The Death Penalty: Torture by Design

Public debates often mirror this legal ambivalence. They tend to revolve around the fairness of trials, the scope of crimes, or the cruelty of execution methods. But these debates overlook the structural nature of the problem. The death penalty is not just vulnerable to abuse in practice, it is, by its very design, a system of torture and cruel, inhuman treatment and punishment.

The design becomes clearest when looking at how executions are sustained. In most countries that still retain the death penalty in law and/or practice (retentionist countries), convictions rest on unfair trials. People are denied access to lawyers, confessions are extracted under torture and admitted as evidence, and prisoners are held for years in inhumane death row conditions. If these abuses were seriously investigated and punished, many convictions would collapse, as coerced confessions would be thrown out and death row regimes ruled unlawful. And if police, judges, and prison officials were held accountable for their role in these violations, the entire machinery of executions would halt.

Retentionist governments nonetheless seek to legitimise the death penalty by invoking the lawful sanctions clause in Article 1 of the Convention against Torture, which excludes from the definition of torture the pain or suffering arising only from, inherent in or incidental to lawful sanctions. Yet this claim collapses when looked at more closely. For a punishment to qualify as lawful, it must comply with international standards which include due process, fair trial guarantees, and the absolute prohibition of torture and other ill-treatment. In practice, no country that retains the death penalty meets these tests. Data of the Global Torture Index confirms this pattern as visualised in the graph below.

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A Global Assessment on Torture Risk

The OMCT Global Torture Index, which published its first edition in June 2025, compares 27 countries across seven thematic pillars: political commitment against torture, ending police brutality and institutional violence freedom from torture in detention, ending impunity, victims' rights, protection for all (measuring how specific groups are at a higher risk of torture and violence, including women and girls, children, LGBTQI+ persons, and others affected by discriminatory systems), and the right to defend and civic space. They reflect core obligations in international law and are the decisive factors that determine whether torture flourishes or is effectively curbed. Retentionist states overwhelmingly score high on torture risk along all seven pillars. Where the death penalty is retained, torture is systemic; where it is abolished, safeguards tend to be stronger.

When it comes to the death penalty, the Global Torture Index distinguishes four categories of countries based on their legal frameworks and actual practices. At the most severe end are those where executions continue without moratorium (a temporary, official suspension of executions) or suspension: Afghanistan, Bahrain, Belarus, India, Libya.

A second group of countries have not abolished the death penalty, but in practice executions are suspended. Cameroon, Ethiopia, Indonesia, Nigeria, Pakistan, and Tunisia fall into this category. A third category consists of states where an official moratorium is in place, such as Democratic Republic of Congo, Malaysia, and the Russian Federation. While no executions currently take place, the death penalty remains in law.

Finally, a growing number of states have abolished the death penalty in law: Argentina, Colombia, El Salvador, Honduras, Italy, Kyrgyzstan, Mexico, Moldova, Spain, Togo, Turkey.

Examining those four groups side by side substantiates the central claim that executions survive in systems structurally built on torture.

Looking at these four groups reveals a clear pattern. Where the death penalty is maintained, torture and other forms of state violence are entrenched in the justice system. Differences between retentionist and abolitionist states is particularly visible in how victims are treated, how accountability for abuses is built, how torture in detention is addressed, how civic space is managed, and how protection is extended to groups at risk of discrimination such as women, children, and LGBTQI+ persons.

Executions Correlate with Severe Risk to Victims’ Rights

The recognition of victims’ rights shows one of the clearest divides. In all retentionist states, the risk is high or very high that victim’s rights are violated. Among the 13 states that have abolished the death penalty, the balance shifts: 62% (8 states) have a moderate or considerable risk categories and only 5 states have a high or very high risk.

The data points to a structural incompatibility between retaining the death penalty and recognising victims as rights-holders. In systems that retain executions, punishment is placed at the centre. By contrast, abolitionist states are more likely to build victim support services, reparations frameworks, and legal aid systems that see victims as individuals entitled to protection and redress.

