Moving Away from the Death Penalty

MOVING AWAY FROM

THE DEATH PENALTY

Arguments, Trends and Perspectives

Moving Away from the Death Penalty:

Arguments, Trends and Perspectives

MOVING AWAY FROM THE

DEATH PENALTY

ARGUMENTS, TRENDS AND PERSPECTIVES

New York, 2015

MOVING AWAY FROM THE DEATH PENALTY:

ARGUMENTS, TRENDS AND PERSPECTIVES

Worldwide rights reserved. This book or any portion thereof may

not be reproduced without the express written permission of the

author(s), editor, or the publisher, except as permitted by law.

The ndings, interpretations and conclusions expressed herein are those of

the author(s) and do not necessarily reect the views of the United Nations.

The designations employed and the presentation of the material in this

publication do not imply the expression of any opinion whatsoever

on the part of the Secretariat of the United Nations concerning the

legal status of any country, territory, city or area, or of its authorities,

or concerning the delimitation of its frontiers or boundaries.

Editor: Ivan Šimonovi´c

Design and layout: dammsavage studio

Cover image:

The cover features an adaptation of a photograph of the feet of a man convicted

of murder, seen during a hanging. Photo credit: EPA/Raed Qutena. The back

cover graphic line represents a declining percentage of United Nations Member

States that practice the death penalty (those that have not abolished it in law or

practice), from 89% in 1975, ending at 27% in 2015, in 10 year increments.

Electronic version of this publication is available at:

www.ohchr.org/EN/NewYork/Pages/Resources.aspx

Sales no.: E.15.XIV.6

ISBN: 978-92-1-154215-8

eISBN: 978-92-1-057589-8

CONTENTS

Preface – Ban Ki-moon, United Nations Secretary-General p.6

Introduction – An Abolitionist’s Perspective, Ivan Šimonovi´c p.8

Chapter 1 – Wrongful Convictions p.22

• Kirk Bloodsworth, Without DNA evidence I’d still be behind bars p.24

• Brandon Garrett, DNA evidence casts light on aws in system p.30

• Gil Garcetti, In the United States, growing doubts about the death penalty p.39

• Saul Lehrfreund, Wrongful convictions and miscarriages of justice

in death penalty trials in the Caribbean, Africa and Asia p.48

Chapter 2 – Myth of Deterrence p.66

• Carolyn Hoyle & Roger Hood, Deterrence and public opinion p.68

• Je Fagan, Deterrence and the death penalty in international perspective p.84

Chapter 3 – Discrimination p.100

• Damien Echols, The terrors of prison fade slowly p.103

• Stephen Braga, Damien Echols and the West Memphis Three Case p.107

• Stephen Bright, Imposition of the death penalty upon the poor, racial

minorities, the intellectually disabled and the mentally ill p.115

• Arif Bulkan, The death penalty in the Commonwealth Carribean:

Justice out of reach? p.130

• Usha Ramanathan, The death penalty in India: Down a slippery slope p.150

• Alice Mogwe, The death penalty in Botswana: Barriers to equal justice p.170

• Innocent Maja,The death penalty in Zimbabwe: Legal ambiguitites p.180

Chapter 4 – Values p.184

• Sister Helen Prejean, Death penalty: victims’ perspective p.187

• Mario Marazziti, World religions and the death penalty p.192

• Nigel Rodley, The death penalty as a human rights issue p.204

• Christof Heyns & Thomas Probert, The right to life and

the progressive abolition of the death penalty p.214

• Paul Bhatti, Towards a moratorium on the death penalty p.227

Chapter 5 – Leadership p.234

• Federico Mayor, Leadership and the abolition of the death penalty p.236

• Mai Sato, Vox populi, vox dei? A closer look at the ‘public opinion’

argument for retention p.250

• H.E. Mr. Didier Burkhalter, Federal Councilor and Minister of

Foreign Aairs of Switzerland, Leadership through dialogue p.259

• H.E. Mr. Tsakhia Elbegdorj, President of Mongolia,

Mongolia honours human life and dignity p.266

• Laurent Fabius, Minister of Foreign Aairs and International

Development of France, Towards universal abolition of the death penalty p.268

• Mohamed Moncef Marzouki, former President of the Republic

of Tunisia, Challenges related to abolition of the death penalty in

Arab and Islamic Countries: Tunisia’s model p.272

• Prime Minister Matteo Renzi, President of the Council of

Ministers of the Italian Republic, The role of leadership p.276

• H.E. Dr. Boni Yayi, President of the Republic of Benin,

A ght for the progress of humanity p.282

Chapter 6 – Trends and Perspectives p.284

• Salil Shetty, Global death penalty trends since 2012 p.286

Afterword, Zeid Ra’ad Al Hussein, United Nations

High Commissioner for Human Rights p.295

Acknowledgements p.297

6 7

PREFACE

Today, more than four out of ve countries have either abolished

the death penalty or do not practice it. Globally, there is a rm trend

towards abolition, with progress in all regions of the world. Member

States representing a variety of legal systems, traditions, cultures and

religious backgrounds have taken a position in favour of abolition

of the death penalty. Some States that opposed the abolition of the

death penalty in the recent past have moved to abolish it; others have

imposed a moratorium on its use. The application of the death penalty

appears to be conned to an ever-narrowing minority of countries.

Those remaining States cite a number of reasons for retaining the

death penalty, including what they see as its deterrent eect; that it

is consistent with public opinion; that it is equally applied against all

perpetrators; and that there are sucient judicial safeguards to ensure

defendants are not wrongfully convicted.

Over the past two years, the Oce of the High Commissioner for

Human Rights has convened a series of important panel discussions

on the death penalty, seeking to address these issues. The events drew

on the experiences of government ocials, academic experts and civil

society from various regions which, in recent years, have made progress

towards abolition or the imposition of a moratorium. They covered

key aspects of the issue, including data on wrongful convictions and

the disproportionate targeting of marginalized groups of people. This

publication brings together the contributions of the panel members

as well as other experts on this subject. Taken as a whole, they make a

compelling case for moving away from the death penalty.

The death penalty has no place in the 21st century. Leaders across the

globe must boldly step forward in favour of abolition. I recommend

this book in particular to those States that have yet to abolish the

death penalty. Together, let us end this cruel and inhumane practice.

Ban Ki-moon

Secretary-General, United Nations

“The death penalty has no place in the 21st century. Leaders

across the globe must boldly step forward in favour of

abolition. I recommend this book in particular to those

States that have yet to abolish the death penalty. Together,

let us end this cruel and inhumane practice.”—Ban Ki-moon

United Nations Secretary-General Ban Ki-moon attending OHCHR’s global panel: “Moving away from

the death penalty – wrongful convictions”, New York, 28 June 2013 © UN Photo/Evan Schneider

8 9

INTRODUCTION:

AN ABOLITIONIST’S PERSPECTIVE

Why yet another book on the death penalty? The answer is simple: As

long as the death penalty exists, there is a need for advocacy against it.

This book provides arguments and analysis, reviews trends and shares

perspectives on moving away from the death penalty.

This book, rst published in 2014, has been updated and expanded,

providing victims’ and United Nations human rights mechanisms’

perspective, a new chapter on the role of leadership in moving away

from the death penalty. The new High Commissioner for Human

Rights, Zeid Ra’ad Al Hussein, appointed in 2014, has provided

an afterword.

Abolishing the death penalty is a collective eort which requires

commitment, cooperation and time. As a student in 1977 in the

Socialist Federal Republic of Yugoslavia, I was allowed to write my

high school graduation essay on the abolition of the death penalty.

At the time, Yugoslavia practiced the death penalty and had limited

freedom of expression. Against this backdrop, I am especially thankful

for the courage and support of my teachers.

Much has happened since 1977: Yugoslavia broke up more than 20

years ago, and all its successor states have abolished the death penalty.

Globally, most countries have gradually been moving away from the

death penalty—by reducing the number of crimes punishable by

death, introducing additional legal safeguards, proclaiming a morato-

rium on executions or abolishing the death penalty altogether.

Amnesty International reports that in the mid-1990s, 40 countries

were known to carry out executions every year. Since then, this

number has halved. About 160 countries have abolished the death

penalty in law or in practice; of those, 100 have abolished it alto-

gether. In 2007, when the death penalty moratorium resolution

was rst adopted by the United Nations General Assembly, it was

supported by 104 states. In the most recent vote, in 2014, it was

“In the 21st century a right to take someone’s

life is not a part of the social contract

between citizens and a state any more....”

— Ivan Šimonovi´c

Human rights activists light candles in observance of the World Day against the Death Penalty. © EPA/MK Chaudhry

10 11

supported by 117 states.

In 2014 there were at least 607 documented

executions

. While the number of executing states remained the same

in 2014 as in 2013, the number of documented executions dropped

by 22percent.

While this is grounds for optimism, there are also reasons for concern.

The number of death sentences imposed in 2014 worldwide was at

least 2,446, which represents a 28percent increase over 2013.

Can

the recent steady global trend towards abolition be reversed?

Some human rights achievements dating back to the early 1990s

are currently facing renewed challenges.

Armed conicts involving

non-state actors, triggering ethnic and religious divisions, are prolifer-

ating globally. Many states and regimes face instability. Fear of violent

extremism, organized crime and especially drug tracking make

tough punishment for these crimes appealing. It creates an impression

of commitment and is much easier and cheaper than increasing the

eciency of the law enforcement and justice systems. It is still to be

seen whether these setbacks will stall or reverse the trend of moving

away from the death penalty. This book seeks to contribute to eorts

to prevent this from happening.

In 2012, 35 years after my graduation essay, now as United Nations

Assistant Secretary-General for Human Rights, I was able to con-

tribute to a discussion on the death penalty at the United Nations

in New York. The panel discussion on “moving away from the death

penalty” that I moderated in 2012 included a distinguished group

of member states representatives, experts, civil society activists

and a victim of wrongful conviction. The panel identied three

main reasons for member states’ decisions on the death penalty:

the possibility of wrongful convictions, crime deterrence or the

1 UN Doc. A/69/PV.73, pp.17-18 (18 December 2014)

2 Amnesty International, Death Sentences and Executions in 2014 (London, Amnesty International,

2015)

3 The number of death sentences imposed in Egypt—509—signicantly contributed to this

trend. By the end of 2014 Pakistan lifted a six-year moratorium. The real number of executions

is unknown. Some countries—including China, in which most executions take place—do

not publicly release data on executions. China appears to be moving cautiously away from the

death penalty, initially reducing the number of crimes punishable by death and introducing

additional safeguards, which may heavily and positively inuence overall trends.

4 A series of world conferences in the early 1990s made signicant progress on human rights. But

the principles agreed to there are currently being challenged.

lack thereof, and discrimination against marginalised groups in

its implementation

Recognizing their importance, the Oce of the High Commissioner

for Human Rights in New York organized debates on each of these

three issues, involving member states, non-governmental organiza-

tions and academia. We benetted from the valuable support of the

permanent missions to the United Nations of Chile, Italy and the

Philippines as co-organisers for two of these panels

. Together with

the permanent mission of Italy, we organised an additional panel on

national experiences with a moratorium on executions

. Finally, in

April 2015, at the United Nations Congress on Crime Prevention

and Criminal Justice in Doha, Qatar, we also organised a panel dis-

cussion on the death penalty, drugs and terrorism

United Nations Secretary-General Ban Ki-moon participated in four

of these events as the keynote speaker, and has provided a preface to

this book, which presents contributions by panellists at these events and

other prominent authorities on issues surrounding the death penalty.

The views expressed in these articles reect the personal positions of

their authors and not necessarily the institutional position of the Oce

of the High Commissioner for Human Rights or the United Nations.

As the editor of the book, I hope that you will nd their ideas interest-

ing and challenging, whether you agree with them or not.

The panels on which this book is based, apart from the one held in

Doha, took place in New York, thus beneting from the proximity

of a number of top-level death penalty experts, civil society activists

as well as two victims of wrongful conviction. Nevertheless, we are

fortunate to be able to present an even larger number of articles by

African, Asian, Caribbean and European authors.

5 See brochure on the panel Moving away from the death penalty: Lessons from National Experiences

(UN OHCHR, New York 2012, 25 p.)

6 OHCHR Global Panel: “Moving Away from the Death Penalty-Deterrence and Public Opin-

ion”, co-sponsored by the permanent missions of the Philippines and Chile, 24 January 2014

UNHQ, New York; OHCHR Global Panel: “Moving away from the Death Penalty - Discrim-

ination against Marginalised Groups”, 24 April 2014, UNHQ, New York

7 “Best Practices and Challenges in implementing a Moratorium on the Death Penalty”,

UNHQ, New York, 2 July 2014.

8 “Panel discussion: Death Penalty, Drugs and Terrorism”, 13

United Nations Congress on

Crime Prevention and Criminal Justice, Doha, Qatar, 14 April 2015.

12 13

The question of the death penalty’s deterrent eect, which is

addressed in chapter 2, has attracted scholarly and political attention

for centuries. Are public executions brutal relics of the past or e-

cient preventive measures? Does capital punishment for relatively

minor crimes increase the frequency of more severe crimes because

the risk to perpetrators is no greater? Does it expose crime witnesses

to greater risk? The great majority of countries have stopped public

executions and reduced the application of the death penalty to only

the most severe crimes, but does the death penalty deter crime at all?

Government actors often feel public pressure to retain the death

penalty as a crime control measure. However, there is no evidence

that it is in fact a deterrent. In countries that have abolished the

death penalty, this has in general not resulted in an increase in serious

crime. The most comprehensive survey on the relationship between

the death penalty and murder rates, which was carried out for the

United Nations in 1988 and updated in 1996, found that “research

has failed to provide scientic proof that executions have a greater

deterrent eect than life imprisonment. Such proof is unlikely to be

forthcoming. The evidence as a whole gives no positive support to

the deterrent hypothesis.”

Statistics from countries that have abol-

ished the death penalty show that the absence of the death penalty

has not resulted in an increase in serious crime.

In 2012, research from the US-based National Research Council

conrmed the United Nations report’s conclusions: “Research to

date on the eect of capital punishment on homicide is not informa-

tive about whether capital punishment decreases, increases or has no

eect on homicide rates.”

Recent US government statistics conrm

the lack of supporting evidence for the deterrent eect of capital

punishment.

10 Roger Hood, The Death Penalty—A Worldwide Perspective (Clarendon Press, 1996), p.238. The

fth edition of this book, co-authored by Carolyn Hoyle and Roger Hood, who have also

contributed to this volume, was published in 2015.

11 National Research Council, Deterrence and the Death Penalty (Washington, DC, National Acade-

mies Press, 2012).

12 According to the U.S. Department of Justice’s annual FBI uniform crime report for 2012, the

national murder rate remained approximately the same in 2012 as in 2011. The northeast, the

region with the fewest executions, had the lowest murder rate of any region, and its murder

rate decreased 3.4 per cent from the previous year. The south, which carries out the most ex-

ecutions of any region, again had the highest murder rate in 2012. U.S. Department of Justice,

Crime in the United States, 2012 (Washington, DC, 2013).

The book consists of six chapters. The rst three chapters are dedi-

cated to the three issues identied at our initial 2012 panel as decisive

for decision-making on moving away from the death penalty and

on which we held individual panels in 2013 and 2014: wrongful

convictions (chapter 1), the myth of deterrence (chapter 2) and

discrimination (chapter 3). They were supplemented with three

additional chapters, covering other issues highly relevant to decisions

about the death penalty. Values related to the sanctity of life and the

limits of state power are discussed in chapter 4. Chapter 5 deals with

the role of leadership in moving away from the death penalty. Chap-

ter 6, looking forward, provides data and examines trends.

Chapter 1 addresses wrongful convictions from the personal perspec-

tives of a wrongfully convicted person, an academic, a civil society

activist and a former prosecutor. It is not easy for governments and

leading representatives of justice systems to acknowledge that, despite

heavy investment in the legal process, wrongful convictions occur. It

is even more alarming that they occur in death penalty cases, includ-

ing in the most sophisticated justice systems.

DNA test results have conrmed long-standing warnings by aca-

demia and civil society in this regard. In the United States, the rst

country to use post-conviction genetic testing on a large scale, 140

death row inmates have been exonerated since the 1970s.

Had public pressure to identify and punish perpetrators made wrongful

convictions more likely in the murder and rape cases for which exoner-

ating DNA evidence became available? Wouldn’t similar pressure have

occurred in other serious crimes in which such a test was not possible?

If this is a problem in advanced industrial countries, with well-re-

sourced legal systems, what about those with less sophisticated legal

systems with fewer safeguards, opportunities for review and resources?

It is clear that wrongful convictions do occur and that it is unacceptable

for them to end in execution. The death penalty is simply too nal,

given the imperfections of even the most sophisticated legal systems.

9 For an analysis of some of their cases, see Brandon L. Garrett, Convicting the Innocent (Cambridge,

Massachusetts, Harvard University Press, 2011). The Innocence Project, founded by Barry Scheck

and Peter Neufeld at Cardozo Law School in 1992, has done signicant work on exonerations.

Gradually it evolved and involved many other people and institutions in identifying and freeing

the wrongfully convicted. See www.innocenceproject.org; see also Garrett’s article in this book.

14 15

should there not be more questioning of individual guilt and mitigat-

ing circumstances of alleged perpetrators belonging to marginalised

groups, instead of discrimination against them?

Besides the three main issues relevant for abolition or retention of

the death penalty, around which the rst three chapters of this book

are organised, there are many other issues. The economic eect of the

death penalty is one of them.

In various circumstances, this

may be astonishingly dierent.

I was present at a meeting

during which the top United

Nations ocial, speaking to

the leader of a developing

country that carried out fre-

quent executions after legal

proceedings that were considerably below international standards,

pleaded for abolition or at least a moratorium on executions. “I have

no money to feed them or build them prisons,” the leader responded;

“a bullet is cheaper. But if you want them,” he added, “you can take

them back with you to New York.”

International norms are clear that if the death penalty exists, those

facing it should be aorded special protection and guarantees to

ensure a fair trial, above and beyond the guarantees aorded to defen-

dants in non-capital cases. This creates a paradox. The death penalty

is cheaper than other forms of punishment only if its execution does

not require complex legal proceedings or safeguards, such as the use

of forensics and reviews. However, in such cases the likelihood of

wrongful conviction is exacerbated. But if the number of safeguards

is increased, the death penalty becomes the most expensive form of

punishment, as the bulk of US research clearly indicates.

In fact, the cost of the death penalty is so much higher than the cost

of a life sentence without parole that abolitionists, especially in the

United States, use this argument in their campaigns.

Even when the

15 For a summary of these studies, see Rudolph J. Gerber and John M. Johnson, The Top 10 Death

Penalty Myths (Westport, Connecticut, Praeger, 2007), pp. 165-171.

16 See Death Penalty Information Center, Smart on Crime: Reconsidering the Death Penalty in a Time

of Economic Crisis (Washington, DC, 2009).

Most justice systems, in deciding guilt, accept the ethical principle

in dubio pro reo (when in doubt, [decide] for the accused). By way of

analogy, if there is no proof that the death penalty deters crime, why

would we continue to apply it? It may be out of ignorance, or deter-

rence may be a g leaf covering other motives: the desire for talionic

revenge,

or to protect dominant social groups and their interests; in

most retentionist states the death penalty disproportionately aects

socially marginalised groups—migrants, racial and ethnic minorities,

the poor and people with mental disabilities—some of them victims

of compounded discrimination.

Chapter 3 raises concern over the disproportionate eects of the death

penalty on marginalised groups in Africa, the Caribbean, India and

the United States. Marginalised groups are overrepresented among

the wrongfully convicted to a disturbing extent.

People with a

mental disability or without a competent defence lawyer are more

vulnerable to pressure to make a false confession, and jurors may be

more prone to suspect a defendant who is dierent from them. Also,

in too many legal systems, nancial resources, or the lack thereof,

determine the quality of legal representation.

From a moral perspective, the attitude and response to crimes

committed by members of marginalised groups should not be to dis-

criminate against them further, but precisely the opposite: to look for

mitigating circumstances, which may have been a consequence of the

discrimination they have been subjected to.

There needs to be some soul-searching and recognition of responsi-

bility on the part of society, when members of marginalised groups

are involved in crimes. To what extent have discrimination and unjust

treatment of members of racial or ethnic minorities contributed to

the commission of crime? How has a life of deprivation and lack of

opportunity for the poor, uneducated or mentally disabled contributed

to the commission of their crimes? From the perspective of justice,

13 Talion, or lex talionis in Latin, is a principle that perpetrators should receive as punishment the

same injuries that they inicted upon their victims. Its origins can be traced to early Babylo-

nian law, which subsequently inuenced Biblical and early Roman views on punishment. It is

also reected in later (including some current) justications of corporal punishment.

14 See Brandon L. Garrett, Convicting the Innocent (Cambridge, Massachusetts, Harvard University

Press, 2011), p. 235.

“THE EVOLUTION OF

HUMAN RIGHTS HAS

REDUCED STATE SOVER

EIGNTY IN MANY AREAS;

THE DEATH PENALTY SHOULD

BE ONE OF THEM AS WELL.”

—Ivan Šimonovi´c

16 17

It is also questionable whether, in practice, the death penalty helps

provide closure, as it is so often argued. In most retentionist states

it is gradually being reduced in scope to exclude minors, pregnant

woman, people with mental disabilities and many others. For example,

in the United States, prosecutors seek the death penalty in only about

2 per cent of intentional homicide cases, and the death sentence is

imposed in only about half of those. Of those death sentences, about

two-thirds are reversed on appeal. In the end, just about one-third of

1 per cent are executed, and this after an average delay of 12 years.

Does the possibility of the death penalty psychologically prevent clo-

sure and healing—could these in fact come much sooner in cases that

result in a long prison term or a life sentence without the possibility

of parole? Does not the frustration of waiting in vain for a perpetrator

to be executed not actually hurt those seeking revenge more than if

there was no death penalty at all?

