Many view the US as a bastion of Western democracy and progression. However, it is a country that has historically supported the death penalty. Trump’s presidency and the recent execution of Lisa Montgomery have prompted an examination into whether capital punishment actually ensures justice, or whether it is a practice that undermines US justice.
LISA MONTGOMERY’S EXECUTION
On 13 January 2021, Lisa Montgomery was executed in the state of Indiana. In 2007, Montgomery was accused of murdering Bobbie Jo Stinnett, a 23-year-old who was eight months pregnant. Montgomery had arranged an appointment with Stinnett to see the puppies that she was selling when she carried out the murder. It was reported that Montgomery cut the baby out of her womb after strangling Stinnett and leaving her to bleed to death. Following her arrest, she was held in federal prison in Texas until her execution. Montgomery suffered an unsettling childhood that involved physical, psychological, and sexual abuse from her mother and her partner, which only worsened with time. She was also medically recognised as being born with foetal alcohol syndrome. Despite a petition by her legal team to then-President Donald Trump that she was too mentally ill to be executed given her lifetime of abuse and torture, she was sentenced to death. The petition was supported by 41 former and current prosecutors as well as human rights entities like the Inter-American Commission on Human Rights. Under Trump’s administration the federal government has executed more civilians in one year than all the states combined. This unprecedented spike in judicial killings has defied the decline in the use of the death penalty in the States that has been observed in recent years.
THE INTERNATIONAL HUMAN RIGHTS PERSPECTIVE
For some, the death penalty symbolises justice and acts as a deterrent for would-be criminals. Alternatively, abolitionists argue that capital punishment is unnecessary. Despite the difference in opinion, it is near-universally agreed that the death penalty violates fundamental human rights. In Europe, this is enshrined namely under the right to life as outlined in article 2 of the European Convention on Human Rights (ECHR) as well as the right to not be subjected to torture or to cruel, inhumane or degrading treatment or punishment (article 5 of the ECHR). The Council of Europe firmly rejects the death penalty, and the European Union has developed an abolition strategy to promote global cessation as part of its external human rights project. International condemnation is attributed to the fact that capital punishment often disproportionately affects the most vulnerable in society—those who suffer from mental disabilities, and ethnic or religious minorities.
THE DEATH PENALTY AND THE CONSTITUTION
There are various references to capital punishment in the US Constitution. The Fifth Amendment provides for the death penalty so long as it is done “on presentment or indictment of a grand jury”. Additionally, the Fourteenth Amendment and the Due Process Clause reiterates that “no person shall…be deprived of life, liberty, or property, without due process of law”. Moreover, the Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits the titular practices. However, in reality many trials for capital offences have been encumbered with procedural irregularities, including a lack of scientific evidence or medical examination of the defendant. Consequently the “Due Process” Clause is not always adhered to. The American Bar Association found state capital judicial systems and the statutory definition of capital murder to mean that “[it] cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought and imposed”.
Support for the death penalty in the US is reportedly at its lowest level in more than 50 years. Historian Louis Mazur noted that “a diverse group of Americans considered the death penalty morally and politically repugnant”. Hugo Bedau, an advocate for the rejection of the death penalty, echoes many when he argues it serves “no social valid end”. Bedau argues instead that less restrictive means that achieve the same goal should be adopted, such as life incarceration rather than capital punishment. This has gained greater support, as it is more financially beneficial while also preserving the security of the state. Interestingly, a report found that US states without the death penalty reported homicide rates below the national average. As such, there is growing momentum within America for capital punishment to be abolished, and perhaps under the Biden Administration this may become a reality, given that he has vowed to do just that.
Lisa Montgomery’s execution has become a catalyst for assessing the worth of capital punishment in the 21stcentury. Once a well-supported component of US justice, it has arguably become an outdated form of punishment disconnected from modern day values. With its infringement on fundamental human rights, it perhaps has become a tool of revenge rather than justice. Under Biden’s presidency there is renewed hope the US will join the 142 countries that have banned the death penalty.
Kinza recently completed the BPTC LLM at the University of Law and is an aspiring barrister. She has a keen interest in equality and discrimination, domestic abuse, and immigration issues.