Groups Exposed to Structural Discrimination Face Disproportionate Risk

A similar logic extends to the protection for all category that assesses the risk of torture and other ill-treatment for women, children, indigenous peoples, minorities (including sexual), and migrants. The UN has repeatedly noted that poor and economically vulnerable persons, foreign nationals, persons belonging to religious or ethnic minorities are disproportionately represented among those sentenced to death and such patterns thus raise concern under equality rights. Data from the Global Torture Index reveal that in all retentionist states, the risk of torture or ill-treatment against groups in situation of vulnerability (women, children, minorities, LGBTQI+, migrants, indigenous peoples) is high or very high. Among the 13 abolitionist states, over half (7 states or 53%) are assessed at lower risk (moderate or considerable risk). What is moreover noteworthy, is that none of the 13 abolitionist states scores a very high risk for torture in this category.

In sum, states that retain executions tend to see people primarily through the lens of control, particularly where it is used as a form of repression and intimidation, which translates into weak protection for women, children, LGBTQI+ persons, migrants, and minorities. Abolitionist states seem more likely to adopt rights-based approaches.

High Impunity Risks Cut Nearly Half where the Death Penalty is Abolished

The data reveal a gradual decrease in the risk of impunity as states move from active use of the death penalty toward full abolition. In the 5 states where the death penalty is applied, 80% of cases fall into the very high risk category for impunity, indicating that active execution practices are closely associated with weak accountability systems and a culture of tolerance for torture. In the 6 countries where the death penalty is de facto suspended, risks remain considerable, though slightly lower with half falling into the very high risk category. In the 3 states with a moratorium, the situation further improves with only one country presenting a very high risk level. The reliance on a moratorium, which is often the result of an executive decision not necessarily accompanied by structural reform, means that the fight against impunity depends heavily on political discretion rather than institutionalised safeguards. Finally, in abolitionist states, the trend toward accountability becomes clearer. Only 2 of 13 states (15%) fall under a very high risk, while 1 shows a moderate risk and 3 a considerable risk level.

As already indicated above, the death penalty requires a degree of judicial obedience that disregards fair procedures, how evidence is gathered, or how statements are obtained. If the state can deliberately end life, then all lesser forms of violence, like coerced confessions, appear tolerable. Accountability for lesser violations becomes almost unthinkable and victims confront not only their perpetrator but a justice system that normalises their abuse.

The Death Penalty Relies on Abusive Detention Regimes

The Global Torture Index demonstrates that the death penalty is sustained in environments where torture and ill-treatment in detention are routine. In retentionist states, the risks are consistently high: 93% (13 of 14) score at high or very high risk of torture in detention, with only one registering at a considerable risk. Among the 13 abolitionist states, risks remain (4 states score a high risk and 5 a very high risk) but are less pronounced, with 4 states (23%) showing moderate or considerable risk.

The concentration of abuse is clearest when looking at the extraction of confessions: 77% retentionist states (11 out of 14), torture and other forms of ill-treatment are reported to be used “often” or “very often” to force confessions. Only three such states report that this is rarely the case. By contrast, among abolitionist states, only 1 state (8%) reports that confessions are forced and 5 (38%) report that this is often the case. 5 states (38%) indicate that torture or ill-treatment is rarely used to extract confession. Access to a lawyer reflects a similar divide. In all five states that still carry out executions, it is rarely or very rarely granted, compared to 46% (6 of 13) of abolitionist states. National Preventive Mechanisms (NPMs) also follow this pattern. None exist in the five executing states, while 10 of the 13 (77%) of the abolitionist states have established them.

The Death Penalty as a Marker of Civic Space?

Civic space is a barometer for repression. The UN has long found that restrictions on freedom of expression, assembly, and association go hand in hand with torture and repression. Retentionist systems cannot tolerate scrutiny because civic actors who question executions inevitably expose their arbitrariness and abuse.

The Global Torture Index makes this link visible. In all 5 states that still carry out executions, the risk of civic space restrictions is high or very high. As countries gradually move away from the death penalty, these risks diminish. Among abolitionist states, fewer than half (6 of 13 or 46%) still face high or very high risks, while others show notable improvement with two states at a moderate risk and 1 even at low risk.

Every step away from executions reduces the risk of torture

Data from the Global Torture Index, as visualised in the figure below, makes the logic visible that executions are not an isolated punishment, but part of systems built on torture. Where executions continue, torture risks are highest across every pillar. Gradual improvements on risk levels substantiate the argument that every move toward abolition strengthens safeguards against torture.