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The death penalty is the sentence of death after conviction following due process of law. The death penalty has been sanctioned by major juridical and religious traditions. It was defended during the Renaissance and Reformation by many Enlightenment thinkers such as Hobbes, Locke, and Rousseau. This same period first saw the emergence of the movement to abolish the death penalty with the seminal work of Cesare Beccaria (1764), an end which was advocated in the nineteenth century by the jurists Jeremy Bentham and Samuel Romilly.
The practice has undergone two key transformations in modern times: a restriction on the crimes and categories of offender punishable by death; and a transformation from public displays of excess to private, medicalized executions. These shifts have been explained either by the cultural dynamic of the privatization of disturbing events or by the transformation in technologies of power from punishment as a public and violent spectacle inflicting pain on the body to the emergence of disciplinary power and surveillance of the soul.
A number of international and regional treaties restrict and regulate the practice or provide for the abolition of the death penalty (Universal Declaration of Human Rights 1948, The Second Optional Protocol to the International Covenant on Civil and Political Rights 1989, Article 6 of the International
Covenant on Civil and Political Rights 1989). Protocol No. 6 to the European Convention of Human Rights abolished the death penalty in peacetime and since 1998 abolition became a condition for entry to the European Union. International courts and tribunals such as the International Criminal Court (1998) do not provide for the use of the death penalty.
Debates about the death penalty raise philosophical questions about its justice or morality and pragmatic questions about its usefulness, discriminatory or capricious distribution among the guilty, and the risk of executing the innocent. Arguments in support are usually framed by the principle of retribution and a presumption of a deterrent effect. It is argued that it has a deterrent effect especially where the threat of imprisonment is not a sufficient restraint. Arguments against the death penalty challenge empirical evidence on deterrence, arguing it constitutes a violation of human rights and the sanctity of life. There is at the moment no conclusive and undisputed evidence that executing offenders is more effective deterrence than life imprisonment.
The risks of error, arbitrariness, and discrimination are endemic even in sophisticated legislations. The risk of mistake (accurate determination of who deserves to die or botched executions) in capital cases is often used to challenge the legitimacy of this sanction.
- Hood, R. (2002) The Death Penalty: A Worldwide Perspective. Oxford University Press, Oxford.
- Schabas, W. A. (2003) The Abolition of the Death Penalty in International Law. Cambridge University Press, Cambridge.