Are juries more reluctant to nd defendants guilty if there is a chance

that they might be executed? Does that lead to more acquittals and

thus hurt victims and their families even more when they see suspects

go free? Furthermore, does the death penalty aect other innocent

third parties more than other penalties? Do families of convicts suer

more because of the prolonged death threat to their loved ones?

May some of them not also be perceived as victims?

Although the analysis of the social, economic and psychological eects

of the death penalty clearly indicates its harmful eects, it can also be

attacked in a Kantian moral safe-haven, detached from any measurable

social eect and scientic evidence. In my view, the essence of the

moral opposition to the death penalty is the argument that killing is

simply wrong, whether we relate it doctrinally to a human right to life

and the right not be subjected to cruel or inhuman punishment, or not.

No one can blame victims and their families for wanting revenge,

including through the death penalty. In their pain and loss, they are

entitled to that desire. However, laws exist to prevent individuals from

18 Gerber and Johnson, The Top 10 Death Penalty Myths, pp. 196-197 and 222.

19 Psychiatrists warn that many family members, especially those who were the primary support

of a capital defendant, experience depression and symptoms associated with post-traumatic

stress disorder.

majority of public opinion polls indicate support for the death pen-

alty, when confronted with nancial analysis that indicates that a life

sentence without parole could produce savings that could instead go

towards compensation of victims and their families, public opinion

often tends to sway in favour of the latter option.

On the other end of the scale from the pragmatic approach are the

moral and value-based arguments regarding the death penalty. Chap-

ter 4 addresses the relationship between the death penalty and values

through an article reecting a victim’s perspective, two articles that

are potentially controversial, as is so often the case when values are

concerned—one dealing with major religious doctrine and the other

with politics, as well as two articles assessing the death penalty from

the perspective of international human rights obligations

Despite the lack of evidence of deterrence, retentionist’ arguments

can be articulated and are indeed perceived by some as moral ones.

Essentially, the reasoning is based on a “just retribution” argument—

changing the perspective from utilitarian to Kantian. If crime deserves

adequate punishment for moral reasons, it makes social consequences

and the deterrent eect (or lack thereof) less relevant. Furthermore,

even if capital punishment has negative social consequences, it should

be retained because it is proportionate to some crimes—vivat iustitia,

pereat mundus (justice should live even if the world were to die).

When discussing the death penalty from the perspective of values,

it is critical to bring the victims’ perspectives into the debate. Their

position certainly carries important moral and political leverage.

However, those perspectives at times seem to be quite dierent. Some

family members of murder victims are among the strongest support-

ers of the death penalty, well organized and inuential. But others are

equally strongly convinced that murder cannot be countered with

murder. They do not want the lives of their loved ones to be avenged

with more violence, and instead of focusing on retribution, they try

to set themselves free from their trauma through forgiveness, healing

and restoration.

17 In the United States they have formed an association called Murder Victims’ Families for Rec-

onciliation. Membership requirements are that a close family member has been murdered and

that they oppose the death penalty. Some of their stories have been collected in Rachel King,

Don’t Kill in Our Names (Rutgers University Press, 2003).

18 19

21st century, the right to take another person’s life is no longer a part

of the social contract between citizens and the state. The time when

Rousseau reluctantly accepted such a sacrice as a part of the social con-

tract, necessary to keep peace in society, has long gone. Locke believed

that political power includes the right to pass laws that carry the death

penalty. Not anymore. The evolution of human rights has reduced state

sovereignty in many areas; the death penalty should be one of them.

But what about public opinion and democracy and the “popular sov-

ereignty” argument in many countries, where the majority is in favour

of the death penalty?

Even when that is the case, it does not preclude

intellectual and political leaders’ responsibility to push for abolition. Is

it not precisely the role of leadership to inuence society to become

more moral? Instead of “killing for votes” and death-penalty populism,

is it not their duty to share with their people relevant information, that

they may not be aware of, and help change mind-sets and attitudes?

Chapter 5 highlights the importance of leadership in moving away

from the death penalty. To stand for abolition or even for moratorium is

often not popular. To change the tide requires courageous and commit-

ted leadership and a successful information campaign. Contributions

in this chapter are provided by international leaders and heads of state

and government from dierent cultures, continents and backgrounds,

each of whom contributed to moving away from the death penalty

nationally and internationally. The chapter also includes an article on

the relevance of public messaging and information sharing for inu-

encing popular attitudes towards the death penalty and its abolition.

Every book, including this one, should have a conclusion or a for-

ward-looking ending. Chapter 6 of the book includes a contribution

by the secretary-general of Amnesty International dealing with statis-

tics and trends in moving away from the death penalty.

22 Perhaps a little exaggerated, but with a point: “The people who know the least about how

the system of death sentencing functions appear to be the ones who support it most”—Craig

Haney, Death by Design: Capital Punishment as a Social Psychological System (New York, Oxford

University Press, 2005), p. 219. The lack of information-sharing on the death penalty is espe-

cially drastic in Japan, a retentionist country with strong public support for the death penalty,

which provides no ocial information on how many people are on death row, how and when

sentenced people are selected for execution or what the costs are for the death penalty com-

pared with the alternative punishment (see the contributions by Hoyle and Hood and Mai Sato

to this volume as well as Sato’s book The Death Penalty in Japan, Will the Public Tolerate Abolition?

(Wiesbaden, Springer, 2014).

23 See Sato, The Death Penalty in Japan.

pursuing vengeance and their own vision of justice. If they do anyway

(if, for example, a victim kills a perpetrator) then they become per-

petrators and pay the price, both legally and morally. Although we

may feel empathy with such a victim seeking revenge, Nietzsche’s

warning—that when ghting monsters you must take care not to

become one yourself—should be remembered. Killing by the state is

wrong as well, potentially even worse than killing by an individual.

Individuals can sometimes kill in self-defence; states have such a range

of options for protecting people from a threatening individual that

killing is disproportionate to the danger that person represents. An

individual might kill out of passion or be criminally insane. The state,

when administering the death penalty, always kills after reection,

fully aware and accepting of the consequences.

An individual who kills, whether brought to justice or not, at least

pays for the violation of a fundamental moral rule through his or her

guilty conscience. When a state kills, it kills through its ocials, with-

out a guilty conscience; executioners are just doing their job.

There

is a tendency, especially in the developed retentionist countries, to

carry out the death penalty in an increasingly organized, technical and

bureaucratic manner, favouring teamwork and a piecemeal approach,

without thorough reection, emotion or individual responsibility.

Is it acceptable that killing takes place without anyone being morally

responsible for it? Is a state that kills a dangerous state? Can its right

to kill be misused against enemies of the state or enemies of those in

power? Is such a state, in essence, more prone to also violate other

human rights? If a state can kill, can it also torture when it is deemed

necessary—also without guilt on the part of the decision-makers,

through professional torturers doing their job? Can it send its citizens

to kill and be killed in war, not in self-defence but for some other

important “national interest”?

The death penalty, and the prerogative of the state to impose and execute

it, is related to our approach to contemporary state sovereignty. In the

20 In If This Is a Man (Collier Books, 1993), writing about Auschwitz, Primo Levi expressed

profound amazement: “How can one hit a man without anger?” In a similar moral sense should

not we ask ourselves how one can kill without guilt?

21 See Linda Ross Meyer, “The meaning of death, last words, last meals”, in Who Deserves to Die?

Constructing the Executable Subject, Austin Sarat and Karl Shoemaker, eds. (Amherst, University of

Massachusetts Press, 2011).

20 21

• The use of the death penalty should no longer be perceived

as an entitlement of a sovereign state, because it violates

human rights. No national interest can justify human rights

violations such as the death penalty or torture. International

recognition and protection of human rights limit state powers

in this regard.

• As long as the death penalty exists, it can be misused, for exam-

ple to target particular social groups and political opponents.

This book oers solid scientic evidence that supports abolition of

the death penalty. Although it is an advocacy book, mostly written

and edited by committed abolitionists, it clearly distinguishes between

facts and values. I encourage you to choose your stand on this issue

based on solid information.

I believe that one day, people will look back and wonder how it

was possible that the death penalty ever existed—just like, in most

societies today, it is already hard to understand how public executions

could ever have taken place. But when will it become universally

accepted that the death penalty violates the most fundamental human

right, the right to life? When will the day come when all states are

abolitionist—when there is no death penalty anywhere, anymore?

If we were to extrapolate a curve based on current trends—reduction

of the number of crimes punishable by death, moratoria on its exe-

cution, and full abolition—one could perhaps predict the number of

years it may take. But of course, in society, where human action can

change trends, such predictions are highly unreliable.

This is the main reason for publishing this book: it is a part of global

action to encourage global abolition of the death penalty. State power

has to have its limits, limits that uphold human rights.

Ivan Šimonovi´c

Assistant Secretary-General for Human Rights

New York, 31 August 2015

Let me contribute to the tracing of the way forward in moving away

from the death penalty by summarizing the arguments against it and

encouraging political and social leaders to act decisively towards

its abolition.

In my view, the death penalty is morally, socially and politically

wrong. Morally, killing is wrong. Killing on behalf of a state is wrong

as well. Some may believe that the death penalty is a just and moral

punishment for the most serious of crimes; victims and their families

are morally entitled to long for revenge. However, the social, political

and economic costs of such retribution are, in my opinion, too high:

• Despite the greatest judicial eorts, wrongful convictions are

not avoidable. Capital punishment is simply too nal and

irrevocable, and makes it impossible to correct such mistakes.

The consequences for human error are too grave.

• There is no conclusive empirical evidence that the death

penalty deters crime.

• The death penalty is cheap only if it is carried out quickly.

Putting in place the necessary safeguards to prevent wrongful

convictions often makes legal proceedings lengthy and much

more costly than the longest prison sentence.

• Long delays on death row make the death penalty a cruel

punishment, unacceptable from a human rights perspective.

• Long delays in carrying out executions also postpone closure

and psychological healing for victims and their families, in a

way that (for example) the perpetrator’s return to prison to

begin a life sentence without parole does not.

• Not all victims’ families support the death penalty, and even

among those who do, and who desire revenge or closure

through it, the great majority are left frustrated because only

a small minority of perpetrators are executed.

• The death penalty is not imposed in a just and equal way.

Those sacriced on the altar of retributive justice are almost

always those who are vulnerable because of poverty, minority

status or mental disability.

“If a great country cannot ensure

that it won’t kill an innocent citizen,

it shouldn’t kill at all.”

— Kirk Bloodsworth

CHAPTER 1

WRONGFUL CONVICTIONS

Chapter includes articles by an exoneree, an academic, a former prosecutor and an

activist for global abolition of the death penalty. Each of them oers a dierent

perspective. Their ndings converge on this point: there are a signicant number

of wrongful convictions, including in capital punishment cases, and executing the

innocent is simply not acceptable.

Kirk Bloodsworth was the rst person in the United States to be exonerated—

have his conviction reversed—through DNA testing. He was a young man, a

former marine from a humble background, without any criminal record, when

he became the victim of faulty eyewitness identication. After almost nine years

(two of them on death row) trying to prove his innocence, he was nally released.

Nowadays, he is a strong advocate for the abolition of the death penalty and for

the rights of the wrongfully convicted.

Brandon Garrett, an academic who does legal research on wrongful convictions,

their causes and ways to prevent them, analyses DNA-based exonerations in

the United States with particular attention to death penalty cases. He documents

how revelations about innocent people being sent to death row have permanently

altered the death penalty debate in the United States. In his view, jurisdictions in

other countries should similarly take note of the possibility of wrongful convictions.

Gil Garcetti is a convert. He served as a district attorney in Los Angeles County,

California, for many years and sometimes sought the death penalty for those he

prosecuted. However, the death penalty’s disproportionate eect on minorities and

the history of wrongful convictions led him to become an abolitionist. He had a

major role in the Proposition 34 campaign in California, which almost succeeded

in replacing the death penalty with life imprisonment without parole (it attracted

48 per cent of the vote).

Saul Lehrfreund discusses retentionist countries across the Caribbean, Africa and

Asia in which law and practice do not provide the protections in capital punish-

ment cases that are required by international human rights law. He concludes that

miscarriages of justice and executions of the innocent may occur in every system

and that this is a major reason that an increasing number of countries have moved

away from the death penalty.

Activists lie on the street to mark the World Day against the Death Penalty. / © EPA/Wael Hamzeh

24 25

WITHOUT DNA EVIDENCE,

I’D STILL BE BEHIND BARS

Kirk Noble Bloodsworth

I am the rst person in the United States to be exonerated from a

capital conviction through DNA testing. When I was exonerated in

1993, I had spent 8 years, 11 months, and 19 days (including two years

on death row) for a crime I did not commit. I am living proof that

America’s system of capital punishment is broken beyond repair.

In early 1984, before my life changed forever, I was just a humble

waterman living in Cambridge, Maryland. I was barely 23 years old,

newly married, and had just served four years in the US Marine

Corps. I had never been arrested in my life. This all changed on

August 9, 1984, when the police knocked on my door at 3 o’clock

in the morning and arrested me for the murder of Dawn Hamilton.

In a matter of days, I became the most hated man in Maryland.

How was I, a former US Marine with no criminal record and no

connection to the scene of the crime, convicted and sentenced to

death for a murder I didn’t commit?

On July 25, 1984, 9-year-old Dawn Hamilton was tragically raped

and murdered in Baltimore County. She was playing outside with a

friend in the morning when she came across two little boys shing

at a pond. A man nearby approached Dawn and oered to help

her nd her friend in their game of hide-and-seek. That was the

last time Dawn was seen alive. Her body was found in the park

that afternoon, and the evidence of the brutal crime horried the

ocials at the scene.

Because of the notoriety of the crime, the police were understandably

eager to nd Dawn’s killer and ease the community’s fear. When the

police department found the two little boys who had seen the suspect,

the ocers drafted a composite sketch of the man they were looking for.

1 Kirk Noble Bloodsworth, victim of wrongful conviction.

The witnesses described the suspect as 6 feet 5 inches tall, with a slim

build and dirty blond hair.

At the time of the investigation, I was 6 feet tall, with a thick waist,

ery red hair and long, noticeable sideburns.

Despite the fact that I did not t the description, an anonymous

caller suggested my name to the Cambridge Police Department. In

a poorly conducted police line-up, I was identied as the last man to

be seen with the victim.

Eyewitness misidentication is widely recognized as a leading cause

of wrongful convictions in the United States. Since 1989, DNA evi-

dence has been used to exonerate over 200 individuals, and about 75

per cent of these cases involved inaccurate eyewitness identication.

Other faulty police procedures played a role in my wrongful conviction.

I went to the police station voluntarily. Knowing that I was inno-

cent of this crime, I wanted to be as cooperative as possible. When I

entered the interview room, a pair of girl’s panties and a rock were

lying on the table. I was never told why. I later found out that the

items were part of an experiment that the police devised because they

believed that the killer would have a strong reaction to these items

related to the crime. I had no reaction. But after I left the station, I

talked to my friends about what the police had done. During the

trial, the police used these statements against me, claiming that I knew

something that only the killer would know. I only knew because they

had shown the items to me that day.

There was no physical evidence against me. I was convicted primar-

ily on the testimony of ve eyewitnesses who were later shown to

be terribly mistaken. With all the fear and anger in the community

surrounding Dawn’s murder, it took the jury less than three hours to

convict. I was sentenced to die in Maryland’s gas chamber. When my

death sentence was announced, the courtroom erupted in applause.

I, an innocent man, was sent to one of the worst prisons in the United

States at the time, the Maryland State Penitentiary. There was not a

26 27

day that passed that I didn’t try to tell someone I was innocent of

this crime. But, as a guard at the penitentiary told me during my rst

week, “Everyone in the pen is innocent, man, don’t you know?” No

one believed me.

Life at the Maryland State Penitentiary can only be described as hell on

Earth. I still have nightmares about it. Imagine living in a cell where you

can only take three steps from the back wall to the front door. I could

touch the side walls with my outstretched arms. My cell was directly

under the gas chamber where I was sentenced to die at the hands of the

state. The guards thought it was funny to remind me of that fact. They

would describe the entire procedure in detail and laugh at my fate.

Fortunately, I only had to spend two years dreading this death. A

second trial reduced my punishment to back-to-back life sentences.

I spent many of my

years in the peniten-

tiary in the infamous

South Wing, where

men were driven mad

by the prison brawls, lth, and other horric experiences. Prisoners

kept cotton balls in their ears at night so cockroaches wouldn’t lay

eggs in their heads. Prisoners would scream all through the night. The

conditions proved even worse for me, as I was jeered by the other

prisoners as a child rapist and killer. I had to lift weights every day

and adopt a rough demeanour in order to fend o constant threats.

While I fought to stay safe at the penitentiary, I spent most of my time

ghting to prove my innocence to anyone who would listen. I signed

every letter I sent “Kirk Bloodsworth A.I.M., An Innocent Man.”

While writing countless letters to advocates, I resolved to advocate

for myself through my own research. I spent long days in the prison

library, reading every book I could get my hands on. The key to my

freedom came in the form of a book titled The Blooding by Joseph

Wambaugh. This book chronicled the rst time a process called DNA

testing was used to solve a series of homicides in England. I had an

epiphany right there: “If it can convict you, it can free you.”

At the time of my rst trial, DNA testing was not a well-understood

concept in criminal law. But when I came across this book in 1992,

DNA testing in criminal cases was breaking ground. My attorney, Bob

Morin, submitted a request for the evidence in my case to be tested

in a lab. The prosecutor in the case almost brought my innocence

claim to a halt when she sent a letter with a devastating message: The

biological material in my case had been inadvertently destroyed.

But by the grace of God, the judge from my second trial had decided

to store some of the physical evidence in his chambers. I cannot say

for sure why he decided to do that, but I have a hunch that he knew

there was more truth to be told.

One day in 1993, the truth came out. I received a phone call from

my typically mild-mannered attorney. He couldn’t contain his excite-

ment. The sperm stain lifted from the victim’s underpants did not

match my DNA. The DNA told the truth; I was not guilty of this

crime. The appeals process in capital cases can be complicated and

hard to manoeuvre. I was fortunate to have supportive family, advo-

cates and an attorney who believed in my innocence.

Had evidence for DNA testing not been available, I would still be

in prison today. In the vast majority of criminal cases in the United

States, DNA or other biological evidence is not available—like in the

cases of Troy Davis and Carlos DeLuna, who were executed despite

grave doubts about their guilt. It is dicult to overturn wrongful

convictions without evidence to test. Unfortunately, it is more than

likely that there are people sitting on death row right now who are

in this tragic bind.

It is hard to know just how I sustained hope through this ordeal.

One story in particular comes to mind. Three months before the

results came back that would prove my innocence, I lost my mother.

She died of a heart attack on January 20, 1993. I was escorted to

the funeral home in shackles and handcus and was only given ve

minutes with my mother. This was the woman who had taught me

that if I don’t stand up for something, I would fall for anything.

She always believed in my innocence, but she didn’t live to see

me vindicated.

“IF WE KILL ONE INNOCENT

MAN, IT’S ONE TOO MANY.”

—

Kirk Noble Bloodsworth

28 29

Finally, on June 28, 1993, I walked out of the Maryland State Peni-

tentiary a free man.

Even today, many exonerees nd it hard to shake the stigma after

they are released from prison. At the time of my DNA exoneration,

the technology was still new and the public wasn’t sure if I could

be trusted. When I returned to Cambridge, Maryland, I had trouble

getting a job and I was harassed by my neighbours.

It didn’t help that the prosecutor, Ann Brobst, would not admit the

state’s mistake. Even when I was released based on clear scientic

evidence, Brodst stated, “If we had the DNA evidence in 1984, Mr.

Bloodsworth would not have been prosecuted, but we are not pre-

pared to say he is innocent.”

Unfortunately, it would take 10 years for Dawn’s true killer to be iden-

tied. I received a phone call from Brobst in September 2003 when

the state of Maryland nally found a match in the DNA database.

The murderer was identied as Kimberley Shay Runer. Not only

was his name given in a tip at the time of the original investigation,

but Runer was a suspect in rapes in the Fells Point neighbourhood

of Baltimore. He was serving time for attempted rape when the DNA

match was concluded years later.

As fate would have it, Runer had been sleeping in the cell below

me in the Maryland Penitentiary all these years. We had lifted weights

together. I gave him library books. He never said a word in all that time.

When I was exonerated, the state of Maryland paid me $300,000 for

lost income during the time I was wrongfully imprisoned. But I lost

so much more than money in those eight years that I will never get

back. While I grieve this loss, I am no longer angry, and for the past

decade of my life, I have simply wanted to do something to ensure

that no-one else suers what I did. After all, if it can happen to me, it

can happen to anyone.

This principle guides my work today. During my years of freedom, I

have fought for wrongfully convicted people all over the United States

and lobbied for reforms to the American criminal justice system, such

as the Innocence Protection Act of 2003, which includes the Kirk

Bloodsworth Post-Conviction DNA Testing program, providing fed-

eral funds to states for DNA testing for prisoners who claim their

innocence. I have become one of many exonerees who, with the

help of great advocacy organizations like Witness to Innocence, travel

around the country to share our cautionary tales.

When I tell young students my story, they always say the same thing:

I can’t believe this could happen in America.

While people are concerned by the rate of wrongful conviction in

the United States, sometimes it takes a personal story to put a real face

to the issue. Now, I respectfully submit my story to you. This story is

why I believe that the time is overdue for the United States to follow

the lead of our partners in the international community and abolish

the death penalty once and for all.

Make no mistake about it. I am not here because the system worked. I

am here because a series of miracles led to my exoneration. Not every

person wrongfully convicted of a capital crime is as blessed. If we kill

one innocent man, it’s one too many.

I certainly understand the anger and desire for justice in capital cases.

When I speak at death penalty events, I sometimes carry with me the

picture of the victim Dawn Hamilton. Her death was so horric that

it still moves me to tears. But the great US Supreme Court Justice

Thurgood Marshall one said, “The measure of a country’s greatness

is its ability to retain compassion in time of crisis.” Even in the midst

of fear and anger, a great country must ensure that its criminal justice

system is eective and accurate. If a great country cannot ensure that

it won’t kill an innocent citizen, it shouldn’t kill at all.

