The death penalty does not deter crime Essay
Capital punishment’s political psychology is multi – dimensional. In addition, to being an exercise in academic comprehension, understanding mass support for the death penalty is a political necessity. The response of individuals towards the death penalty depends on the murder rate prevailing in their county, level of education, and racial composition (Soss, Langbein and Metelko 415).
There is considerable evidence that clearly proves that capital punishment does not prevent crime. Whether it is the US or some other country that promotes capital punishment, the facts make it, obvious that the minorities, poor, and the members of ethnic, racial and religious communities are disproportionately executed (US Death Penalty Facts).
The death penalty in the US constitutes an institution that defies any attempt at interpretation, from the sociological perspective. A number of institutional arrangements have been effected, which have created a novel and unfamiliar relationship between the law, lethal violence and the state. The situation is further complicated, due to reliance on historical accounts that are some hundreds of years old, in order to explain the function of capital punishment (Garland 136).
There is a noticeable absence of analysis that could provide insights into the various explicit functions and forms of the present day capital punishment system. The reproduction of social order is influenced to an appreciable extent by the penal institutions. In view of this, it is difficult to perceive, how the death penalty, which is inflicted upon very few people, can engender a major structural effect (Garland 136).
A miniscule fraction of those who are charged with homicide, countenance capital charges, and in the US the number of people who are sentenced to death per year, is around 120. The other offenders, who are subjected to incarceration or penal supervision is in the tens of millions. Consequently, the impact of capital punishment on social order tends to be negligible (Garland 136).
The largest number of executions in the world takes place in China. As per the information provided by Amnesty International, around 80% of the total executions and death sentences in the world transpire in China. In addition, there have been a disturbingly large number of wrongful convictions and executions. Some of these were on account of confessions obtained under duress and strike – hard campaigns (Hong).
Durkheim authored the De La Division Du Travail Social, which put forth a functional theory regarding the development of contemporary legal systems. From his point of view, crime went against the grain of societal standards or the collective consciousness, in addition to having an impact upon the individual (Koenig and Rustad 193).
He proposed that the organization of society and individual deviance could be best understood by taking into account the extent of social solidarity that was obtaining. It was his firm belief that the division of labor in a particular society was instrumental in molding the other social institutions. Increasing complexity and diversity in a society would bring about the evolution of law from repression to restitution (Koenig and Rustad 193).
In ancient societies, the death penalty had been imposed for a number of offenses. The Mosaic code, for instance was based on the Torah, which advocated execution for various infractions, such as adultery or taking the name of God in vain (Koenig and Rustad 193).
By abolishing the death penalty, the state clearly conveys the message to private actors that no provocation can justify a violent response. Such abolition also indicates that the state will not resort to violence, even whilst addressing the most serious threats to social order (Rogoff 777).
On the other hand, a state that executes some of its criminals unequivocally indicates that it is supreme, in the context of individuals. Moreover, such states express the viewpoint that violence constitutes one of the acceptable responses to personal and social issues (Rogoff 778).
It has been contended by the opponents of the death penalty that it does not have a tangible deterrent or preventive effect. This has been borne out by the current research, in this area. Consequently, its continuance can only be for psychological or political reasons, and certainly not for the reasons that are generally cited for its retention (Rogoff 778).
The uniqueness of the death penalty is on account of its irreversibility and absolute consequentiality. This renders it from the political perspective, the most controversial form of punishment. Criminologists, human rights activists and political parties have frequently been seen to oppose its presence (Neumayer 242).
Such opposition has not only been within the countries that impose the death penalty, but it has also emerged from sources that are external to such nations. On occasion, foreigners belonging to countries that do not impose the death penalty have been executed in other countries (Neumayer 242).
This has, in general, created considerable political strife between such countries. It is commonplace for the Member States of the European Union to intervene when one of their citizens is under threat of being executed in another nation. Furthermore, countries that do not impose the death penalty, exhibit a marked disinclination to deport either their own nationals or other individuals to countries where they could be put to death, until and unless the country seeking the extradition provides an assurance that the deported person would not be executed (Neumayer 242).
Such protection has been extended even to suspected and convicted terrorists. Political conflict assumes its most severe form, when the countries involved have similar political and cultural values. It has been pointed out by several scholars that the Member States of the European Union and the US have drifted farther apart, with regard to issue of capital punishment, than any other government policy issue of moral significance (Neumayer 242).
This was the position prior to the Iraq war, and it clearly indicates the deep division between nations on the issue of capital punishment. Consequently, there is considerable controversy with regard to the prevalence of the death penalty in some countries. However, research to determine the determinants of death penalty abolition has been scant, and this is truly astounding, given the seriousness of the issue (Neumayer 242).
As such, this situation is in marked contrast to the significance accorded to the justification for punishment. An extremely disturbing feature of the death penalty relates to the influence of racial and social discrimination, which is especially true of the US, with regard to the imposition of the death penalty (Neumayer 242).
This part presents the research methodology of this research study. It is influenced by the purpose of the study and is designed to respond to the research questions. As such, the research methodology describes the purpose of the study, presents the research questions and describes the methods that will be adopted.
Purpose of the Study
The purpose of this study is to examine the current position of death penalty, in a comparative manner between the US and China. For this purpose, a review of the available literature on the death penalty has been conducted. To this end, several reports as well as the opinions presented by various organizations were scrutinized; and many decided cases were examined.
These endeavors were aimed at assessing whether the death penalty deterred crime. Moreover, this research adopts a doctrinal and comparative perspective, as it will make an effort to describe the major themes and principles that could affect justice, in the implementation of death penalty in the US and China.
This work employs a doctrinal approach to analyze the extant status of the death penalty, in the context of the US and China. In this context, a literature review has been conducted to scrutinize the opinions of eminent scholars like Emilie Durkheim. In addition, several scholarly works relating to the imposition of death penalty in the US and China, have been examined. Moreover, the relevant literature, with respect to this topic has been analyzed.
