Capital punishment, also known as the death penalty, is a state-sanctioned practice of killing a person as a punishment for a crime. The sentence ordering that an offender is to be punished in such a manner is known as a death sentence, and the act of carrying out the sentence is known as an execution. A prisoner who has been sentenced to death and awaits execution is condemned and is commonly referred to as being “on death row”.
Crimes that are punishable by death are known as capital crimes, capital offences, or capital felonies, and vary depending on the jurisdiction, but commonly include serious crimes against the person, such as murder, mass murder, aggravated cases of rape, terrorism, aircraft hijacking, war crimes, crimes against humanity, and genocide, along with crimes against the state such as attempting to overthrow government, treason, espionage, sedition, and piracy, among other crimes. Also, in some cases, acts of recidivism, aggravated robbery, and kidnapping, in addition to drug trafficking, drug dealing, and drug possession, are capital crimes or enhancements.
Etymologically, the term capital refers to execution by beheading, but executions are carried out by many methods, including hanging, shooting, lethal injection, stoning, electrocution, and gassing.
As of 2022, fifty-four countries retain capital punishment, 108 countries have completely abolished it de jure for all crimes, seven have abolished it for ordinary crimes, and 26 are abolitionist in practice. Although most nations have abolished capital punishment, over 60% of the world’s population live in countries where the death penalty is retained, such as China, India, parts of the United States, Singapore, Indonesia, Pakistan, Bangladesh, Nigeria, Egypt, Saudi Arabia, Iran, Japan, and Taiwan.
Capital punishment is controversial in several countries and states, and positions can vary within a single political ideology or cultural region. Amnesty International declares that the death penalty breaches human rights, stating “the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment.” In the European Union, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment.
The Council of Europe, which has 46 member states, has sought to abolish the use of the death penalty by its members absolutely, through Protocol 13 of the European Convention on Human Rights. However, this only affects those member states which have signed and ratified it, and they do not include Armenia and Azerbaijan. The United Nations General Assembly has adopted, throughout the years from 2007 to 2020, eight non-binding resolutions calling for a global moratorium on executions, with a view to eventual abolition.
Execution of criminals and dissidents has been used by nearly all societies since the beginning of civilizations on Earth. Until the nineteenth century, without developed prison systems, there was frequently no workable alternative to ensure deterrence and incapacitation of criminals. In pre-modern times the executions themselves often involved torture with cruel and painful methods, such as the breaking wheel, keelhauling, sawing, hanging, drawing, and quartering, burning at the stake, flaying, slow slicing, boiling alive, impalement, mazzatello, blowing from a gun, schwedentrunk, and scaphism. Other methods which appear only in legend include the blood eagle and brazen bull.
The use of formal execution extends to the beginning of recorded history. Most historical records and various primitive tribal practices indicate that the death penalty was a part of their justice system. Communal punishments for wrongdoing generally included blood money compensation by the wrongdoer, corporal punishment, shunning, banishment and execution. In tribal societies, compensation and shunning were often considered enough as a form of justice. The response to crimes committed by neighbouring tribes, clans or communities included a formal apology, compensation, blood feuds, and tribal warfare.
A blood feud or vendetta occurs when arbitration between families or tribes fails or an arbitration system is non-existent. This form of justice was common before the emergence of an arbitration system based on state or organized religion. It may result from crime, land disputes or a code of honour. “Acts of retaliation underscore the ability of the social collective to defend itself and demonstrate to enemies that injury to property, rights, or the person will not go unpunished.”
In most countries that practise capital punishment, it is now reserved for murder, terrorism, war crimes, espionage, treason, or as part of military justice. In some countries sexual crimes, such as rape, fornication, adultery, incest, sodomy, and bestiality carry the death penalty, as do religious crimes such as Hudud, Zina, and Qisas crimes, such as apostasy, blasphemy, moharebeh, hirabah, Fasad, Mofsed-e-filarz and witchcraft.
In many countries that use the death penalty, drug trafficking and often drug possession is also a capital offence. In China, human trafficking and serious cases of corruption and financial crimes are punished by the death penalty. In militaries around the world courts-martial have imposed death sentences for offences such as cowardice, desertion, insubordination, and mutiny.
A further example comes from Ancient Greece, where the Athenian legal system replacing customary oral law was first written down by Draco in about 621 BC: the death penalty was applied for a particularly wide range of crimes, though Solon later repealed Draco’s code and published new laws, retaining capital punishment only for intentional homicide, and only with victim’s family permission. The word draconian derives from Draco’s laws. The Romans also used the death penalty for a wide range of offences.
Protagoras criticizes the principle of revenge, because once the damage is done it cannot be canceled by any action. So, if the death penalty is to be imposed by society, it is only to protect the latter against the criminal or for a dissuasive purpose. “The only right that Protagoras knows is therefore human right, which, established and sanctioned by a sovereign collectivity, identifies itself with positive or the law in force of the city. In fact, it finds its guarantee in the death penalty which threatens all those who do not respect it.”
