ESSAY

DEATH PENALTY : AN IMBALANCE TO HUMAN RIGHTS AND JURISPUDENCCE

LUDEVIKUS LIMDIANDA

NIM : 031824253009

UNIVERSITAS AIRLANGGA

FAKULTAS HUKUM

MAGISTER KENOTARIATAN

APRIL, 2020
Field : Law

Topic : Death Penalty

Death Penalty : An Imbalance of Human Rights and Jurispudence

Death Penalty or Capital Punishment has been practiced in many states to bring justice to
the criminal perpetrator who had done a certain act which by law is necessary for the latter to
serve his/her punishment by death. Dying is the main cause that every single living organism
tries to avoid in order to preserve their survival, which is called self preservation. Self
preservation is a behaviour or set of behaviours that ensures the survival of an organism and is
universal among all living organisms including humans. The understanding of the concept of self
preservation have developed into the society as one of the basic human rights, the right to live,
and the practice of capital punishment is a form of legal method to take exactly that.

Death penalty breaches human rights, in particular the right to life and the right to live
free from torture or cruel, inhuman or degrading treatment or punishment. Both rights are
protected under the Universal Declaration of Human Rights, adopted by the UN in 1948. Over
time, the international community has adopted several instruments that ban the use of the death
penalty, including the following:
• The Second Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty.
• Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the
death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning
the abolition of the death penalty in all circumstances.
• The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.

A prisoner who had been sentenced to a death penalty and is awaiting execution is
referred to as condemned, and is said to be on death row. Those prisoners who were waiting on
the death row have to wait for a long period of time until their execution was carried. In most
cases, those prisoners have mental breakdown and is unstable to live a normal life just like a
normal prisoner outside the death row, this is because they knew that their sole purpose in life
on that moment is to live as a criminal for the rest of their lives and to be killed in the name of
the state as an outlaw, they live their last moment of life by living in terror and they don’t even
get a chance to redeem themselves to the society after their sentence took place. According to
these aspects, death penalty have already taken their rights to live, let alone freely.

Apart from the human rights aspects, death penalty is also cannot be applied as a form of
a punishment to criminals because there are many flaws that results into inefficiency in
condemning the criminals. The death penalty is irreversible. Absolute judgments may lead to
people paying for crimes they did not commit. Texas man Cameron Todd Willingham was
executed in Texas in 2004 for allegedly setting a fire that killed his three daughters. Following
his execution, further evidence revealed that Willingham did not set the fire that caused their
deaths, the judges who sentence Willingham to death penalty are also a human beings who prone
to make mistakes themselves, but by the time the execution already took place and it was found
out that the sentences were faulty, it was already too late and a life of an innocent man
unfortunately had to be the cost, which proves that capital punishment is often used within
skewed justice systems. In many cases recorded by Amnesty International, people were executed
after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with
inadequate legal representation. In some countries death sentences are imposed as the mandatory
punishment for certain offences, meaning that judges are not able to consider the circumstances
of the crime or of the defendant before sentencing. Death Penalty is also does not deter crime,
countries who execute commonly cite the death penalty as a way to deter people from
committing crime. This claim has been repeatedly discredited, and there is no evidence that the
death penalty is any more effective in reducing crime than life imprisonment.

In conclusion, death penalty is not an efficient method in both legal and morale system to
condemn a certain individual for a crime that they have committed, as it not only brings terror to
the perpetrator and their family themselves it also shows the inability of a state to balance the
harmony of human rights and a legal system.
References

Moeljatno, Asas-Asas Hukum Pidana, Rineka Cipta, Jakarta, 2008.

https://en.wikipedia.org/wiki/Death_row

https://www.amnesty.org.au/5-reasons-abolish-death-penalty/

https://cdn.penalreform.org/wp-content/uploads/2013/05/East-Africa-research-report-on-death-
penalty-and-life-imprisonment.pdf

https://en.wikipedia.org/wiki/Capital_punishment