Finally, conclusions were drawn, based on the facts identified in the research.
In this endeavor, several shortcomings in the implementation procedures, with regard to China; and the discriminatory attitude towards racial and ethnic minorities, were observed, in the area of death penalty, in the US.
The research tools employed were doctrinal. This approach enables us to understand various themes and principles underlying the concept of the death penalty. Sources employed for this work were secondary. These sources help us to collect relevant information. In addition, these sources reveal the latest information in a wider context. To this end, several books, authentic web sites, online libraries, journals and the extant literature by scholarly authorities, have been consulted. As such, the results of this study are based on a qualitative study.
Does the death penalty deter crime?
Is the death penalty morally justified?
How is the death penalty implemented in the US and China?
How are the lacunas in implementation to be addressed?
Durkheim had been vociferous in his claim that punishment was merely meaningful demonstration (Durkheim 192). The deduction from this claim is that punishment emerges as a psychological and emotional response to the offence committed, and that it is devoid of any conscious intention. Durkheim was of the opinion that the less developed societies were given to inflicting punishment that was vengeful in nature, and that such societies deemed punishment to be an end in itself (D. Garland 31).
On the whole, modern society does not subscribe to the notion that revenge constitutes a valid reason for inflicting punishment. All the same, Durkheim believed that the motivation behind punishment had not altered to any significant extent. He was convinced that with the development of societies, the administration of punishment had merely been refined (Alexander and Smith 24).
As pointed by several scholars, awareness regarding the outcomes of criminal law and repressive sanctions had increased. However, no change had taken place with regard to the internal phenomena involved. The reality has been that punishment has continued to be based on vengeance (Thompson 88).
It would not be incorrect to contend that what holds good for an individual also holds good for society. As a result, society is entitled to restrain a person who intends to cause it harm. This has been quoted as the basis for the right of societies to execute one of its members. However, the fact remains that at the time of trial; the accused has been deprived of arms and no longer poses any danger to society (Gross, Jones and Joas 266).
Hence, at that juncture, society can adopt the measures necessary to defend itself; but it cannot justify any action that brings about the death of the criminal. It has been contended by some individuals that criminals are deterred by the death penalty. This raises the pertinent query, as to whether deterrence is possessed to a greater degree by the severity or certainty of punishment. In this context, it should be emphasized that the abolition of torture did not bring about an increase in crime (Gross, Jones and Joas 266).
Another serious reason to abolish the death penalty is that it makes the members of society habituated to the taking of human life. It is instinctive, even for the worst criminal to hesitate before killing another. The death penalty has the insalubrious effect of blunting this instinct. As a consequence, public security is seriously compromised. There can be no dispute regarding the fact that society is well within its rights to defend itself against any attempt to threaten its existence. Such a threat could emanate from a neighboring nation or from one of its own members (Gross, Jones and Joas 266).
In the year 2010, executions were carried out in 23 countries, whereas in the year 2009 the corresponding number was 19. However, the number of persons executed came down to 527 from 714, during this period. These figures do not take into account the number of executions conducted in China, and this quantity exceeds the number of executions in the rest of the world (Joyner).
The US as a leader in the employment of the death penalty, falls into the same category, in the context of executions, as the most repressive regimes of the world. A very important feature of the executions in the US relates to the fact that in general, only the worst criminals are put to death. In such cases, trial by a jury of peers is conducted, and the execution takes place only after a protracted and exhaustive set of appeals (Joyner).
On the other hand, the other countries that routinely execute individuals, the government officials come to a decision regarding who is to be put to death. This is done on their express authority, and is frequently for having spoken against such officials (Joyner).
In the year 1977, the US Supreme Court ruled that it was in breach of the US Constitution to apply the death penalty for the crime of rape. This very important ruling was given in the case of Coker v Georgia. With this decision, 20 individuals, who had been sentenced to death in various states, were not put to death. In addition, the ruling in Lockett v Ohio compelled many of the states to amend their laws, and ensure that their sentencing authority had taken into account all the mitigating factors, prior to passing a sentence of death (Green).
As such, in Coker v Georgia, the US Supreme Court ruled that it was an infringement of the US Constitution to apply the death penalty to the offence of rape; as this punishment was disproportionate to the crime. This resulted in the removal of 20 individuals from death row, across the US. Furthermore, in Lockett v Ohio, the high court compelled several states to revise their legislation relating to the death penalty (University of Alaska Anchorage Justice Center).
As such, the high court had ruled that the sentencing authority in cases involving a capital offence had to consider all the possible mitigating factors. However, subsequent to the ruling in Gregg in the year 1976, several of the states have brought back the death penalty. For instance, in the year 1995, New York enacted laws that permitted the death penalty (University of Alaska Anchorage Justice Center).
With the US Supreme Court’s decision in Gregg v Georgia, upholding the death penalty, several states made the necessary changes to their statutes, in order to reintroduce the death penalty. Thus, many states execute individuals, such as New York. At the same time, states like Hawaii, Iowa, West Virginia, Wisconsin and District of Columbia do not put people to death (Green).
As of the year 2011, there had been an appreciable reduction in the number of countries that employed the death penalty. However, this beneficial development was offset by the disturbing fact that the countries adopting the death penalty did so at a disturbing frequency. In accordance with the data provided by the Amnesty International, there had been a 28% increase in the number of people put to death, all over the world (Death Penalty In 2011: Report Shows Executions By Country ).
Another disquieting feature was that many executions had taken place in China, Iran and Syria that had not been reported. With regard to the executions conducted by the Chinese authorities, the Amnesty International discontinued the publication of their details since the year 2009. This was due to the unreliability of the public records of China (Death Penalty In 2011: Report Shows Executions By Country ).
Among the Western democracies, the US emerged the only nation to execute individuals during the year 2011. With its 43 executions, the US procured the dubious distinction of being fifth among the nations that execute people. During 2010, the number of people executed in the US was 46, and this indicates a reduction of three in the number of people executed (Death Penalty In 2011: Report Shows Executions By Country ).