Plato, for his part, saw the death penalty as a means of purification, because crimes are a “defilement”. Thus in the Laws, he considered necessary the execution of the animal or the destruction of the object which caused the death of a Man by accident. For the murderers, he considered that the act of homicide is not natural and is not fully consented by the criminal. Homicide is thus a disease of the soul, which must be reeducated as much as possible, and, as a last resort, sentence to death if no rehabilitation is possible.
According to Aristotle, for whom free will is proper to man, the citizen is responsible for his acts. If there was a crime, a judge must define the penalty allowing the crime to be annulled by compensating it. This is how pecuniary compensation appeared for criminals the least recalcitrant and whose rehabilitation is deemed possible. But for others, the death penalty is necessary according to Aristotle.
This philosophy aims on the one hand to protect society and on the other hand to compensate to cancel the consequences of the crime committed. It inspired Western criminal law until the 17th century, a time when the first reflections on the abolition of the death penalty appeared.
Although many are executed in the People’s Republic of China each year in the present day, there was a time in the Tang dynasty when the death penalty was abolished. This was in the year 747, enacted by Emperor Xuanzong of Tang. When abolishing the death penalty Xuanzong ordered his officials to refer to the nearest regulation by analogy when sentencing those found guilty of crimes for which the prescribed punishment was execution. Thus depending on the severity of the crime a punishment of severe scourging with the thick rod or of exile to the remote Lingnan region might take the place of capital punishment.
However, the death penalty was restored only 12 years later in 759 in response to the An Lushan Rebellion. At this time in the Tang dynasty only the emperor had the authority to sentence criminals to execution. Under Xuanzong capital punishment was relatively infrequent, with only 24 executions in the year 730 and 58 executions in the year 736. A further form of execution called Ling Chi, or death by/of a thousand cuts, was used from the close of the Tang dynasty to its abolition in 1905.
When a minister of the fifth grade or above received a death sentence the emperor might grant him a special dispensation allowing him to commit suicide in lieu of execution. Even when this privilege was not granted, the law required that the condemned minister be provided with food and ale by his keepers and transported to the execution ground in a cart rather than having to walk there.
Nearly all executions under the Tang dynasty took place in public as a warning to the population. The heads of the executed were displayed on poles or spears. When local authorities decapitated a convicted criminal, the head was boxed and sent to the capital as proof of identity and that the execution had taken place.
In early modern Europe, a massive moral panic regarding witchcraft swept across Europe and later the European colonies in North America. During this period, there were widespread claims that malevolent Satanic witches were operating as an organized threat to Christendom. As a result, tens of thousands of women were prosecuted for witchcraft and executed through the witch trials of the early modern period.
The death penalty also targeted sexual offences such as sodomy. In the early history of Islam, there is a number of “purported reports” regarding the punishments of sodomy ordered by some of the early caliphs. Abu Bakr, the first caliph of the Rashidun Caliphate, apparently recommended toppling a wall on the culprit, or else burning him alive, Other medieval Muslim leaders, such as the Abbasid caliphs in Baghdad, were often cruel in their punishments. In early modern England, the Buggery Act 1533 stipulated hanging as punishment for “buggery”.
James Pratt and John Smith were the last two Englishmen to be executed for sodomy in 1835. In 1636 the laws of Puritan governed Plymouth Colony included a sentence of death for sodomy and buggery. The Massachusetts Bay Colony followed in 1641. Throughout the 19th century, U.S. states repealed death sentences from their sodomy laws, with South Carolina being the last to do so in 1873.
Historians recognize that during the Early Middle Ages, the Christian populations living in the lands invaded by the Arab Muslim armies between the 7th and 10th centuries suffered religious discrimination, religious persecution, religious violence, and martyrdom multiple times at the hands of Arab Muslim officials and rulers. As People of the Book, Christians under Muslim rule were subjected to dhimmi status, which was inferior to the status of Muslims.
Christians and other religious minorities thus faced religious discrimination and religious persecution in that they were banned from proselytizing in the lands invaded by the Arab Muslims on pain of death, they were banned from bearing arms, undertaking certain professions, and were obligated to dress differently in order to distinguish themselves from Arabs.
While during the Middle Ages the expiatory aspect of the death penalty was taken into account, this is no longer the case under the Lumières. These define the place of man within society no longer according to a divine rule, but as a contract established at birth between the citizen and the society, it is the social contract. From that moment on, capital punishment should be seen as useful to society through its dissuasive effect, but also as a means of protection of the latter vis-à-vis criminals.
In the last several centuries, with the emergence of modern nation states, justice came to be increasingly associated with the concept of natural and legal rights. The period saw an increase in standing police forces and permanent penitential institutions. Rational choice theory, a utilitarian approach to criminology which justifies punishment as a form of deterrence as opposed to retribution, can be traced back to Cesare Beccaria, whose influential treatise On Crimes and Punishments was the first detailed analysis of capital punishment to demand the abolition of the death penalty.
