The Debate

The Death Penalty: Cruel But Still Not Unusual

Executions in Taiwan and the U.S. this week underscore that capital punishment is alive and well.

The Death Penalty: Cruel But Still Not Unusual
Credit: Andy Dolman

The death penalty grabbed international headlines this past week with controversial executions in the United States and Taiwan. What has received less attention is whether the practices in these jurisdictions comport with evolving international norms.

For the United States, the botched execution of Clayton Lockett brought to the fore both the persisting use of the death penalty and the increasingly questionable means of execution. The United States is a party to the International Covenant on Civil and Political Rights (ICCPR)—a primary document expressing international human rights norms—which does not explicitly prohibit the death penalty but does encourage abolition. Executions are forbidden under an optional protocol to which 81 countries are parties, though not the United States. In contrast to the United States’ intransigence, “All the Council of Europe’s 47 member states have either abolished capital punishment or instituted a moratorium on executions.”

In addition to its staunch support for maintaining the death penalty, the United States is under further scrutiny for its methods of execution. For Lockett, the cocktail of drugs delivered intravenously failed when his vein blew. He died of a heart attack forty minutes after the attempted execution. This raises interesting legal questions because the United States is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Lockett debacle gives credence to the concerns of the Special Rapporteur charged with overseeing compliance with CAT, who stated in one report:

“[T]here is no categorical evidence that any method of execution in use today complies with the prohibition of torture and cruel, inhuman or degrading treatment in every case. Even if the required safeguards [ ] are in place, all methods of execution currently used can inflict inordinate pain and suffering. States cannot guarantee that there is a pain-free method of execution.”

The five executions carried out in Taiwan this past week did not raise the same acute concerns about suffering during the execution process, but the first executions in over a year raised questions about whether the government was living up to its pro-human rights rhetoric. In 2009, Taiwan incorporated the ICCPR into domestic law, even though formal ratification is not possible because of Taiwan’s unusual international status. Last year, Taiwan welcomed an international group of independent experts to review implementation. The experts recommended that Taiwan intensify “its efforts towards abolition of capital punishment and, as a first and decisive step, immediately introduces a moratorium on executions in accordance with the respective resolutions of the UN General Assembly.” This week’s executions fly in the face of this recommendation, as well as the experts’ call for Taiwan to adhere to CAT, a step that thus far the government has failed to discuss seriously.

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Nor are the United States and Taiwan sole outliers in their continued use of the death penalty. Amnesty International reported 778 executions in 22 countries in 2013, “an increase of almost 15% compared with 2012.” Importantly, the People’s Republic of China was not included in these statistics because the number of executions remains a state secret. Executions in China have reportedly dropped significantly in recent years from an estimated high of well over 10,000 at the turn of the millennium to approximately 3,000 in 2012, reflecting a partial victory for the policy of encouraging leniency over severity. Importantly, China is a party to CAT but has failed to ratify the ICCPR despite signing it in 1998. The new leadership under Xi Jinping took a notable step in improving the human rights situation last year by abolishing the infamous punishment of re-education through labor, but has failed to advocate ratifying the ICCPR or abolishing the death penalty.

Although it is highly unlikely that China will relinquish use of the death penalty in the foreseeable future, recent events could serve to increase momentum in the United States and Taiwan for greater convergence with international anti-death-penalty norms. President Obama has stopped short of supporting abolition, but he has called for a policy review of how executions are carried out. And President Ma Ying-jeou’s administration reiterated its ultimate goal of abolition. It now falls on concerned citizens to hold their governments accountable for these pledges when this week’s headlines fade.

Margaret K. Lewis is an Associate Professor at Seton Hall Law School and author of An Analysis of State Responsibility for the Chinese-American Airplane Collision Incident, 77 N.Y.U. L. Rev. 1404 (2002).The author would like to thank Yu-jie Chen and Yen-chia Chen for their research assistance.