Fifteen Eighty Four

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A New Enlightenment: Reclassifying the Death Penalty as Torture

John Bessler

In 1764, the Italian philosopher Cesare Beccaria (1738-1794) published a book, Dei delitti e delle pene, that remains one of the seminal works of the Enlightenment. A law graduate of the University of Pavia, Beccaria wrote the book in his mid-20s as a member of a Milanese literary society called L’Accademia dei pugni—the Academy of Fists. That society dedicated itself to the study of Italian literature and useful ideas, and it published a literary magazine, Il Caffé, from 1764 to 1766. Among the society’s members were brothers Alessandro and Pietro Verri. Alessandro was familiar with Milan’s penal system, and his older brother, Pietro, had an abiding interest in penal reform and the abolition of torture. Pietro Verri—an economist—had written Meditazioni sulla felicità (Meditations on Happiness, 1763) and later wrote Dell’indole del piacere e del dolare (Discourse on Pleasure and Pain, 1773) and Osservazioni sulla tortura (Observations on Torture), the latter manuscript penned between 1770 and 1777 but not published until 1804 after Verri’s death. Recalling the trial of “witches” believed by the superstitious to have caused Milan’s plague of 1629-1631, Pietro Verri called judicial torture “immensely cruel” and “intrinsically unjust.”

Translated into French in 1765 as Traité des délits et des peines and into English in 1767 as An Essay on Crimes and Punishments, Beccaria’s widely read book—appearing in multiple editions and translated into more than twenty languages—condemned both torture and capital punishment, albeit in separate chapters. In On Crimes and Punishments—at first published anonymously because of Beccaria’s well-founded fear of the Inquisition—Beccaria’s introduction noted that, while the “immortal” Montesquieu had “dealt cursorily” with the subject, few had “studied and fought against the cruelty of punishments and the irregularities of criminal procedures, an area of legislation so fundamental yet so neglected almost everywhere in Europe.” Among countless others, George Washington, John Adams, and Thomas Jefferson read On Crimes and Punishments before America’s Revolutionary War; James Madison recommended Beccaria’s book for the Library of Congress; and the book materially shaped American constitutions and penal reform on both sides of the Atlantic. “The name of Beccaria has become familiar in Pennsylvania, his authority has become great, and his principles have spread among all classes of persons and impressed themselves deeply in the hearts of our citizens,” William Bradford, Jr.—then Pennsylvania’s attorney general (and later the second Attorney General of the United States)—tellingly wrote in 1786 to Luigi Castiglioni, a botanist from Milan who toured North America from 1785 to 1787 shortly before the Constitutional Convention convened in Philadelphia to produce the U.S. Constitution.

Inspired by Montesquieu’s writings on proportionality of punishment and Voltaire’s campaign to posthumously exonerate Jean Calas, a merchant from Toulouse, France, wrongfully convicted of murdering his own son, then tortured and broken on the wheel in 1762, Beccaria condemned judicial torture and capital punishment. But as with other Enlightenment thinkers, Beccaria treated torture and capital punishment as completely separate topics at a time when the death penalty was the universally accepted punishment for murder and other crimes. At the beginning of chapter 2 of On Crimes and Punishments, Beccaria laid out his general philosophy (one borrowed from Montesquieu, the French jurist whom James Madison called the “oracle” on separation of powers): “As the great Montesquieu says, every punishment that does not derive from absolute necessity is tyrannical. This proposition can be stated more generally in the following manner: every act of authority of one man over another that does not derive from absolute necessity is tyrannical.” Beccaria preferred imprisonment to executions, with Beccaria now remembered as the father of the anti-death penalty movement. “[T]he purpose of punishment,” Beccaria emphasized in chapter 12, “is neither to torment and afflict a sentient being, nor to undo a crime already committed.” “The purpose of punishment,” he instead stressed, “is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same.”

In a 2008 translation of On Crimes and Punishments prepared by Aaron Thomas and Jeremy Parzen, one finds Beccaria’s discussion of “Torture” and the “Death Penalty” in chapters 16 and 28, respectively. “The torture of a criminal while his trial is being prepared is a cruelty condoned by custom in most nations,” Beccaria observed in chapter 16, alluding to the once-prevailing civil law tradition in continental Europe of using judicial torture to extract confessions and information from criminal suspects. In that chapter, Beccaria referred to “the innumerable examples of innocent men who confessed their guilt amid the spasms inflicted by torture.” Noting that “there is no nation and there is no age that cannot cite its own examples,” Beccaria pointed out that torture had been “abolished in Sweden” for certain crimes and, elsewhere, “by one of the wisest monarchs of Europe”—an allusion to Frederick II (1712-1786), the Prussian king who, in 1740, abolished judicial torture except for cases of treason and multiple murders. In 1754, Frederick II—also known as “Frederick the Great”—had gone even further, ordering a total ban, calling torture “gruesome” and “an uncertain means to discover the truth.”

