contends that that contemplated day, once thought far off, should be declared to have arrived. The use of capital punishment, with its employment of death threats, violates basic human rights, and it’s time to forthrightly say so – and in no uncertain terms, just as the Declaration of Stockholm did in the late 1970s. In recognition of its inherently torturous characteristics, lawmakers in retentionist countries should promptly abolish capital punishment and jurists should swiftly adjudicate death penalty regimes to be violative of core human rights, including the right to be free of torture. In particular, they should declare in laws and judicial opinions that executions fall squarely within the rubric of torture and interpret the existing jus cogens norm prohibiting torture⁷⁶ to encompass capital punishment. There’s actually no need to establish a new jus cogens norm; it only needs to be recognized that the death penalty’s use constitutes torture.

Many have advocated for capital punishment’s abolition to help achieve broader criminal justice reform that is less punitive in nature. “We must abolish the death penalty,” Brandon Garrett – now a Duke Law School professor – emphasizes in End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice (2017).⁷⁷ At a minimum, the death penalty’s use inflicts extreme and impermissible psychological torture, although the death penalty obviously ends physical lives, too. Indeed, unlike nonlethal corporal punishments such as limb amputations or flogging (already considered torturous but that leave the targets of them alive but maimed in some fashion), executions irretrievably take lives. Leaders of the United Nations have themselves called for the death penalty’s abolition, with the UN General Assembly repeatedly voting for a global moratorium on executions.⁷⁸ As one of the United Nations’ past leaders, the late Secretary-General Kofi Annan, put it in 2000: “The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.”⁷⁹ “It has no place in the 21st century,” his successor, Ban Ki-moon, likewise said in 2016 of capital punishment, adding: “Let our actions always be guided by the moral compass of human rights – the most effective route to a safer, more just and secure world.”⁸⁰ Following the parliament of Sierra Leone’s unanimous July 2021 vote to abolish capital punishment, UN Secretary-General Antonio Guterres specifically commended that country’s laudable decision. “The death penalty has no place in the 21st century,” he declared.⁸¹

In the past, lawmakers and judges regularly viewed executions (and for that matter, various nonlethal corporal punishments) as something other than torture. Whereas the English common law and prominent Enlightenment thinkers justly denounced the use of torture as then understood,⁸² judicial torture was part and parcel of sixteenth- and seventeenth-century continental criminal procedure⁸³ and the death penalty was often employed as a matter of course even in eighteenth-century societies that had specifically renounced torture. While Sir William Blackstone, the English jurist, proclaimed in his Commentaries on the Laws of England (1769) that “the trial by rack is utterly unknown to the law of England,” the English “Bloody Code” made scores of crimes (more than 200 at one point) capital offenses.⁸⁴ Many eighteenth-century penal reformers totally abhorred torture, but nonetheless tolerated the death penalty’s use for certain crimes (e.g. treason, murder, and rape), often seeking simply to reduce the number of capital offenses (or nonlethal corporal punishments) instead of eliminating them altogether. For example, American revolutionary Patrick Henry worried about “tortures” and denounced “the practice of France, Spain, and Germany” of “torturing” to extract confessions.⁸⁵ Yet, like many fellow American revolutionaries, Henry worked only to limit the death penalty to fewer crimes.⁸⁶ Some eighteenth-century thinkers (e.g. Pennsylvania’s Dr. Benjamin Rush) opposed executions in all circumstances, but that was not then the prevailing societal view in America or England, with hangings regularly taking place in both countries.⁸⁷ In his 1783 draft of a Virginia constitution, Thomas Jefferson – the future American president – sought “to prescribe torture in any case,” but also nonetheless provided that the General Assembly would have the power to authorize the death penalty for “treason or murder, or offences in the military line.”⁸⁸

The English “Bloody Code” persisted long past America’s Revolutionary War (1775–83), although in the United States the death penalty was substantially curtailed – though not eliminated – in the decades following the issuance of America’s Declaration of Independence (1776), with the Second Continental Congress proclaiming the “unalienable” right to life.⁸⁹ In the second volume of Democracy in America (1840), Alexis de Tocqueville – the Frenchman who studied America’s penitentiary system, one seen as the antidote to England’s “sanguinary” system – tellingly wrote: “While the English seem disposed carefully to retain the bloody traces of the dark ages in their penal legislation, the Americans have almost expunged capital punishment from their codes.” “The legislators of the United States, who have mitigated almost all of the penalties of criminal law,” he observed, “still make rape a capital offence,” saying “no crime is visited with more inexorable severity by public opinion.”⁹⁰ In Society in America (1842), Harriet Martineau, the English social theorist and American tourist, herself clarified after visiting the United States – a country still split over the question of slavery, but increasingly, including through the vehicle of jury verdicts and jury nullification, questioning the need for capital punishment – that “[t]he frequent impunity of the most serious crimes arises from the growing enmity of opinion to the punishment of death.” “There can be little doubt,” she predicted in the mid-nineteenth century, “that in a short time capital punishments will be abolished throughout the northern States.”⁹¹

