The United States, the Death Penalty and International Law

by David Sloss

According to the Death Penalty Information Center, 86 countries have abolished the death penalty for all crimes, and another 26 are abolitionist in practice. Virtually every western industrial democracy except the United States has abolished capital punishment. What explains the sharp contrast between U.S. and international attitudes about the death penalty? In brief, I contend that the difference between U.S. and international views on capital punishment reflects a deeper philosophical disagreement about whether rehabilitation is a worthy criminological goal.

The idea that rehabilitation is the primary goal of the criminal justice system is deeply embedded in international law, and in the domestic legal systems of many countries. Article 10 of the International Covenant on Civil and Political Rights specifies that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Under the Rome Statute of the International Criminal Court, life imprisonment is the maximum sentence for a person convicted of genocide, war crimes, or crimes against humanity. See Rome Statute, art. 77. Moreover, every sentence of life imprisonment is automatically subject to review after 25 years. See id., art. 110. Thus, there is no such thing as life without the possibility of parole (LWOP), even for a person who has been held criminally responsible for the deaths of thousands of innocent people. This sentencing scheme is based on the presumption that every human being, including criminals who have committed the worst imaginable crimes, is capable of rehabilitation.

The case of Bachittar Singh v. State of Punjab (India 2002) illustrates the application of this presumption by the Indian Supreme Court. In that case, the defendant was convicted for the murders of eight victims: his two older brothers (Sukhwant and Bhupinder Singh), their wives, and four nieces and nephews who ranged from 6 to 13 years of age. Bachittar hired two men to assist him with the murders. Bachittar and his two assistants, armed with guns, entered the home where Sukhwant, Bhupinder and their families were sleeping. The three men shot and killed Bachittar’s eight relatives so that he could obtain uncontested title to land that belonged to his eldest brother, Sukhwant. The trial court imposed the death penalty on Bachittar and his two accomplices. The Supreme Court of India agreed that “the crime was committed in a heinous and brutal manner.” Even so, the Supreme Court reversed the death sentences, stating that “there is no reason to believe that they cannot be reformed or rehabilitated. . . . [W[e are of the opinion that the appellants must be given a chance to repent . . . and be reformed or rehabilitated and become good and law abiding citizens.” Id., 21.

There was a time when U.S. citizens believed in the possibility of rehabilitating even those who commit the most heinous crimes But Americans’ faith in the possibility of rehabilitation has declined since the 1970s. One indicator of this trend is the increasing practice of sentencing juvenile offenders to life without parole (JLWOP). According to a report by Human Rights Watch and Amnesty International, “there are currently at least 2,225 people incarcerated in the United States who have been sentenced to spend the rest of their lives in prison for crimes they committed as children.” The practice of sentencing large numbers of juvenile offenders to JLWOP is a fairly recent development in the United States. “[F]rom 1962 until 1981, an average of two youth offenders in the United States entered prison each year with life without parole sentences. Beginning in 1982, the number began to rise markedly, peaking at 152 youth in 1996.” Id.

The United States’ practice of sentencing juvenile offenders to JLWOP, when viewed from the perspective of international law, is even more anomalous than the continued use of the death penalty. Under Article 37 of the Convention on the Rights of the Child, 192 countries have undertaken a treaty obligation not to sentence juvenile offenders to JLWOP. Moreover, the available data indicate that states are complying with that treaty obligation. According to the report by Human Rights Watch and Amnesty International, out of 154 countries for which data was available, “only three currently have people serving life without parole for crimes they committed as children, and none of those have more than a handful of cases.” Thus, the issue of JLWOP highlights the gulf between the United States’ skepticism about the possibility of rehabilitating criminals, and the commitment to rehabilitation shared by most other countries in the world.

In recent years, legislators in many states have introduced proposals to impose moratoria on capital punishment. This movement appears to be fueled primarily by concerns about executing the innocent. Even the most ardent death penalty proponents agree that it is morally wrong to execute innocent people. But the focus on innocence obscures a different moral issue: the execution of guilty people who could be rehabilitated. Criminal trials do a reasonably good job of distinguishing between guilty and innocent people. However, criminal trials are a very poor tool for discriminating between criminals who could be rehabilitated, and those who are truly beyond redemption; much of the information needed to make that determination does not become available until ten or twenty years after the trial is completed. Hence, for every innocent person on death row, there are probably ten or fifty guilty people who could be rehabilitated.