For these reasons, I strongly believe that abolishing the death penalty

is a necessary step for the integrity of the criminal justice system in

the United States and other nations.

30 31

DNA EVIDENCE CASTS LIGHT

ON FLAWS IN SYSTEM

Brandon L. Garrett

In no country other than the United States has there been such a large

group of people whose innocence has been clearly proven by DNA

tests years after their conviction. This group of innocent people, called

DNA exonerees, provides a unique opportunity to learn about what

can go wrong in even the most serious criminal cases. Exoneration is

an ocial decision to reverse a conviction based on new evidence of

innocence. The most haunting feature of many wrongful convictions

is that they can come to light by sheer fortuity. We may never know

how many other innocent people have been convicted and punished,

even for serious crimes like murder.

Accuracy may be of particular concern for very serious but di-

cult-to-solve crimes like murder, in which the death penalty may

be charged. If the culprit is not caught in the act, police may need

to rely on eyewitnesses, forensics or confessions—evidence that they

can get wrong, due to missteps and unsound practices early in crim-

inal investigations. Once key evidence is contaminated during an

investigation, it may be very dicult for subsequent trial, appeals,

and post-conviction courts to detect, much less correct, the errors.

What I found disturbing when reading a large set of criminal trials

of DNA exonerees is that a case against an innocent person may not

seem weak at the time; it may seem uncannily strong. Where very

few cases can be tested using DNA, it is crucial to prevent wrongful

convictions before it is too late.

Over 140 death row inmates have been exonerated since the 1970s

in the United States.

I focused on a small group of those cases when

1 Brandon L. Garrett is a professor ar the University of Virginia School of Law.

2 As of this writing, the Death Penalty Information Center had a count of 144 death-row

inmates who have been exonerated <www.deathpenaltyinfo.org/innocence-list-those-freed-

death-row>. A 2008 study modelled a false conviction rate by examining exonerations in cap-

ital cases in published work and in a work in progress. Samuel R. Gross and Barbara O’Brien,

“Frequency and predictors of false conviction: Why we know so little, and new data on capital

cases”,

Journal of Empirical Legal Studies, vol. 5 (2008), pp. 927 .

I examined what happened in the rst 250 DNA exonerations in

my 2011 book Convicting the Innocent: Where Criminal Prosecutions Go

Wrong.

There have now been more than 300 such exonerations in

the United States. Of the rst 300 cases, 192 were convicted of rape,

68 of rape and murder, 32 of murder, and 8 of other crimes; 18 had

been sentenced to death.

Of those 18, 16 had been convicted of rape and murder and 2 of

murder alone. The evidence in those cases relied heavily on confessions,

which we now know to have been false, and a range of awed forensic

evidence. Eight involved detailed false confessions allegedly including

inside information that only the murderer could have known. With the

benet of DNA tests, we now know those people were innocent, but

they may have seemed quite guilty at the time. Absent a complete video

recording of the interrogations, jurors readily believed law enforcement

ocials’ accounts of the confessions. Three of these confessions were

made by mentally disabled people who could be expected to have been

highly vulnerable to police coercion and suggestion.

Ten of the cases involved testimony by informants, including seven

jailhouse informants, three witnesses who testied in cooperation

with prosecutors, and two codefendants who alleged they were

accomplices but who were also innocent and themselves wrongly

convicted. These informants also claimed to have overheard, in jail

or elsewhere, details that only the killer could have known. Perhaps

the most chilling of those cases is that of Ron Williamson and Dennis

Fritz, in which the witness testifying for the state at trial, and describ-

ing the victim having a last dance with Williamson, was later shown

by DNA testing to himself have been the killer.

Eight cases involved identications by eyewitnesses, sometimes mul-

tiple eyewitnesses, who were all mistaken about what they had seen.

3 Data from that research are available online at <www.law.virginia.edu/html/librarysite/garrett_

innocent.htm>. A multimedia online resource about these data and ways to prevent wrongful

convictions is available at <www.innocenceproject.org/Content/Getting_it_Right.php>.

4 My book examined 17 such DNA exonerations in capital cases; in 2012, Damon Thibodeaux

became the 300th DNA exoneree and the 18th death row DNA exoneree in the United States.

Douglas A. Blackmon, “Louisiana death-row inmate Damon Thibodeaux exonerated with

DNA evidence”,

Washington Post, 28 September 2012.

5 The US Supreme Court noted the existence of one such case, that of Earl Washington Jr., in its

decision in

Atkins v. Virginia, 536 U.S. 304, 320 n. 5 (2002).

32 33

Fourteen cases involved forensic evidence, including a number with

unreliable and unvalidated forensics. Ten of the cases involved hair

comparisons, two involved bre comparisons and nine involved

blood typing. Two involved bite mark comparisons; perhaps most

well known is the case of Ray Krone, who was convicted based on

little other than a awed bite-mark comparison.

The death penalty cases were not so dierent from many other DNA

exoneree cases that similarly involved murders, and in which false

confessions and informant testimony and awed forensic evidence

played a central role. Of the rst 250 DNA exonerees, 40 had falsely

confessed. I examined each of those cases in detail and found that in

all but two cases, the innocent person was said to have confessed in

detail. Those false confessions were all seemingly powerful because

they were contaminated. While many of the interrogations were

partially recorded, none was recorded in its entirety. The confessions

were concentrated in the murder cases. Of the 40 false confessions

that I studied, 25 involved rape and murder, 3 murder only, and 12

rape only.

EXONERATION: AN UPHILL BATTLE

Once evidence is contaminated early in a criminal investigation,

post-trial procedures—like appeals and the post-appeal habeas corpus

remedies that we have in the United States—may not be of much

help. It is a myth that appellate judges will correct factual errors: An

appellate court “knows no more than the jury and the trial judge” and

has a more limited role, partially because the appellate judge is “obliged

to accept the jury’s verdict” and focuses on more limited questions of

law rather than the reliability of facts.

An appellate judge, who was

not present at the original trial, is highly reluctant to second-guess the

jury’s decision to convict. No more than 1 or 2 per cent of cases are

ever reversed. Of course, the vast majority of criminal cases involve plea

bargains, in which the right to an appeal or post-conviction review is

usually waived. Even when an appeal can be brought, rules setting strict

time limits have traditionally prevented a convict from raising new evi-

dence of innocence (although some of those rules have been relaxed,

6 Jerome Frank and Barbara Frank, Not Guilty (Garden City, NY, Doubleday, 1957).

particularly by state statutes that permit post-conviction DNA testing),

and claims of innocence remain very dicult to make.

Once the appeal is over, an indigent inmate lacks the constitutional right

to a state-provided attorney. Every jurisdiction in the United States oers

some type of review after the appeal is complete, usually called post-con-

viction or habeas review. This additional level of review may permit, in

theory, litigation of claims that could not have been raised during the

initial appeal. However, non-death-row inmates typically do not have

lawyers to help them navigate the incredibly complex procedural barri-

ers that limit the chances of success during such reviews.

The death-row DNA exonerees typically followed a long road from

trial to exoneration. Four of them had two trials; two had three trials.

Each time they were convicted again, until they nally obtained DNA

testing and were exonerated. The picture was not much dierent for the

full group of DNA exonerees, including those who were not sentenced

to death, except that among the non-death-row prisoners, even fewer

received any relief prior to obtaining DNA testing. Non-death-row

exonerees often did not obtain lawyers after their appeal and could not

get any help ling habeas petitions. They rarely challenged the faulty

evidence that caused their wrongful convictions, and when they did try,

they failed. The gure that follows illustrates the degree to which the

rst 250 DNA exonerees (those who had judges write decisions in their

cases) tried to challenge the evidence presented at their trials during

appeal or post-conviction review, and how few obtained conviction

reversals before they were successfully exonerated using DNA testing.

Post-conviction challenges to evidence by the

ﬁrst 250 DNA exonerees

We now know that these people were innocent, but they did not have

any luck raising claims of innocence either: Every DNA exoneree who

tried to raise such a claim failed. These appeals and post-conviction

challenges took time; the road to exoneration took an average of 15

years. Of the 18 death-row DNA exonerees, 8 earned reversals on

appeal or post-conviction. This high reversal rate is consistent with

other studies of post-conviction litigation by death row inmates,

although these cases were mostly litigated before the passage of the

34 35

Antiterrorism and Eective Death Penalty Act, which now restricts

the availability of federal habeas review.

What is still more troubling, though, is that others were convicted

again at multiple trials, until ultimately DNA evidence set them free.

Rolando Cruz and Alejandro Hernandez each had two convictions

reversed and three criminal trials before they were exonerated. Kirk

Bloodsworth, Ray Krone, Curtis McCarty and Dennis Williams each

had two trials before they were exonerated by post-conviction DNA

testing. Innocent people can be wrongly convicted not only once but

several times, including in capital cases.

Bloodsworth was the rst person exonerated from death row in the

United States based on post-conviction DNA testing. He had been

sentenced to death for the Maryland rape and murder of a 9-year-old

girl in 1984. Five eyewitnesses had incorrectly placed him near the

crime scene. Maryland recently abolished the death penalty, in part in

response to Bloodsworth’s case.

Compare that case to the nationally and internationally well-known

Troy Davis case, a death penalty case that similarly involved a group

of eyewitnesses who had each identied Davis following eyewitness

identication procedures. Although the US Supreme Court, in a rare

move, granted a habeas petition led directly with the Court and

asked a judge to look into the new evidence of Davis’s innocence, the

Georgia Board of Pardons denied clemency, and Davis was executed

in September 2011. We will never know for sure if he was inno-

cent—there was no DNA evidence to test, or any other real forensic

evidence in the case.

Other prisoners have fared better, but not to the point of full exon-

eration: They have pled guilty in exchange for having their sentence

7 For a discussion of the reversal rate in capital DNA exonerations, see Brandon L. Garrett,

“Judging innocence”, Columbia Law Review, vol. 108 (2008), pp. 55 ., 99-100 (reporting a

58 per cent reversal rate, or 7 out of 12 capital DNA exonerees with written decisions). Since

that article was written, of the four additional capital DNA exonerees, Curtis McCarty received

reversals, Kennedy Brewer did not, and Michael Blair and Damon Thibodeaux did not have

reported decisions.

8 Brandon L. Garrett, “Eyes on an execution”,

Slate, September 20, 2011. For an example of an

execution that received very little attention at the time, but regarding which grave doubts have

since been raised, see James Liebman and others, “The Wrong Carlos: Anatomy of a Wrongful

Execution” (Columbia U. Press: New York, NY 2014).

reduced to time served or have received partial clemency after errors

came to light in their cases. This has occurred in high-prole cases

like those of the West Memphis Three in Arkansas, the Norfolk

Four in Virginia and Edward Lee Elmore in South Carolina.

There

are many more exonerations that do not involve DNA testing; very

few death penalty cases—or murder cases generally—have testable

DNA evidence.

DEBATE AND REFORM

Exonerations in capital cases have had a broad impact on the public

and policymakers and have contributed to a “new death penalty

debate.”

Revelations that innocent people were sent to death row

have permanently altered the debate, regardless of whether one

believes that the death penalty is justied in some circumstances.

For example, in Baze v. Rees, US Supreme Court Justice Stevens

announced his opposition to the death penalty, citing evidence from

DNA exonerations:

Given the real risk of error in this class of cases, the irrevo-

cable nature of the consequences is of decisive importance to

me. Whether or not any innocent defendants have actually

been executed, abundant evidence accumulated in recent

years has resulted in the exoneration of an unacceptable

number of defendants found guilty of capital oenses.

Justice John Paul Stevens, writing for the US Supreme Court in

Atkins v. Virginia, noted that “a disturbing number of inmates on

death row have been exonerated.”

In contrast, Justice Antonin

Scalia has argued that known exonerations represent an “insignicant

9 See “Kaine’s full statement on ‘Norfolk Four’ case”, Washington Post, 6 August 2009, available

from http://voices.washingtonpost.com/virginiapolitics/2009/08/kaines_full_statement_on_

norfo.html?sidST2009080602217; Tom Wells and Richard A. Leo,

The Wrong Guys: Murder,

False Confessions, and the Norfolk Four (New York, W. W. Norton, 2008); Raymond Bonner,

Anatomy of Injustice: A Murder Case Gone Wrong (New York, Alfred A. Knopf, 2012).

10 James Liebman, “The new death penalty debate”, Columbia Human Rights Law Review, vol.

33 (2002), pp. 527 .; Colin Starger, “Death and harmless error: A rhetorical response to judg-

ing innocence”, Columbia Law Review Sidebar, vol. 108 (February 2008), pp. 1 .

Baze v. Rees, 553 U.S. 35, 85-86 (2008) (Stevens, J. dissenting).

Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002).

36 37

minimum.”

Federal district judge Jed Rako struck down the federal

death penalty, arguing: “We now know, in a way almost unthinkable

even a decade ago, that our system of criminal justice, for all its pro-

tections, is suciently fallible that innocent people are convicted of

capital crimes with some frequency.” His ruling was later reversed

by the Second Circuit Court of Appeals.

Statewide moratoriums

and abolition of the death penalty have occurred in part citing the

examples of death row exonerations; the best known was the Illinois

moratorium and Commission on Capital Punishment, for which

there was intensive study of the cases of 13 men exonerated from

the Illinois death row.

Hearing from a death row exoneree how a

wrongful execution nearly happened can have a powerful eect on

legislators and the public. As noted, the death penalty was abolished

in Maryland; death row survivor Kirk Bloodsworth had lobbied for

the repeal in Maryland and has done so across the country. The direc-

tor of Maryland Citizens Against State Executions commented, “No

single individual has changed as many minds as Kirk.”

Looking far beyond death penalty cases, DNA testing suggests addi-

tional questions about the more mundane criminal cases. A federal

inquiry conducted in the mid-1990s, when police rst began to send

samples for DNA testing, found that 25percent of these prime sus-

pects were cleared by DNA before a trial was held.

Where the vast

majority of criminal cases lack any DNA evidence to test, still more

questions are raised concerning accuracy.

13 Kansas v. Marsh, 548 U.S. 163, 194-195 (2006) (Scalia, J. concurring). For a discussion, see

Samuel R. Gross, “Souter passant, Scalia rampant: Combat in the marsh”, Michigan Law Review

First Impressions, vol. 105 (2006), pp. 67 .

U.S. v. Quinones, 196 F.Supp.2d 416, 420 (S.D.N.Y. 2002) rev’d U.S. v. Quinones, 313 F.3d 49

(2nd Cir. 2002).

15 Governor’s Commission on Capital Punishment,

Report of the Governor’s Commission on Capi-

tal Punishment (Springeld, Illinois, 2002), p. 4.

16 Scott Shane, “A death penalty ght comes home”,

New York Times, 5 February 2013.

17 Edward Connors and others,

Convicted by Juries, Exonerated by Science: Case Studies in the Use

of DNA Evidence to Establish Innocence after Trial (Washington, DC, US Department of Justice,

1996), pp. xxviii-xxix, 20.

“OVER 140 DEATH ROW INMATES HAVE

BEEN EXONERATED SINCE THE 1970S IN

THE UNITED STATES” —

Brandon L. Garrett

More states and local police departments are now recording interro-

gations and have adopted best practices for eyewitness lineups. A few

have also improved quality control and standards for forensics. Those

reforms are inexpensive, and they benet law enforcement; they help

to identify the guilty and clear the innocent. However, they are all

being implemented at the local and state levels.

Additional reforms could improve the quality of post-convic-

tion review. One state, North Carolina, has created an Innocence

Inquiry Commission, to focus on judicial review of claims of inno-

cence. Unlike post-conviction and habeas courts, which are sharply

restricted by complex procedural barriers to relief, this Commission

just investigates whether a person is innocent and should be exoner-

ated by a three-judge panel. Other courts have made improvements

on the front end by insisting that juries be carefully informed of the

limitations of evidence, such as eyewitness testimony. Much more can

be done, however, both to improve judicial gatekeeping to prevent

wrongful convictions in the rst place and to review convictions after

the fact.

CONCLUSION

In the United States, because some jurisdictions happened to save

crime scene evidence that could be tested years later, there has been

No challenge Verdict reversed Challenge unsuccessful

Eyewitness testimony

56% challenged

Forensic testimony

31% challenged

Informant testimony

34% challenged

Confessions

59% challenged

120

100

38 39

a remarkable series of DNA exonerations, including in death penalty

cases. Jurisdictions in the United States are slowly learning from these

cases, and some have adopted reforms to prevent future wrongful

convictions. Jurisdictions outside the United States should similarly

take note. Eyewitness memory, confessions, informants and traditional

forensic comparisons are not very dierent around the world. The

same causes and practices may result in the same types of errors.

Much more remains to be done to prevent wrongful convictions, in

capital cases as well as other types of criminal cases. Getting it right

will take a sustained commitment.

IN THE UNITED STATES,

GROWING DOUBTS ABOUT

THE DEATH PENALTY

Gil Garcetti

The death penalty in the United States is applied through the state

systems of justice and, on far fewer occasions, through the federal

system. Under current federal law, each state has the authority to

impose a death penalty for murders involving actions or situations

that are usually referred to as “special circumstances.” Likewise, any

state is free to ban the death penalty. As of this writing, 18 states have

banned it, and three more—Washington, Oregon and Colorado—

have recently imposed moratoriums. One could also convincingly

argue that the nation’s largest state, California, eectively has a mora-

torium, given that the last execution there was in 2006.

In the 29 states that do impose the death penalty, the decision on

whether to seek it is made by the county prosecutor (each state is

divided into counties). California has 57 counties, and each has an

elected prosecutor with the title of district attorney. Each of these

district attorneys has dierent criteria for deciding whether to seek

the death penalty in death-penalty-eligible cases. In Los Angeles,

the death penalty is sought in less than 15 per cent of all eligible

cases. In other California counties, this ratio is reversed. Without

doubt there are cases for which, if they were tried in two counties

in California, one county would seek the death penalty and the

other would not.

Los Angeles County, where I have the greatest experience and famil-

iarity, is the largest county in California and by population larger

than 43 states. Because of its size, courthouses are spread throughout

the county. Though the death-penalty decision-making process is

centralized, whether a jury returns a verdict of death depends to a

great extent on where in the county the case is tried. This has always

troubled me. Why should one defendant benet or suer simply

1 Gil Garcetti was Los Angeles County District Attorney from 1992 to 2000.

40 41

because he or she is tried in an area of the county that is less likely or

more likely to return a verdict of death? This concern holds for the

entire state: Why should defendants benet or suer simply because

of their county’s policy regarding the death penalty or the propensity

of jurors in the county to favour or oppose it?

I spent 32 years in the Los Angeles County District Attorney’s oce,

including eight years as the elected District Attorney and four in

the second-highest position, Chief Deputy District Attorney. In those

capacities I oversaw the nal decision-making process regarding the

death penalty. In my eight years as District Attorney, I supported and

implemented California’s death penalty law. I left oce at the end

of 2000. About 10 years later, I reversed my position on the death

penalty. I became convinced that it serves no useful criminal justice

or societal purpose, including as a deterrent to murder; that given

the number of recently exonerated death row inmates throughout

the United States, there were undoubtedly people on California’s

death row who should not be there; that the obscene amount of

taxpayers’ money used to support the death penalty would be much

more eectively used to keep teachers, school counsellors, and law

enforcement personnel on the job; and that the current system, under

which death-penalty cases often last for decades, was not fair to the

families and loved ones of murder victims.

In 2011 I made my views public. My ultimate goal is to see the death

penalty repealed, in California as well as the entire United States, and

replaced with life in prison without the possibility of parole. Each

state has a slightly dierent means of achieving this goal. Some, like

California and Oregon, require a voter initiative,

while others may

repeal through the state legislature. No matter the method, repeal

is a dicult task, because the death penalty in the United States is

a highly emotional issue, deeply political, and misunderstood by a

majority of Americans.

2 In a voter initiative, proponents of a measure circulate a petition which, if it garners enough

signatures, enables the measure to be placed on a ballot in the next election, to be voted on

directly by citizens. California and 17 other states provide for state laws to be passed in this way.

THE CALIFORNIA MORATORIUM

The hard facts behind the death penalty process have begun to come

to light in the United States, giving some of our political leaders,

including vocal supporters of the death penalty, a reason to pause

and think critically about the system. Many have publicly supported

a moratorium in order to allow time for a meaningful conversation

on the issue. California has since 2006 had a de facto moratorium

on executions due to ongoing legal challenges to the state’s lethal

injection protocol. This has created an environment that has allowed

us to move closer to achieving our goal of replacing the death penalty

with life in prison without the possibility of parole.

California’s de facto moratorium, as well as the moratoriums imposed

by the governors of the states of Oregon, Washington and Colorado,

have undoubtedly created an environment in which full repeal is

more plausible. The positive eect of moratoriums can be seen most

clearly in New Jersey, where a moratorium on executions was put in

place in 2004 due to the lack of a proper lethal injection procedure.

In the following years, questions about the eectiveness of the death

penalty as a deterrent, cost feasibility, and, critically, the risk of sen-

tencing innocents to death led New Jersey to repeal its death penalty

in 2007. The de facto moratorium in California has similarly created

an environment of scrutiny.

To fully understand the de facto moratorium in California, it is help-

ful to go back a few decades. After several years without a death

penalty, California voters reinstated it in 1978 in an initiative process.

Not many years after reinstatement, both supporters and opponents

of the death penalty became very unhappy with the how it was

being administered. In 2004, the California State Senate established

the California Commission on the Fair Administration of Justice,

a bipartisan blue-ribbon panel tasked with speeding up the death

penalty process, investigating the causes of wrongful convictions and

executions in the state, and recommending reforms. The resulting

report made substantive recommendations for change. Even though

highly respected individuals on both sides of the argument urged

the legislature to adopt major changes in the administration of the

death penalty, no meaningful change was adopted by the legislature.

42 43

In good part because of this failure to act, the then chief justice of

the California Supreme Court and other death penalty supporters

declared that there would never be the political will to change the

death penalty law and that the system was broken and unxable.