The states of the US depict a diametrically opposed view, in the context of the death penalty. Thus, the Texans were all praise for their governor who had appended his signature to the execution warrants of some 234 individuals. Subsequently, in Georgia, the execution of Davis was condemned by many people, as the key witnesses for the prosecution had retracted or modified their claims (Death Penalty In 2011: Report Shows Executions By Country ).
Moreover, Illinois rescinded the death penalty in 2011, and Oregon adopted a moratorium on executions. With regard to Connecticut and Maryland, there is every indication that these states will prohibit executions. There are 34 states in the US, which uphold the death penalty, at present. In the year 2011, death sentences were issued to 78 prisoners. This is significantly lower than the year 1999, in which 98 people were sentenced to death (Death Penalty In 2011: Report Shows Executions By Country ).
The reduction in the number of people being put to death has been chiefly attributed to the advent of DNA testing. This novel method of testing has disclosed the innocence of many an accused and served to save that person from execution. In addition, defense tactics have gained in strength and in combination with prolonged appeal processes, states have found it very expensive to obtain a death penalty sentence (Death Penalty In 2011: Report Shows Executions By Country ).
Among the G – 8 countries, the US was the only nation to employ the death penalty. Although, Japan has not abolished the death penalty, it has not conducted an execution. In addition, the US Defense Department announced that it would conduct a trial by military commission, in order to obtain a death penalty sentence with regard to six foreign nationals. These individuals had been incarcerated in the US Naval Base in Guantanamo Bay. The use of military commissions for this purpose has been decried; as such commissions do not provide a similar right to appeal, as a US court (Death Penalty In 2011: Report Shows Executions By Country ).
All the same, member states are prevailed upon to publish regular data on their use of the death penalty, by the UN bodies and international standards. This has proved to be a difficult task with regard to some countries, such as Singapore, which does not provide consistent and regular information about death sentences and executions. Around 67% of the nations of the world have declared that they have abolished the death penalty. Among the 41 nations of the Asia – Pacific region, as many as 28 have abolished the death penalty. This includes 13 Commonwealth nations of that region (Amnesty International).
In the People’s Republic of China, there are around 68 offences that attract the death penalty. Some of these are murder, rape and murder. In addition, the death penalty is also inflicted for non – violent crimes, such as embezzlement, tax fraud, and drug offences. The usual mode of execution is by shooting the condemned person on the back of the head. Lately, there has been an increase in the use of lethal injection, for this purpose. The process is shrouded in secrecy and various international organizations have criticized this system of the Chinese (Amnesty International in Asia & the Pacific).
The Chinese government has categorically refused to furnish information regarding the number of people sentenced to death, as well as the people executed by it. On the basis of public reports, it has been estimated that during the year 2005, around 1800 people had been put to death, while 3900 individuals had been handed down a death sentence. As such, this is a conservative estimate and the actual figures are certain to be much higher (Amnesty International in Asia & the Pacific).
There have been serious accusations against the Chinese that they do not provide a fair trial to people sentenced to death, in accordance with the guidelines stipulated by the human rights norms. Some of the major drawbacks associated with the Chinese system are the absence of prompt access to lawyers, lack of a presumption of innocence, the exertion of undue influence upon the judiciary by politicians, and acceptance of evidence obtained by torture in court proceedings (Amnesty International in Asia & the Pacific).
During the recent years, there have been several conferences in China, which have called for substantial reform or even the abolition of the death penalty. In conjunction with the information available on the Internet, regarding the inequitable practices being adopted by the Chinese, considerable public concern has emerged in that country (Amnesty International in Asia & the Pacific).
The official policy of the Chinese government, with regard to the death penalty is that every effort will be undertaken by it to exercise caution and to avoid excessive executions. In addition, to the violent crimes, the death penalty is inflicted for economic offenses, public safety and public order offences, and corruption (Hong).
Nevertheless, there are certain redeeming features of China’s death penalty, for instance, it does not execute individuals less than the age of 18 years and pregnant women, all capital cases have to compulsorily have legal representation, and the death sentence is suspended in cases where immediate execution is not necessary (Hong).
The 1996 Criminal Procedure Law of China permits executions, only by shooting and lethal injection. A People’s Supreme Court ruling of February 2009 has mandated that executions by shooting have to be discontinued in the year 2010. The preferred method of execution is by means of lethal injection, which comprises of a mixture of potassium chloride, muscle relaxant and barbiturates (People’s Republic of China).
This mode of execution was legalized in the year 1996. It is conducted in prisons or in mobile death vans. Death by lethal injection seems to be more likely for those convicted of economic or political crimes. With regard to the other classes of crime that attract the death penalty, the preferred method is by shooting (People’s Republic of China).
All the same, lethal injection execution proves to be less expensive than death by a firing squad; and this method of killing was employed in areas with a larger number individual to be executed. As such, no definite date has been stipulated for changing over from execution by shooting to execution by lethal injection (People’s Republic of China).
China has witnessed a series of food safety violations. Realizing the gravity of the issue and as a reflection of the outrage of the public, the Chinese Supreme Court has directed judges across the nation to impose harsher sentences for such crimes. In this regard, the Supreme Court directed that longer jail terms and fines were to be imposed upon those held guilty of violating the food safety regulations (China Orders Death Penalty For Food Safety Violators).
In instances, where death had supervened, due to such violation, the death sentence was recommended. This Supreme People’s Court directive is aimed at eliminating the continuing contamination of food products, such as cooling oil and baby milk. In order to curb this menace in an effective manner, the Chinese government has encouraged the greater reporting of food problems in the media (China Orders Death Penalty For Food Safety Violators).
It was notified by the Supreme People’s Court that food safety cases should be given wide publicity, in a timely manner, and encouraged the employment of open trials in the more serious cases. In addition, it called for the infliction of more severe punishment for government officials who take bribes and protect food safety offenders. With regard to manufacturers who produce tainted food items, this court directed the provision of harsher financial penalties (China Orders Death Penalty For Food Safety Violators).
