Anne Holsinger 0:01

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is John Bessler, professor at University of Baltimore School of Law. He’s authored 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, and he has lectured internationally. Thank you for joining us, Professor Bessler. 

John Bessler 0:27

Thanks for having me. 

Anne Holsinger 0:29 

So I want to start by talking a little bit about your most recent book, where you make an argument for classifying the death penalty as torture, which if accepted, would violate international law. Could you explain why you think the death penalty is torture? 

John Bessler 0:43 

Yeah, let me begin by just talking about what the death penalty really is in reality, and that is that the death penalty is really just a series of credible death threats. So if you have a capital charge, that’s a death threat. If you have a death sentence, that’s just a more credible death threat. And of course, if you have an execution, in the period leading up to the execution, that also constitutes very imminent death threat. And there’s been already in international law, there’s much commentary about how mock executions, or what we called simulated executions, already considered a classic example of psychological torture. And the UN Convention Against Torture, which the US actually has ratified, prohibits both physical and mental forms of torture. And so I think, if you think about what really what the death penalty is, it’s really just sort of a mock execution in some cases where they actually carry it out. So it’s actually more severe. And so for that reason, I think that the death penalty should be classified as torture under international law, just as you know, we don’t allow in the law if there’s death threats made in, for example, the context of interrogations, we say that those confessions are coerced, and should not be admitted into evidence. And the US law actually already prohibits the use of mock executions. So given our commitment to the UN Convention Against Torture, and our commitment to rid ourselves of using torture as practices. I think that the death penalty should be classified as such. 

Anne Holsinger 2:14 

Why do you think it’s important to recognize the death penalty as torture? And what effect would that recognition has in the US where international laws and norms are often disregarded? 

John Bessler 2:24 

Yeah, I mean, I think it’s important to stigmatize the practice. I know that the Death Penalty Information Center has been releasing information as they do regularly and periodically about the the number of states that actually use executions, use the death penalty. And the number of states that use the death penalty has been declining. And most executions around the world take place in places like China, Iran, Iraq, Saudi Arabia, and I don’t think the US should be on that list of countries. We want to have the ability, when we talk about executions abroad, to really have have better standing in the world to talk about this as a human rights abuse. And so I think for that reason, it should be classified as the under what it torture is already prohibited under international law under the highest norm, we call that a jus cugens norm prohibiting torture. And I think that the death penalty has just been misclassified in the past, and should be classified under that rubric of torture. 

Anne Holsinger 3:20 

Is there any legal precedent domestically for courts to conclude that the death penalty constitutes torture? 

John Bessler 3:26 

Yeah, there actually, if you actually look at the the law, the development of the law, there is really, although the US Supreme Court, of course, in most recently has decided that the death penalty should not be classified even as cruel and unusual punishment. But let me let me take a step back to the earlier case law, the US Supreme Court decided, and there’s cases where ironically, the US supreme court approved the death penalty, but they said that the Eighth Amendment actually prohibits torture. And so if we look back at cases like Wilkerson v. Utah, that’s from the late 1870s, and In re Kemmler, which approved the use of the electric chair in 1890. That case also said that the Eighth Amendment prohibits torture. But the US Supreme Court has just failed to consider the modern definition of torture, which has developed since the since the Holocaust, since the Nazi atrocities and since World War Two. And so if you think about what happened after World War Two, right, we had the Universal Declaration of Human Rights in 1948 and then we have a Germany, for example, declared in its constitution, the death penalty was was abolished in 1949. In the third Geneva Convention in 1949, which protects POWs privy to both mental and physical torture. And so this US Supreme Court has already said that the Eighth Amendment bars torture through the Eighth Amendment, but they just haven’t considered the mental aspect of torture. So they’ve missed kind of half the equation they’ve only focused on the the narrow question of whether there be physically excrutiating pain at the moment of death during an actual execution. And if you look back at history, back in 1972, of course in Furman v. Georgia, the US Supreme Court did for a period of time declare the death penalty be a violation of the cruel, unusual punishments clause of the Eighth Amendment. And just shortly before that, in a case called People vs. Anderson, the California Supreme Court actually use the language of psychological torture to refer to the death penalty. And in the Furman v. Georgia case of the Supreme Court actually, more than 50 times use the language of torture, but just didn’t classify the death penalty as torture. And then if we look at other cases that have been more, more recent, there’s a whole line of cases in a death penalty state, Alabama, which defines psychological torture in the non-state actor context, as making someone aware of their impending death and that person then being helpless to prevent their death. And so if you apply that exact same definition to people on death row, you would conclude under principles of universal human rights and the idea of the rule of law, which says that the laws have to apply to everybody, including government officials, that the death penalty should be classified as torture. Most recently, there was a case actually in Idaho, a federal judge ruling on a motion to dismiss that it was not addressing the merits of the issue, but decided the Eighth Amendment claim of a death row inmate could go forward in a case called Pizzuto vs. Tewalt, and that was just earlier this year. And basically what was happening is Idaho was scheduling executions, without necessarily having the drugs to carry out those executions. And so the judge determined that that claim could at least go forward past the motion to dismiss stage and use the language of psychological torture in that case. So I think, you know, there are there are precedents, certainly the talk about torture, but the Supreme Court just hasn’t today applied the concept of psychological torture to the death penalty, and I think they do so they’d be forced to confront some of these issues. 