In 2005, in the court case Morales v. Cullen, a death row inmate chal-

lenged California’s lethal injection procedure in federal court as cruel

and unusual punishment prohibited by the Eighth Amendment to

the US Constitution. Governor Arnold Schwarzenegger responded

by agreeing to overhaul the state’s lethal injection procedure. In 2006,

in Pacic News Service v. Cullen, an inmate challenged the use of a

paralytic drug during lethal injection, arguing that it violates the First

Amendment rights of the press and the public by preventing witnesses

from seeing what actually occurs during an execution. As a result of

these legal cases, and because of a national shortage of lethal injection

drugs, all of California’s scheduled executions have been placed on

indenite hold. The last execution in California occurred in 2006.

In 2007, a state court ordered the California Department of Cor-

rections and Rehabilitation (CDCR), the agency legally responsible

for carrying out executions, to adopt a new lethal injection protocol

while allowing for public comment and participation. A challenge to

the CDCR’s new protocol was advanced in 2010 based on state law

in Sims v. California Department of Corrections and Rehabilitation. In that

case, the plainti alleged that the CDCR violated the Administrative

Procedures Act in both the process of adopting the new regulations

and their substance. In May 2013, the plainti won the case, and the

court found the state’s lethal injection protocol was invalid. Since

then, California has had no lethal injection protocol. If and when the

state issues a new protocol, it must follow the strict guidelines of the

Administrative Procedures Act and start the process of approval over

again. More legal challenges to any new protocol are a certainty.

In addition to the legal challenges, the CDCR’s supply of sodium

thiopental, the lethal injection drug required under the regulations,

has expired. The drug is no longer legally available in the United

States and may not be imported under federal law. Thus, there is no

legal source of the drug. Pentobarbital, another lethal injection drug

used by some states, is also in short supply as the European manufac-

turer has cut o sales to US prisons.

REPLACING THE DEATH PENALTY WITH

LIFE IN PRISON

In California, replacing the death penalty with life in prison with-

out the possibility of parole can only be accomplished through a

ballot initiative, since that is how the death penalty law was enacted.

In 1978, 70 percent of California voters passed the Briggs initiative,

establishing the death penalty and specifying the criteria for eligi-

bility. Given the current status of the death penalty in California

and the general movement away from it across the nation, the goal

of bringing a repeal initiative to the voters, while it may be viewed

by some as audacious, is, at least in California, within reach.

California sentences more people to death than any other state. As

of this writing, it has nearly 750 prisoners on death row. California

led the country with 24 death sentences in 2013, 13 of them coming

from just two southern counties. While more than 800 people have

been sentenced to death in California since 1978, only 13 executions

have been performed. Of the people sentenced to death in California

in the last 30 years, only 1 percent have been executed. Most death

row inmates die of natural causes.

On a national level, the United States continues to move further away

from the death penalty. Death sentences and executions are down in

most states, and reported public support for the death penalty has

declined signicantly since the mid-1980s. California is not immune

from this trend. An April 2011 poll by David Binder Research found

that 63 per cent of California voters, across all parties and counties,

support the governor converting all current death sentences to life in

prison without possibility of parole. More Californians are realizing

that the death penalty does not achieve swift and certain justice for

“SOMEONE WHO’S VICTIM IS WHITE IS THREE

TIMES MORE LIKELY TO BE SENTENCED

TO DEATH THAN SOMEONE WHOSE VICTIM

IS AFRICAN AMERICAN.” —

Gil Garcetti

44 45

victims’ families, it is imposed discriminately at a huge cost to the

state, and, most importantly, it risks executing innocent people.

The complicated and often decades-long appeals process that death

row inmates are constitutionally entitled to in California and other

states does not achieve swift justice for victims’ families. Most appeals

provide many opportunities for reversal and do not give families any

kind of closure. Furthermore, the lengthy appeals process and spe-

cial incarceration of death row inmates comes at a huge cost to the

state. The death penalty costs 10 times as much as life in prison. If

California replaced the death penalty with life in prison without the

possibility of parole, the state would save $1 billion in just ve years.

In the midst of a severe ongoing budget crisis, a legitimate question

is whether we should be investing taxpayer money in a broken death

penalty that serves no worthy criminal-justice or societal purpose—

or in education, mental health and law enforcement.

The death penalty in the United States has also been shown to fall

disproportionately on people of colour and people of limited means.

For example, data from 2011 show that someone whose victim is

white is three times more likely to be sentenced to death than some-

one whose victim is African American, and four times more likely

than someone whose victim is Latino. While only 27.6 per cent of

murder victims are white, 80 per cent of prisoners executed in Cali-

fornia have been convicted of killing whites. The location at which a

murder occurs also aects the likelihood of the oender receiving the

death penalty. In California, someone convicted in Alameda County,

for example, is eight times more likely to be sentenced to death than

someone convicted in Santa Clara County. As discussed earlier, even

within the single (though large and diverse) County of Los Angeles,

the death penalty is applied unequally in dierent locations. These

stark disparities are evidence that the death penalty is being imposed

discriminately, a reality that undermines a basic goal of our criminal

justice system—fair and equal treatment under the law.

Finally, the death penalty comes with the unacceptable and ever-pres-

ent risk of executing innocents. Between 1973 and 2011, 138 people

were exonerated and released from death rows across the United

States. Nationally, one person is exonerated for every 10 that are

executed. The factors that commonly lead to wrongful convictions

are rampant and varied: eyewitness error, false confessions, false testi-

mony by an informant, prosecutorial misconduct and poor forensic

evidence. The risk of wrongful conviction and execution can never

be removed from a death penalty system.

In November 2012, California voters had the opportunity to replace

the death penalty with life in prison without the possibility of parole

through a voter initiative known as Proposition 34. While that prop-

osition lost, the trend in public opinion had clearly changed. In 1978,

Californians had voted overwhelmingly (70 per cent to 30 per cent)

to reinstate the death penalty. But in 2012, 48 per cent of Californians

voted in favour of repeal while 52 per cent voted against it (5,974,000

to 6,460,000). If about 250,000 voters had had been convinced to

change their votes, there would be no death penalty in California

today. The initiative failed in good part because the campaign did not

reach enough voters with information. The reality of the Califor-

nia political system is that winning a ballot initiative, especially on a

controversial issue like the death penalty, requires millions of dollars

for voter education; unfortunately, the repeal campaign did not have

sucient resources.

Since Prop 34’s defeat in 2012, California’s death penalty repeal advo-

cates are continuing to educate the public about the high costs of the

death penalty; reshaping the California Coalition behind Proposition

34 into an ongoing advocacy campaign to promote public safety pol-

icies that reect our shared values of safety, accountability, fairness and

equality; and strengthening alliances with law enforcement, victims

and labour as well as traditional supporters in the faith and civil rights

communities. The ultimate goal, replacing the death penalty with life

in prison without the possibility of parole, will best serve our prior-

ities: to protect law-abiding citizens and punish those who commit

society’s most heinous crimes.

FEDERAL DEATH PENALTY CASES

The vast majority of death penalty cases are handled in the state

courts. According to the Federal Death Penalty Resource Project,

federal prosecutors tried 190 death penalty cases, involving 281

46 47

defendants, between 1988 and 2013. As of this writing there have

been three federal executions; 54 federal court defendants have been

sentenced to death and their appeals or writs are pending.

The movement of states toward repeal is both instructive and hopeful.

Imagine the impact worldwide when California, a state with a popu-

lation of over 37 million (greater than that of most countries), repeals

the death penalty and replaces it with life imprisonment without the

possibility of parole.

Or better yet, imagine the impact worldwide if the President of the

United States declared a moratorium on the death penalty. Is this out

of the question? Does the President have too many other pressing

issues on his agenda? Does his previously stated position on the death

penalty rule out the possibility that he would call for a moratorium

in federal cases? Consider what President Obama said in May 2014:

“In the application of the death penalty in this country, we have

seen signicant problems — racial bias, uneven application of the

death penalty, you know, situations in which there were individuals

on death row who later on were discovered to have been innocent

because of exculpatory evidence. And all these, I think, do raise sig-

nicant questions about how the death penalty is being applied.”

That is our opening to seek a dialogue with the President about

declaring a moratorium on the death penalty while his administra-

tion studies and engages in dialogue with citizens on both sides of the

issue—a dialogue that we should be condent will lead not just to a

moratorium on the death penalty but to its replacement with life in

prison without the possibility of parole.

AFTERWORD: HISTORIC RULING

IN CALIFORNIA

On 17 July 2014, as the rst edition of this publication was being

produced, a historic federal district court decision was issued in the

case of Ernest Dewayne Jones v. Kevin Chappell, Warden of the California

3 Peter Baker, “Obama orders policy review on executions”, New York Times, 2 May 2014,

available from www.nytimes.com/2014/05/03/us/awed-oklahoma-execution-deeply-trou-

bling-obama-says.html?_r=0.

State Prison at San Quentin. Federal Judge Cormac Carney concluded

that California’s death penalty system is dysfunctional and results in

an “inordinate and unpredictable period of delay preceding their

actual execution.” He went on to say that “as for the random few for

whom execution does become a reality, they will have languished for

so long on Death Row that their execution will serve no retributive

or deterrent purpose and will be arbitrary. ... Allowing this system

to continue to threaten Mr. Jones with the slight possibility of death,

almost a generation after he was rst sentenced, violates the Eighth

Amendment’s prohibition against cruel and unusual punishment.”

Mr. Jones has been on California’s death row since April 1995.

The Jones decision can be appealed to the Federal Court of Appeals

by the California Attorney General. If the appeal is heard and the

decision of the district court is armed, the decision would then

apply to the entire state—California’s death penalty law would no

longer exist. The California Attorney General could either accept the

appeals court’s decision or appeal it to the United States Supreme

Court. The court of appeal obviously could also reverse the district

court’s decision. Mr. Jones would then be in the position of appealing

that decision to the United States Supreme Court.

This case is historic because it appears to be the rst time in the

nation that a federal court judge has concluded that a specic state’s

death penalty law is unconstitutional because of the state’s dysfunc-

tional death penalty system. While this decision applies to this single

case alone, judges and prosecutors in California can now expect

the same arguments to be made in any pending death penalty case.

Though judges are not required to follow a ruling by a single court,

this especially well-written, exhaustive and well-documented deci-

sion is likely to persuade many judges to follow its lead and declare

California’s state death penalty law unconstitutional.

48 49

WRONGFUL CONVICTIONS AND

MISCARRIAGES OF JUSTICE IN

DEATH PENALTY TRIALS IN THE

CARIBBEAN, AFRICA AND ASIA

Saul Lehrfreund

International attitudes to the death penalty have evolved with the

knowledge that every criminal justice system, however sophisti-

cated, is susceptible to error and miscarriage of justice.

International

human rights law, recognising that susceptibility, mandates that fair

trial guarantees must be implemented in all death penalty cases.

The understanding is that those facing the death penalty should be

aorded special protection and guarantees to ensure a fair trial above

and beyond those aorded in non-capital cases.

The reality is that the pre-

vailing law and practice in far

too many retentionist coun-

tries across the Caribbean,

Africa and Asia do not pro-

vide the level of protection

required in capital cases. Unless and until states can meet universally

accepted standards, the death penalty should not be enforced. Too many

countries retain the death penalty without assuming responsibility for

the proper administration of criminal justice; many states fail to provide

special procedural protections in capital cases.

UNIVERSAL STANDARDS APPLICABLE

TO CAPITAL CASES

The potential for wrongful conviction and execution is precisely why

international norms require such exacting standards and a heightened

1 Saul Lehrfreund, MBE, is co-executive director of The Death Penalty Project.

2 For a global snapshot of cases and research ndings on wrongful convictions, see The Death

Penalty Project,

The Inevitability of Error: The Administration of Justice in Death Penalty Cases

(London, 2014), available from www.deathpenaltyproject.org/news/1795/1795/.

“…THE RISK THAT

INNOCENT PEOPLE WILL BE

EXECUTED CAN NEVER BE

ELIMINATED…”

—Saul Lehrfreund

level of due process in capital cases. The key question is: Are there sig-

nicant gaps between the minimum conditions required in all capital

cases and the law and practice in retentionist countries? If so, the only

option is that the death penalty should no longer be enforced.

Two key documents laying out international standards in this

regard are the International Covenant on Civil and Political Rights

(ICCPR)

and the Safeguards Guaranteeing Protection of the Rights

of Those Facing the Death Penalty.

International Covenant on Civil and

Political Rights

Although Article 6(1) of the ICCPR establishes that capital punish-

ment is an exception to the right to life as long as it is not arbitrarily

imposed, Article 6 requires a number of safeguards in its implementa-

tion: It may only be imposed for the most serious crimes, it cannot be

pronounced unless rigorous procedural rules are followed, and it may

not be imposed on pregnant women or for crimes committed before

the age of 18. Article 6(2) of the ICCPR provides the following:

In countries which have not abolished the death penalty,

sentence of death may be imposed only for the most serious

crimes in accordance with the law in force at the time of the

commission of the oence and not contrary to the present

Covenant.... This penalty can only be carried out pur-

suant to a nal judgment rendered by a competent court.

Article 6(6) places the death penalty in its real context and assumes

its eventual elimination: “Nothing in this article shall be invoked to

delay or to prevent the abolition of capital punishment by any State

Party to the present Covenant.”

Retention of the death penalty is permitted by international law

(albeit in extremely limited circumstances as discussed above), and

3 International Covenant on Civil and Political Rights, available from www.ohchr.org/EN/Profes-

sionalInterest/Pages/CCPR.aspx.

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, available

from www.ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.

50 51

its use does not by itself constitute cruel, inhuman or unusual pun-

ishment or torture. However, it may become an arbitrary violation

of the right to life if it is imposed in circumstances that breach other

rights under the ICCPR—including the right to a fair trial and the

prohibition on torture, on which this paper will focus.

Article 14 of the ICCPR sets out the minimum requirements for a fair

trial, which must be respected in all capital cases. The United Nations

Human Rights Committee has consistently held that if Article 14 of the

ICCPR is violated during a capital trial, then Article 6 (right to life) is also

breached. In Carlton Reid v. Jamaica,

the Human Rights Committee held:

The imposition of a sentence of death upon the conclusion

of a trial in which the provisions of the Covenant have not

been respected constitutes ... a violation of Article 6 of the

Covenant. ... The provision that a sentence of death may

be imposed only in accordance with the law and not contrary

to the provisions of the present Covenant implies that “the

procedural guarantees therein prescribed must be observed,

including the right to a fair hearing by an independent tribu-

nal, the presumption of innocence, the minimum guarantees

for the defence, and the right to review by a higher tribunal.”

Safeguards Guaranteeing Protection of the

Rights of Those Facing the Death Penalty

The restrictions on capital punishment set out in Article 6 of the

ICCPR are reected and further developed in the Safeguards

Guaranteeing Protection of the Rights of Those Facing the Death

Penalty (hereinafter the Safeguards), which “constitute an enumer-

ation of minimum standards to be applied in countries that still

impose capital punishment.”

5 Carlton Reid v. Jamaica, paragraph 11.5, Communication No. 250/1987, United Nations Doc.

CCPR/C/39/D/250/1987 (1987), United Nations Human Rights Committee.

Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982), Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N.

Doc. HRI/GEN/1/Rev.1 at 6 (1994), available from http://www1.umn.edu/humanrts/gen-

comm/hrcom6.htm.

Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of

Those Facing the Death Penalty, Report of the Secretary-General, UN Doc. E/2010/10, p. 33.

The Safeguards were adopted in 1984 by United Nations Economic

and Social Council Resolution 1984/50. In 1989, they were further

developed by the Council, which recommended, among other things,

that there should be a maximum age beyond which a person could

not be sentenced to death or executed and that people suering from

mental retardation should be added to the list of those who should

be protected from capital punishment. Council Resolution 1996/15

called upon Member States in which the death penalty had not been

abolished “to eectively apply the safeguards guaranteeing the rights

of those facing the death penalty.” The signicance of the Safeguards

was subsequently rearmed by the Commission on Human Rights in

2005 and the General Assembly in Resolutions 62/149 and 63/168.

All states are bound by the international standards set out in the Safe-

guards, which should be considered as the general law applicable to

the death penalty.

The fth safeguard states:

Capital punishment may only be carried out pursuant to a

nal judgment rendered by a competent court after legal pro-

cess which gives all possible safeguards to ensure a fair trial, at

least equal to those contained in Article 14 of the ICCPR,

including the right of anyone suspected of or charged with

a crime for which capital punishment may be imposed to

adequate legal assistance at all stages of the proceedings.

The United Nations Special Rapporteur on Extrajudicial, Summary,

or Arbitrary Executions has stated that fair trial guarantees in death

penalty cases “must be implemented in all cases without exception or

discrimination.”

The Special Rapporteur has reiterated that “proceed-

ings leading to the imposition of capital punishment must conform

to the highest standards of independence, competence, objectivity

and impartiality of judges and juries, in accordance with the pertinent

international legal instruments.”

International norms clearly call for

those facing the death penalty to be aorded special protection and

8 Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN Document

E/CN.4/2001/9, 11 January 2001, paragraph 86.

Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur, UN Document

E/CN.4/1997/60, 24 December 1996, paragraph 81.

52 53

guarantees to ensure a fair trial, above and beyond those aorded in

non-capital cases (sometimes referred to as “super due process”).

THE ADMINISTRATION OF JUSTICE IN

CAPITAL CASES

Numerous cases in countries that still impose the death penalty in the

Caribbean, Africa and Asia have failed to live up to these standards.

Some of them are discussed below. In the United Kingdom, which

has abolished the death penalty, several egregious wrongful convic-

tions in murder cases helped dissipate support for its reintroduction.

The Caribbean

There are many instances of miscarriage of justice and unfair trials in

capital cases in Caribbean countries. Wrongful convictions and unfair

trials are all too common, and the ratio of successful appeals to the

Courts of Appeal and the Judicial Committee of the Privy Council

reveals that the proper administration of justice is called into question

in far too many capital cases.

There are serious concerns that the common law as applied in the

19th century is not an adequate instrument for control of poorly

paid, lightly disciplined police forces who are under pressure to secure

results in the face of rising crime rates and criminal violence. The law

as it stands does not provide an adequate basis for the exclusion of

unreliable confessions, identications and other aspects of a defec-

tive investigation. People who face the death penalty are typically

tried and convicted upon confession evidence that is later challenged,

given at a time when legal aid is not available. The right of access to

a lawyer while in custody remains, on the whole, theoretical rather

than practical, and trial and appeal lawyers are too frequently ill-

equipped and/or insuciently experienced to ensure a fair trial and

often lack sucient resources to obtain the expert assistance (medical

or otherwise) needed to adequately prepare the defence.

10 See for example the Community Legal Services Act Cap. 112A of the Laws of Barbados and

decision of the Court of Appeal in Civil Appeal No. 20 of 1997 in Hinds v. Attorney General

of Barbados (30 September 1999). On legal aid fees, see also the Poor Persons Defence Act of

Jamaica.

The vast majority of prisoners in the Caribbean cannot aord to pay

for legal representation and are therefore provided with an attor-

ney through an inadequate legal aid system. The accused are often

assigned a very junior member of the bar to prepare the defence,

usually without any expert help, medical or otherwise.

In R v. Bethel,

the appellant’s conviction for murder and his death

sentence were quashed and a retrial ordered as his trial lawyer had

failed to take proper instructions before the trial. The Court of

Appeal of Trinidad and Tobago emphasised that whatever the time

spent taking instructions, in a murder case involving the death pen-

alty, the gravity of the charge required counsel to pursue with his

client a “full and searching inquiry into the facts.”

The domestic courts in the Caribbean have on a number of other

occasions considered the eectiveness of legal representation and the

conduct of counsel in a capital case. For example, Ann-Marie Boodram

had been sentenced to a mandatory death penalty in Trinidad for the

murder of her husband. Her appeal to the Court of Appeal was rejected,

and she further appealed to the Judicial Committee of the Privy Coun-

cil (hereinafter the Privy Council), who considered whether her trial

lawyer’s gross incompetence had resulted in a miscarriage of justice. In

delivering the judgment of the Board, Lord Steyn held:

In the present case [her trial lawyer’s] multiple failures,

and in particular his extraordinary failure when he became

aware on 17th February, 1998 that he was engaged on

a retrial to enquire into what happened at the rst trial,

revealed either gross incompetence or a cynical dereliction

of the most elementary professional duties. ... it is the

worst case of the failure of counsel to carry out his duties

in a criminal case that their Lordships have come across.

The breaches are of such a fundamental nature that

the conclusion must be that the defendant was deprived

of due process. ... The conclusion must be in this excep-

tional case the defendant did not have a fair trial.

11 R v. Bethel, Unreported, 23 March 2000, Court of Appeal of Trinidad and Tobago, Republic of

Trinidad and Tobago.

Boodram v. the State, paragraph 40, 1 Criminal Appeal Reports 12 (2002), Judicial Committee

of the Privy Council, Republic of Trinidad and Tobago.

54 55

Another death penalty case from Trinidad (Dookran and another v. the

State)

concerned the investigation and collection of the evidence by

the police and the conduct of the trial itself. It revealed that the law

and practice as it stands does not guarantee the level of protection

required by international norms in the investigation, prosecution and

trial of a capital case.

In 1997, Chitrah Dookran and her mother, Malharri Dookran, were

convicted of the murder of Chanardai Dookran-Bissoon, who was

Chitrah’s sister and Malharri’s daughter. A third defendant, Devon

Cunningham (the alleged hit man), was acquitted whilst Chitrah and

Malharri were sentenced to death. Both were unrepresented when

taken into police custody, and the case centred on incriminating

statements they allegedly gave to the police. Chitrah claimed her

statement was involuntary and preceded by threats and promises by a

police ocer whom the prosecution never called as a witness, but the

trial judge still admitted her statement into evidence. The Court of

Appeal held that Chitrah’s statement should not have been admitted

into evidence before the jury, but nevertheless held that there had

been no miscarriage of justice. The Privy Council disagreed and held

that the approach of the Court of Appeal was fundamentally awed as

they could not be satised that a reasonable jury would have inevita-

bly convicted her had the statement not been admitted into evidence.