This empirical observation raises a moral question. Is it worse to execute one innocent person than it is to execute ten guilty people who could have been rehabilitated? Is it worse to execute one innocent person than it is to execute one hundred guilty people who could have been rehabilitated? Other countries that have abolished capital punishment have tacitly made the empirical judgment that a criminal trial is a poor tool for determining which criminals have the potential for rehabilitation, combined with the moral judgment that the cost of executing large numbers of people who could be rehabilitated is unacceptably high. As state legislators around the country evaluate moratoria proposals, they should consider whether the costs of executing many guilty people who could be rehabilitated outweigh the benefits of executing those few who are truly beyond redemption.

http://opiniojuris.org/2007/03/05/the-united-states-the-death-penalty-and-international-law/

10 Responses

  1. As state legislators around the country evaluate moratoria proposals, they should consider whether the costs of executing many guilty people who could be rehabilitated outweigh the benefits of executing those few who are truly beyond redemption.

    Are you proposing a cost-benefit analysis of rehabilitation? I’m pretty sure, given the high cost of imprisonment and rehabilitation, this will vastly favor execution.

    To crib from Wikipedia (As I am not personally familiar with recidivism statistics):

    The US Dept. of Justice tracked the rearrest, reconviction, and reincarceration of former inmates for 3 years after their release from prisons in 15 States in 1994.[1] Key findings include:

    * Released prisoners with the highest rearrest rates were robbers (70.2%), burglars (74.0%), larcenists (74.6%), motor vehicle thieves (78.8%), those in prison for possessing or selling stolen property (77.4%), and those in prison for possessing, using, or selling illegal weapons (70.2%).

    * Within 3 years, 2.5% of released rapists were arrested for another rape, and 1.2% of those who had served time for homicide were arrested for homicide.

    * The 272,111 offenders discharged in 1994 had accumulated 4.1 million arrest charges before their most recent imprisonment and another 744,000 charges within 3 years of release.

    Severe crimes such as rape and homicide seem to have very low recurrence, although the harshness of the punishment in the US system may result in the convicted being released late in life, and thus unlikely to commit further crimes.

    I’d really need to look at the statistics for other countries. As with many sociological problems, it is rather hard due to multiple variables and scarce data.

  2. Sloss writes, “As state legislators around the country evaluate moratoria proposals, they should consider whether the costs of executing many guilty people who could be rehabilitated outweigh the benefits of executing those few who are truly beyond redemption.”

    They should. Similarly, legislators in other countries should ask whether the costs of releasing purportedly rehabilitated prisoners outweighs the costs of failing to punish them adequately.

    That is the issue that Sloss and lots of well-meaning foreigners appear to have neglected to consider: some people just don’t deserve a second chance. The dominant American justifications of incarceration – punishment and incapacitation – are legitimate purposes of imprisonment and any society that fails to consider their value may well find itself paying a high price in the form of increasing rates of crime: ours is one of the few industrialized Western nations that have managed to reduce their crime rates over the past 15 years.

    Anyway, it is not necessarily morally problematic to place the interest of a society above that of a prisoner who has offended it.

  3. One reason why life without parole is gaining such a traction might just be the success death penalty abolitionists have gained recently in limiting the class of death eligible defenders.

    If death is a disproportionate punishment because LWOP is an adequate substitute punishment for juveniles and mentally retarded defendants, it’s a little dishonest to turn around claiming that the lesser punishment of life imprisonment should also be unconstitutional just because lawyering minds could imagine an even less intrusive punishment.

    And even if such an alternative made sense, the punishment regime in many European countries does not condition release of the most notorious criminals on rehabilitation through the criminal accepting moral responsibility.

