Beyond the Death Penalty Debate

By Antonio Cassese

China's decision to execute the head of its drug regulatory agency has rekindled international debate about capital punishment. It is an age-old question, one that harks back to Plato, who in his "Laws" saw the need to punish by death those who commit egregious crimes.

Supporters of capital punishment usually put forward three arguments to justify state-sanctioned killing of those who take the life of another. First, there is the old law of "an eye for an eye, a tooth for a tooth." In the words of Immanuel Kant, not some Texas governor, no other "penalty is capable of satisfying justice."

Then there is a utilitarian argument: capital punishment deters many criminals from murder. Furthermore, killing murderers prevents recidivism: if released from prison, they might kill again.

The third argument is also utilitarian, although of a lower quality: the state saves money by killing murderers instead of keeping them in prison for life at the expense of the community.

Abolitionists respond with two ethical arguments. First, in a modern democracy, punishment must be not only retributive, but should also try to rehabilitate the criminal in order to enable him to live in society with other human beings. But, while this is a compelling argument, those who know modern prisons recognize that many inmates are not susceptible to improvement—a fact that cannot be attributed only to conditions of detention.

The second ethical argument is based on the commandment "thou shalt not kill" which also enjoins the state from killing. But this argument is undermined by the fact that the state can resort to lethal force to prevent serious crimes, or to fight a war or rebellion.

Opponents of the death penalty also rely on utilitarian arguments. The death penalty is irreversible. If a convict turns out to be innocent, his execution cannot be undone.

Moreover, abolitionists assail the deterrent effect of the death penalty. Thucydides, in recounting the Athenians' discussion of what penalty to impose on the rebellious Mytilenians, noted that "the death penalty has been laid down for many offenses, yet people still take risks when they feel sufficiently confident; it is impossible for human nature, once seriously set upon a certain course, to be prevented from following that course by the force of law or by any other means of intimidation whatsoever."

Criminologists have shown, statistically, that in U.S. states where convicts are executed, serious crimes have not diminished. Other criminologists argue that this finding, if well-founded, should then apply to any criminal law: every day, criminal prohibitions are infringed; yet if we did not have such prohibitions, crimes would be even more rampant. In their view, capital punishment serves at least to restrain the homicidal leanings of human beings.

So the death penalty debate boils down to an exchange of conflicting ethical and utilitarian views. But we should not sit idly by and refrain from taking sides. I, for one, believe that the death penalty radically negates the doctrine of human rights, which is founded on respect for life and the dignity of human beings.

But, whether or not you oppose the death penalty, two lessons can be drawn from the debate. First, the fight for human dignity and respect for life, as with any struggle for human rights, is set in motion and tenaciously pursued by members of civil society, by individuals more than by states. It was a representative of the Age of Reason, Cesare Beccaria, who first advocated in 1764, in a few pages of a seminal booklet, the abolition of capital punishment.

Indeed, it is thanks to a few thinkers and activists that states have gradually moved away from age-old tenets. As Tommaso Campanella, a great philosopher who spent much time in prison and was tortured because of his ideas, wrote a few centuries ago, "history is changed first by the tongue and then by the sword." Nowadays, it is associations such as Amnesty International and Hands Off Cain that push states to abolish capital punishment.

The second lesson is that the death penalty debate should not absorb all our attention. If we intend to abolish the gallows, we should also fight for the prevention of crime and against the inhumanity of many prisons. After all, what is the point of suggesting imprisonment as an alternative to electrocution, if inmates are subjected to inhuman and degrading treatment?

How can we ignore that a high number of inmates commit suicide—self-inflicted capital punishment—to escape the inhumanity of their imprisonment? How can we ignore that many states today kill not only through legal punishment, but also by murdering and massacring in international or civil wars, or by allowing starvation? In short, opposition to the death penalty cannot be an end in itself, for it is only one element of a more general fight for human dignity.

Antonio Cassese, the first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and later the Chairperson of the United Nations' International Commission of Inquiry on Darfur, teaches law at the University of Florence.