Although early predictions of capital punishment’s demise proved – time and time again – to be mistaken, capital punishment and draconian corporal punishments should be treated by the law today as torture – a concept that’s evolved significantly over the centuries as societal attitudes toward it (and punishments and human dignity) have shifted like tectonic plates. In modern times, torture is no longer seen as operating exclusively on the body, as it was during the Roman or Spanish Inquisition and in prior centuries.⁹² Back in 1612, the Italian jurist Sebastian Guazzini specifically defined torture “as the distress of body devised for extracting truth.”⁹³ “[I]n the seventeenth century,” scholar Monica Luci likewise explains of judicial torture’s prior focus in continental Europe on the infliction of physical suffering, “the civil lawyer Bocer said that: ‘Torture is interrogation by torment of the body, concerning a crime known to have occurred, legitimately ordered by a judge for the purpose of eliciting the truth about said crime.’”⁹⁴ In Torture and the Law of Proof: Europe and England in the Ancien Régime, historian John Langbein emphasizes that continental judicial torture “was part of the ordinary criminal procedure, regularly employed to investigate and prosecute routine crime before the ordinary courts.”⁹⁵

Dignity itself was not viewed as a universal or inclusive right in seventeenth- and eighteenth-century life. Instead, it was understood – as one scholar explains – “against the backdrop of Europe’s aristocratic history,” with “its traditions of according dignified treatment to the high-born and high-status.”⁹⁶ “[H]istorically,” one source points out, “Europe’s elites were entitled to private and less painful punishments than commoners for specific crimes.”⁹⁷ Modern jurists, by contrast, frequently invoke human dignity (whether as a human right in and of itself or as a concept undergirding other rights) as protecting everyone’s rights,⁹⁸ even prisoners,⁹⁹ and no longer issue torture warrants to procure admissions or confessions.¹⁰⁰ Unlike in prior centuries, discrimination is now expressly prohibited, with the US Constitution’s Fourteenth Amendment, for instance, not only ensuring “due process of law” (as does the Fifth Amendment), but also guaranteeing “equal protection of the laws.”¹⁰¹ Other constitutions and international declarations and conventions also promise equality of treatment. The Universal Declaration of Human Rights specifically states: “All are equal before the law and are entitled without any discrimination to equal protection before the law.” Likewise, the UN Convention on the Elimination of All Forms of Racial Discrimination obligates States Parties to guarantee the right of “equality before the law.”¹⁰²

Mental or psychological torture, which may leave no physical marks on the body, is also now expressly prohibited by the UN Convention Against Torture and various multilateral treaties (e.g. the Inter-American Convention to Prevent and Punish Torture (1987)) and domestic laws (e.g. in Germany) alongside physical torture.¹⁰³ Indeed, the law has changed substantially since criminal suspects – whether by a monarch or seventeenth-century judge’s direction – were subjected to excruciatingly painful bodily torture to secure confessions or in an effort to implicate or discover accomplices.¹⁰⁴ While civil law countries once regularly authorized judicial torture,¹⁰⁵ and while Tudor and Stuart monarchs infamously signed royal warrants allowing their English subjects to be tortured in the Tower of London or elsewhere,¹⁰⁶ international law and domestic laws now strictly prohibit torture.¹⁰⁷ And legal systems regularly exclude evidence in criminal cases obtained by torture or other impermissible forms of coercion.¹⁰⁸ In short, torturous judicial practices and punishments seen in medieval times and prior centuries as perfectly acceptable (e.g. breaking on the wheel, crucifixion, the thumbscrew, and the rack) are now seen as totally unacceptable acts of torture.¹⁰⁹

The Death Penalty’s Denial of Fundamental Human Rights concludes that the existing jus cogens norm barring torture must inevitably be construed to encompass state-sanctioned killing – an extreme form of cruelty eclipsing in severity assorted nonlethal torture techniques and torturous corporal punishments.¹¹⁰ The US Court of Appeals for the Third Circuit has already described limb amputation as torture,¹¹¹ and in addressing the topic of torture, UN Special Rapporteur Manfred Nowak previously decried “continuing occurrences of the practice of corporal punishment, such as amputation, stoning, flogging and beating.”¹¹² Horrific practices involving mutilation of the body (e.g. female genital mutilation) or the threat of amputation or mutilation have likewise been categorized as torture by courts and legal commentators.¹¹³ Article 147 of the Fourth Geneva Convention (1949) itself lists “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health,” as grave breaches, with Article 32 of that Convention – titled “Prohibition of Corporal Punishment, Torture, Etc.” – reading:

Torture is the aggravated or extreme form of cruelty,¹¹⁵ with the Universal Declaration of Human Rights and the ICCPR both providing in absolute terms: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”¹¹⁶ While the Universal Declaration and the ICCPR generically bar “torture,” both physical and mental torture are specifically prohibited by other human rights declarations, provisions of international law, and an array of national and state laws.¹¹⁷ Such legal prohibitions are included in the Geneva Conventions,¹¹⁸ the Convention Against Torture,¹¹⁹ and other treaties.¹²⁰ Reflecting torture’s shameful and taboo nature, various constitutions¹²¹ and domestic laws¹²² adopted over the years also bar it. Torture techniques documented by experts and NGOs such as Amnesty International and Human Rights Watch include simulated suffocation¹²³ or drowning (namely, waterboarding)¹²⁴ and mock executions.¹²⁵ The latter practice – already recognized as a form of psychological torture¹²⁶ – has been called “a stratagem in which a victim is deliberately but falsely made to feel that his execution or that of another person is imminent or is taking place.” As Gary Solis, who directed West Point’s law of war program, notes in The Law of Armed Conflict: International Humanitarian Law in War (2016), both the UN Human Rights Committee and the Inter-American Commission on Human Rights consider mock executions torture.¹²⁷ If mock executions constitute torture, what about real executions?

As documented in The Death Penalty’s Denial of Fundamental Human Rights, the global shift in societal attitudes about torture and crime and punishment from the pre-Enlightenment and Enlightenment periods to the modern era is dramatic. Whereas the Italian criminal-law theorist Cesare Beccaria wrote about torture and capital punishment in separate chapters of his seminal treatise, Dei delitti e delle pene (1764),¹²⁸ the law’s treatment of the state’s “ultimate sanction” – capital punishment – has changed markedly in the intervening centuries, especially as death sentences have started to be recognized as cruel or torturous in nature. With more and more countries, states, and judicial systems abandoning its use, the death penalty has gone from being a more or less universally accepted punishment for murder and other felonies to being a punishment that has been denounced, jettisoned, or restricted by law in significant respects. Indeed, with an avalanche of anti-death penalty advocacy taking place around the globe since the 1960s and 1970s, capital punishment has become highly suspect – and in specific locales, such as Europe, an outright pariah.¹²⁹ Once seen as an acceptable or lawful practice in many countries, it is now seen as unlawful and violative of fundamental human rights. In 2012, Juan Méndez – the UN Special Rapporteur – himself wrote that “[t]he ability of States to impose the death penalty without violating the prohibition of torture and CIDT is becoming increasingly restricted.”¹³⁰ While international human rights law and humanitarian law already prohibit both torture and CIDT, torture is especially shunned and stigmatized by civilized nations.¹³¹ “The torture taboo,” writes Jamal Barnes in A Genealogy of the Torture Taboo (2017), “represents a symbol of the efforts taken by international society to abolish cruel and unnecessary suffering.”¹³²

The Enlightenment gave birth to the world’s anti-torture, anti-slavery, and anti-death penalty movements, but it did not end torturous practices, discrimination, human trafficking, or capital punishment.¹³³ Many countries outlawed torture,¹³⁴ but capital punishment and racial prejudice stubbornly persisted, although a few eighteenth-century locales temporarily forbade capital punishment (i.e.Tuscany and Austria) or restricted its use to certain offenses (think colonial Pennsylvania) even in the late seventeenth century.¹³⁵ Since the Enlightenment, massive social and technological change has occurred, with lawmakers no longer commuting to work by horseback and drafting legislation in cursive by candlelight. Legal systems and criminal laws and procedures have evolved substantially, including through the adoption of anti-discrimination provisions, with mandatory death penalty laws gradually giving way to discretionary capital sentencing schemes. In addition, the right to counsel has matured; legal codes have reduced the number of death-eligible offenses or abolished death sentences – or certain methods of execution – entirely; and public executions have given way in most places to private affairs carried out behind thick prison walls (or within adjoining enclosures) as societies and civic leaders grew uneasy – indeed, extremely queasy – about executions.¹³⁶ A question that was not posed until more recently, though, is this: is the death penalty itself an inherently torturous practice? That question is increasingly being raised by UN officials and those who have carefully examined the death penalty’s immutable characteristics and traits.¹³⁷