This was a clear miscarriage of justice, and Chitrah’s conviction was

quashed and she was released from death row.

Malharri, who was elderly and of low intelligence and who had a

history of being battered by her husband, contended at trial that she

was kept in custody without food for over 14 hours before her state-

ment was taken. She alleged that the investigating police ocer made

her take o her glasses and threatened to bang her head against a

wall before she eventually put her cross (X) on the statement that the

police ocer had written out for her. The trial judge admitted Mal-

harri’s statement into evidence in spite of the allegations of physical

abuse and coercion by the police and evidence indicating Malharri

was especially vulnerable due to her low intelligence and history of

domestic abuse.

13 Dookran and another v. the State, UKPC 15 (2007), Judicial Committee of the Privy Council,

Republic of Trinidad and Tobago.

Having already quashed Chitrah’s conviction and death sentence,

the Privy Council held that they could not “avoid a residual feel-

ing of unease about whether justice has been done in Malharri’s

case.”

The appeal was allowed, and Malharri was also released from

death row.

In many capital cases from the Caribbean, individuals who are

sentenced to death have subsequently been found to be suering

from mental illness and/or an intellectual disability that aected the

safety and lawfulness of their convictions and death sentences. This

is especially so in countries with inadequate mental health services.

The reality is that the death penalty is regularly imposed on people

with signicant mental disorders, contrary to recognised norms and

procedural requirements. There are many examples of defendants

being wrongly sentenced to death by virtue of the fact that inade-

quate or no medical evidence was produced at trial.

In 2012, on the strength of fresh psychiatric evidence, the appeal of

Shorn Samuel,

a prisoner under sentence of death in Saint Vincent

and the Grenadines, was allowed by the Eastern Caribbean Court of

Appeal. The Court found that new medical evidence demonstrated

that Mr. Samuel was suering from a severe mental disorder at the

time of the murder, which substantially diminished his responsibility

for the oence. Mr. Samuel’s conviction for murder was therefore

quashed, and a conviction of manslaughter was substituted by reason

of diminished responsibility. The death sentence was reduced to

life imprisonment.

In 2012, the appeal of Sheldon Issac,

a prisoner under sentence of

death in Saint Kitts and Nevis, was determined by the Eastern Carib-

bean Court of Appeal. The last hanging in Saint Kitts and Nevis had

taken place in 2008, and Mr. Isaac and his three co-defendants were

at real risk of execution. The Privy Council granted all four defen-

dants stays of execution pending the determination of their appeals.

Psychiatric and psychological evidence was presented to the Privy

14 Ibid., paragraph 36

Shorn Samuel v. the Queen, Criminal Appeal No. 22 of 2008 (2012), Eastern Caribbean Court

of Appeal, Saint Vincent and the Grenadines.

Sheldon Issac v. Director of Public Prosecutions, Criminal Appeal No. 19 of 2008 (2012), Eastern

Caribbean Court of Appeal, Saint Kitts and Nevis.

56 57

Council demonstrating that Mr. Isaac was severely brain-damaged

and should never have stood trial. The Privy Council remitted the

case to the Eastern Caribbean Court of Appeal for review, and the

Court of Appeal accepted the evidence that he was severely men-

tally disordered and concluded that he was unt to stand trial. The

Court rejected a retrial as inappropriate and unnecessary. The system

of criminal justice in Saint Kitts and Nevis clearly failed in this capital

case: The investigating authorities, the prison service, the lawyers and

the trial judge all failed to recognize that Mr. Isaac was so severely

mentally disordered that he was unt to stand trial. As a result, he

was tried, convicted, sentenced to death and very nearly executed,

contrary to international standards and norms.

In 2005, the UN Commission on Human Rights urged all states

that maintain the death penalty “not to impose the death penalty on

a person suering from any mental or intellectual disabilities or to

execute such a person.”

The reality, though, is that a large propor-

tion of prisoners under sentence of death have never been properly

examined by a psychiatrist or psychologist, resulting in many prison-

ers who are mentally disordered or impaired facing the death penalty

in the Caribbean and beyond.

Africa

I am not aware of any academic research into innocence and miscarriages

of justice in capital cases in Africa, but there are concerns that many of

the features identied in Caribbean death penalty cases also prevail in

African retentionist countries. A few of these are described below.

Malawi’s criminal justice system, like that of many Commonwealth

Caribbean countries, is based on English common law. An obvious dif-

ference is that capital murder trials are held in the High Court before a

single judge who determines guilt and imposes a sentence, not before

a jury. Although Malawi’s Criminal Procedure Code provides for the

right of trial by jury, jury trials in homicide cases were discontinued in

2009 by executive at, a decision justied at least in part by their cost.

17 Oce of the High Commissioner of Human Rights, Human Rights Resolution 2005/59,

“The question of the death penalty”, paragraph 7(c), available from http://ap.ohchr.org/docu-

ments/alldocs.aspx?doc_id=11140.

Article 42 of the Malawi Constitution provides that indigent defendants

facing criminal charges are entitled to free legal aid “where the interests

of justice so require.” In practice, however, legal aid is provided only in

homicide cases as there are so few lawyers to serve the entire country.

Malawi has struggled for years with a tremendous backlog of

homicide cases causing severe prison overcrowding throughout

the country . . . . Bail is rarely granted in such cases, and homi-

cide trials are frequently suspended, meaning many accused

persons spend several years awaiting trial. These “remand”

prisoners typically will not speak to a lawyer until the day of

trial, when a Legal-Aid advocate will interview them briey.

The defence rarely calls witnesses or conduct any investigation;

in most cases counsel simply cross-examines the prosecution’s

witnesses based on a thin le containing witness statements

and a post-mortem examination. . . . Under Section 11 of the

Supreme Court of Appeals Act, each individual convicted of

homicide has the right to appeal to the Malawi Supreme Court.

In practice, however, the right to appeal is often frustrated

by the lack of an eective case-management system and the

failure of Legal-Aid attorneys to track cases on appeal. Case

les often go missing. . . . As of January 2012, no appeals had

been led for 11 of the prisoners sentenced to death from 2005

to 2009. In several of these cases, the courts appear to have lost

all court records relating to the conviction, including the trial

transcript and exhibits.

Clearly, the requisite fair trial standards cannot be applied to every

death-penalty case in countries that lack the resources to ensure due

process. Thus, there is a great risk of innocent people being sentenced

to death. The law, as applied in countries such as Malawi, does not

protect against mistakes leading to the wrong person being convicted

and sentenced to death.

In Uganda, Edmary Mpagi spent over 18 years on death row, accused

of killing a man who was later found to be alive. In 1982, he was

18 Sandra Babcock and Ellen Wight McLaughlin, “Reconciling human rights and the application

of the death penalty in Malawi: the unfullled promise of Kafantayeni v. Attorney General”,

Capital Punishment: New Perspectives, Peter Hodgkinson, ed. (Farnham, United Kingdom,

Ashgate Publishing, 2013), p. 193

58 59

convicted, together with his cousin, of murder and sentenced to death,

after what has been called “fabricated evidence, coerced testimony

and a generally slipshod trial.”

Mpagi met with his state-appointed

lawyer only twice before the trial, and no translator was provided

even though neither he nor his cousin had any working knowledge

of English.

Prison conditions were reportedly cruel, degrading and

inhumane. Mpagi’s cousin died in prison in 1985 after the prison

authorities refused to provide him with medical attention, stating that

they could not waste time or money on a condemned prisoner who

was due to be executed.

In 1989, the Attorney General established

that Mpagi was innocent and wrongly convicted; however, it was not

until 2000, 11 years later, that Mpagi received a presidential pardon

and was released.

In Sierra Leone, “MK” was the longest serving woman on death

row. She was arrested in 2003 and charged with the murder of her

stepdaughter, convicted in 2005, and received the death penalty,

which was mandatory at the time in Sierra Leone. MK’s case high-

lights many of the serious human rights concerns that can occur in

capital cases. From her arrest until shortly before trial, she received

no legal advice or assistance. MK, who is illiterate, thumb-printed a

confession which was later used against her at trial. The state did not

provide MK with a lawyer until the commencement of the trial. This

lawyer met with MK three times before the trial, each meeting lasting

no longer than 15 minutes.

Following her trial, MK again did not have access to a lawyer,

and she did not have the knowledge or resources to le an appeal

against her conviction within the stipulated 21-day time limit.

MK led an appeal to the Court of Appeal 10 months after her

conviction with the assistance of a state-provided Prison Welfare

Ocer. The Court of Appeal rejected the appeal, holding that the

time period for ling appeals cannot be extended even for those

facing the death penalty.

19 Foundation for Human Rights Initiative, Towards the Abolition of the Death Penalty in Uganda,

the Civil Society Coalition on the Abolition of the Death Penalty in Uganda (2008).

20 Mpagi Edward Edmary, “Mpagi Edward Edmary”,

Our Friends in Prison, available from www.

ourfriendsinprison.weebly.com/lifestory-of-mpagi-edward-edmary.html.

21 Ibid.

In 2010, MK received legal assistance from AdvocAid, a Sierra Leo-

nean non-governmental organisation, and her case was re-listed in

the Court of Appeal. In March 2011, after she spent six years on death

row, MK’s conviction was overturned in a landmark decision by the

Court of Appeal, and she was released immediately. The Court found

that the procedural irregularities—lack of legal advice and assistance,

lack of resources to le an appeal—were fundamental, and therefore

rendered MK’s trial a nullity.

Asia

An authoritative recent United Nations report

stated: “In many

countries in Asia, specically in death penalty cases, the right to a fair

trial was impeded by laws which denied due process. Even in countries

where due process safeguards exist in principle, they were not applied

in practice.” The Anti-Death Penalty Asia Network has reported that

courts continue to rely on “confessions” extracted through

torture as evidence in criminal trials—despite the interna-

tional ban on torture and on the use of such confessions.

Laws impose mandatory death sentences for crimes such

as drug tracking, and place the burden of proof on the

accused, depriving them of the right to be presumed inno-

cent until and unless proven guilty according to law. Access

to a lawyer before, during and after trial is often denied,

and in some countries the independence of the judiciary

is not assured. Some states have established special courts

which sentence people to death after hasty proceedings.

There have been 11 executions in Taiwan since 2013, in spite of

growing public disquiet about the death penalty with the knowl-

edge that there is a real danger the state could execute someone in

error following an unfair trial.

In January 2011, Taiwan’s Ministry of

22 Moratorium on the Use of the Death Penalty, Report of the Secretary-General (3 August 2012),

UN Doc. A/67/22, paragraph 34.

23 Anti-Death Penalty Asia Network,

When Justice Fails, Thousands Executed in Asia After Unfair

Trials (Amnesty International ASA 01/023/2011), p. 6.

24 For more information on the death penalty in Taiwan, see The Death Penalty Project,

The

Death Penalty in Taiwan: A Report on Taiwan’s Legal Obligations under the International Cove-

nant on Civil and Political Rights (London, 2014), available from www.deathpenaltyproject.org/

news/1750/dpp-launches-report-on-the-death-penalty-in-taiwan/.

60 61

Justice admitted that Chiang Kuo-ching had been executed in error

in 1997, for the rape and murder of a ve-year-old girl committed 15

years previously. After a campaign by Chiang’s parents, the Military

Supreme Court Prosecutor’s Oce led an extraordinary appeal with

the Military Supreme Court to reopen the case in 2010. The author-

ities acknowledged that Chiang’s confession was the result of torture

by military investigators, including being subjected to a 37-hour

interrogation, exposed to strong lights, threatened with an electric

prod and deprived of sleep while being forced to undergo strenuous

physical activities.

The authorities accepted that the trial court had

ignored Chiang’s allegations of torture and his pleas of innocence and

that his conviction had been rushed through by the military court.

In September 2011, a military court formally acquitted Chiang, and

in October 2011, Taiwan’s Ministry of Defence agreed to pay US$3.4

million in compensation to Chiang’s relatives. President Ma Ying-

Jeou publicly apologised to Chiang’s mother and conceded that the

authorities had “acted wrongly” in the case.

In many retentionist countries in Asia, prisoners facing the death

penalty have little or no access to a lawyer following arrest and when

preparing for trial or appeal.

Many of those sentenced to death in Afghanistan do not

have proper legal representation at the time of their trial.

In fact, defence lawyers in Afghanistan are normally not

even present in the trial court but must submit a written

rebuttal of the charges against their client to the court.

In Indonesia even though the Criminal Procedure Code

guarantees the right to be assisted by a lawyer, in practice

there are documented cases of defendants who do not have

access to a lawyer. In China, the authorities may block

or make it very dicult for defence lawyers to meet with

their clients, gather evidence and access case documents.

25 Taiwan Alliance to End the Death Penalty, “Doubts raised over soldier’s execution” (30 January

2011), available from www.taedp.org.tw/en/story/1875.

26 Amnesty International,

Death Sentences and Executions 2013, p. 5. See also Amnesty Interna-

tional, China: Against the Law: Crackdown on China’s Human Rights Lawyers Deepens (2011),

available from www.amnesty.org/en/library/info/ASA17/018/2011/en.

27 The National, “Taiwan ‘child rapist’ cleared 14 years after his execution” (2 February 2011),

available from www.thenational.ae/news/world/asia-pacic/taiwan-child-rapist-cleared-14-

years-after-his-execution.

Lawyers defending clients involved in politically sensitive

cases have been subjected to intimidation and excluded

from proceedings. Others have had charges led against

them for advising their clients to withdraw forced confes-

sions or for trying to introduce evidence that challenges

the prosecution’s case.

In Japan, there are no legal provisions requiring the eective assis-

tance of defence counsel. Indeed, Japanese courts tend not to nd

problems even when defence counsel’s assistance is clearly ineec-

tive and inappropriate.

In some cases, death sentences have been

imposed and nalised despite insucient assistance from a defence

lawyer, but there have been no cases in which a death sentence has

been overturned because of the ineective assistance of counsel.

A minimum fair trial guarantee that needs to be respected in all capital

cases is the right of appeal. In the Caribbean, the availability of an

automatic appeal has saved many innocent lives, as the appellate courts

have on numerous occasions overturned capital convictions. However,

in a number of Asian countries there is no mandatory right of appeal,

thus increasing the risk that wrongful convictions will not be remedied.

China now provides for more than one appeal, but there are concerns

that the review process before the Supreme People’s Court does not

meet the minimum requirements of Article 14 of the ICCPR because

the present procedures are insucient to meet developing human

rights standards. All appeals must be governed by the principles and

safeguards of Article 14, and in order to ensure an eective right of

appeal, the convicted person should be granted eective access to

the review process with adequate legal representation in an open,

public hearing.

In Japan, appeal to a higher court against a death sentence is not

automatic despite repeated recommendations by the UN Committee

28 Anti-Death Penalty Asia Network, When Justice Fails, p. 24.

29 The Death Penalty Project,

The Death Penalty in Japan: A Report on Japan’s Legal Obligations

under the International Covenant on Civil and Political Rights and an Assessment of Public

Attitudes to Capital Punishment (2013), pp. 7-8, available from www.deathpenaltyproject.org/

legal-resources/research-publications/the-death-penalty-in-japan/.

62 63

against Torture and the UN Human Rights Committee.

The gov-

ernment of Japan insists that a mandatory appeal system is unnecessary

because most defendants do exercise their right to appeal. But the

numbers are troubling. Of the rst 15 death sentences imposed by lay

judge panels in Japan, three (20 per cent) were nalised after defen-

dants withdrew their appeals. Moreover, people sentenced to death in

Japan who withdraw their appeals tend to be executed more quickly

than non-volunteers (people who withdraw their appeals seldom le

requests for retrial or pardon either).

In South Korea and parts of Pakistan, there is no mandatory require-

ment for appeal to a higher court in death penalty cases, and in North

Korea there is no possibility of appeal at all.

Japan also fails to conform to universally agreed standards for spe-

cial protection and fair-trial guarantees beyond those oered in

non-capital cases.

Capital punishment is not treated as a dierent

form of punishment in Japan despite claims to the contrary. As a

result, there are few special procedural protections accorded to sus-

pects and defendants in potential capital cases.

Since Japan’s lay

judge system started in 2009, the courts have become more restric-

tive about what evidence can be introduced at trial. The change

is largely motivated by the desire to minimise the burden felt by

citizens who serve as lay judges, and the courts have become more

likely to demand that expert testimony be presented in extremely

abbreviated forms. As a result, a defendant’s psychological condi-

tion and developmental problems are seldom considered by the lay

judge tribunals as carefully as they should be.

Furthermore, Japan

does not require unanimity (of all judges and lay judges on a panel)

or even a super-majority (agreement by six or more of the nine

30 Paragraph 20, CAT/C/JPN/CO/1, 3 August 2007; paragraph 17, CCPR/C/JPN/CO/5, 30

October 2008.

31 Anti-Death Penalty Asia Network,

When Justice Fails, p. 31.

32 International Federation for Human Rights,

The Death Penalty in Japan: The Law of Silence

(2008), available from www2.ohchr.org/english/bodies/hrc/docs/ngos/FIDHJapan94.pdf;

Amnesty International,

Death Sentences and Executions 2012, available from www.amnesty.

org/en/library/asset/ACT50/001/2013/en/bbfea0d6-39b2-4e5f-a1ad-885a8eb5c607/

act500012013en.pdf. See also Taiwan Alliance to End the Death Penalty, “Doubts raised over

soldier’s execution”.

33 David T. Johnson, “Capital punishment without capital trials in Japan’s lay judge system”,

Asia

Pacic Journal, vol. 8, issue 52 (27 December 2010), pp. 1-38, available from www.japanfocus.

org/-David_T_-Johnson/3461.

34 The Death Penalty Project,

The Death Penalty in Japan, pp. 21-22.

people on a panel) before the death penalty can be imposed. A bare

“mixed majority”—ve votes, with at least one from a professional

judge—is enough to condemn a person to death. “It is dicult to

square Japan’s mixed majority rule with the claim often made by

Japanese ocials that the country is extremely ‘cautious’ (shincho)

about capital punishment.”

The combination of the lack of eective judicial control over the use

of lengthy pretrial detention, the failure to require jury unanimity for

a death sentence, the lack of eective mandatory appeals and the need

for a fair and functioning process of executive mercy places Japan

in breach of its international obligations with regard to the death

penalty. Japan is one of the wealthiest nations in Asia, with a sophisti-

cated and well-resourced legal system, but is yet another example of

a country that fails to implement capital punishment in accordance

with universally accepted safeguards. Miscarriages of justice will inev-

itably occur, and when the death penalty is imposed, it results in an

irreversible injustice.

35 Ibid p. 22. See also David T. Johnson, “Progress and problems in Japanese capital punishment”,

in Confronting Capital Punishment in Asia: Human Rights, Politics, Public Opinion, and Practic-

es, Roger Hood and Surya Deva, eds. (Oxford, Oxford University Press, 2013), p. 176.

64 65

The United Kingdom

Many lessons can be learned from the United Kingdom, where the death

penalty was in eect abolished in 1965.

Between 1966 and 1993, there

were 13 attempts in Parliament to reintroduce the death penalty for cer-

tain categories of murder. These attempts ended after a shocking series

of miscarriages of justice in cases concerning particularly heinous crimes.

The most notable were those of the Birmingham Six and the Guildford

Four, all wrongfully convicted of murder through terrorist bombings,

and Stefan Kisko, a man of limited intelligence, wrongfully convicted of

a child sex murder. “All would certainly have attracted the death penalty

had it been available. This persuaded many who had previously supported

the reintroduction of capital punishment to change their minds.”

The last execution in the United Kingdom was carried out in 1964,

but it was not until 1999 that the United Kingdom ratied Protocol

No. 6 to the European Convention on Human Rights and Protocol

No. 2 of the ICCPR, thus marking by international treaty its nal

rejection of capital punishment.

There have been no campaigns since then, in the press, by

pressure groups, or in parliament to seek to reinstate the

death penalty. Even the families of the victims of the most

appalling types of crime, like the abduction and sexual

murder of children, have expressed themselves generally as

satised by a sentence of life imprisonment, with a guaran-

teed lengthy period of custody.

This rejection of capital punishment has been further strengthened

by a series of cases where the courts have posthumously reviewed

the murder convictions of individuals who were executed. In 1998,

36 In 1965, the death penalty for murder was suspended for a period of ve years (to expire on

31 July 1970) unless both houses of Parliament determined that it should not expire by ar-

mative resolutions. In reality this was the end of capital punishment for murder in the United

Kingdom, and in 1969, the House of Commons endorsed the 1965 Act.

37 Roger Hood, “Abolition of capital punishment in the United Kingdom”, paper presented at

the workshop Global Survey on Death Penalty Reform, Beijing, 25-26 August 2007, p. 13. See

also Roger Hood and Carolyn Hoyle,

The Death Penalty: A World-wide Perspective, 4th ed.

(Oxford, Oxford University Press, 2008), pp. 42-47.

38 Ibid, p. 14.

the Court of Appeal found that the conviction of Mahmoud Hussein

Mattan, who was hanged in Cardi Prison on 8 September 1952,

should be quashed. In delivering judgement, Lord Justice Rose stated

that the case had wide signicance and demonstrated that “capital

punishment was not perhaps an appropriate culmination for a crimi-

nal justice system which was human and therefore fallible.”

CONCLUSION

A precondition, under international law, for imposing the ultimate

penalty is that the investigation, prosecution and trial have been

conducted with impeccable fairness and propriety. All too often,

capital trials fall short of these standards. But even when procedural

guarantees are improved and the protection of law is provided to all

individuals, wrongful convictions and miscarriages of justice will still

occur. The likelihood of wrongful convictions can be decreased, but

the risk that innocent people will be executed can never be elimi-

nated altogether as there is no perfect justice system.

39 R v. Mattan, All England Ocial Transcripts 676 (1998), Court of Appeal, United Kingdom.

“The empirical research conducted over the past few

decades demonstrates that no matter what politicians

argue or the public believe, neither deterrence nor

public opinion should be seen as barriers to abolition.”