In England Jeremy Bentham, the founder of modern utilitarianism, called for the abolition of the death penalty. Beccaria, and later Charles Dickens and Karl Marx noted the incidence of increased violent criminality at the times and places of executions. Official recognition of this phenomenon led to executions being carried out inside prisons, away from public view.
In England in the 18th century, when there was no police force, Parliament drastically increased the number of capital offences to more than 200. These were mainly property offences, for example cutting down a cherry tree in an orchard. In 1820, there were 160, including crimes such as shoplifting, petty theft or stealing cattle. The severity of the so-called Bloody Code was often tempered by juries who refused to convict, or judges, in the case of petty theft, who arbitrarily set the value stolen at below the statutory level for a capital crime.
In Nazi Germany there were three types of capital punishment; hanging, decapitation and death by shooting. Also, modern military organisations employed capital punishment as a means of maintaining military discipline. In the past, cowardice, absence without leave, desertion, insubordination, shirking under enemy fire and disobeying orders were often crimes punishable by death. One method of execution, since firearms came into common use, has also been firing squad, although some countries use execution with a single shot to the head or neck.
Various authoritarian states—for example those with Fascist or Communist governments—employed the death penalty as a potent means of political oppression. According to Robert Conquest, the leading expert on Joseph Stalin’s purges, more than one million Soviet citizens were executed during the Great Purge of 1937–38, almost all by a bullet to the back of the head. Mao Zedong publicly stated that “800,000” people had been executed in China during the Cultural Revolution. Partly as a response to such excesses, civil rights organizations started to place increasing emphasis on the concept of human rights and an abolition of the death penalty.
By continent, all European states but one have abolished capital punishment; many Oceanian states have abolished it; most states in the Americas have abolished its use, while a few actively retain it; less than half of countries in Africa retain it; and the majority of countries in Asia retain it.
Abolition was often adopted due to political change, as when countries shifted from authoritarianism to democracy, or when it became an entry condition for the EU. The United States is a notable exception: some states have had bans on capital punishment for decades, the earliest being Michigan where it was abolished in 1846, while other states still actively use it today. The death penalty in the United States remains a contentious issue which is hotly debated.
In retentionist countries, the debate is sometimes revived when a miscarriage of justice has occurred though this tends to cause legislative efforts to improve the judicial process rather than to abolish the death penalty. In abolitionist countries, the debate is sometimes revived by particularly brutal murders though few countries have brought it back after abolishing it. However, a spike in serious, violent crimes, such as murders or terrorist attacks, has prompted some countries to effectively end the moratorium on the death penalty.
One notable example is Pakistan which in December 2014 lifted a six-year moratorium on executions after the Peshawar school massacre during which 132 students and 9 members of staff of the Army Public School and Degree College Peshawar were killed by Tehrik-i-Taliban Pakistan terrorists, a group distinct from the Afghan Taliban, who condemned the attack.
Since then, Pakistan has executed over 400 convicts.
In 2017, two major countries, Turkey and the Philippines, saw their executives making moves to reinstate the death penalty. In the same year, passage of the law in the Philippines failed to obtain the Senate’s approval.
On 29 December 2021, after a 20-year moratorium, the Kazakhstan government enacted the ‘On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the Abolition of the Death Penalty’ signed by President Kassym-Jomart Tokayev as part of series of Omnibus reformations of the Kazak legal system ‘Listening State’ initiative.
Modern-day public opinion
The public opinion on the death penalty varies considerably by country and by the crime in question. Countries where a majority of people are against execution include Norway, where only 25% are in favour. Most French, Finns, and Italians also oppose the death penalty. A 2020 Gallup poll shows that 55% of Americans support the death penalty for an individual convicted of murder, down from 60% in 2016, 64% in 2010, 65% in 2006, and 68% in 2001. In 2020, 43% of Italians expressed support for the death penalty.
In Taiwan, polls and research have consistently shown strong support for the death penalty at 80%. This includes a survey conducted by the National Development Council of Taiwan in 2016, showing that 88% of Taiwanese people disagree with abolishing the death penalty. Its continuation of the practice drew criticism from local rights groups.
The support and sentencing of capital punishment has been growing in India in the 2010s due to anger over several recent brutal cases of rape, even though actual executions are comparatively rare. A poll in South Africa, where capital punishment is abolished, found that 76% of millennial South Africans support re-introduction of the death penalty due to increasing incidents of rape and murder.
A 2017 poll found younger Mexicans are more likely to support capital punishment than older ones. 57% of Brazilians support the death penalty. The age group that shows the greatest support for execution of those condemned is the 25 to 34-year-old category, in which 61% say they are in favor.
BANNER, S. (2022). The Death Penalty: An American History. Cambridge, MA and London, England: Harvard University Press. https://doi.org/10.4159/9780674020511
Derrida, J. (2017). The Death Penalty, Volume II. Chicago: University of Chicago Press. https://doi.org/10.7208/9780226410968
Goldberg, A. J., & Dershowitz, A. M. (1970). Declaring the Death Penalty Unconstitutional. Harvard Law Review, 83(8), 1773–1819. https://doi.org/10.2307/1339687
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