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58 Washburn L.J. 1 (2019)
Torture and Trauma: Why the Death Penalty Is Wrong and Should Be Strictly Prohibited by American and International Law

handle is hein.journals/wasbur58 and id is 7 raw text is: Torture and Trauma: Why the Death Penalty Is Wrong and Should Be Strictly Prohibited by American and International Law John D. Besslert Until the Enlightenment, the death penalty was widely embraced as an acceptable and proper punishment for crime. However, ever since the publication of the Italian philosopher Cesare Beccaria's book, Dei delitti e delle pene (1764), translated into English as An Essay on Crimes and Punishments (1767), the American and global debate over capital punishment has changed dramatically. Beccaria sought the abolition of both torture and capital punishment, although he did so in separate chapters. In the eighteenth century, America's own founders and framers-who vehemently opposed the use of torture, as that concept was then understood-themselves moved to curtail or restrict the death penalty's use. Today, as a result ofthe fruits ofthe Enlightenment, the now centuries-old anti-death penalty movement, and especially the post- World War H1 human rights movement, the vast majority of the world's countries no longer use executions and all of the civilized nations of the world have ratified or acceded to the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in 1987 and which the U.S. ratified in 1994. Torture--once judicially sanctioned in continental Europe's civil law countries and believed to operate principally on the body-is now outlawed and understood to encompass the infliction of either severe physical or psychological pain or suffering, including for purposes of securing a confession or punishing someone. The Third Geneva Convention (1949) barred the physical or mental torture of prisoners of war, while the Convention Against Torture (1984) broadly-indeed, absolutely-prohibited torture, whether physical or mental in nature; no public emergency, and not even war, or threat of war, can be used to justify torture. Because capital charges, death sentences, and executions inflict severe trauma and have all the immutable characteristics of torture, and because, at a minimum, they inflict psychological torture and severely traumatize a wide variety of people (e.g., condemned inmates and their family members and friends, prison chaplains, lawyers, and prison personnel), this Article argues that capital punishment should be classified under the rubric of torture and be strictly prohibited in American and international law. In reaching that conclusion, the Article draws upon research and writings in the fields of law, psychology, and psychiatry, f Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Visiting Scholar/Research Fellow, Human Rights Center, University of Minnesota Law School (Spring 2018); Of Counsel, Berens & Miller, P.A., Minneapolis, Minnesota. 1

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