—Carolyn Hoyle and Roger Hood

CHAPTER 2

MYTH OF DETERRENCE

Chapter focuses on deterrence and the death penalty. Three academics, based

on results of their own as well as those of other researchers during the last

fty years assessing the deterring eects of the death penalty.

Drawing on studies in diverse countries including Australia, Canada,

Trinidad and Tobago, the United States, as well as a number of Asian

and European countries, well-known academics Carolyn Hoyle and Roger

Hood demonstrate that there is no clear evidence that the death penalty has

a deterrent eect on crime. Popular support for the death penalty depends

heavily on belief in its deterring power; the best way to counter this belief is

through better information. Leaders should not hide behind public opinion

statistics but should lead the move away from the death penalty. In a

number of countries, since the death penalty has been abolished, more and

more citizens have come to regard it as cruel and obsolete.

Jerey Fagan, a Columbia Law School Professor, warns that deterrence

remains deeply embedded in the social and political culture in States that

execute. Moving away from the death penalty should be based on informa-

tion: ve decades of research have shown that scientic evidence supporting

the belief in deterrence is unreliable. Using examples regarding the death

penalty for drug oences and terrorism, he demonstrates how, and why,

assumptions of its deterring eects are wrong. States that execute in the

face of uncertainty about its deterrent eects are implicated in taking lives

without a measurable return beyond vengeance or retribution.

The feet of a man convicted of murder are seen during a hanging. © Credit: EPA/Raed Qutena

68 69

DETERRENCE AND

PUBLIC OPINION

Carolyn Hoyle and Roger Hood

DECLINING USE OF THE DEATH PENALTY

At the end of 2013, the number of countries that were “actively

retentionist” (had carried out at least one judicial execution within

the past 10 years and had not subsequently declared a permanent

moratorium on executions) had fallen to just 39, 20 percent of the

world’s countries. Only seven of these countries have executed 10

or more citizens every year for the past decade (2003 to 2012), and

not all of them because they believe that it is a necessary deterrent to

crime: China, Iran, Iraq, North Korea (probably), Saudi Arabia, Yemen

and the United States.

The use of capital punishment in retentionist countries has also been

declining. Whereas 37 countries carried out a judicial execution in

1998, only 21 did so in 2012. With very few exceptions, such as Iran,

Iraq, and Saudi Arabia, the number of executions per year appears to

be falling almost everywhere.

Singapore, which in the mid-1990s had the world’s highest execution

rate per head of population—carrying out 74 executions in 1994—

has reduced the number drastically, executing only a few people in the

last ve years. Malaysia, which executed between 13 and 15 people

a year between 1970 and 2000, has carried out very few executions

since the turn of the millennium, despite retaining a mandatory death

penalty for certain oences. Thailand and Indonesia now also carry

out only sporadic or occasional executions.

Pakistan, which executed at least 135 people in 2007 and 36 in 2008,

has since adopted a policy not to carry out executions (although one

did occur under military jurisdiction in November 2012). India had

no executions between 2004 and November 2012; since then, two

1 Carolyn Hoyle and Roger Hood are the authors of The Death Penalty: A Worldwide Perspective.

This paper draws on their research for the book’s fth edition (Oxford University Press, 2014).

people convicted of murders committed during terrorist attacks have

been executed.

These examples don’t demonstrate that executions are coming to an

end in these countries, but they do suggest a commitment to pro-

gressive restriction—to using the ultimate penalty only in the most

egregious cases.

On the other hand, there has been considerable resistance to the

political movement to force change ever since the Second Optional

Protocol to the International Covenant on Civil and Political Rights

was adopted by the United Nations General Assembly in 1989.

Attempts since 1994 by abolitionist nations at the United Nations

General Assembly to press for a resolution calling for a worldwide

moratorium on the imposition of death sentences and executions

were still being resisted by 41 countries (on the grounds that there

is no international consensus that the death penalty is a violation

of human rights) when the resolution was debated at the General

Assembly in December 2012. This is signicantly fewer than the 66

countries that opposed such a resolution in 2005. Indeed, opposition

has weakened at each subsequent vote since 2007, though powerful

countries such as Japan, China, India and the United States have con-

sistently voted against the resolution.

RESISTANCE TO CHANGE

Across abolitionist jurisdictions, and within supranational and national

bodies that oppose the death penalty, abolition is now established as a

matter of principle, with the doctrine of inalienable human rights—

specically the right to life and the right not to be subjected to cruel,

inhuman and degrading punishment—drawn on to provide the absolute

justication for abolition. However, governments in many retentionist

countries argue that total prohibition is not yet established as a human

rights norm. They cling to their sovereign right to determine their own

laws and criminal justice practices, often drawing on public support for

the death penalty, and in particular belief in its deterrent eect.

In the past decade, various countries—including some that are abo-

litionist de facto, such as South Korea, Jordan and Algeria—have

70 71

rejected bills to abolish the death penalty, with the public faith in

its deterrent eect cited as a reason for caution. Deterrence is the

main argument, or at least a powerful secondary argument alongside

retribution, of many governments that support capital punishment,

such as those of China, Japan, Indonesia, Singapore and a number

of countries in the Middle East and Africa. In Iraq, the authorities

in 2010 at its United Nations Universal Periodic Review stated that

“because of the exceptional circumstances in Iraq and the prevalence

of terrorist crimes targeting the right to life, the death penalty had

been maintained as a means of deterrence and to provide justice to

the families of victims.”

CAPITAL PUNISHMENT AND

THE HOMICIDE RATE

Because it would be morally repugnant to conduct random exper-

iments in the use of capital punishment, it remains dicult, if not

impossible, to nd empirical data on the deterrent eects of the

threat of capital punishment that would utterly persuade a com-

mitted proponent of the death penalty to change his or her mind.

Indeed, as far as some crimes punishable by death in several coun-

tries are concerned—such as importing or trading in illegal drugs,

economic crimes, or politically motivated violence—there simply is

no reliable evidence of the deterrent eects of executions. Nor have

any empirical studies investigated the impact of capital punishment

when used on a more extensive scale as an exemplary punishment

in law-and-order campaigns, such as have occurred in China and

Iran. Consequently, almost all the studies available for review are con-

cerned with the deterrent eect of capital punishment on the murder

rate in the United States.

That said, the evidence should lead any dispassionate analyst to conclude

that it is not prudent to accept the hypothesis that capital punishment,

as practiced in the United States, deters murder to a marginally greater

2 Report of the Working Group on the Universal Periodic Review, Iraq (2010), UN Doc. A/

HRC/14/14.

3 For a review of deterrence studies in the United States, Singapore and Hong Kong, see Ethan

Cohen-Cole, Jerey Fagan and Daniel Nagin, “Model uncertainty and the deterrent eect of

capital punishment”, American Law and Economics Review, vol. 7, no. 2 (2008), pp. 335-369;

Franklin Zimring, Jerey Fagan and David T. Johnson, “Executions, deterrence and homicide: A

tale of two cities”, Journal of Empirical Legal Studies, vol. 7 (2010), pp. 1-29, at p. 24.

extent than does the supposedly lesser punishment of life imprisonment.

A 2012 report by the Committee on Deterrence and the Death Penalty

of the National Research Council in the United States, which reviewed

evidence published over 34 years, oered the same conclusion:

Research to date on the eect of capital punishment on

homicide is not informative about whether capital punish-

ment decreases, increases, or has no eect on homicide rates.

Therefore the Committee recommends that these studies not

be used to inform deliberations requiring judgments about

the eect of the death penalty on homicide and ... should

not inuence policy judgments about capital punishment.

One rather unsophisticated way of considering deterrence is to

analyse homicide rates before and after the death penalty is abol-

ished. This at least can show whether countries that abolish capital

punishment inevitably experience more murders, as those who

support the deterrent argument claim. In Australia, where the last

executions occurred in the mid-1960s, the reported murder rate

has, a few uctuations aside, fallen. Prior to the abolition of the

death penalty in Canada, the reported homicide rate had been

rising, yet in 2003, 27 years after abolition, the rate had fallen to

1.73 per 100,000 population, 43 percent lower than it was in 1975

(3.02 per 100,000), the year before abolition.

The sharp decline

following abolition was a potent argument used by the Canadian

prime minister in 1987 when opposing the reintroduction of capital

punishment.

The rate has continued to fall. In 2012 it was 1.56 per

100,000 population, its lowest level since 1966.

Although not designed to study the relationship between abolition

of the death penalty and homicide rates, a 2011 study by the United

Nations Oce on Drugs and Crime of global trends in homicide

showed that although the homicide rate rose initially after abolition

4 Daniel S. Nagin and John V. Pepper, eds., Deterrence and the Death Penalty (Washington, DC,

National Academies Press, 2012), p. 3.

5 Susan Munroe, “Abolition of capital punishment in Canada: Canadian murder rate stays low

without capital punishment”, About.com (updated 31 October 2010), available from http://

canadaonline.about.com/od/crime/a/abolitioncappun.htm.

6 Speech in the Canadian House of Commons, 22 June 1987, by the Right Honourable Brian

Mulroney, Prime Minister of Canada, Commons Debates, p. 7477.

72 73

of the death penalty in Eastern European countries, it declined

quite sharply after the mid-1990s, and this decline has not been

reversed. Thus, the homicide rate in ve countries of Central and

Eastern Europe (the Czech Republic, Hungary, Moldova, Poland

and Romania, all of which abolished the death penalty in the 1990s)

declined by 61 percent from 4.5 to 1.6 per 100,000 between 2000

and 2008, declining especially in respect to male victims. The study

concluded that “virtually all countries [in Europe] where there has

been a strengthening of the rule of law [and no death penalty] have

also experienced a decline in the homicide rate.”

In Trinidad and Tobago, which has a very high homicide rate, aca-

demics have not been able to establish any relationship between

trends in the execution and murder rates.

Taiwan’s informal mor-

atorium on executions, which lasted from 2006 to 2010, provided

an opportunity to examine whether the withdrawal of the threat of

execution led to an increase in violent crimes reported to the police.

Analysis by the Taiwan Alliance to End the Death Penalty showed

that in fact the violent crime rate per 100,000 of the population fell

during these four years from 62.9 in 2005 (when there were three

executions) to 53.6 the following year and 29.3 in 2009.

In 2009, Richard Berk, a distinguished statistician, concluded that

over the past 20 years no progress had been made towards deter-

mining whether or not executions had a deterrent impact and

that no further progress would be made in the next 20 years.

Given the data available for analysis and the statistical and econo-

metric techniques that can be employed, as well as the methods

employed for selecting and controlling for all other factors that

might be associated with the murder rate and execution rate over

7 United Nations Oce on Drugs and Crime, 2011 Global Study on Homicide: Trends, Contexts,

Data (Vienna, 2011), p. 33.

8 David F. Greenberg and Biko Agozino, “Executions, imprisonment and crime in Trinidad and

Tobago”, British Journal of Criminology, vol. 52 (2012), pp. 113-140 and 117-118; Roger

Hood and Florence Seemungal, A Rare and Arbitrary Fate: Convictions for Murder, the Man-

datory Death Penalty and the Reality of Homicide in Trinidad and Tobago, report prepared for

the Death Penalty Project (Oxford: University of Oxford Centre for Criminology, 2006), pp.

15-22.

9 A Blow to Human Rights: Taiwan Resumes Executions: The Death Penalty in Taiwan, 2010

(Taipei: Taiwan Alliance to End the Death Penalty, 2011), p. 15.

10 Richard Berk, “Can’t tell: Comments on ‘Does the death penalty save lives?’”, Criminology and

Public Policy, vol. 8, no. 4 (2009), pp. 845-851.

time and across jurisdictions, contradictory ndings and interpreta-

tions seem to be inevitable.

Articles in the Journal of Quantitative

Criminology, published in 2013, came to similar conclusions, making

clear that the recent literature on deterrence in the United States

was “inconclusive as a whole, and in many cases uninformative”,

primarily because of methodological problems. As another article

in the journal concluded: “It is thus immaterial whether the stud-

ies purport to nd evidence in favour or against deterrence. They

simply do not rise to level of credible evidence on deterrence as a

behavioural mechanism.”

Although there must have been instances in which people refrained

from murder out of fear of execution, this in itself is an insucient

basis on which to conclude that the existence of the death penalty

and the (often remote) threat of execution will lead to a lower

rate of murder than would be the case without it. The issue is not

whether the death penalty deters some (if only a few) people where

the threat of a lesser punishment would not, but whether, when

all the circumstances surrounding its use are taken into account,

it is associated with a marginally lower rate of the death-penalty-

eligible kinds of murder than the next most severe penalty,

life imprisonment.

The reason one must weigh all its eects is that capital punishment

has several drawbacks to counter its supposedly obvious advantages.

For example, oenders threatened with death could have an added

incentive to kill witnesses to their crimes. Furthermore, it may be

much less easy to convict people when the punishment may be death

than when it is less draconian. In other words, severity of punish-

ment may run counter to the more eective certainty of punishment.

Evidence to support this comes from England, Wales and Canada,

11 See Ethan Cohen-Cole, Jerey Fagan and Daniel Nagin, “Model uncertainty and the deterrent

eect of capital punishment”, American Law and Economics Review, vol. 7, no. 2 (2008), pp.

335-369. These authors used a model-averaging method across dierent studies and concluded,

“not that there is no deterrent eect present, but rather that inferences on its magnitude are so

imprecise as to make representation of strong claims impossible” (p. 364).

12 Aaron Chaln, Amelia M. Haviland and Steven Raphael, “What do panel studies tell us about

a deterrent eect of capital punishment? A critique of the literature”, Journal of Quantitative

Criminology, vol. 29 (2013), pp. 5-43, at pp. 5 and 8.

13 Kerwin Ko Charles and Steven N. Durlauf, “Pitfalls in the use of time series methods to study

deterrence and capital punishment”, Journal of Quantitative Criminology, vol. 29 (2013), pp.

45-66, at pp. 45-46 and 65.

74 75

where since abolition of the death penalty it has proven easier to

obtain convictions for murder rather than the less serious oence of

manslaughter. In fact, the proportion convicted of murder among all

those convicted of a homicide in England and Wales increased from

28 percent in 1965 (the year that capital punishment was abolished)

to 63 percent in 2005/2006.

The same has been true in Canada,

where the conviction rate for rst-degree (capital) murder, rather than

second-degree murder or a lesser charge, has doubled from under 10

percent when execution would result, to about 20 percent “now

they [juries] are not compelled to make life-and-death decisions.”

PUBLIC OPINION WORLDWIDE

Support in the United States for executions is decreasing. Accord-

ing to Gallup polls, public support fell from 80 per cent in 1994 to

60 per cent in October 2013. In November 2012, California held a

plebiscite to decide whether the death penalty should be abolished

and replaced by life imprisonment without parole. It was defeated by

a margin of only 6 percentage points (53 percent to 47 percent).

The risk of innocent people being executed; the cost of obtaining a

conviction for capital murder, holding a prisoner on death row and

providing a lengthy appeals process;

and the rising use of the pri-

mary alternative—life in prison without the prospect of parole—are

all factors in the declining level of public support. The proportion of

supporters of capital punishment who say that they favour it because

of its deterrent eect has dropped remarkably in recent years.

A number of public opinion polls in the United States have shown

the same trend, but what of other retentionist nations? This section

14 Kevin Smith, ed., Kathryn Coleman, Simon Eder and Philip Hall, “Table 1.02: Oences initially

recorded as homicide by outcome, 1999/00 to 2009/10”, in Homicide, Firearm Oences and

Intimate Violence 2009-10, Home Oce Statistical Bulletin 01/11 (2011).

15 Mark Warren, The Death Penalty in Canada: Facts, Figures and Milestones (London, Amnesty

International, 2005).

16 A recent study of the cost of the death penalty inColoradoshowed that capital proceedings re-

quiresix timesmore days in court and take considerably longer to resolve than life-without-pa-

role cases. Justin Marceau and Hollis Whitson, “The cost of Colorado’s death penalty”,

Univer-

sity of Denver Criminal Law Review, vol. 3 (2013), pp. 145 . And a report of the California

Commission on the Fair Administration of Justicefound that the additional cost of conning

an inmate to death row—as compared to a maximum-security prison for a life-without-parole

sentence—is $90,000 per year per inmate. California Commission on the Fair Administration

of Justice,

Report and Recommendations on the Administration of the Death Penalty in California

(2008), available from www.ccfaj.org/documents/reports/dp/ocial/FINAL%20REPORT%20

DEATH%20PENALTY.pdf.

will look at surveys from Asia and the Caribbean, where governments

have claimed that public opinion would be hostile to abolition.

Japan

Statements from the judiciary and the executive in Japan justify retention

of capital punishment on the grounds that a democratic government

cannot ignore strong public support for it without endangering public

condence in, and support for, the law. In this, they draw on an o-

cial government survey on the death penalty that has been conducted

since 1956, approximately every ve years. In the most recent survey,

conducted in 2009, 86 percent of respondents favoured retention. In

2010 the minister of justice said that this high level of support should

be respected as an expression of “the voice of the people.”

There is a great deal of secrecy around the death penalty in Japan.

Until 2007 the Japanese government did not announce the names of

prisoners and the crimes they had committed after executions. And as

a powerful Amnesty International report pointed out, death-sentenced

prisoners and their family members are not informed of execution

dates. The inmate is only informed of the execution a few hours before

it takes place.

What is more, there is still no ocial information on how and when

prisoners under sentence of death are selected for execution, how

they are treated on death row, or what the cost of the death penalty

is compared to life imprisonment. At the time of writing, Japan had

157 people on death row in solitary connement

—which is proba-

bly double the number at the turn of the millennium, as the number

of death sentences has risen. This kind of information is only available

informally through those who are involved in the execution process,

and through somewhat speculative secondary sources. The govern-

ment does not ensure the publication of accurate information on the

process or outcomes. This has led scholars to state that “the secrecy

17 Yomiuri newspaper, 2010, cited in Mai Sato, The Death Penalty in Japan: Will the Public Tolerate

Abolition? (Wiesbaden, Springer, 2014), p. 25.

18 Amnesty International,

“Will This Day Be My Last?” The Death Penalty in Japan (July 2006),

AI Index: ASA 22/006/2006.

19 Death Penalty Worldwide (updated 12 November 2013), available from www.deathpenaltyworld-

wide.org/country-search-post.cfm?country=Japan.

76 77

that surrounds capital punishment in Japan is taken to extremes not

seen in other nations” and that the public only has very abstract ideas

about the punishment.

This inevitably poses the question: on what

grounds does the public support the death penalty?

A recent study by Mai Sato argued that, although the Japanese asser-

tion that retaining capital punishment is a democratic obligation

may be theoretically coherent, it requires reliable evidence that the

public feel so strongly in favour of retaining the death penalty that

to abolish it would undermine the legitimacy of the criminal justice

system.

In other words, the Japanese government’s case is defensible

only if the surveys on which it relies accurately capture public atti-

tudes on the subject. Sato tested this through three rigorous surveys

of public opinion and found that the government’s interpretation of

its survey—and its contention that it reliably reected the views of

the public as a whole—was seriously awed. Her ndings suggest that

opposition to abolition is neither as strong nor as unalterable as the

government claims. With more information and greater transparency

about how the death penalty system works in practice, and reliable

evidence on whether the execution rate has any deterrent eect on

the murder rate, a more accurate sense of the Japanese public’s sup-

port for the death penalty would emerge. This suggests that retention

of the death penalty in Japan is not so central to popular trust in the

criminal justice system that abolition would result in the erosion of

political and judicial legitimacy.

Malaysia

In Malaysia, death is the mandatory penalty for murder, tracking

in certain amounts of narcotics, and discharging a rearm during the

commission of various crimes, even if no one is hurt. There is a grow-

ing debate on whether the mandatory death penalty should be replaced

by a discretionary system where it is used only in exceptional circum-

stances, or abolished altogether. In a recent public opinion survey of

1,535 Malaysian citizens on this issue,

a large majority said they were

20 David Johnson, “When the state kills in secret: capital punishment in Japan” Punishment and

Society, vol. 8, issue 3 (2006), pp. 251-285, at p. 251.

21 Mai Sato, The Death Penalty in Japan: Will the Public Tolerate Abolition? (Wiesbaden, Springer,

2014).

22 Roger Hood,

The Death Penalty in Malaysia (London, The Death Penalty Project, 2013).

in favour of the death penalty (either mandatory or discretionary): 91

percent for murder, 74-80 percent for drug tracking (depending

on the drug concerned), and 83 percent for rearms oences. Con-

cerning themandatorydeath penalty, 56 percent said they were in

favour of it for murder, but only 25-44 percent supported it for drug

tracking and 45 percent for rearms oences.

When asked what sentences they themselves would impose on a

series of hypothetical cases, all of which were subject to a mandatory

death sentence, respondents gave markedly dierent answers than

they had given to the more theoretical questions. For none of four

hypothetical drug tracking cases did more than 30 percent choose

the death penalty. Only 8 percent chose death for all the cases they

judged. Only 1.2 percent thought that the death penalty was the

appropriate punishment for all 12 hypothetical cases of murder, drug

tracking and rearms oences, showing decisively that the vast

majority favoured discretionary use of the death penalty.

These ndings suggest that there would be little public opposition

to abolition of the mandatory death penalty. Public support for the

death penalty for drug tracking and rearms oences, as well as for

murder, was not nearly as strong as had been assumed, so may not be

a denite barrier to complete abolition.

Trinidad

Another study recently surveyed 1,000 residents of Trinidad,

focusing on support for and use of the mandatory death penalty

for murder under current Trinidadian law.

It found that a large

majority of Trinidadians are in favour of the death penalty, but only

a minority (close to a quarter) favour it being mandatory for all

murders. Trinidadians also favoured discretionary use of the death

penalty in cases involving violent robbery or drug or gang killing,

preferring to take into account mitigating factors such as age and

previous good character. When faced with three murder scenarios,

only 1 in 5 survey respondents thought that the death penalty was

the appropriate punishment for all three crimes. The majority of

23 Roger Hood and Florence Seemungal, Public Opinion Survey on the Mandatory Death Penalty

in Trinidad (London: The Death Penalty Project, 2011).

