John Bessler, The Death Penalty as Torture: From the Dark Ages to Abolition

There is a curious, yet under acknowledged, anomaly in the international legal system—indeed, in the legal systems of many sovereign states—with respect to the normative weight and practical application of the right to life on the one hand, and the right to freedom from torture on the other. All legal systems prohibit state authorities and non-state actors from inflicting torture on individuals, but many of these same systems permit state authorities to punish a person with death, since capital punishment is compatible with the right to life and is accepted in many jurisdictions. To appreciate why this is illogical, we can put it this way: states are prohibited from carrying out things such as torturous mock executions, but are permitted to carry out actual executions.

In this engaging and thoroughly researched and referenced monograph, Professor John Bessler addresses this incongruity by arguing that the death penalty should be construed as an act of torture, and thus universally outlawed. Bessler emphasizes that he does not mean that the administration of capital punishment is torturous, for this is a claim that has been made by other scholars such as Professor William Schabas.¹ Instead, Bessler argues that as a conceptual matter, state sanctioned executions are torture under the definition in Article 1 of the United Nations Convention Against Torture (UNCAT),² and that legal systems should recognize this. Two reasons are offered (p xxiv) for this argument:

First, death sentences—whether threatened, imposed, or actually carried out —are torturous threats of death akin to the kind of threats to kill made by non-state actors that are already classified as acts of torture. Second, executions are more severe than many non-lethal acts already classified as illicit acts of torture. Harsh conditions of confinement for death row inmates certainly amplify the death penalty’s torturous nature, as do long stays on death row. But capital punishment is torturous notwithstanding what particular conditions exist in specific locales or how much time an inmate actually spends on death row.

There is a certain intuitiveness to Bessler’s thesis. How can pulling out fingernails be classed as torture, yet the deliberate taking of life escape such categorization? A death sentence is as much a threat to kill as a mock execution. That it is a threat which is ultimately carried out surely only renders it more torturous—both conceptually and literally—than a threat which is not. By drawing attention to the contradictions inherent in any legal system which condemns the infliction of severe pain but tolerates the actual taking of life by state authorities, Bessler makes a valuable contribution to the crowded literature on both torture and the death penalty.

It is worth being clear about the status of torture and the right to life in international law. The latter has been described as the ‘supreme’ right³ and the ‘most fundamental of all human rights’.⁴ The rationale for this is fairly uncontroversial: violations of the right to life are often impossible to remedy adequately since the victim is dead.⁵ However, capital punishment is permitted as an exception to the right to life, under certain defined circumstances.⁶ Although Article 6 of the International Covenant on Civil and Political Rights (ICCPR)⁷ encourages abolition, 94 countries still retain the penalty on their statute books, and just 84 countries have ratified the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. Even though there is a growing trend towards abolition, and even though the chorus of voices that condemn state sanctioned executions has been growing louder since the early 1990s,⁸ the imposition of capital punishment is nonetheless far from a violation of a jus cogens norm of international law. This is not true of torture. The UNCAT has been ratified by an impressive 161 countries, and courts have routinely held that the prohibition has attained the status of jus cogens—a norm so important and widely adhered to that no state, under any circumstances, can justify or excuse the commission of torture.⁹

The strength of the prohibition against torture makes it tempting for those opposed to capital punishment to classify state sanctioned executions as torture per se, but these people, as Bessler acknowledges, face an obstacle in the wording of the UNCAT. The first part of Article 1 suggests that capital punishment can indeed be classed as torture, since torture is defined as the ‘intentional infliction’ of ‘severe pain or suffering, whether physical or mental … for such purposes as … punishing him for an act … when such pain or suffering is inflicted by … a public official’. However, the last part of Article 1 states that: ‘[Torture] does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.’ The orthodox view is that this exclusionary principle precludes a finding that capital punishment—a lawful sanction—can constitute torture. Over the course of some 400 pages, though, Bessler provides a compelling antidote to this prevailing view.

The book begins with a tour of torture and capital punishment in the Dark Ages, describing the vast range of offences that were punishable by death, and particularly gruesome methods of execution. Throughout Europe, and in China, offenders were subjected to drawing and quartering, garroting, boiling in oil and other methods that would be classified as torture today. Chapter 1 renders it difficult for the reader to argue that torture and capital punishment are analytically distinct, thus setting the scene for the rest of the book.