Nevertheless, in the year 1965, just three of the 60 nations surveyed had retained the death penalty for the crime of rape where death did not result. At present, China and the US are the only nations, where death penalty is issued for non – homicide rape. In the year 2002, 24 countries authorized execution for non – homicide rape. Subsequent to the year 2002, nine of these countries, either changed their laws or imposed a moratorium on the death penalty (International Law Disfavors use of Death Penalty for Non – Homicide Offenses such as Rape).
In addition, the US finds itself in the company of nations, such as Cuba, China, Egypt and Saudi Arabia, with regard to authorizing the death penalty for non – homicide rape. The criminal codes of these countries are at marked variance to that of the US. In fact, Chinese law imposes the death penalty for non – violent offenses, such as tax evasion. In fact, the American Convention on Human Rights, to which the US is a signatory, declares that the death penalty is not to be extended to crimes to which it is not applicable at present. Furthermore, the International Covenant on Civil and Political Rights has called for reducing the application of the death penalty (International Law Disfavors use of Death Penalty for Non – Homicide Offenses such as Rape).
Furthermore, the US is usually portrayed as a country that imposes the death penalty on offenders. However, at present the death penalty is rarely inflicted upon a convicted person. It is to be noted that the District of Columbia and fifteen other states have abolished capital punishment. Among the remaining thirty – five states, the death penalty is applied very rarely (D. Garland, Five myths about the death penalty). . A majority of these states do not execute offenders.
For example, in Texas, the incidence of death penalty is higher than in the other states. An important reason behind this trend is that most of the states have empowered their juries to impose life imprisonment without parole as an alternative to the death penalty. Moreover, prosecutors have been seen to advise the family members of the offender to seek a prison sentence, instead of the death penalty (D. Garland, Five myths about the death penalty).
In 1846, Michigan abolished capital punishment, and this important development preceded the majority of the European nations, by a century. Most of the northern states had abolished the public execution of offenders, much before the rest of the world adopted this practice. The US was one of the pioneers in discovering painless methods of execution. Thus, hanging was first replaced by the electric chair, then the gas chamber, and the lethal injection (D. Garland, Death Penalty Doesn't Work, but It Does Have Benefits).
However, research indicates that the death penalty does not deter crime totally. Those who oppose the death penalty on the grounds that it is very expensive are correct. However, it would be incorrect to argue that the death penalty yields nothing in return. A study conducted in the state of Indiana revealed that capital punishment is ten times costlier than life imprisonment without parole. However, the death penalty enables juries to make a forceful punitive statement. Moreover, prosecutors have the option of employing the threat of imposition of the death penalty, in order to obtain cooperation and plea bargains (D. Garland, Death Penalty Doesn't Work, but It Does Have Benefits).
The following case law indicates the attitude of the courts while deciding death penalty issues in the US.
In Stanford v Kentucky, the US Supreme Court ruled that the imposition of the death penalty on a juvenile, who had committed murder, did not violate the Eight Amendment to the US Constitution. The Court further held that the common standards of decency were not violated by this, and that such punishment was not cruel and unusual (Stanford v Kentucky).
However, in the Roper v Simmons case, the US Supreme Court ruled that evolution of the relevant norms, over time, had made it unconstitutional to execute juveniles (Roper v Simmons). This momentous decision was given in the year 2005, by the US Supreme Court.
The following discussion has been taken up for a comparison of death penalty punishments between US and China,
The United Nations Convention on the Rights of the Child, the American Convention on Human Rights, and the International Covenant on Civil and Political Rights are the apex treaties, which prohibit the application of the death penalty to juveniles. The US has signed and ratified the International Covenant on Civil and Political Rights. Nevertheless, it has reserved the right to ignore the provisions of the treaty, with regard to applying the death penalty to juveniles. The International Covenant on Civil and Political Rights has 144 member states of which only the US has reserved a right to apply the death penalty to juveniles (Neil and Neil 3).
At present, more than 50% of the nations of the world have abolished capital punishment. However, the Chinese believe that the death penalty should continue for the time being. In addition, the level of social development, perceptions and values of the Chinese, do not provide any scope for the abolishment of capital punishment in the near future. China has the maximum number of provisions on charges of death penalty (Zou 40).
In the US, there are five death penalty execution modes, and offenders are provided with the opportunity to choose the mode of death. These modes are death by shooting, electrocution, poison gas, hanging, and administering of lethal injection. The injection mode is chosen in the majority of death penalty cases. Some countries provide specific rights to offenders of death penalty under humanitarian grounds. These include allowing family members, relatives, friends, and lawyers to visit the criminals on a regular basis. During execution, there will be a priest or a minister to pray for the criminals (Zou 40).
In the case of electrocution or poison gas, the executors ensure that the execution is less painful for the condemned criminal. Moreover, they provide spiritual comfort to the person to be executed, in order to ease their tension or emotional imbalance. All these measures come under humanitarian grounds (Zou 40).
The legislation in several of the countries that permit the death penalty, have made sincere attempts to lend a human touch to the applicable stipulations. Thus, friends, lawyers and relatives are permitted to visit the condemned criminals, on a regular basis. In addition, a priest or minister prays for these criminals, before they are executed (Zou 40).
Moreover, there are international treaties to ensure the rights and interests of the criminals who are to be executed. These treaties have established international standards for the proper implementation of humanitarian concerns for such criminals. The United Nations declares that the application of the death penalty should attempt to relieve the pain of the condemned prisoner (Zou 40).
Furthermore, such criminals should be allowed to converse with their family members or friends. In some prisons, these criminals are allowed to touch their relatives and friends freely. Furthermore, the condemned, in such countries, are allowed to have dinner or entertainment with their close relatives or friends. These criminals are also allowed to spend their final moments with their family members in the death row. Some criminals of death penalty are also allowed to cohabitate with their spouse before the execution (Zou 40).
