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I've always been baffled at the Council of Europe fight against the death sentence: on the one hand you have the rights of the prisoner and how a death sentence is too harsh for any crime. On the other hand it's considered to be perfectly okay to send someone to prison for life or for 20+ years, which is often a lifetime sentence anyway. If I were a convicted criminal, I'm pretty sure I'd rather just get the death penalty rather than living in miserable conditions for the rest of my life. Even more so in countries where the penitentiary system is not known for its great facilities.

So what's the rationale for attempting to eradicate the death sentence? Isn't it practically speaking a much more humane punishment than a long prison sentence?

Edit: while the current answers are certainly interesting, I would like to know the official rationale by the Council of Europe, not what the US or other government entities think about it.

67

There are actually several points that make it different:

  1. The European charter of fundamental rights states in its very first article that human dignity is inviolable. (Just like the German Basic Law btw.) This automatically forbids any action of the state taking the life of any human being as a form of sanction.

  2. Also people on death row usually wait for several years before the sentence is carried out and that is deemed as violating human dignity as well. If you sit there years waiting for your execution that is deemed as damaging as torture.

  3. The criminal system can and does fail. There are several well documented cases of people being treated unjustly by the system and even falsely convicted for crimes they did not commit. You can release someone whom you imprisoned for life. You can't release someone you executed, you can just bury him.

  4. Because even lifetime imprisonment is not what it says. The ECJ (European Court of Justice) ruled that it is unconstitutional to imprison a person for life without the chance of parole. You might be imprisoned for a very long time, but there always has to be the chance of parole.

  5. The idea behind the justice system in Europe is not only to punish an offender. It is twofold: first it should protect the public from a dangerous individual and, second, it should try to educate that individual to return to a lawful life - and you can't re-educate a dead person. You can however grant him parole if he improves while imprisoned.

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    One could (and I would, and the German Supreme Court does, and the EuGH does, as you mention) argue that a life sentence as well violates human dignity. That is in fact the motivation for the OP to ask the question. – Peter - Reinstate Monica Jun 7 '17 at 13:58
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    That a true life sentence would be inhuman is, as you say in point 4, the reason it is also illegal in Europe. It's that simple. There is "preventive detention" for dangerous individuals which continues after the actual punishment sentence is over, but the hurdles to arrange and maintain that infinite form of imprisonment are -- thank goodness -- high. – Peter - Reinstate Monica Jun 7 '17 at 14:09
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    The last point is imho the most important difference in justice systems all over the world: Some are based on revenge, some are based on resocialization. – PlasmaHH Jun 8 '17 at 7:24
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    Interpretation of the first point is way off. Conversely, the locking up can be viewed as a gross violation of dignity, while death, as unavoidable event, is neutral and preserves dignity by preventing this violation. – Agent_L Jun 8 '17 at 9:58
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    @Agent_L Okay, let me get this straight. You think it is less dignifying to imprison someone opposed to locking him up for an unkown amount of time before killing him!? How on earth did you get to that point of view? – Adwaenyth Jun 8 '17 at 10:10
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I can answer this from the US angles, which largely mirrors the European thinking. Stats from this Wikipedia entry

  1. The justice system sometimes fails. There are people unwilling to accept a system that could execute an innocent person. 157 people sentenced to death in the US have been exonerated since 1973.
  2. Death penalty cases largely mirror life sentences anyways. The average time on Death Row is about 15 years. 20-to-life is not that far off.
  3. There's no truly "kind" way to execute someone. While lethal injection has been favored of late, several high profile problems, as well as difficulty in procuring drugs have cast doubts on the ability of some states to execute people.
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    Comments are not for extended discussion; this conversation has been moved to chat. – Sam I am says Reinstate Monica Jun 9 '17 at 4:13
  • Inert gas asphyxiation is pretty "kind" in terms of execution, but most places that have retained capital punishment have retributive attitudes and therefore less interest in exploring alternate methods. – Danikov Jun 9 '17 at 9:19
  • "There's no truly "kind" way to execute someone." - execution by shooting is pretty much guaranteed to kill someone instantly and is widely considered to be the most humane execution method. Its simply disliked by governments for attracting too much attention. – JonathanReez Supports Monica Jun 9 '17 at 21:31
  • It's not clear to me how points 2 and 3 "largely mirror European thinking". 2 is an artifact of the US legal system: appeals all the way through to the ECHR don't take so long. 3 is prima facie a consequence of the European ban rather than a cause thereof. – Peter Taylor Dec 8 '17 at 21:20
  • Really? (twice over). 3. Swiss suicide clinics disagree. Also, 2. on 20-to-life people (potentially) go free after 15 years, not die. – Genli Ai Jun 28 '18 at 9:57
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I see your point but this has its origins in how the penal code is conceived in the European history of law.
Basically from Hegel onwards, the law has been thought of not as something that is supposed to extract revenge on the criminal, because at its base you can not undo a crime that has been done.
The function of the law, especially the penal code, is then to provide justice in moral terms, since it can not provide it in material terms. Very broadly speaking, the very first condition of this moral justice is that both parties are considered as having equal capacity to be responsible. This idea of responsibility necessitate the existence of the faculty of reason which is associated, wrongly it may be, with humans.