78 79

those who favoured the death penalty in one of these scenarios

gave justice as the reason; only 1.3 per cent based their decision

primarily on deterrence.

The high level of support for the death penalty was contingent on it

being enforced with no possibility that an innocent person could be

executed. If this were proven to have happened, only 35 percent of

those interviewed said they would continue to support capital pun-

ishment—as was the case in Malaysia, where support fell to just 33

percent with the risk of an innocent person being executed.

China

The consensus among the

authorities in China is that

the public will not yet tol-

erate abolition. Thus, it is

argued that the attempts

now being made to reform

the death penalty, through

due process safeguards and progressive restriction of its application,

must proceed slowly and carefully, for fear of a public backlash and

collapse of condence in the government and the criminal justice

system. It is true that some judicial decisions not to impose the

death penalty are met with a urry of online criticism. But a recent

analysis

argued that the scholarly debate on the death penalty in

China often ignores contemporary survey evidence when claiming

that the strength of the Chinese public’s support for capital punish-

ment is a barrier to abolition, and that even liberal intellectuals who

favour reducing the use of the death penalty have tended to blame

popular support for harsh penalties for the slow pace of capital pun-

ishment reform.

The 2007-2009 survey referred to in that article demonstrated a

low level of interest and knowledge; a relatively high proportion of

24 Børge Bakken, “Capital punishment reform, public opinion, and penal elitism in the People’s

Republic of China”, in Confronting Capital Punishment in Asia: Human Rights, Politics,

and Public Opinion, R. Hood and S. Deva, eds. (Oxford, Oxford University Press, 2013),

pp. 187-204.

“…THERE MUST BE LIMITS

TO THE POWER THAT THE

STATE CAN BE PERMITTED

TO EXERCISE…”

—

Carolyn Hoyle and Roger Hood

respondents had no rm opinion on the subject of the death penal-

ty.

When asked whether they favoured or opposed the death penalty,

58 percent of almost 4,500 respondents in three provinces were de-

nitely in favour, not a very high proportion when compared with

the experience of European countries when they abolished capital

punishment. While only 14 percent said they opposed capital pun-

ishment, as many as 28 percent said they were unsure. When asked

whether China should speed up the process of abolishing the death

penalty, only 53 percent were opposed to doing so; 33 percent were

unsure. This hardly indicates the kind of fervent support for capital

punishment that would make abolition politically impossible.

Almost three-quarters of survey respondents said they were either

“not very interested” or “not interested at all” in the subject; only

1.3 percent said they had “a lot of knowledge,” and less than a third

said they had “some knowledge” of the death penalty law and its

administration. Many were concerned about wrongful convictions,

and only a quarter said that they would support the death penalty if it

were proven that innocent people had been executed. Almost 70 per

cent thought that the death penalty was not equitably administered,

being more likely to be imposed on poor and powerless people than

on rich people, ocials or relatives of ocials.

When respondents were asked whether they would support the

death penalty if various alternatives were available, a substantially

lower proportion denitely opposed abolition. If the death penalty

were replaced by life imprisonment with the possibility of parole,

only 38 per cent said they would still favour the death penalty. If

the alternative maximum sentence was the harsh penalty of life with

no possibility of parole and an obligation to make restitution, less

than a quarter said they would oppose abolition, and half denitely

favoured it.

Meanwhile, a survey of a sample of 455 criminal jus-

tice professionals (including judges, prosecutors, police and legislative

and judicial administrative sta) in Wuhan found that 91 per cent

25 Dietrich Oberwittler and Shenghui Qi, Public Opinion on the Death Penalty in China: Results

from a General Population Survey Conducted in Three Provinces in 2007/09 (Freiburg, Max

Planck Institute, 2009).

26 Dietrich Oberwittler and Shenghui Qi, Public Opinion on the Death Penalty in China: Results

from a General Population Survey Conducted in Three Provinces in 2007-08, Research Survey on

the Death Penalty in China, 2007-9 (London, Great Britain-China Centre, 2009), p. 29.

80 81

favoured the death penalty, though for the more serious crimes, rather

than for nonviolent oences.

It seems likely that it is the intellectual, legal and administrative elites

that are slowing the pace of reform in China, not the masses, and it is

the legal practitioners and political leaders who need to embrace the

human rights objections to capital punishment.

DETERRENCE AND PUBLIC OPINION:

NO BARRIERS TO ABOLITION

The empirical research conducted over the past few decades demon-

strates that no matter what politicians argue or the public believe,

neither deterrence nor public opinion should be seen as barriers to

abolition. At the seminars and meetings that we have attended in

China, people who work within the criminal justice system often say

that the public will not tolerate abolition while the crime rate is high,

for fear it will lead to further rises in serious crimes, especially drug

tracking and corruption. The evidence on deterrence discussed

above suggests that this is not likely to be the case. Furthermore,

the public opinion studies we have reviewed for the forthcoming

fth edition of The Death Penalty suggest that there is no immutable

relationship between rising levels of homicide and increased support

for the death penalty. Much will depend on the extent to which cit-

izens believe in the general deterrent power of executions, their faith

in alternative punishments, and the ability of the political system to

tackle the roots of the problem through social reforms and a criminal

justice approach that increases the certainty, rather than the severity,

of punishment. In none of the countries that we have studied do the

data suggest that there would be disastrous consequences for public

order and respect for the law if the death penalty were abolished and

replaced by a (humane) sentence of life imprisonment.

The experience of nearly all abolitionist countries is that opinions

change and support for capital punishment withers as it comes to be

seen as a thing of the past. Analysis of support for the death penalty

27 R. Hood, “Introduction”, in Research Survey on the Death Penalty in China, 2007-9, available

from www.gbcc.org.uk/les/documents/dp2introduction.pdf.

across 17 countries

came to two interesting conclusions. First, it

found that “residence in a retentionist nation signicantly increases

the odds of an individual supporting the death penalty.” This suggests

that people on the whole support what has been the norm in their

culture. Second, each year of abolition lowered the odds that an indi-

vidual would support the death penalty by 46 percent.

Clearly, as

the example of Europe shows, when the death penalty has been abol-

ished, more and more citizens come in time to regard it as a cruel and

outdated punishment. Abolition can lead to previously unimagined

changes in opinion by creating a dierent climate for the discourse on

the limits of state punishment. France provides an obvious example

of this. François Mitterrand stood for election in 1981 on a manifesto

that included abolition of the death penalty despite 63 percent of

the general public being in favour of it. He was elected president,

and after abolition he was re-elected. This showed that the public

was ready to accept leadership on this issue; subsequently, France has

become one of the leading nations to protest against capital punish-

ment around the world.

Opinions about capital punishment also dier in dierent sectors of

the population—which may be related to their social status, their

political or religious beliefs and how well they are informed about

the issue, including what the eects of abolition might be. Ultimately,

public opinion on the death penalty—essentially an expression of

supercial sentiment by the electorate, who may or (as is more usual)

may not be aware of all the facts and arguments relating to the issue—

should not be allowed to determine an issue which many, indeed now

the majority of countries, believe must be dealt with on the basis of a

principled interpretation of human rights.

CONCLUSION

Those governments that still favour capital punishment in principle

or believe that it is necessary pay insucient attention to human

rights protections, such as due process safeguards to reduce the

risk of executing those who are innocent or otherwise wrongly

28 Steven Stack, “Public opinion on the death penalty: analysis of individual-level data from 17

nations”, International Criminal Justice Review, vol. 14 (2004), pp. 69–98.

29 Ibid., pp. 87–88.

82 83

convicted. They may be presented with convincing evidence of

the abuses, discrimination, mistakes and inhumanity that inevitably

accompany capital punishment in practice—as have been revealed

by social scientists, legal theorists and human rights lawyers—but

they don’t tend to recognize the importance of such knowledge,

because their concern is with upholding state power and main-

taining social control, rather than with the rights of all citizens to

be protected from the state as far as their life, liberty and just and

humane treatment are concerned. They argue that the death penalty

is a general deterrent, not because the academic studies show this to

be the case, but because, despite the evidence to the contrary, they

believe it can be deduced from human nature.

But ultimately a human rights perspective must reject the utilitarian

justication that nothing less severe can act as a sucient deterrent

to those who contemplate committing capital crimes. This is not

only because the social science evidence does not support the case

for deterrence but also because those who care about human rights

would reject the deterrence rationale even if it could be proven.

Those retentionist countries that rely on the deterrent justication

should face the fact that if capital punishment were used to try to

obtain its maximum possible deterrent eect, it would have to be

enforced mandatorily, or at least with a high degree of probability,

on a substantial scale across most categories of homicide, and swiftly.

This would increase the probability of innocent or wrongfully con-

victed people, and people whose crimes had sucient mitigating

circumstances, being executed. As mentioned above, too-vigorous

enforcement may also backre, resulting in fewer convictions for

murder and thus a decline in the certainty of punishment on which

the deterrent theory relies.

One wonders, therefore, whether those states that do retain the death

penalty for some limited class of murders and murderers, imposed in

a somewhat haphazard and arbitrary way on only a few of those who

are death-eligible, can really claim that such a policy is justied by its

deterrent eects. Looked at this way, the balance of evidence clearly

favours the abolitionist position.

Furthermore, abolitionists who have embraced the view that all cit-

izens have a right to life argue that the issue cannot be left to public

opinion, not only because that opinion may not be fully informed as

to the consequences of capital punishment, but also because the appeal

to human rights is based on the protection of all citizens from cruel

and inhumane punishment, whatever crimes they may have commit-

ted. Some countries have attempted to stigmatise opposition to the

death penalty as a form of cultural imperialism, an attack on national

sovereignty and an attempt to turn a domestic criminal justice issue

into a human rights issue. This implies that if it is one it cannot also

be the other. In our opinion this is a false antithesis. Whatever system

of criminal justice a country may choose, there must be limits to the

power that the state can be permitted to exercise over people accused

and convicted of crimes, however serious: limits dened by universal

human rights principles that apply to all citizens of the world.

84 85

DETERRENCE AND THE DEATH

PENALTY IN INTERNATIONAL

PERSPECTIVE

Jerey Fagan

Many states that retain the death penalty do so with the belief that

executions deter the targeted crime. While some states execute

solely on the basis of retribution or a belief in a moral imperative

based on the harm of the crime, many others cling to the theory

that executions prevent further crimes by deterring other people

from committing them. Whether the death penalty is reserved for

murder or also applied to drug crimes or terrorism, belief in its

deterrent power remains deeply embedded in the social and polit-

ical culture in states that execute. Leaders in those states, as well as

large segments of their populations, endorse this view. But rarely

do those states or their citizens reect on the evidence that sup-

ports those beliefs or the theory that underpins them. Were they to

explore the deep body of empirical evidence and the core elements

of the theory itself, their belief in deterrence might well be shaken.

THE MEANING OF DETERRENCE

The core ambition of deterrence is to make threats credible to

the point where they inuence behavioural choices. In the case of

capital punishment, retentionist states wish to signal to those con-

templating murder, or any other death-penalty-eligible oense, that

there is a substantial risk of dying at the hands of the state if they

commit the crime and are caught and convicted. The premise is that

a would-be oender, knowing about the threat of execution, would

forego the act because the cost (death) is unacceptably high and

well in excess of any benets from the crime. It assumes a rational

actor whose risk-reward calculus would lead to the avoidance of a

capital crime and whose perceptions of risk are well calibrated to

1 Jerey Fagan is the Isidor and Seville Sulzbacher Professor of law at Columbia Law School, pro-

fessor of epidemiology at the Mailman School of Public Health, Columbia University, and senior

research scholar at Yale Law School.

the likelihood of execution. It also assumes that risks are substantial

and observable.

This proposition leaves many practical and empirical questions unan-

swered. How would we know about murders or other death-eligible

crimes that are contemplated but abandoned because of the threat of

the death penalty? How many murders have been averted, and how

many would have to be averted to show a deterrent eect? Is execu-

tion the reason for the abandonment of a capital crime? What about

other punishment threats, like death in prison through an irreversible

life sentence? What ratio of executions to capital crimes would pres-

ent evidence of deterrence? How many executions are needed to

signal a credible deterrent?

These questions are not simply policy matters, for they also give

weight to moral arguments about execution. Proponents of capital

punishment suggest that evidence of deterrence morally justies

execution.

States that fail to execute knowing that lives may be

saved through deterrence violate their moral requirements to pro-

tect people from serious harms including death. If there is a life-life

trade-o from execution, even if one life is saved for another taken

by execution, then by this argument, states are moral agents that are

required to impose capital punishment to save the lives of innocents,

regardless of any other consideration of the culpability of the accused;

the risks of wrongful execution of the innocent in this framework are

viewed as part of a “risk-risk” trade-o.

Much turns, then, on the evidence of deterrence. Not only are

there practical consequences of deterrence and execution, but state

legitimacy is also implicated by its obligation to protect and save

lives. Deterrence is a central justication for capital punishment in

many retentionist countries, and their use of execution is linked

to their state legitimacy.

Whatever moral reservations a state or its

agents may have about execution would, under this argument, be

2 Cass Sunstein and Adrian Vermeule, Is capital punishment morally justied? Acts, omissions and

life-life tradeos. 58 Stanford Law Review 703 (2005).

3 Cass Sunstein and Adrian Vermeule, “Is capital punishment morally justied?, at p. 705. The risks of

wrongful execution of the innocent in this framework are viewed as part of a “risk-risk” tradeo.

4 Roger Hood and Carolyn Hoyle, The Death Penalty in Worldwide Perspective (Oxford, UK, Oxford

University Press, 2014).

86 87

neutralized by the evidence of lives saved. The strength of this evi-

dence, then, carries weight beyond the practical and policy matter

of capital punishment. In this view, the moral legitimacy of the state

depends in part on its willingness to full its obligation to save lives.

Countries like Japan argue that popular support for capital punish-

ment, including cultural belief in its deterrent value, is reciprocally

tied to the legitimacy of the government itself.

But what if the evidence for deterrence is weak, speculative and incon-

clusive? Then this logic would be turned on its head. States that execute

in the face of uncertainty about execution’s deterrent eects are impli-

cated in taking lives without a measurable return beyond vengeance

or retribution. Those states then lose the moral grounding of life-life

trade-os, and in fact, create risks that reverse the statistical and moral

justication for taking lives. The deaths of people who are innocent, or

lacking in the requisite culpability for execution, become moral casu-

alties of execution. The costs to state legitimacy are potentially severe,

with the risk of spill-over eects such as deteriorating respect for the

law.

Much rides, then, on the evidence for deterrence.

THE EVIDENCE ON THE DEATH PENALTY’S

VALUE AS A DETERRENT

Whether the oense is murder, a drug-related crime or terrorism,

the scientic evidence for deterrence is unreliable, inconclusive and,

in many instances, simply wrong. This has been the conclusion across

a wide range of studies over ve decades. While there are no exper-

iments on execution, nor can there be for obvious moral and ethical

reasons, some studies have examined the eects of moratoria on cap-

ital punishment. Other studies have compared places that practice

capital punishment with carefully matched places that have abolished

or suspended executions and found no dierences in murder rates or

other capital-eligible crimes, regardless of the number of executions

in the retentionist places.

5 See for example Mai Sato, The Death Penalty in Japan: Will the Public Tolerate Abolition? (Wiesbaden,

Germany, Springer, 2014); David T. Johnson and Franklin E. Zimring, “Development without

abolition: Japan in the 21st century”, chapter 3 in The Next Frontier: National Development, Political

Change, and the Death Penalty in Asia (New York, Oxford University Press, 2009).

6 Sharon Dolovich, “Legitimate punishment in liberal democracy”, Bualo Criminal Law Review,

vol. 7 (2004), pp. 307-442

A. Murder

From 1972 to 1976, there was a moratorium on capital punishment

in the United States, inspired in part by growing doubts about its

deterrent eect on murder.

Executions resumed following publi-

cation of research claiming that the death penalty did in fact deter

homicides—in fact, that each execution deterred as many as eight

homicides.

But that evidence was strongly contested, and a 1978

panel of the National Academy of Sciences found little evidence that

claims of deterrence were accurate.

Still, belief in deterrence was

politically and culturally popular, even if scientic evidence didn’t

support it.

The belief in deterrence persisted for over two decades,

despite the fact that murder rates rose dramatically in the 1980s just

as executions were increasing.

Two factors undermined those beliefs. First, while the murder rate

began declining sharply in the second half of the 1990s, at the same

time that executions rose sharply, the decline in the murder rate con-

tinued after executions declined sharply in 2000. Second, a large body

of statistical evidence emerged showing that the claims of deterrence

advanced in the early 2000’s were deeply awed. My own research

showed that the decline in murders starting in 1996 was no greater

in states that continued to sentence and execute murderers than in

states that did not.

This included states with a formal moratorium

and states with a de facto moratorium such as California, Illinois and

Pennsylvania, which had large numbers of condemned prisoners but

almost no executions. In those places, despite the absence of execu-

tions, murder rates declined sharply.

7 Furman v. Georgia, 408 U.S. 238, 315 (1972) (Marshall, concurring).

8 Issac Ehrlich, The deterrent eect of capital punishment: A question of life and death”, The Ameri-

can Economic Review, vol. 65, pp. 397-417 (1975).

9 For a summary, see Brian A. Forst, “Capital punishment and deterrence: Conicting evidence”,

Journal of Criminal Law and Criminology, vol. 74, pp. 927-942 (1983). See, also, Lawrence R.

Klein, Brian Forst, & Victor Filatov, “The Deterrent Eect of Capital Punishment: An Assessment

of the Estimates”, pp. 336-60 in Alfred Blumstein, Jacqueline Cohen and Daniel Nagin (eds),

Deterrence and Incapacitation: Estimating the Eects of Criminal Sanctions on Crime Rates. Washington,

DC: National Academy of Sciences (1978)

10 Samuel R. Gross, Public opinion on the death penalty: It’s getting personal”, Cornell Law Re-

view, vol. 83 (1998): pp. 1448-1479

11 Jerey Fagan, Franklin E. Zimring, and Amanda Geller. “Capital punishment and capital murder:

Market share and the deterrent eects of the death penalty.” Texas Law Review, vol. 84 pp. 1751 -

2134 (2005).

88 89

A recent intensive review of the evidence on deterrence by the US

National Academy of Sciences in 2012 concluded that there was no

reliable evidence of deterrence based on its failure to once we con-

sider its deterrent eects beyond the eects of the next most severe

punishment, life in prison without the possibility of parole; other

research commissioned by the panel reached much the same conclu-

sion.

These analyses noted that there was no credible evidence of

deterrence, owing to the failure to establish, if not the impossibility

of establishing, the necessary conditions for making suciently strong

causal conclusions.

The panel’s ndings conrmed what was evident from observable

trends in the United States that showed no plausible evidence of

executions’ deterrent eect. Murders rose from 1985-1996, as states

ramped up executions. Figure 1 shows that murders have been

declining across the United States in retentionist, moratorium and

12 Daniel S. Nagin and John V. Pepper, eds., Deterrence and the Death Penalty (Washington, DC,

National Academy of Sciences, 2012); Aaron Chaln, Amelia M. Haviland, and Steven Raphael,

“What do panel studies tell us about a deterrent eect of capital punishment? A critique of the

literature”, Journal of Quantitative Criminology, vol. 29 (2013), 5-43.

Sources: Death Penalty Information Center, various years. Federal Bureau of Investigation, U.S. Department of Justice,

Uniform Crime Reports, various years.

abolitionist states since 1999, when executions reached their peak.

Starting that year, murder rates, death sentences and executions have

all declined at the same time and at the same pace. The homicide rate

in the United States has declined since 1996; death sentences peaked

in 1998, and executions in 1999. The murder rate throughout the

decade starting in 2000 and into the current decade was unaected

by the changes in the risk of a death sentence or execution.

Further evidence of the absence of deterrent eects from execution

can be seen in recent abolition events in several US states—Con-

necticut, Illinois, Maryland, New Jersey, New Mexico and New York.

These states allow comparisons of murder rates before and after the

cessation of the threat of execution.

Over the several years following

abolition in New Jersey in 2007, Illinois in 2011, and New Mexico

in 2009, there appears to be no evidence of an increase in murders

following the abolition of capital punishment. In fact, homicides in

Chicago, Illinois, reached a 50-year low in 2014, long after the last

execution in the late 1990s.

Evidence from other countries shows similar trends. Following the

abolition of capital punishment in eastern Europe in the early 1990s,

homicide rates declined.

Studies in Trinidad and Tobago showed no

change in homicide rates despite increases in executions.

Homi-

cide rates in Taiwan declined during a sharp reduction in executions

from 2005-2009. A study comparing Singapore, where executions

for murder have been common, with Hong Kong, where executions

were banned, showed no dierence in the murder rates over nearly

three decades since the cessation of executions in Hong Kong.

13 Death Penalty Information Center, “Recent legislative activity”, www.deathpenaltyinfo.org/

recent-legislative-activity.

14 Jeremy Gorner, Chicago ends 2014 with fewer homicides, but shooting victims up 14 percent,”

Chicago Tribune, June 3, 2-15, at http://www.chicagotribune.com/news/ct-chicago-crime-

year-end-met-20150101-story.html. Total homicides in Chicago were the lowest since 1965.

15 United Nations Oce of Drugs and Crime, 2011 Global Study on Homicide: Trends, Contexts and

Data (Vienna, Austria, UNODC, 2011), p. 33. Homicide declined by 61% from 2000 to 2008 in

the Czech Republic, Hungary, Moldova, Poland, and Romania.

16 David Greenberg and Biko Agozino, “Executions, imprisonment, and crime in Trinidad and

Tobago”, British Journal of Criminology, vol. 52, no. 113 (2012). See, generally, Hood and Hoyle,

The Death Penalty in Worldwide Perspective, p. 389.

17 Franklin E. Zimring, Jerey Fagan, and David T. Johnson, “Executions, deterrence, and homicide:

a tale of two cities”, Journal of Empirical Legal Studies, vol. 7 (2010), 1-29.

90 91

B. Drug crimes

The death penalty for drug smuggling is authorized in 33 coun-

tries, including the Palestinian Authority.