In a new study, it has been disclosed that the criminal justice system of the US convicts and sentences thousands of innocent individuals to prison or death for the crimes committed by others. A National Registry of Exonerations has been compiled by the Northwestern University and the University of Michigan. It provides information regarding some 2,000 prisoners who had been exonerated since the year 1989. These people owe their fortunate release from prison to the DNA evidence, which has been widely employed to establish the innocence of people wrongly convicted of murder and rape (Love).
These disclosures are alarming, for instance, those released from the death row were nine times more than those convicted of murder were. A fourth of the individuals exonerated of murder had been sentenced to death. Moreover, 50% of the individuals wrongly convicted of rape or murder were either to be imprisoned for life or to be put to death. As many as ten inmates of death row were executed, before they could be exonerated. Wrongful convictions were attributed to defective identification of eyewitnesses, prosecutorial misconduct and perjury (Love).
Moreover, in the aftermath of the 9 September 2001 terrorist attacks, the US government unleashed an unprecedented attack on terrorist organizations and their members. During this endeavor, there have been innumerable infringements of national and international prohibitions on torture and other inhuman, cruel or degrading treatment (Torture and Other Ill-Treatment). These acts were justified as being essential for fighting terrorism.
The institutions of the United Nations and various international norms, urge the member states to disclose information regarding the number of people executed, on a regular basis. This has proved to be difficult, with regard to Singapore, as such information was not being published consistently by that country. Approximately a third of the nations of the world continue to impose the death penalty. With regard to the Asia – Pacific region, 28 countries out of 41 have abolished the death penalty. This includes 13 Commonwealth countries of that region (Singapore should join global trend and establish a moratorium on executions).
In China, the death penalty is still in use. However, it is reconsidering the offenses that attract capital punishment. In the past, China had abstained from executing juvenile offenders. Unlike the US Constitution, which forbids cruel and unusual punishments, there is no express prohibition in the Chinese Constitution. However, China has emerged ahead of the US in applying the death penalty. (The US and China: The legal ties that bind). Nevertheless, the use of the death penalty for certain economic crimes has appalled the Americans.
There are 68 capital offences in the Chinese criminal law. These include rape, robbery and murder, and certain crimes that do not entail violence, such as drug offences and economic crimes. The method of killing is by shooting the condemned person in the back of the head. In addition, lethal injections are also being employed for this purpose. The killings in China have raised concerns with Amnesty International, which has frequently pointed out the secrecy being maintained by the Chinese regarding the number of people that it executes (Amnesty International Asia & The Pacific).
The Chinese government has bluntly refused to publish complete details regarding the number of death sentences and executions. In this milieu, the Amnesty International estimated that at the minimum some 1,770 people had been put to death, in the year 2005. In addition, it had been estimated that during that year, around 3,900 individuals had been sentenced to death. The Chinese system does not provide a fair trial to the accused. Some of the major drawbacks are absence of timely access to legal aid, lack of a presumption of innocence, admission of evidence obtained by torture, and political interference with the judiciary (Amnesty International Asia & The Pacific).
With regard to the imposition of the death penalty, China has emerged as the leader. The Amnesty International has estimated that 60 to 80% of the total executions and death sentences of the world can be attributed to China. Moreover, wrongful convictions and erroneous executions are alarmingly frequent in China. Such executions result from the widespread use of torture in investigations, by the Chinese authorities (Hong). Despite these terrifying facts, the Chinese obdurately insist that their policy is to curtail excessive executions.
In addition, the death penalty system of China is characterized by several novel features. The first of these relates to the exemption made with regard to individuals less than 18 years of age at the time of their commission of the crime. Such offenders are not executed. Another exception is with regard to women who are pregnant at the time of adjudication. Moreover, in all capital cases, there has to be legal representation. Furthermore, there is a provision for pronouncing a suspended death sentence. This is made whenever the offender has to be sentenced to death, but where it is not indispensable to execute that person immediately (Hong).
The Criminal Procedure Law of 1996 of China permits the execution of offenders, only by shooting or lethal injection. The latter form of execution consists of injecting the condemned prisoner with a mixture of barbiturates, muscle relaxant, and potassium chloride. This form of killing, which has been in vogue, since the late 1990s, is conducted in mobile death vans or in prisons. As it proves much costlier to maintain the death vans, there has been a significant decline in their use. Lethal injection is the preferred method of execution for individuals who commit crimes by taking advantage of their official power or economic crimes (Segura).
Moreover, due to the unacceptably high rate of food safety violations in the country, the Chinese Supreme Court directed judges to inflict more severe punishment upon offenders. The courts across the nation were instructed to impose longer jail terms, and larger fines for the violators of food safety regulations. These courts were also required to impose the death penalty for food safety violations that resulted in death. The legislature and the highest court of the nation had been making serious efforts to curtail the employment of the death penalty, prior to the emergence of rampant violations of food safety regulations (China Orders Death Penalty For Food Safety Violators).
The populace had become infuriated with the contamination of food products, such as cooking oil and baby milk. As a further measure of deterrence, cases relating to food safety violations had to be given wide publicity and in the major cases open trials were to be conducted. Government officials who had accepted bribes to protect those who had committed food safety crimes were to be punished very severely (China Orders Death Penalty For Food Safety Violators).
In the year 2010, there were executions in 23 countries, in comparison to 19 countries in the year 2009. However, there was a reduction in the number of people executed, during this period, from approximately 714 to around 527. These figures had excluded the contribution of China, as no data was forthcoming from that country. In fact, it has generally been believed that the number of executions in China is more than the combined number of executions in the rest of the world (Joyner, Death Penalty: US vs. The World). Although, the abolition of the death penalty, across the world, is in sight, a few nations routinely kill people in the thousands.
