The intrinsic weakness of the death penalty as a justifiable measure lies in the fact that it is irreversible and irrevocable. Numerous examples bear testimony to the fact that even the highest judicial system of any country can make mistakes, that innocent persons have been dealt the death penalty time and again, that persons on the death row had been granted last minute reprieve when their innocence had been proved. Studies reveal that more than 200 people have been wrongfully convicted of serious crimes such as murder and rape in California alone since 1989 (Martin).
In the United States, 123 persons have been exonerated and released from death row since 1973 (Death Penalty Information Center). A 1980s study in the United States identified 353 cases since the turn of the century of wrongful convictions for offences punishable by death and 25 innocent persons were actually executed (John Howard Society of Ontario). The death penalty leaves no scope for errors in judgment. If a person is found to be innocent after the sentence has been carried out, there is no way in which the wrong can be undone.
Unlike in other cases, the option for compensation for a wrong done is also completely ruled out in the case of the death penalty. It is therefore assumed that the state and the judicial mechanism are infallible, that there can be no mistakes. The facts have proved this assumption wrong. The core issue of human rights The most damning case against the death penalty is that it is an infringement on the most fundamental of all human rights – the right to life. A death penalty is imposed in the name of the state.
But does the state actually have the right to deprive a person of his or her life? It could be a dangerous proposition even to believe so. Hitler’s Germany believed in the absolute right of the state. The consequences mark a very dark period in the history of humankind. Are we tempting fate again by according the state the right to impose and execute the death penalty? In the December 1948 Universal Declaration of Human Rights, nations of the world came together to ensure the fundamental rights of every person.
These human rights were not subject to the will of the state, but were declared to be inherent in every human being. It was not the state’s prerogative to grant or withdraw the human rights. The fundamental human rights therefore put limitations on what a state may do to a person. The Universal declaration recognizes each person’s right to life. The death penalty is therefore a fragrant violation of human rights. Human rights preserve the dignity of the individual. There can be no justification inhuman and cruel treatment and punishment that degrades the essence of humanity.
The death penalty inflicts the most severe kind of mental and physical torture not only on the condemned, but also on al those who are related to the condemned. Every member of the society also has to own responsibility as a constituent unit of the state. In fact, the broader understanding of human rights issue has been the basis of abolition of the death penalty in many countries. In 1995, Spain abolished the death penalty on the grounds that the death penalty simply could not be fitted into the penal system of advanced and civilized societies, that depriving a person of life was too degrading or afflictive a punishment (Hood 14).
The South African Constitutional Court (154) in its historic opinion when banning the death penalty commented that the death penalty violated the right to life and dignity which is the most important of all human rights. And by banning the death penalty, the state was effectively demonstrating the fact. Countries such as Singapore and Trinidad and Tobago have had to deny that the death penalty was a violation of human rights in order to carry on with their practice of the death penalty. However, the fact that the death penalty is a critical human rights issue has gained increasing acceptance at the international level.
In 1997, the U. N. High Commission for Human Rights approved a resolution stating that the "abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights. ” (12) Subsequent resolutions strengthened this resolution by restricting the offences for which the death penalty could be imposed, eventually leading to abolition. The member states of the Council of Europe have established Protocol 6 to the European Council on Human Rights advocating the abolition of the death penalty.
On the same grounds, the European Union had made the abolition of the death penalty a precondition for entry into the Union. This had resulted in the halting of executions in many east European countries such as Russia, Poland, Yugoslavia, Serbia, Montenegro and Turkey which had applied for membership to the Union. Not an eye for an eye Proponents of the death penalty attempt to justify their stand on the principle of lex talionis or ‘eye-for-an-eye’ which advocates that violence must in some measure be answered by violence or that the punishment should fit the crime.
They believe that such retribution serves justice to murder victims and their survivors. Robert Blecker of the New York Law School testified: “Naturally grateful, we reward those who bring us pleasure. Instinctively resentful, we punish those who cause us pain. Retributively, society intentionally inflicts pain and suffering on criminals because and to the extent that they deserve it. But only to the extent they deserve it…. Justice, a moral imperative in itself, requires deserved punishment. ” Just as the individual do not have the right to kill, society also should not be empowered to kill.
The retribution theory would dictate that the rapist be raped and the house of the arsonist be set on fire. Such a policy would go against the basic tenets of justice. If violence can be justified by violence than it follows that every act of violence whether perpetuated by the state or the individual would be justifiable on some ground or the other. Retribution in kind would bring the state down to the level of the criminal. There would then be no distinction between the dispenser of the law and the one who violates it.