Mores in societies change over the years. While slavery, torture and public executions were once a global phenomenon, and foot binding and deadly duels were deeply entrenched aspects of regional cultures, they are no longer considered acceptable by the international community.
In line with what the United States Supreme Court once called “evolving standards of decency,” we appear to be witnessing the last days of the death penalty. International law experts like William Schabas, at Middlesex University in London, estimate that if current trends continue, the death penalty may for all practical purposes become a thing of the past by 2026.
Indeed, there has been a radical drop in the number of nations whose laws allow the death penalty. But perhaps more important, for those countries that retain such laws, the circumstances under which it may be imposed are growing more restricted. In many countries it plays only a symbolic role.
Of the 193 United Nations member states, 94 do not allow capital punishment in their legal systems. Of the remaining, 49 are considered to be “de facto abolitionist” and have not executed anyone for 10 successive years. Only 50 countries are now “retentionist.” In 2011, only 21 of these carried out executions, and only 7 executed more than 20 people.
In the United States – one of the only democracies in the world that in some states still retains this type of punishment – the same trend may be identified. The total number of abolitionist US states is now 17, following the abolition by Illinois in 2011 and Connecticut in 2012.
Several reasons explain the decline in the use of the death penalty. The emerging international human-rights framework has certainly taken a central role. Moreover, as noted by the Harvard psychologist Steven Pinker, humanity as a whole is much less violent today than in the past, and as a result has become more reluctant to use this extreme form of punishment.
Recent advances in technology show that one of the most fundamental fears about the death penalty is not unfounded: innocent people are wrongfully convicted and executed. The US provides stark proof of this reality, as its sophisticated scientific and legal systems sometimes catch these fatal mistakes before it is too late. Since the first exoneration through DNA testing in 1993, 17 people sentenced to death have been exonerated through this technology alone.
Many innocent people have and will be executed in countries around the world where defendants and judicial systems do not have access to such advanced technologies.
The legal safeguards that have been put into place, at least in some countries, have changed the nature of the death penalty. In the US, it often takes decades after a conviction for the sentence to be imposed. It is hard to see how executions after such long periods can fulfill a retributive goal.
Moreover, an extended sojourn in the shadow of the gallows – often in solitary confinement – is also certain to cause the condemned and those close to him or her extreme suffering, which may in itself constitute torture.
There is no “clean” way to execute people. Firing squads, hanging, asphyxiation: all these methods have been met with increasing revulsion. Lethal injections – which have largely been a last resort in the US – have come under pressure as well, especially after it was found that it could take up to 30 agonizing minutes once the injection was applied for the person to die.
The spectacle of such a death led, for instance, to a moratorium on executions in Florida. Last-minute postponements can occur because of changes in the drug regimes. In Georgia recently, Warren Lee Hill Jr. had eaten his last supper before a dispute began about exactly how to kill him, which led to a second postponement of his execution.
Almost all aspects of carrying out the death penalty have become so problematic that many of its former supporters are starting to think it is simply no longer worth it. This calculation also plays out in crude dollar terms: while it used to be cheaper to execute someone than to pay for life imprisonment, execution in the US is now often more expensive, because of all the safeguards that must be negotiated.
In addition, the death penalty in the US is discredited because of its abuse by states, where procedural loopholes are created to execute people with severe mental disabilities. While the system prevents the federal government from interfering, executing those with a limited understanding of their crime and guilt does not bring honor to anyone. A disproportionate number of those who are eventually crushed under the slow wheels of justice are minorities and people who cannot afford proper legal protection.
There is a growing aversion to continue what many now regard as an anachronistic form of punishment that jeopardizes the dignity of not only the condemned person but also the honor of those who do the execution.
Christof Heyns is a professor of human-rights law and co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria. In 2010, he was appointed United Nations special rapporteur on extrajudicial, summary or arbitrary executions, reporting to the Human Rights Council and the General Assembly.
Heyns is also an adjunct professor at the Washington College of Law of the American University in Washington D.C.,and a visiting fellow at the Kellog College at Oxford University. In 2012, he was a Fulbright scholar at Harvard Law School.
Heyns was previously a director of the Center for Human Rights at the University of Pretoria. He has published widely on international human-rights law, including the book “The Impact of the United Nations Human Rights Treaties on the Domestic Level” (with Frans Viljoen), and especially on human-rights law in Africa (including the book “Human Rights Law in Africa”). In addition, he was a consultant to the UN Office of the High Commissioner for Human Rights, the African Union and the South African Human Rights Commission.
Heyns has a master’s degree and a bachelor of laws degree from the University of Pretoria; a master’s of law from Yale University; and a Ph.D. from the University of the Witwatersrand in South Africa.
Juan Méndez is a visiting professor of law at American University and has been a UN special rapporteur on torture and other cruel, inhuman and degrading treatment or punishment since 2010. He was an adviser on crime prevention at the International Criminal Court from 2009 to 2011 and a co-chair of the Human Rights Institute of the International Bar Association in 2010 and 2011.
Previously,he was president of the International Center for Transitional Justice and in 2009 a scholar in residence at the Ford Foundation in New York. He also served as special adviser on the prevention of genocide from 2004 to 2007 for UN Secretary-General Kofi Annan.
A native of Argentina, Méndez specializes in human rights and its advocacy throughout the Americas. As a result of his involvement in representing political prisoners, the Argentine dictatorship arrested him and subjected him to torture and administrative detention for more than a year. During this time, Amnesty International adopted him as a “prisoner of conscience.” After his expulsion from Argentina in 1977, he moved to the United States and for 15 years worked with Human Rights Watch.
Méndez has a doctorate in law from Stella Maris University in Argentina and a certificate from the American University Washington College of Law.