“For justification of any punishment go back to the Enlightenment,” University of Baltimore Law Professor John Bessler says. “Philosophers such as Montesquieu and Cesare Beccaria said you can only justify a punishment if it’s absolutely necessary. There were no penitentiaries back then; today we have prisons. One cannot say it’s absolutely necessary to put someone to death. We need to continue legal challenges to the death penalty, but there are multiple arguments to be made. The death penalty is cruel and has become unusual, but we should also start thinking about it as an act of torture under modern definitions—as psychological torture that also carries a significant risk of inflicting excruciating physical torment.”

Bessler has written several books about capital punishment, and in his most recent, The Death Penalty as Torture: From the Dark Ages to Abolition,  he maintains that capital punishment and torture have traditionally been categorized in “separate legal silos.” But he contends that, in the 21st century, the classification of torture should be understood to encompass both non-lethal corporal punishments and lethal acts such as capital punishment.

“International law prohibits torture. The modern definition of torture under international law says torture is the infliction of severe pain or suffering, whether physical or mental, for a prohibited purpose such as punishment.” And since capital punishment is the infliction of severe pain, physical and psychological, he argues that the United States is violating the United Nations Convention Against Torture by not finding it unconstitutional and abolishing it. The U.S. Constitution’s Eighth Amendment, he points out, has already been read to bar torturous punishments, though the U.S. Supreme Court—to date—has only focused on the risk of severe physical pain at the moment of an inmate’s death.

“The purpose of my book is to get people to think about capital punishment in a different way and to bolster the traditional legal arguments,” Bessler says. “I want to change the conversation so that people start thinking of death sentences and executions as acts of torture.”  As he asserts: “Most people don’t like torture and won’t tolerate it. But right now, many people don’t think about the death penalty as torture. The ‘cruel and unusual’ moniker is an important legal concept and one highly relevant to the ongoing Eighth Amendment debate, but if the death penalty is considered under the classification of ‘torture’ you reframe the conversation.”

And psychological torture is such an inextricable facet of capital punishment, Bessler says, that any debate about the death penalty should include the argument that the psychological trauma of being under a sentence of death—under a constant threat of execution—should be considered alongside the risk of physical pain that executions carry. He points to the California Supreme Court’s ruling in People v. Anderson (1972), which found capital punishment unconstitutional. In that case, the California Supreme Court wrote: “Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”

He notes that mock executions—leading someone to believe they are going to be executed—are already considered to be a violation of international law because they constitute psychological torture. “If a simulated or fake execution is a violation, then of course it’s only logical to conclude that it’s a violation to conduct a real execution.”

Additionally, “The Supreme Court hasn’t taken up the question of the death row phenomenon,” Bessler says. “The Court,” he notes, “hasn’t yet accepted for review a case to look at the psychological torment associated with spending decades—in one case, four decades—on death row, where inmates are in intense and continual fear and are aware of, but helpless to prevent, their impending deaths.” He again cites People v. Anderson, where the court ruled: “The cruelty of capital punishment lies not only in execution itself, and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution, during which the judicial and administrative procedures essential to due process of law are carried out.”

John Bessler teaches at the University of Baltimore School of Law and at the Georgetown University Law Center. He is the author of several books on capital punishment, including Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (2012). He is also the editor of Justice Stephen Breyer’s “Against the Death Penalty” (2016), and is of counsel to the Minneapolis law firm of Berens & Miller, P.A.

“The Death Penalty as Torture: From the Dark Ages to Abolition” was awarded the Bronze Medal in the World History category of the Independent Publisher Book Awards.

 

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