Chapters 2 and 3 document the impact of Enlightenment-era writers on the development of legal systems, noting how the likes of Montesquieu and Beccaria encouraged societies to reject torture as a punishment for crime, and to restrict the use of capital punishment. The chapters, like the rest of the book, are rich in detail and exceptionally informative. Throughout, Bessler marshals an impressive range of sources to provide the reader with depth as well as breadth of knowledge. Although there is a tendency to focus on the Anglo-American experience, the book provides an insight into the practice of capital punishment and torture all across the world.

Chapter 4 represents a slight departure from the main thesis—that the death penalty is per se torturous notwithstanding how it is implemented. Bessler provides an account of the way in which death sentences are sought, the way in which inmates are housed on death row, and contemporary methods of execution, to show that the actual administration of capital punishment compounds the torturous nature of death sentences. Much of the detail in this chapter will be familiar to those with an interest in capital punishment. For example, descriptions are provided of how conditions on death row inflict severe physical and mental pain and suffering, from sterile cells in solitary confinement in the United States to overcrowded and unsanitary cells in some parts of the Caribbean and Africa (pp 86–91). Methods of execution, too, often meet the threshold for torture. Perhaps less familiar to the reader will be the multifarious ways in which the decision to seek a death sentence can have the same impact on an individual as a torturous threat to kill. As Bessler writes, ‘the mere threat of capital charges can affect the behavior of criminal defense lawyers and their clients’ (p 82). This is because the threat of death can persuade a defendant to plead guilty in exchange for a lesser sentence, even if they are innocent of the crime in question. This is common practice in death penalty jurisdictions, with an array of examples provided of how prosecutors often file a capital charge in order to obtain a guilty plea. This is remarkable when one considers the extent to which threats of death outside the context of capital cases are, to put it mildly, frowned upon. A contract entered into under threat of death, for example, will be declared null and void. People can, on occasion, avoid sanctions for criminal acts committed under threat of death. Thus, ‘[j]ust as the victims of torture … suffer severe mental anguish as a result of anticipating death, a capital charge is a highly credible threat of death as it is backed by law and the state’s tremendous power and resources’ (p 84).

It is in Chapters 6 to 9 that Bessler tackles the ‘lawful sanctions’ part of the definition of torture, and makes the case for construing the death penalty as torture. In many respects, these chapters not only grapple with the phenomena of torture and capital punishment, but they also contribute to the literature on the strengths and limitations of international law as a whole. A thorough account is provided of the debates in the United States of America's Senate prior to America’s ratification of the UNCAT, noting that the United States was careful to be explicit that ratification of the treaty did not have an impact on the legitimacy of capital punishment. The debates shed light on the difficulties more generally with reservations, understandings and declarations to treaties.

Bessler cogently argues that ‘lawful sanctions’ cannot refer to domestic criminal penalties, since any state could classify acts commonly regarded as torture as ‘lawful sanctions’, thus rendering UNCAT utterly toothless. Surveying a range of domestic and international legal and scholarly authorities, Bessler makes it clear that acts prohibited by international law cannot be construed as ‘lawful sanctions’ for the purposes of circumventing the prohibition on torture.

Of course, as the law currently stands, the death penalty is not prohibited by international law. But, as Bessler argues, international law is clearly moving in that direction. His book, then, is a call-to-arms for scholars, jurists, activists and those opposed to capital punishment to frame the case against the death penalty using the language of torture. He is adamant that the prohibition of the death penalty should be, and will in time be, classified as a jus cogens norm of international law.

Some readers might conclude that Bessler’s suggestion is wishful thinking at best, unhelpful to the abolitionist cause at worst. It is wishful thinking because international law is nowhere near recognizing an absolute prohibition on capital punishment. And it is arguably unhelpful because, in recent years, the most effective anti-death penalty discourses have been couched in pragmatic rather than principled terms. That is, abolitionists have not succeeded in turning the tide against capital punishment because they have persuaded audiences that death sentences are cruel in the sense that torture is. Rather, they have succeeded because they have convinced others that the death penalty does not work in practice.¹⁰ The risk of executing an innocent person, for example, has taken top billing in the abolitionists’ arsenal. This, though, is probably one of the main strengths of Bessler’s work. The dangers of pragmatic-based approach to abolition have been set out elsewhere, but in short they include the very real problem that efforts to abolish will collapse into efforts to reform capital punishment, and pragmatic efforts can have the effect of legitimating other harsh punishments, like life without parole.¹¹ By illustrating the links between capital punishment and torture, Bessler commendably shifts the debate over capital punishment back to its moral basis: the death penalty is objectionable because, like torture, it is inherently cruel in all places and at all times.

Footnotes