As such, the maximum number of executions takes place in China, and the Chinese government has obdurately refused to publish data relating to the number of people sentenced to death and the number of people actually executed. Despite the unrelenting efforts of Amnesty International, there has been no disclosure by the Chinese authorities, in this context. As a measure of appeasement towards the international community, China has reduced the number of crimes for which the punishment is execution. In addition, there is some possibility that people above the age of 75 may not be executed in the future. Furthermore, the death penalty could be discontinued for crimes like tax fraud, and the smuggling of valuables and cultural relics. Around 13 crimes, which presently attract the death penalty, could be removed from this category (Tran).
It is necessary for China to ensure, with regard to the criminals of death penalty; the right of claim for absolution, reproductive right, right to cohabit with the spouse before being put to death, and right to terminal care. In addition, the authorities should ensure the right of personality, right to select the mode of effecting the humanized death penalty, and the right to specify the manner in which their organs are to be disposed after their death (Zou 40). On several occasions, the Chinese government had ignored the human rights of criminals condemned to death.
However, the states in the US where the death penalty is in vogue admit of five possible modes of execution. The condemned criminal is provided with the choice of selecting any particular mode of execution. These modes are death by lethal injection, hanging, shooting, electrocution, and poison gas. The preferred mode among prisoners is death by lethal injection. In several nations, those condemned to death can be visited by relatives, friends and lawyers (Zou 40).
In addition, such prisoners can be touched by their visitors through an isolation strip. Moreover, just before being taken away to be put to death, such convicts can spend time with their families and have a farewell meal with them. In some instances, even cohabitation with the spouse, prior to being executed, has been permitted. The religiously minded convicts are in general, provided with the services of a religious functionary, who prays for them and gives them religious rites (Zou 40).
Prior to being executed by electrocution, it has to be ensured that the condemned would be executed successfully and in a painless manner. In addition, the condemned have to be provided with spiritual comfort and attempts should be made to relieve their state of extreme emotional distress. Furthermore, several covenants have been promulgated by the international community, in order to safeguard the legal rights of those condemned to death (Zou 40).
The United Nations enjoins that the execution of condemned convicts should attempt to relieve pain. Moreover, Article 7 of the International Covenant on Civil and Political Rights stipulates that no person should be subjected to torture or cruel, inhuman treatment or penalty. The Chinese have affixed their signature to several international covenants on human rights and stated that they would promote and preserve human rights (Zou 41). They have also promised to protect the interests and legal rights of criminals of death penalty.
With the passage of time, a gradual transformation has taken place in Chinese society, with regard to crime and punishment, and there is greater concern towards criminals condemned to death. In the past, Chinese society the crime and the criminal were detested, and it was believed that the criminal deserved severe punishment as retribution for the harm caused by the criminal towards individuals and society (Zou 41).
During that period, the public would have refused to accord human rights to condemned convicts. However, with the advent of the 21st century, this situation underwent a change, and human rights were developed significantly in the domain of the judiciary. Subsequent to the reform and opening up of China, vast changes transpired in the areas of culture, economy, and politics. It was during this time that human rights commenced to develop, and this change included the human rights of individuals sentenced to death (Zou 41).
Death by lethal injection was introduced in China, in the year 1997. This marks the advent of humaneness in executing criminals in China. Thereafter, some of the courts in China, gradually permitted humane practices, such as permitting criminals sentenced to death to meet with their relatives, the provision of appropriate diet for these criminals, and facilitating the making of wills by the condemned (Zou 41). Some of the interventions have been adopted at the national level.
The Chinese government imposes sever restrictions on the allocation of funds to the law enforcing and implementing agencies. Due to insufficient resources, these institutions face challenges and problems, while implementing human rights of criminals of death penalty. Moreover, the local courts perform on the basis of the traditional concepts. These problems force the local judicial bodies to ignore the basic human rights of the criminals. In addition to this, the government bodies ignore the demands of the criminals of death penalty. They do not fulfill the requests of the criminals of death penalty to meet their family members even occasionally (Zou 41). Such is the reality in China.
Abuse of the corpses and organs of criminals after execution is a heinous act, which tarnishes the image and reputation of China. There are a number of reports that clearly establish that the corpses and organs of the criminals are traded. The government has not initiated any action to curb this practice. All these incidents prove that there is no guarantee of human rights in China (Zou 41). The level of human rights of criminals in China has been determined to be very low, in comparison with the other nations.
During the prohibition era, judgments were made in public, the condemned criminal was paraded through the streets as a measure of warning for the public, and finally these criminals were executed by a firing squad. It can be safely assumed that the government of China deliberately ignores the human rights of criminals of death penalty. This is because the guarantee of human rights would generate new challenges and problems. These challenges include a reproductive right and the right of absolution with the spouse. Protecting these rights would result in appeals to the courts to delay the execution of the criminals of death penalty. This situation makes it necessary to enact laws that define and protect the rights of criminals of death penalty (Zou 41).
Criminals of death penalty are deprived of several rights and the most important of these is the right to life. The law repeals all civil rights and the right to life of persons sentenced to death. Moreover, the criminal law rescinds the political and civil rights of such criminals. This means that they are deprived of these rights for their lifetime. The political rights annulled by the law, include the right to vote; the right to be voted; the right to freedom of speech; the right of publication, assembly, formation of association and marching; the right to hold a function in the state organs; and the right to hold a position in a state owned organization or company (Zou 42). Criminals are barred from holding leadership positions in public institutions and peoples’ organizations.
Criminals of death penalty are deprived of the right to life and the above rights. However, the other rights have not been withheld. This makes it imperative for the law to uphold the basic rights of such criminals, including the personality right. Such criminals are placed in custody and are likely to be executed. Consequently, there will be a significant difference in the fulfillment of their rights, when compared to the rights of the common public. Moreover, several of the human rights of condemned prisoners will be restricted, and this includes the right of marriage, reproductive right, and right of personality (Zou 42).
From the perspective of a logical structure, the rights of condemned criminals can be categorized into three classes. The first of these are the rights that such criminals are entitled to as natural persons. Another category is that of the rights that these criminals can claims as citizens. The last of these categories is that of the rights that such criminals are entitled to by virtue of being criminals (Zou 42).