If the State is considered as a rational entity, killing another rational entity, a criminal, should also be considered as a crime, since the role of the law is to provide moral justice which necessitates the existence of both of the parties, and killing effectively makes one party disappear, and thus obstructs the exercise of moral justice. If the State is just, meaning it has the necessary legitimacy to exercise moral justice, it should not be doing injustice. Thus the death penalty is considered an injustice done by the State which is supposed to be the protector of justice, whereas life sentences are not, because it doesn't act in order to negate the existence of one or more rational parties.

I would recommend reading the section on morality and law of the Encyclopedia of Philosophical Sciences of G. Hegel for further and more detailed inquiries. My exposition here depends mostly on my lectures of it which date from almost 6 years ago, so I probably made some mistakes along the way.

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    This sentence doesn't really make sense to me: "This idea of responsibility necessitate the existence of the faculty of reasoning which is associated, wrongly it maybe, with humans." -- could you clarify please? – Doktor J Jun 6 '17 at 21:10
  • I fully see your reasoning. Though I think if applied further, putting someone in prison is in essence stealing those years of their life. So the State still commits an act of injustice by pursuing a prison sentence, let a lone a life long one. – Nathan Jun 6 '17 at 21:55
  • @DoktorJ The point is that this idea of faculty of reasoning and its association with humans is a little problematic, because it effectively discards animals' rights, and up to a certain extent the rights of children. Since children and animals are not judged to be completly "reasonable", they don't have any obligations in the civil society, and thus have no rights, but it is also probably true that Hegel didn't forsee the level of animal cruelty that can be exercised by the modern world. – Kaan E. Jun 6 '17 at 23:43
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    @Nathan It is true, i also can't say that it is the perfect solution. Idealy a prison is a rehabilitation center where the criminal relearns how to be a fully functioning member of the society. This doesn't apply so well to life long cases though. Actually, prisons as a rehabilitation center sounds like unicorns throwing up rainbows and pooping butterflies. – Kaan E. Jun 6 '17 at 23:52
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    @Nathan That's not quite the point. When you imprison someone, they're still one party of the argument - they can still put forth new evidence, seek out alternative solutions to the argument etc. You're limiting their freedom, but they still exist and still have a voice. The death penalty puts final responsibility on some arbitrary authority (usually neither side of the argument) - after this point, there can be no more discussion, and there is no resolution. Say someone steals ten million dollars from you - do you really care to kill them? You want your money back. – Luaan Jun 7 '17 at 7:49
7

In a way, you are looking at the problem "upside down".

I quote from your question:

If I were a convicted criminal

At this point, you are not: you are just a burden on the society. The first priority thus is not doing what's better for you, but what's better from the others.

Once you do something so "big" to be either sentenced to life (or multiple sentences to life) or to a possible execution, you don't matter anymore. What matter is to deal with you in a way that's okay for the society morale and conscience.

killing a human being is considered morally acceptable and better than to cage him like a beast (see a comment to your question)? Then you get beheaded.

killing a human being is considered acceptable when done in a painless way? Then you get a fatal injection, and when it's discovered that it is not so painless then death sentence come into doubt.

killing a human being is considered totally unacceptable? Then you get jailed for life. And your rights as a prisoner again are given accordingly to the common morale.

It's more or less the same kind of argument that goes up in the scale from meat eaters to fully vegan: basically it's not a matter of doing something better for the convicted (has someone really asked chickens if they prefer to be eaten, caged for eggs or just let extinguish?), but for the rest of the society. You, as a sentenced, are nothing more than a problem to solve and for us to confront with; you already killed yourself, now we just have to decide what to do with your shell.