For many decades, lawyers, judges, and treaty drafters have raised much narrower questions as they’ve wrestled with capital punishment regimes: Do specific characteristics of the death penalty’s administration – as applied – constitute impermissible cruelty or torture? Are certain methods of executions unlawful? Should particular crimes (e.g. economic or nonmurder offenses) or particular classes of offenders (e.g. pregnant women, the elderly, those suffering from insanity or intellectual disabilities, or juvenile offenders) be ineligible for execution? The American Convention on Human Rights, to give but one example of how treaty drafters approached executions, states (in line with the ICCPR as initially conceived) that the death penalty “may be imposed only for the most serious crimes.” That convention also provides that “[i]n no case shall capital punishment be inflicted for political offenses or related common crimes,” and that “[c]apital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.”¹³⁸ Article 37 of the UN Convention on the Rights of the Child likewise expressly forbids capital punishment and life sentences for juvenile offenders. “No child,” it reads, “shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment shall be imposed for offences committed by persons below 18 years of age.”¹³⁹

In some retentionist locales, certain methods of execution have been declared unlawful. For example, in affirming Raymond Mata, Jr.’s death sentence for first-degree murder and kidnapping, the Supreme Court of Nebraska – in State v. Mata (2008) – nevertheless struck down death by electrocution as an unconstitutional means of execution under the auspices of that state’s constitution. “The evidence substantially supports the district court’s conclusion that electrocution ‘will result in unnecessary pain, suffering, and torture’ for some condemned prisoners,” it ruled, observing that “prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body.” The evidence, the court determined, “shows that death and loss of consciousness is not instantaneous for many condemned prisoners.” “We reject the State’s argument that electrocution would not be cruel and unusual punishment if a prisoner remained conscious for 15 to 30 seconds,” it held, giving this explanation of why it considered death by electrocution unconstitutional: “Fifteen to thirty seconds is not a blink in time when a human being is electrically on fire. We reject the State’s argument that this is a permissible length of time to inflict gruesome pain.” “We recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer,” the Nebraska Supreme Court emphasized, adding this cautionary coda: “But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes.”¹⁴⁰

The Death Penalty’s Denial of Fundamental Human Rights makes the case that, at this time in world history, international law should – as a matter of law and commonsense – reject the death penalty’s characterization as a “lawful sanction” or “lawful measure.”¹⁴¹ Capital punishment – in whatever form it is administered – should be reclassified as a per se torturous practice violative of a number of basic human rights. Such a reclassification would reflect the death penalty’s true character, also serving to put greater pressure on retentionist nations to outlaw it. If the death penalty were so reclassified, China, Iran, Iraq, Egypt, Saudi Arabia, the United States, and other users of executions might, in time (and maybe even in fairly short order), feel compelled to abandon the practice due to the additional stigma and potential legal consequences that the torture classification would bring with it. Torture has already been classified as a “universal jurisdiction” offense that may be prosecuted by states without regard to where the crime occurs,¹⁴² with the UN Convention Against Torture itself requiring ratifying states (1) to adopt legislation criminalizing torture, and (2) to provide for the exercise of universal jurisdiction to prosecute torturers.¹⁴³

The object of the UN Convention Against Torture, the UK Supreme Court ruled in R. v. Reeves Taylor (2019), was to “make torture … a criminal offence of universal jurisdiction enforceable by domestic courts” to “impose obligations on states actively to prevent and punish torture, including by means of universal jurisdiction.”¹⁴⁴ “The Convention Against Torture,” a reporters’ note to § 404 of the Restatement (Third) of Foreign Relations Law (1987) emphasizes, “in effect provides for universal jurisdiction.”¹⁴⁵ Noting that “the U.N. General Assembly placed the question of torture and cruel, inhuman or degrading treatment or punishment as a standing item on its agenda” in 1973, and that the UN General Assembly adopted a nonbinding Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1975 before a “seven-year drafting process” led to the UN Convention Against Torture, one legal commentator, Trent Buatte, points out:

Ultimately, the death penalty should be barred through the existing jus cogens norm prohibiting torture. There are, in reality, both lethal and nonlethal forms of torture, and the death penalty – like barbaric corporal punishments or techniques of torture employed centuries ago (and, in some instances, as illustrated by the CIA’s waterboarding of Guantánamo Bay detainees, even in recent times)¹⁴⁷ to try to extract confessions – should be classified as a uniquely horrific form of torture. Forbidding capital punishment through the jus cogens norm barring torture would, most significantly, further stigmatize the practice. As more and more of the world’s nations continue to reject capital punishment, sentences of death will, in time, only be put to use, if at all, by tyrannical regimes and rogue nations, such as in Kim Jung-un’s North Korea, whose human rights violations and torturous treatment of individuals must be denounced in the strongest terms possible. As one source observes of how international law absolutely rejects torture: “Torture is considered an international crime under treaty and customary international law. Its prohibition has been considered to form part of jus cogens.”¹⁴⁸ A declaration that the death penalty’s use violates the jus cogens norm barring torture would, above all else, reinforce the idea that certain human rights – among them, the right to be free from torture and cruelty and the right to be treated with dignity in a nonarbitrary, nondiscriminatory way – are universal in nature and cannot be violated by any state, in any place, under any circumstances.