With regard to the improvement of the rights that protect criminals of death penalty, the Chinese authorities have to assess the scope of such rights. This evaluation has to be confined to the basic framework relating to the rights of such criminals. Such assessment has to be in accordance with the social material, technical conditions, and the ideological and cultural development of society (Zou 42). In addition, it should ensure that the rights of the condemned are adequately protected.
With regard to the right of claim for absolution, it is to be noted that several international covenants have stipulated this right. For instance, Article 6 of the International Covenant on Civil and Political Rights declares that individuals sentenced to death are entitled to claim an absolution or reduction in the sentence; and a general pardon can be granted for any case of death penalty. In addition, a case of death penalty can be provided with abatement from penalty or a special pardon (Zou 42).
Absolution is a system that has been in vogue for many years. In contemporary society, absolution has been transformed from a benediction granted by a monarch to criminal policy to a mechanism for addressing social conflict and as a method for redressing legal disadvantages. The system of absolution is accorded a substantial amount of importance, across the world. Despite the importance attached to absolution, China’s constitution does not provide for a general pardon, and the only available relief is that of special pardon (Zou 42).
Since, its inception, China has implemented the special pardon on just seven occasions. What is alarming is that the Chinese, during the past three decades, have formally set aside absolution. The absolution mechanism has tremendous potential and value, and this has not been allowed to see the light of day by the Chinese authorities. Those who are condemned to death are in dire need of relief. This automatically makes them eligible to be entitled to the right of absolution (Zou 42).
This additional measure would ensure solemnity and caution in the process of the death penalty. At the same time, it would ensure the circumvention of injustice being meted out to the offender. Although, China is a signatory to the International Covenant on Civil and Political Rights in the year 1998, it has not implemented its provisions in a proper and conscientious manner (Zou 42).
However, the criminal justice system is not infallible. This has been clearly demonstrated by the advent of DNA testing, which has conclusively established the innocence of quite a few individuals on death row. As a result, it is now an incontrovertible fact that the legal system is defective to the extent that there are an indeterminate number of innocent persons on death row. In recognition of this unseemly and unpalatable fact, George Ryan the Republican Governor had imposed a moratorium on executions, in the year 2003 (Peffley and Hurwitz 998).
This moratorium was with regard to 164 prisoners on death row, in the state of Illinois. He had based his decision on the grounds that execution was irrevocable and that the defective legal system would bring about the execution of several innocent individuals. In fact, these flawed convictions ensure that the public does not support capital punishment (Peffley and Hurwitz 998).
A major defect with the US legal system is the rampant racial and ethnic discrimination inherent in it. This becomes all the more important and alarming with regard to the death penalty. The extent of this iniquity can be gauged from the fact that some 38 states have appointed commissions to investigate discrimination in the legal system. A consequence of such discrimination is that the majority of the death row inmates are non – whites, such as African Americans and Latinos. These unfortunate individuals occupy the death row to a much greater proportion than the whites do (Peffley and Hurwitz 998).
The perception among African Americans is that the death penalty constitutes a highly racialized form of punishment. Although, whites and non – whites are in favor of punishment that does not vary with the race or ethnicity of the offender, their reasons for such preference are different. The non – whites prefer equal punishment as they fear victimization; whereas, the whites do so due to racial prejudice. When it comes to the death penalty, the whites support it to a much greater extent than the non – whites. The reason behind this is not clear, and another difficulty experienced in this area is that there is inadequate research regarding interracial differences in the attitude towards crime and punishment. The major portion of the research has been focused on the attitude of the whites. The research on African Americans and other ethnic and racial groups has been limited to very small samples (Peffley and Hurwitz 998).
US politics is distinguished by racial conflicts, and this is a long – standing and well – entrenched feature of this system. There have been claims that the criminal justice system of the US is devoid of discrimination on the basis of race and ethnicity. These contentions have generated several studies regarding the ascriptive determinants of punishment. It has been disclosed by ethnic or racial threat theories that repression results, whenever there is an enhanced minority presence. Some studies have even claimed that dominant racial groups tend to be intimidated by the presence of large minority populations (Jacobs and Carmichael 111).
The greater minority presence tends to threaten the whites of the middle and working classes, which counteract with efforts to maintain their superiority. Thus, several studies have shown that negative feelings about non – whites is greater in localities, in which there are comparatively fewer whites. In fact, a relationship has been found between the fear of crime and the presence of African Americans. There have been several studies, which have demonstrated that efforts to control crime on the streets vary with the perceived threats from a larger racial underclass (Jacobs and Carmichael 111).
Another observation in this context is that the number of police officers is greater in cities that have a comparatively larger minority population. Such cities are also distinguished by their higher rate of arrests. An expansion in the presence of non – whites is accompanied by an increase in the spending on jails and prisons. From these findings, it can be concluded that whites, irrespective of the class to which they belong, have ensured that there is significantly greater criminal punishment, in areas that have larger minority populations. There is considerable support among the whites for inflicting the death penalty on the non – whites. In fact, the whites have the expectation that the death penalty should be more frequent in jurisdictions with higher proportions of non – whites (Jacobs and Carmichael 111).
A curvilinear relationship has been suggested between threat and repressive outcomes. This is from not only the theoretical perspective, but also from empirical data. A study by Taylor has revealed that several of the correlations between the presence of members of minority communities and the racial attitudes of the whites tend to be non – linear. Another curvilinear relationship was determined by Jackson, between the expenditure incurred by the law enforcement agencies and the presence of minority communities. In one study, it was shown that the minority threat would generate an association between repressive political decisions and minority presence (Jacobs and Carmichael 111).