Anne Holsinger 6:59 

I’m glad that you brought up some of the court decisions, because I wanted to talk a little bit about due process. In recent years, it’s become increasingly difficult for death-sentenced prisoners to secure relief from federal courts, even in cases involving credible innocence claims. Do you think that this erosion of due process fits into your theory that the death penalty is torture? 

John Bessler 7:20 

Yeah, I do. I think the book is really about the idea of universal human rights and of course, the concept of due process is an ancient one, a long standing one, you can go all the way back to the Magna Carta, in 1215. You have an English law, they use the term law of the land, we use the term due process in American law, we have two due process clauses in the US Constitution, we have the Fifth Amendment that guarantees due process at the federal level, we have the due process clause at the in the 14th Amendment, which protects people against due process violations from the States. And of course, the the 14th Amendment also includes in a very important provision, the equal protection clause, and that that clause I think, is important to think about in terms of universal human rights, because due process is also a universal human, right, we have protections for due process, we find in international conventions, and it’s important to the process be fair, but my point is that even if you could make an execution, you could guarantee that would be physically pain free at the moment of death, there’s really no way to eliminate the psychological torment that’s associated with scheduling somebody’s death, and then subjecting them to that sort of continuous threat of death during the entire process. And so, you know, unlike back in the 18th century, when the Constitution was put in place, the average time where people would spend between sentencing and execution might range from like three to, you know, one month to three months. And now we have the average being about 20 years where people are subjected to this threat of death for really two decades. And so because you can’t eliminate the psychological torment that’s associated with the death penalty, the use of capital punishment, it’s for that reason, I think we really need to consider thinking about classifying the death penalty as torture, not only under international law, but also under domestic law. 

Anne Holsinger 9:12 

This year, and last year, the global execution total has risen due to increased use in a small number of countries, even as many other countries are moving towards abolition. So, just to give a couple of examples for our listeners earlier this year, Ghana abolished the death penalty, and Malaysia eliminated the mandatory death penalty for 11 offenses. How would you describe the current state of capital punishment on the global stage? And why do you think the US remains a retentionist country? 

John Bessler 9:39 

Well, I think to answer the last question, first, I think part of it is our system of federalism, right? So we have not just one system of government, but we have the federal government, we also have the governments of all the states and we have governments in the territories. And so it’s difficult to unless the US Supreme Court weighs in on this. That’s really the only clean way A to get rid of the definitely we’ve seen a lot of activity at the state level, states have either declared the death penalty unconstitutional through judicial decision, as happened in in Connecticut in the case called State v. Santiago. Other states abolished the death penalty, legislatively, but at the international level, the US is becoming increasingly isolated in the international community, every three years, there’s a World Congress Against the Death Penalty. If we look at what’s actually happening internationally, we now have 90 countries that have signed what’s called the section second optional protocol to the International Covenant on Civil and Political Rights. That’s also a covenant the US has actually ratified, but we submitted reservations to it to allow the US to continue using the death penalty. But if you look at actually what’s happened internationally, you know, those 90 countries have committed to abolishing the death penalty, we’ve had more than 120 countries go to the UN and say that they want a global moratorium on the death penalty, that’s something the US actually did not vote for. But again, we’re becoming increasingly isolated, because we’re in the minority position now, on the death penalty. So I think if we look at what’s happening globally, there’s a growing awareness of thinking about the death penalty as a human rights violation. And we need to get ahead of this, when we have countries like Mongolia, other places around the world that have abolished the death penalty, we’re really, really behind the times, especially when you look at the countries that use the death penalty, still, they tend to fall into that autocratic, totalitarian kind of grouping of countries that that do not respect, human rights sort of writ large. And so we really need to, I think, refocus our attention on this issue. 

Anne Holsinger 11:43 

So we will be releasing this podcast in conjunction with International Human Rights Day on December 10. And you’ve mentioned how the death penalty is often framed or discussed as a human rights issue on an international level. But in the United States, it’s primarily seen as a criminal justice issue rather than a human rights issue. Do you agree with that framing? And why or why not? 