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    Having read through death penalty cases when I was thinking about going to law school, I noticed that in all cases, the perpetrators weren't thinking about the consequences when they committed their rather brutal crimes. The death penalty isn't really a deterrent. I will also add - by the time I got to the end of the those cases, I was ready to go stick the needle in the criminal myself. The depravity of some of those crimes defies comprehension. Torturing, raping, and murdering a six year old girl... you're not executing a criminal, you're eradicating a cancer on humanity. – tj1000 Jun 7 '17 at 13:33
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    This entire answer is bullshit, starting from "... you don't matter anymore". Everyone matters. Everyone has rights. Europe - and Germany in particular - had a very harsh experience as to what happens when you stop believing that, no matter how good a reason you think you have for it. When you're convicted you don't stop having rights, it's just that said rights are now weighed against the rest of society's right not to be at risk of a repeat performance from you.. – Shadur Jun 9 '17 at 9:01
  • @Shadur: The key battleground here is inalienable rights. There is no significant discussion that everyone is born with a right to life. But is that an inalienable right, or can it be forfeited? The excesses you think of (which are hardly unique to Europe) all followed from the outright denial of a right to life. – MSalters Jun 9 '17 at 10:27
  • @tj1000 yeah, you are not alone. Many people would get down to the level of criminals and become murderers themselves. Luckily, EU governments decided we shall not become as bad as those people. – Andrea Lazzarotto Jun 9 '17 at 10:32
  • @Shadur what is really funny is that you didn't understand the answer at all, and commented with exactly what I wrote. Nice job, man. – motoDrizzt Jun 9 '17 at 10:36
4

You may be right in that, assuming a particularly nasty crime, death is more humane than thirty years in a maximum security lockup. Here in the US, football player/murderer Aaron Hernandez took a look at life in prison, and concluded that checking out of life was the better way.

However, there is an image factor to be considered. Lock someone up, and it's out of sight, out of mind. When the state deliberately kills someone, it's a more contentious activity, far easier to casually visualize. I suspect some of the anti-death penalty sentiment is based on that and the generally dark ages nature of the state deliberately killing another human, especially in this day and age of superficial judgments and visceral images.

What with DNA technology and extensive appeals, the chance of an erroneous execution is fairly slight today.

Ironically, in the US, it's cheaper to imprison for life than to execute. The extensive appeals run into a couple of million dollars in legal action.

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    It is not clear that Hernandez's family will get any money, but what's important is that he thought they would when making his choice. – stannius Jun 6 '17 at 20:42
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    What with DNA technology and extensive appeals, the chance of an erroneous execution is fairly slight today. Not necessarily. There have been several cases of fabricated lab evidence recently. – Sparhawk Jun 6 '17 at 22:04
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    @Sparhawk: as well as contamination: The en.wikipedia.org/wiki/Phantom_of_Heilbronn was "around" for 8 years until the source of contamination was suspected and found. And in general, many people overestimate what is possible to say based on DNA samples, see e.g. doi.org/10.1016/j.scijus.2011.08.004, cstl.nist.gov/strbase/pub_pres/…, newscientist.com/article/… newscientist.com/article/… – cbeleites supports Monica Jun 7 '17 at 10:07
  • The number of posthumous exonerations in the US says that your last paragraph is wrong regardless of any other arguments about a racist bias in both arrests and convictions. – Shadur Jun 9 '17 at 9:03
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    To date, all posthumous exonerations in the US have been in the pre DNA era. Not applicable today. Racist bias in arrests and convictions is cherry picked: it does not factor in the element that there are one or two races who have not done economically well, and tend to be in the low income/high crime category - they tend to commit crimes more. The solution there is not to alter sentencing, but to try to resolve the economic issue - why aren't they doing better? Solve that, and the crime problem goes away. Don't solve that, and the crime problem remains. – tj1000 Jun 12 '17 at 14:20
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It depends on the different legal culture of Europe in comparison with the one of United States. After the horrors of World War II and how Nazi-fascism applied the death penalty that - I recall - in some countries was still in force until a few decades ago, European jurists wanted to give a strong signal of respect for human life "at all costs". Also in a few European countries, perhaps in none, the "prison for life" penalty is actually led to the death of the condemned. In almost all European countries there are provisions for reviewing the proceedings and often the convicted person is granted freedom after 15 or 20 years of imprisonment. In Italy, for example, "prison for life" penalty has been abolished and the maximum penalty that can be imposed is 30 years. But in fact the prisoners leave prison after 20 years or less. This is bad, because I'm convinced that for some crimes there can be no forgiveness, but I am a person with many contradictions. Often, looking at what's happening in the United States (and I'm referring to the chronicles of executions outside the jails) I thank you for living in a community with laws better than my moods. I was really impressed by the film "death man walking". I think that everyone should see it and find pity - not forgiveness - for those found guilty of tremendous crimes, and the character portrayed by Susan Sarandon may become a model for that. In the death there is no possibility of redemption. While there will be always - and I mean it - room for mistakes.

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