Discussions with DPIC Podcast: Classifying Capital Punishment as Torture with John Bessler

In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with John Bessler (pic­tured), Professor of Law at the University of Baltimore School of Law. Professor Bessler is the author of sev­er­al books on the death penal­ty, includ­ing his 2023 book The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm. In his most recent book, Professor Bessler argues that the death penal­ty should be clas­si­fied as tor­ture, which would pro­hib­it its use under inter­na­tion­al law and treaties. The real­i­ty of cap­i­tal pun­ish­ment, he explains, is that it is ​“real­ly just a series of cred­i­ble death threats.” The cap­i­tal charge is a death threat, the death sen­tence is a more cred­i­ble death threat, and the exe­cu­tion itself is a very immi­nent death threat. International law already pro­hibits mock exe­cu­tions as a ​“clas­sic form of psy­cho­log­i­cal tor­ture,” and Professor Bessler argues that the death penal­ty, with its repeat­ed threats to exe­cute, should be viewed the same way. “[T]here’s real­ly no way to elim­i­nate the psy­cho­log­i­cal tor­ment that is asso­ci­at­ed with sched­ul­ing someone’s death and then sub­ject­ing them to that con­tin­u­ous threat of death dur­ing the entire process.”

Professor Bessler notes that the US Supreme Court has held that the Constitution pro­hibits tor­ture as a form of cru­el and unusu­al pun­ish­ment but has failed to con­sid­er the cur­rent use of the death penal­ty, and the lengthy peri­od of time before an exe­cu­tion, as a form of tor­ture. Recently, how­ev­er, in Idaho, a fed­er­al judge pre­lim­i­nar­i­ly iden­ti­fied the repeat­ed set­ting of exe­cu­tions for a death-sen­tenced pris­on­er with­out intent to car­ry them out as a form of psychological torture.

Defining the death penal­ty as a human rights issue is essen­tial, accord­ing to Professor Bessler. ​“We do need to think about the death penal­ty as a human rights issue, square­ly,” he said, just as European coun­tries and inter­na­tion­al law instru­ments do. ​“The death penal­ty by nature makes use of cred­i­ble death threats that ordi­nar­i­ly would be clas­si­fied as both tor­tious and tor­tur­ous” as well as crim­i­nal, he says. ​“Government offi­cials should not be per­mit­ted to use cred­i­ble death threats in an orga­nized crim­i­nal justice system.”

“The idea of human dig­ni­ty is one that we need to think about as well,” Professor Bessler adds. He says that in 1968, when Supreme Court Justice Blackmun was a judge on the 8^th Circuit, he wrote that a non-lethal form of cor­po­ral pun­ish­ment was degrad­ing both to the per­son being pun­ished and also to the pun­ish­er. The irony, Professor Bessler notes, is that a lethal form of pun­ish­ment, the death penal­ty, has not been viewed the same way.