Political decisions regarding the legality of the death penalty are determined by three fundamental perspective of political sociology. These are partisan tactical considerations, political ideology, and social divisions. The Republicans have been vociferous advocates of stringent measures to enforce law and order. Thus, there have been several studies that have demonstrated that states with strong Republican parties tend to legalize capital punishment. The politicians of the US tend to manipulate issues related to the death penalty from the background. At the forefront of any debate on capital punishment, it is the public that makes itself heard (Jacobs and Carmichael 128). As such, the views of the public are more influential with regard to the death penalty.
Most of the countries of the world permit imposition of permanent imprisonment. However, when it comes to executing criminals, there is a marked reluctance to permit such punishment. During the year 1999, the UN Commission on Human Rights had made a strident call for abolishing capital punishment (Soss, Langbein and Metelko 397). In this environment, the US has achieved the dubious distinction of being a major killer. For instance, in the year 2000, the US, China, Saudi Arabia and Iran had been responsible for 88% of the detected executions, worldwide; and in the 1990s, the US had routinely put even youth offenders, under the age of 18, to death (Soss, Langbein and Metelko 398).
The public of the US has been strongly in favor of the death penalty. Thus, in the year 1936, around 61% were in favor of executing offenders. This declined to 47% in the year 1966, but increased to 70% by the 1980s. The extent of public support reached an overwhelming 80% in the year 1994. Public opinion dominates, when it comes to the death penalty in the US, and politicians have little say in the matter (Soss, Langbein and Metelko 398).
As demonstrated by the research conducted by Soss, Langbein and Metelko, racial attitudes have a major impact on the white support for the death penalty. Such support is the outcome of prejudice towards the non – whites in the community. No attempt at understanding the white support for the death penalty can afford to ignore this dimension of bias towards members of non – white communities (Soss, Langbein and Metelko 416). Racial bias has a major influence upon who is sentenced to death, and has a major bearing upon the manner in which the whites view this punishment.
Fundamentally, the system of criminal justice had been founded on revenge, retribution and punishment. With regard to offenders condemned to death, it was generally presumed that such individuals had seriously violated others rights. Such criminals were not thought to be fit to be provided with human rights.
However, at present, there is growing opposition, across the world, with regard to the implementation of the death penalty, as it violates the human rights of the condemned criminals. This awareness of human rights has become a mass movement in many nations. Moreover, the international community strongly opposes the administration of capital punishment to criminals. Despite these developments, China implements the death penalty. Thus, there is a wide gap between the current trends in the international community and China.
It is indeed distressing to note that China does not promote the rights of criminals of death penalty, despite its vociferous claims to the contrary. When viewed in the backdrop of the contemporary trend among the nations towards a humane approach to criminals, this is even more disturbing. Some of the rights of those sentenced to death, which are violated by the Chinese authorities; belong to the realm of the basic human rights.
More than half of the countries of the world have abolished the death penalty. This salubrious environment may not happen in China, due to the inferior social development and values of the Chinese. Thus, the international community will have to watch anxiously for quite some time, before China decides to abolish the death penalty. In addition, China executes prisoners for a much larger range of crimes than the other countries that kill prisoners. The common development among the nations of the world is that the human rights of offenders condemned to death should be protected. In this regard, the death should be brought about in a humane manner, and there should be a significant limiting of executing by procedures that prove to be painful. Considerable attention should be devoted to the rights of the condemned, before they are killed.
China does not have an appropriate mechanism or laws to guarantee and protect the human rights of individuals. There is no uniformity with regard to the rights of criminals of the death penalty, at the national level. The authorities have considerable discretion, while dealing with criminals sentenced to death. China has failed to implement the international covenants, which it has ratified, properly. It did not enact any legislation to incorporate the provisions of international treaties. Moreover, there are serious flaws in the national laws of China, which makes a mockery of the various international covenants that China has signed.
Although, it can be concluded, based on the above observations that the American legal system is significantly discriminatory, these observations indicate the presence of substantial discrimination. The members of the non – white community tend to believe that the system is discriminatory. Moreover, black offenders convicted of murdering whites are more likely to be executed, in comparison to offenders who murder members of the minority communities. As is well known, district attorneys engage in the practice of jury bleaching, in capital cases, wherein a white has been killed. Jury bleaching is the practice of removing non – whites from jury pools that are to try capital cases, involving the death of whites.
This vindicates the stance that capital punishment is inflicted in a discriminatory manner in the US. The death penalty has become racialized from the perspective of the public. There is a commingling of the issues of crime and race by the white majority of the US. This transpires in the context of the racial stereotypes of African Americans, whilst contemplating punishment. Several studies have demonstrated that racial prejudice had an important influence on the attitude of the whites towards the death penalty.
As such, this research indicates that there are several instances of human rights violations in the implementation of the death penalty in the US and China. In the recent past, most of the executions had been conducted in China. This country constitutes the leader in imposing the death penalty. Although the US regards itself as the protector of the human rights, it is the only nation in the West that has not abolished the death penalty. Several independent organizations and the United Nations have observed that the US authorities frequently violate the human rights of those condemned to death.
Another disturbing feature of the US criminal justice system is that a large number of innocent people have been made the inmates of the death row, due to the discriminatory attitude of the US criminal justice system. Racial and ethnic discrimination is rampant in the US criminal justice system. Although the US is marginally better than China, as it permits the condemned to select the mode of execution, from the five available options, the fact remains that a significant number of these inmates are innocent.
China has blatantly rejected the international norms relating to human rights, while implementing the death penalty. Moreover, offenders are executed for a large number of crimes, regardless of the seriousness of the crime. Although the human rights organizations and its people had raised a hue and cry, in order to safeguard the rights of offenders, the Chinese government overlooked these protestations.
In the words of Emilie Durkheim, the death penalty had been utilized as a measure of vengeance in the under developed societies. Several studies have conclusively established that the death penalty does not deter crime. As such, there is no moral reason to perpetuate the death penalty, in the developed nations. Furthermore, discrimination of any kind should not prevail in the criminal justice system of any country. The nations of the world should adopt humanitarian methods in their death penalty procedures, in case they are unable to abolish such punishment, as it can result in irreparable loss to the innocent.
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