  4. I meant:

    One reason why life without parole is gaining such a traction might just be the success death penalty abolitionists have gained recently in limiting the

    class of death eligible defendants.

  5. Gross — What about the figures on the released robbers, burglars, larcenists, motor vehicle thieves, those in prison for possessing or selling stolen property, and those in prison for possessing, using, or selling illegal weapons, who then escalate into their first time rape or murder offense?

    What about the figures that state that by the time the first time offenders of crimes of rape and murder are prosecuted, the offender has previously committed the crime up to seven times with out getting caught and being tried?

    As JEB stated, there are some people that just don’t deserve a second chance.

    I hope there will be discussion on the US government’s violation International Law, Human Rights and Civil Rights Law through decision making that violates a person’s constitutional rights.

    If the duty of the US government is to uphold constitutional law, then where/when is it constitutional to make decisions that will knowing deprive a person of their constitutional rights? What about international violations occurring during as a consequence of these decision making? How reliable is the international law courts in holding a powerful country as the US accountable for their actions?

    I’ve read Dr. Sloss’ university bio and would love it if he touched on this area.

  6. “ours is one of the few industrialized Western nations that have managed to reduce their crime rates over the past 15 years. ”

    Well, that might be true, but the fact is the US crime rate was and still is abnormally high compared to other nations. (Wikipedia murder rates ) India seems to have a lower murder rate than the United States. Quite appalling if correlated with development indices. (Wikipedia poverty rates) (

    Apparently 79.9% of the Indian population lives with less than 2$ per day.)

    Perhaps there is a problem after all?

    Might this problem be the fact that crime is treated as an individual problem, solved only by personal punishment, with no questioning of the institutional causes of crime. Perhaps that the lack of a social security system is one of the causes of this high crime rate, along with a disregard for rehabilitation.

  7. Law and Order: my point was that crime has been falling in this country while it has been rising in most developed ones. Our falling crime rates certainly coincided with – and perhaps resulted from – longer prison sentences. It is true, though, that we still have higher crime rates than some of our peers in some categories of crime. Lots and lots of really smart people have argued for decades about why this is. The most plausible explanation is demographic: by a very large margin, we have the lowest median and average age of any OECD country. In other words, the root cause of crime in this country is, inter alia, the number of young Americans available to commit them. That is a problem, but it is arguably less important than the related, but very different, problem faced by older societies: i.e., our young people make our society somewhat less safe than theirs; their old people make their respective societies somewhat less able to fund long-term entitlement programs than ours. I say our problem is “arguably less important” because we can – and do – lock our criminals up until they’re too old, statistically, to be likely to commit more crimes; but our peer countries cannot invent more workers to feed, clothe and house their grandparents. This is all ostensibly off topic, but it’s really not, because the original post was about the moral choices a society makes. We’ve made ours and it just might turn out to be the right one in the long run.

  8. I must admit being really upset that one of the best sources of data for statistical comparison of crime rates, Interpol, no longer allows free access to their data:

    Interpol’s Database

    If you look at the per capita crime figures (and I did, a year or two ago, when they were available), the United States actually has an abnormally low crime rate compared to European countries and most of the rest of the developed world (Excluding Japan, specifically.)

    Only in the areas of violent crime does the US outstrip Europe.

    In response to JEB’s post, I’d hazard a guess that our falling crime rate is more related to demographics than longer prison sentences.

  9. Matthew Gross: the rich countries with rising crime rates have been aging faster than we have, so I don’t think demographics is a likely reason for our success over the past 15 years (although I’m not arguing that longer prison sentences are the only explanation for our falling rates, either).

    And Acie IV is a bad, bad man.

  10. Matthew Gross: the rich countries with rising crime rates have been aging faster than we have, so I don’t think demographics is a likely reason for our success over the past 15 years (although I’m not arguing that longer prison sentences are the only explanation for our falling rates, either).

    True, as I mentioned in my original post, this issue suffers from a large number of complicating variables whose effects are difficult to isolate.



    And Acie IV is a bad, bad man.

    Oh yes, a pity we weren’t able to beat UT in our most recent match-up, but it was a very close thing.

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