The United States, the Death Penalty and International Law

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.