John Bessler 12:05 

Well, I think I think we really do need to think about it now as a human rights issue squarely and let me give you a couple of examples. In Europe, for example, which again, we had the the Nazi atrocities, the Holocaust, we had a convention there, there was the European Convention on Human Rights was, was passed in the wake of World War II. That allowed for the death penalty at the time back in the 1950s., but when we move up to a couple of protocols, we had protocol number six, and protocol 13, to that European convention. The first protocol, protocol six, declared that the death penalty should not be used in peacetime and then in protocol, 13, Europeans decided that they were not going to allow the death penalty even in wartime, so there’s been an absolute prohibition of the death penalty in Europe. And in the American system, we have the American Convention on Human Rights, which actually, there’s a provision in there that says that once a country abolishes the death penalty, they agree not to, not to bring it back. And so abolition effectively in the Americas is is a one way street, you’re moving towards abolition. And even though there’s a provision in the International Covenant on Civil, Political Rights, Article Six, that purports to allow the death penalty for the most serious crimes, there’s also a provision in that International Covenant on Civil Political Rights that has an absolute prohibition against torture. And my personal opinion is you just can’t square those two, you cannot both allow the death penalty, and then outlaw torture, absolutely. Because the death penalty by nature, an immutable characteristic of the death penalty is it makes use of, of credible death threats of the kind that ordinarily would be classified as not only tortious. That is that they could be the subject of like a claim for intentional infliction of emotional distress, but also torturous, and actually, if you think about it, death threats are ordinarily considered criminal acts – these are acts that are punishable under the criminal law. And so the idea of the rule of law, of course, is that everybody will be subject to the same laws. And so government officials should not be allowed to use a credible death threats in a system in an organized criminal justice system. And so I know there’s been a lot of talk about well, is the death point deterrent or not? If you look at the statistics, the death penalty states, on average, have higher homicide rates than the non-death penalty states. So I don’t think that’s really can be a focus of, of the discussion around the abolition of the death penalty. So I do think we need to look at it squarely through a human rights lens. And one thing I would just say, finally, is that the idea of human dignity is one that we need to think about as well. There was actually a case when Justice Harry Blackmun was on the Eighth Circuit, as a judge in the Eighth Circuit, he wrote a an opinion called Jackson v. Bishop in 1968. And that that case, declared the use of lashing prisoners within Arkansas prisons to be a violation of the cruel unusual punishments clause. So he was talking about a non-lethal corporal punishment, and he said that that punishment was was degrading both to the person being punished but also to the punisher. And if we think about the the death penalty, the death penalty is just more severe than a non-lethal corporal punishment. So it’s an ironic situation that the judicial decision in the United States already say that you cannot use non-lethal corporal punishments, yet we still have this lethal punishment kind of hanging out there being used quite rarely, actually, in the United States at this point. 

Anne Holsinger 15:28 

The United States is among a small number of retention as countries globally. When you’ve lectured internationally about the death penalty, how do international audiences react to the fact that the US continues to use the death penalty? 

John Bessler 15:41 

Yeah that’s a great question. You know, when you talk to people in other countries, a lot of countries, including in Europe, actually will refuse to extradite people to the United States, if they, if there will be a prospect of that individual facing the death penalty. So I think that kind of says it all, in a way about views in other places about the death penalty. And again, because of that trend, I talked about where we’re seeing more and more countries abolish the death penalty, more and more countries join every couple of years the the UN resolution to call for a global moratorium on the death penalty. I think that’s significant. And something as a country that wants to be a leader in the international community that we need to pay attention to. I was at an event, actually in Germany, recently and had a chance to hear the former President of Mongolia, which again, I mentioned, they’d abolish the death penalty. And he talked about when he became president facing a choice, he could either sign death warrants or you could sign commutations of death sentences. And he chose the latter, he chose to commute those death sentences and to join really the international community in getting rid of the death penalty. And actually, when you get rid of the definitely it opens up conversations about other things in the criminal justice system, which are very pressing, which we need to talk about, including racial discrimination. 

Anne Holsinger 16:55

Is there anything else that you’d like to share with our listeners? 

John Bessler 16:58 

Yeah, I think one last point, I think would be that change takes time. And the watch changes and evolves over time. But it does so oftentimes, slowly, and in fits and starts. And so it’s important to remember that, even though I’ve been advocating against the death penalty for more than three decades, the progress sometimes is slow. We no longer have juvenile executions in the United States, the US Supreme Court declared those to be unconstitutional. We’ve seen some states abolish the death penalty. But we’re, we still have more work to do. And I think one of the things that, as I’ve looked at this issue, you really cannot separate the issue of the death penalty from racial discrimination. The death penalty was often used in the founding era of our country to put down rebellions of those individuals who were enslaved. That happened in Virginia, for example, in 1800, with what was known as Gabriel’s Rebellion. And if you look at the the first Civil Rights Act that Congress passed, that was in 1866, and that Civil Rights Act requires like punishments for people of different races. And unfortunately, we just never achieve that, that result. So again, the right to be free from discrimination is also one of those universal human rights that we find in international law. And again, in our own US Constitution, we’ve made a commitment to equal protection of the laws. And the death penalty just really flies in the face of that, of that concept of equal protection. So for that reason, additional reason, I think that definitely also needs to be declared unconstitutional by the US Supreme Court. 

Anne Holsinger 18:34 

Thank you so much for joining us today, Professor Besler. 

John Bessler 18:36 

Thanks for having me. 

Anne Holsinger 18:37 

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