In chapter 28 of On Crimes and Punishments—titled “On the Death Penalty”—Beccaria began: “This futile excess of punishments, which have never made men better, has impelled me to consider whether the death penalty is really useful and just in a well-organized state.” “By what right,” Beccaria asked, “can men presume to slaughter their fellows?” In his chapter on capital punishment, Beccaria called it “the war of a nation against a citizen.” “[I]f I can demonstrate that the death penalty is neither useful nor necessary, I will have won the cause of humanity,” Beccaria wrote. “The death penalty is not useful because of the example of cruelty that it gives to men,” Beccaria observed more than a half century after the English Bill of Rights (1689) had barred “cruel and unusual punishments.” As Beccaria emphasized in chapter 28: “If the passions or the necessities of war have taught us how to shed human blood, the laws, which moderate the conduct of men, should not augment that cruel example, which is all the more baleful when a legal killing is applied with deliberation and formality.” “It seems absurd to me,” Beccaria concluded, “that the laws, which are the expression of the public will, and which execrate and punish homicide, should themselves commit one, and that to deter citizens from murder they should order a public murder.”

In The Death Penalty’s Denial of Fundamental Human Rights: International Law, State Practice, and the Emerging Abolitionist Norm, I trace the history of the anti-torture and anti-death penalty movements. In continental Europe, jurists once used judicial torture to extract confessions from the accused, with monarchs in the British Isles also resorting to instruments of torture (e.g., the rack, pressing to death) and lethal and non-lethal torturous punishments (e.g., drawing and quartering, the pillory, ear cropping) centuries ago even though the English common law specifically renounced torture. The first European locales to abolish capital punishment—Tuscany in 1786 and Austria (save for crimes of revolt against the state) in 1787—did so shortly before America’s Constitutional Convention in Philadelphia. In Pennsylvania, Dr. Benjamin Rush—a Beccaria admirer and a signer of the Declaration of Independence (1776)—announced in March 1787 at Benjamin Franklin’s house that he saw death as “an improper punishment for any crime.” “The marquis of Beccaria,” Dr. Rush wrote in The American Museum in 1789, “has established a connexion between the abolition of capital punishments and the order and happiness of society.” In Europe today, Protocols No. 6 and No. 13 to the European Convention on Human Rights explicitly prohibit the use of executions in peacetime and wartime, respectively. Indeed, twenty-three American states and many of the world’s countries have abolished capital punishment, turning the previously lawful sanction into an unlawful one. The Rome Statute, which established the International Criminal Court and that entered into force in 2002, itself prohibits the death penalty’s use.

More than 250 years after Beccaria wrote On Crimes and Punishments, The Death Penalty’s Denial of Fundamental Human Rights argues that the death penalty should be classified not merely as cruel and inhuman but as a form of torture. An immutable characteristic of state-sanctioned killing is that it routinely makes use of death threats. A capital charge is a threat of death; a death sentence backed by state power is an even more credible death threat; and when an execution date nears, the threat of an unnatural death becomes imminent, subjecting the death row inmate and his or her family members to severe pain and suffering of the kind already associated with mock, or simulated, executions—the torturous practice Russian novelist Fyodor Dostoevsky was subjected to in 1849 and which, of late, Russian soldiers illegally occupying eastern Ukraine also have put to use. Mock executions have long been justly denounced by jurists and international law experts as a classic example of impermissible psychological torture. If a fake execution constitutes torture (and it clearly does), why not a real one? With torturous, non-lethal corporal punishments (e.g., the lashing of prisoners) already abandoned and outlawed in Western penal systems, The Death Penalty’s Denial of Fundamental Human Rights documents how capital punishment violates a variety of universal human rights: the rights to be free from cruelty and torture; the rights to be free from arbitrary and discriminatory treatment; the right to life; and the right to human dignity upon which the post-World War II international human rights law system is built.

From the Dark Ages through the twentieth century, the death penalty was seen as something other than torture. In the twenty-first century, however, it can no longer be denied that the death penalty bears all the indicia and characteristics of torture as now defined by international law, with the world’s death row inmates—whether in China, Saudi Arabia, Iran, Iraq, Egypt, Japan, or the United States—living under ongoing, continuous threats of death. Threats of death by state officials, in fact, are known to produce false confessions. The widely ratified U.N. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1987) now makes crystal clear that acts of torture, whether physical or mental, are absolutely prohibited. Under that international convention, neither war nor imminent threat of war can be invoked to justify an act of torture. Indeed, the longstanding bar against torture constitutes a well-recognized jus cogens norm, the highest level of protection under international law, on par with the prohibitions against piracy, slavery, and genocide. If the world is ever to achieve truly universal human rights, as promised by the Universal Declaration of Human Rights (1948), then everyone—both the innocent and the guilty—must be protected from torture and cruelty. In the non-state actor context, American jurists define “psychological torture” as being made aware of one’s impending death and being helpless to prevent that death. If that exact definition is applied to the experience of death row inmates, the death penalty must be seen as a torturous practice, too. A robust understanding of the Rule of Law—requiring that all persons, including state actors, be subjected to the same laws as everyone else—requires no less.

The Death Penalty’s Denial of Fundamental Human Rights by John Bessler

About The Author

John Bessler

John Bessler teaches at the University of Baltimore School of Law and the Georgetown University Law Center. He has also taught at the University of Minnesota Law School, the George...

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