 All but four of these

(Cuba, South Sudan, Sudan and the United States) are in Asia or the

MiddleEast. Executions overall are rare in those four. The United

States authorizes capital punishment for drug crimes only if commit-

ted in federal jurisdiction or charged under federal law, and then only

for high-volume drug importation. In some countries, the death sen-

tence is mandatory for drug tracking over a specied amount, yet

executions for drug crimes are uncommon.

There are no reliable

cross-national data on the number of executions for drug oenses,

although some recent multiple executions have shed light on the

practice across the world.

States that authorize executions for drug oenses invoke two ratio-

nales: that drug oenses fall under the international-law principle of

the “most serious crimes”

and that executions deter, and thus are

essential to controlling, drug crime. The deterrence rationale is based

on arguments that drug crimes cause numerous deaths, some arguing

that there are more drug-related deaths than deaths from murder or

other intentional killing. Accurate assessment of both claims—the

seriousness of drug crimes and the deterrent eect of the death pen-

alty—is essential.

18 Patrick Gallahue, The Death Penalty for Drug Oences: A Global Overview (London, UK, Harm

Reduction International, 2011). See also Hood and Hoyle, The Death Penalty in Worldwide

Perspective, 160.

19 Hood and Hoyle, The Death Penalty: A Worldwide Perspective, appendix 1. The nations with this

provision are China, Indonesia, Iran, Iraq, Malaysia, Pakistan, Saudi Arabia, Singapore, VietNam,

Yemen, and Thailand. In Singapore, the parliament passed the Misuse of Drugs Amendment Act,

which allowed for a discretionary sentence of life imprisonment plus caning to be substituted for

the mandatory death penalty if the defendant could prove that the tracker was a paid courier

and not a reseller, and with substantial cooperation in the prosecution of the major tracker

(Hood and Hoyle, The Death Penalty, 161, note 60).

20 Indonesia executed six people for drug oenses in January 2015 and another eight people in

April 2015. See, for example, Sara Kaplan and Sarah Larimer, “‘Bali Nine’ leaders executed by

ring squad in Indonesia”, Washington Post, 29 April 2015, available from www.washingtonpost.

com/news/morning-mix/wp/2015/04/28/bali-nine-leaders-in-indonesia-could-face-death-by-

ring-squad-wednesday/. In 2011, Amnesty International reported that Iran had executed 448

people for drug oenses. See Amnesty International, Addicted to Death: Executions for Drug Oences

(London, Amnesty International, 2011). Under Iran’s Anti-Narcotics Law, death is a mandatory

sentence for anyone found in possession of more than 5kg of hashish or opium or more than

30g of heroin, codeine, methadone, or morphine.

21 See for example William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed.

(Cambridge, UK, Cambridge University Press, 2002), p. 373.

Consider the case of the Indonesian government, which has claimed, in

justication of its recent escalation of executions of drug trackers, that

illegal drugs caused 40-50 deaths per day and that 2.6% of its popula-

tion, or nearly 4.5 million people, used drugs.

In contrast, the World

Health Organization estimated that 1.5 million people in Indonesia

used any drugs.

The government numbers in Indonesia are disputed,

however, by local experts, who argued that there were aws in the

research design and a lack of transparency in disclosing the evidence.

The methods themselves are questionable: imprecise wording of survey

questions that confuses use with addiction, setting arbitrary thresholds

for assigning a respondent to the status of addict, relying on imprecise

wording to determine which users died because of drugs or how their

deaths were related to drugs, and failing to consider that tracking

itself is often a cause of death owing to the legal status of drugs.

Evidence for or against these claims is crucial not only to assess the

soundness of a government’s rationale for executing drug oenders,

but also to determine if drug problems are responsive to execu-

tions, in the manner of sound empirical research on deterrence

and murder.

In the matter of drug tracking, the causal claims

remain global, and a one-size-ts-all explanation is applied to all

drugs and a range of putative causal mechanisms. Governments

claiming that executions are necessary to deter drug crimes rarely

if ever dene the precise causal mechanism through which drugs

cause deaths, leaving open any one factor or combination of factors:

drug overdose, infectious disease transmitted via drug paraphernalia,

murder resulting from drug selling, adverse psychological reactions

to banned substances. It has not been established which if any of

these pathways is sensitive to the threat of execution, rendering the

search for deterrence a moot point.

22 Claudia Stoicescu, “Indonesia uses faulty stats on drug ‘crisis’ to justify death penalty”, The

Conversation, 4 February 2015, available from http://theconversation.com/indonesia-uses-faulty-

stats-on-drug-crisis-to-justify-death-penalty-36512.

23 World Health Organization, “Country prole: Indonesia”, Atlas of Substance Abuse Disorders, avail-

able from www.who.int%2Fsubstance_abuse%2Fpublications%2Fatlas_report%2Fproles%2Fin-

donesia.pdf.

24 Melissa Davey, “Data used by Indonesia to justify drug laws is ‘questionable’, say experts”, The

Guardian, 4 June 2015, citing a letter from health experts in Indonesia challenging the accuracy

of the government’s claims; Stoicescu, “Indonesia uses faulty stats”.

25 See for example Jerey Fagan, “Interactions among drugs, alcohol, and violence”, 72 Health

Aairs, vol. 72 (1993), pp. 65-79.

26 John J. Donohue III, “Empirical evaluation of law: the dream and the nightmare”, American Law

and Economic Review, vol. 17, no. 1 (spring 2015), doi:10.1093/aler/ahv007

92 93

No empirical research supports the claim that the threat of execution,

or even of a lengthy prison term, deters drug use or drug tracking.

The types of evidence that are available to test the deterrent eects of

executions on murder are not available to test deterrence of dierent

forms of drug oenses. The types of empirical tests themselves are

likely to dier. There are many reasons for this, but perhaps the most

important is that there is no reliable way to count or even estimate

the number of people who are involved in drug tracking.

We also

lack reliable evidence on the number of people using drugs, which

would be an indirect estimate of drug availability, or the elasticity

in drug prices under dierent forms of sanction threats.

There are

other challenges to research in this area, including the diversity of

drugs that are tracked and the dierences from one place to another

in the resources devoted to drug enforcement. Comparisons there-

fore are complicated.

Analyses of market dynamics in response to punishment actions pro-

vide an alternative to the direct measure of criminal activity. Economic

theory suggests that market dynamics and parameters will be sensitive

to executions, incarceration and other forms of harsh punishment.

Under a theory of deterrence, drug trackers would exact higher

prices for drugs owing to greater risk and scarcity under threats of

harsh punishment. Also, production and importation are likely to be

lower in places where the risks of punishment from drug tracking are

greater. Producers and trackers are likely to oset the greater risks of

punishment by increasing prices in places that execute drug oenders.

Also, if executions for drug crimes are a deterrent, availability of drugs

will decline over time as executions for drug crimes increase.

To see if drug prices or availability are higher in such countries, we

can compare both availability and prices for heroin, cocaine or other

27 David Skarbek, “Prisonomics: lessons from America’s mass incarceration”, 34 Economic Aairs, vol.

34 (2014), 411; John F. Pfa, “The durability of prison populations”, University of Chicago Legal

Forum 73 (2010), 73-116.

28 Carol V. Petrie, John V. Pepper, and Charles F. Manski, eds., Informing America’s Policy on Illegal

Drugs: What We Don’t Know Keeps Hurting Us (Washington, DC, National Academies Press, 2001).

29 See Jonathan P. Caulkins and Peter Reuter, “How drug enforcement aects drug prices, Crime

and Justice: A Review of Research, vol. 39, pp. 213-71 (2012). See, also, Stoicescu, “Indonesia uses

faulty stats”; Davey, “Data used by Indonesia”. As the critiques of the Indonesian studies suggest,

drug crimes and drug tracking are particularly dicult to measure, owing not only to the

inconsistencies in denitions or metrics but also to the inability of states to agree on the mecha-

nisms to generate these data. See Petrie et al., Informing America’s Policy on Illegal Drugs.

30 Jonathan P. Caulkins and Peter Reuter, id..

banned substances such as ecstasy (MDMA) with prices in nearby

similar countries that do not execute people convicted of drug traf-

cking. While many countries authorize the use of the death penalty

for drug oenses, only a few actually carry out executions. These

include China, Iran, Malaysia, Saudi Arabia, Singapore, Viet Nam and,

more recently, Indonesia.

Evidence suggests that executions do not appear to have a deterrent

eect in these countries or the surrounding regions. Instead, there has

been a steady increase in drug seizures over the past decade, a sign of

increased availability and tracking, even in the face of executions

in the countries that are nearest to the producing areas and supply

routes. Data from the 2012 U.N. World Drug Report show that in

the regions where drug executions are most frequent, availability (as

indicated by drug seizures) has either remained stable or increased

compared to the previous reporting period.

For example, prices in

31 United Nations Oce on Drugs and Crime, World Drug Report, 2012, available at http://www.

unodc.org/unodc/data-and-analysis/WDR-2012.html

No data available for previous year

Islamic Rep. of

Iran

35.24

Turkey

12.7

China

5.4

West & Central Europe

5.8

Pakistan

10.3

United States of America

3.5

Russian Federation

2.6

Colombia

1.7

Uzbekistan

1.0

Ecuador

0.9

India

0.8

Australia

0.5

Mexico

0.4

Kazakhstan

0.3

Viet Nam

Malaysia

0.3

North Africa

0.2

Central America

0.2

East Africa

0.2

Kyrgyzstan

0.2

Sri Lanka

0.1

Thaliand

Canada

0.1

Myanmar

0.1

Lao People’s Dem. Rep.

0.08

Hong Kong, China

0.07

Belarus

0.04

Venezuela (Bolivarian

Republic of)

0.05

Caribbean

0.03

Singapore

0.05

Indonesia

0.03

Macau, China

0.01

* Seizures as reported (no adjustments made for purity)

Source: UNODC Annual Reports Questionnaires data supplemented by other sources

Note: The boundaries and names shown and the designations used on this map do not imply official endorsement or acceptance by the United Nations.

Dashed lines represent undetermined boundaries. Dotted line represents approximately the Line of Control in Jammu and Kashmir agreed upon by India and Pakistan. The final status of Jammu and Kashmir has not yet been agreed upon by the parties.

Final boundary between the Republic of Sudan and the Republic of South Sudan has not yet been determined.

Increase (>10%)

Stable (+/- 10%)

Decrease (>10%)

Seizures in 2010

Weight in tons

Trend 2009-2010

Heroin and morphine seizures reported

to UNODC (2006-2010)

Seizures of heroin and morphine, 2010 (countries and territories reporting seizures* of more than 10 kg)

No heroin and morphine seizures reported

to UNODC (2006-2010)

Tajikistan

1.0

West and Central Africa

0.2

Bangladesh

0.1

Taiwan province of China

0.07

Southeast Europe

(excl. Turkey)

0.68

Afghanistan

14.1

Turkmenistan

0.1

Israel

0.5

United Arab Emirates

0.2

Saudi Arabia

0.06

Syrian Arab Republic

0.05

Source: UNODC annual report questionnaires data supplemented by other sources.

Note: The boundaries and names shown and the designations used on this map do not imply ocial endorsement or

acceptance by the United Nations. Final boundary between the Republic of Sudan and the Republic of South Sudan

has not yet been determined.

MAP: Global seizures of heroin and morphine, 2010 (countries and territories

reporting seizures* of more than 100kg)

94 95

China, Malaysia, Thailand and VietNam have either remained stable

or increased as executions have been carried out.

Again, deterrence would predict that a strong risk of punishment,

including death, associated with drug tracking would result in

higher prices to compensate for those risks. In other words, a traf-

cker facing the risk of execution would be likely to charge more

for the commodity than a tracker whose risks are lower, in turn

lowering the amount of drugs imported and available for seizure.

Without a deterrent threat, drugs presumably would ood a market

and prices would be driven down. This is simple economic theory

that applies for many commodities, based on scarcity and the costs

of producing and distributing the banned product. Yet, current data

from the 2012 U.N. Report on Drugs and Crime suggest that even

in the face of the threat of execution, seizures remain high, suggesting

an uninterrupted ow of drugs.

Overall, the lessons of execution for drug oenses are lost on a person

who is involved in drug tracking. Research in the United States has

shown that even the prospect of the harshest punishments, including

death, have no deterrent eect. Drug oenders are strongly motivated

by both economic interests and the personal thrills of their lifestyle,

and the exaggerated value of these rewards colours their risk-reward

calculations.

They see the risk of detection and punishment as

remote and the rewards of drug oenses as well worth any price.

Were there a deterrent eect, drug prices would be higher in places

that more frequently execute drug oenders. There is no evidence

that this is the case. Drug prices appear to be disconnected from pun-

ishment risks, including the risks of execution. Moreover, imprisoned

or executed trackers are often quickly replaced in a market that is

deeply integrated at a macro level into both national and regional

economies.

32 United Nations Oce on Drugs and Crime, World Drug Report, 2012, pp. 27-32.

33 Patricia A. Adler, Wheeling and Dealing: An Ethnography of an Upper-Level Drug Dealing and Smug-

gling Community (New York, Columbia University Press, 1993); Volkan Topalli, Richard Wright,

and Robert Fornango, “Drug dealers, robbery and retaliation, vulnerability, deterrence and the

contagion of violence”, British Journal of Criminology, vol. 42 (2002), 337-351.

34 Thomas Fuller, “Prots of drug trade drive economic boom in Myanmar”, New York Times, 6 June

2015.

C. Terrorism

Assessing the likelihood that the death penalty would deter terrorism

presents additional empirical and theoretical challenges.

First, the

data on deterrence and terrorism present many of the same challenges

as the data on deterrence and drug crimes. Dening terrorism in a

way that facilitates reliable cross-national comparisons is the major

challenge, and it is multiplied by the diculty of obtaining precise esti-

mates at the national level.

For example, recent estimates of terrorist

activity in the U.S. since the September 11, 2001 domestic attacks

include incidents of deadly force, property destruction, and “material

support” for terrorist organizations operating internationally.

In the case of terrorism, execution can be a perverse incentive.

The

logic of deterrence rests on the assumption that criminals are rational

and act in their own self-interest, and that their goals are elastic and

sensitive to both cost and reward. For most people, death by execution

would be a fate worth avoiding. But many terrorists view execution

as a form of principle or martyrdom. For those who commit acts of

terrorism motivated by religious beliefs, execution oers martyrdom

and rewards in the afterlife. Thus, executions of terrorists could well

inspire rather than deter terrorist violence.

For terrorists and other criminals, a lifetime of incarceration and

deprivation can be a far harsher punishment than execution in the

spotlight of public and political attention. British philosopher John

Stuart Mill characterized a life sentence as a “living tomb”:

What comparison can there really be . . . between con-

signing a man to the short pang of a rapid death, and

immuring him in a living tomb, there to linger out what

35 Bruno S. Frey and Simon Luechinger, “How to ght terrorism: alternatives to deterrence”,

Defence and Peace Economics, vol. 14 (2003), pp. 237-249.

36 Gary LaFree, Nancy A. Morris, and Laura Dugan, “Cross-national patterns of terrorism compar-

ing trajectories for total, attributed and fatal attacks, 1970-2006”, British Journal of Criminology,

vol. 50 (2010), pp. 622-649.

37 Scott Shane, “Homegrown radicals more deadly than Jihadis in the U.S.”, New York Times. June

24, 2015, at http://securitydata.newamerica.net/extremists/deadly-attacks.html

38 For example, Laura Dugan and Erica Chenoweth, in “Moving beyond deterrence: the eective-

ness of raising the expected utility of abstaining from terrorism in Israel” (American Sociological

Review, vol. 77 [2012], pp. 597-624), argued that increasing the rewards for abstaining from ter-

rorism may discourage terrorist acts more than raising the likelihood and severity of punishment.

96 97

may be a long life in the hardest and most monotonous toil,

without any of its alleviation or rewards—disbarred from

all pleasant sights and sounds, and cut o from all earthly

hope…….?”

Decades later, a committee of the British Parliament concluded in

1930 that the relative physical and psychological pains of execu-

tion are far preferable to the slow decay of body and spirit of life

imprisonment:

“A further alternative is to lengthen the sentence

to the limit of life itself. . . . This is a death sentence

where the inevitable end is reached by the imper-

ceptible stages of institutional decay instead of by

one full stroke.”

RETHINKING THE THEORY OF DETERRENCE

The logic of deterrence rests on the principle that persons people

committing these crimes have motivations that inuence their consid-

eration of the possibility of death as a consequence of their act. There is

strong and consistent social science evidence that persons contemplat-

ing murder tend to heavily undervalue the risks of punishment. They

regard punishment as a distant possibility, and not one to be taken seri-

ously.

In some instances, the rewards and gratication from murder

outweigh any risks of death, or even the certainty of death itself.

Even in places with frequent and well-publicized executions, there

is no scientic evidence that executions deter homicides marginally

more than do lengthy incarceration prison sentences.

39 John Stuart Mill, Collected Works, vol. 28 (London, Routledge, 1868), pp. 266-272.

40 Sir Alexander Paterson, Report of the Committee on Capital Punishment (1930), pp. 484-487.

41 See, for example, Kenneth Polk, When Men Kill: Scenarios of Masculine Violence (New York, Cam-

bridge University Press, 1994).

42 This can be observed both in the high number of people who commit suicide after killing

before being arrested by police, and also in the acts of terrorism that result in certain death by

the attacker. See, Scott Eliason, “Murder-suicide: a review of the recent literature”, Journal of the

American Academy of Psychiatry and the Law Online, vol. 37 (2009): 371-376.

43 Randi Hjalmarsson, “Does capital punishment have a ‘local’ deterrent eect on homicides?”

American Law and Economics Review, vol. 11 (2009), pp. 310-334.

A recent review of the empirical research on deterrence

, concluded

that three preconditions of decision-making by criminal oenders

are necessary for deterrence to be eective:

1. Knowledge—Do oenders know and understand the impli-

cations of the law? Do they know which actions are criminalized

and what will mitigate their culpability?

2. Rationality—If so, will they allow that understanding to

determine their conduct?

3. Perceived net cost—If so, are they likely to choose com-

pliance as the more benecial option? Is the punishment worth

avoiding? This in turn requires assessment of three concurrent

probabilities: (a) the probability of being caught and convicted,

(b) the likely severity of a sentence, and the marginal increases in

severity for each level of punishment, and (c) the delay in reaching

the nal stage of the most severe punishment.

The third precondition raises the most dicult challenges: assuming

rationality in both perception and weighing of risks associated spe-

cically with execution. In most instances, the risks are remote: Few

murderers are caught, even fewer sentenced to death, and still fewer

actually executed.

In the case of drug tracking, its apparent high

volume suggests that perceptions of risk are realistically low.

For both murderers and drug trackers, with detection and punish-

ment uncertain if not unlikely, and with the payos of drug tracking

well exceeding conventional returns, the net cost hurdle is likely to

defeat deterrence. Empirical research has shown that the calculus drug

oenders apply in their decision making renders deterrence simply

a component of their task to be managed and avoided. But it hardly

changes how net costs are evaluated.

There also are personal rewards that alter the rationality of decision

making. Economic necessity, emotional rewards and other non-rational

44 Paul Robinson and John Darley, “Does the criminal law deter?” Oxford Journal of Law, 24 (2004),

p. 173.

45 See, for example, Scott Phillips and Alena Simon, “Is the modern American death penalty a fatal

lottery? Texas as a conservative test”, Laws, vol. 3 (2014), pp. 85-105, doi:10.3390/laws3010085.

98 99

considerations make severe

penalties unlikely to deter

many acts of murder, drug

tracking or terrorism.

Several ethnographic stud-

ies of decision making by

drug trackers have shown the remoteness of detection and punish-

ment in their thinking. Both in the United States and elsewhere, even

with the death penalty for major drug crimes, there is no evidence that

severe punishments—either death or life in prison without parole—

have aected the price, availability or demand for drugs. Even when

there is a small probability of detection and punishment, these factors

are diminished in the calculus of deterrence among active oenders.

Risks tend to be underestimated and rewards inated by many crim-

inal oenders,

defeating the ability of deterrence to overcome the

“perceived net cost” hurdle of rational decision making.

IS THE DEATH PENALTY AN EFFECTIVE CRIME

CONTROL MEASURE?

Deterrence is an eective crime control measure for crimes such as tax

evasion, minor property crimes and vehicular oenses.

There also is

some evidence that rapid criminal justice responses to marital violence

can be an eective deterrent, but only for some types of oenders.

general, deterrent eects are weakest for the most serious crimes.

have no expectation that executions will deter homicides in the United

States, and limited evidence that they do so elsewhere.

46 For basic expressions of the principles of discounting and risk, see Daniel Kahneman and Amos

Tversky, “Prospect theory: an analysis of decision under risk”, Econometrica: Journal of the Econo-

metric Society, vol. 47, no. 2 (March 1979), pp. 263-291; Amos Tversky and Daniel Kahneman,

“Advances in prospect theory: cumulative representation of uncertainty”, Journal of Risk and

Uncertainty, vol. 5 (1992), pp. 297-323. See, generally, Derek B. Cornish and Ronald V. Clarke,

eds., The Reasoning Criminal: Rational Choice Perspectives on Criminal Oending, 2nd ed. (New

Brunswick, New Jersey, Transaction Publishers, 2014).

47 See, for example, Taku Yokoyama and Taiki Takahashi, “Mathematical neurolaw of crime and

punishment: the qexponential punishment function, Applied Mathematics, vol. 4 (2013), pp. 1371-

1375, doi:10.4236/am.2013.410185; for a review, see Richard H. McAdams, Present Bias and

Criminal Law (John M. Olin Program in Law and Economics Working Paper No. 562, 2011).

48 Daniel Nagin, “Deterrence in the 21stcentury: a review of the evidence”, in Crime and Justice: An

Annual Review of Research, M. Tonry, ed. (Chicago, University of Chicago Press) (2014).

49 Christopher D. Maxwell, Joel H. Garner, and Jerey A. Fagan, “The preventive eects of arrest on

intimate partner violence: research, policy and theory”, Criminology & Public Policy, vol. 2 (2002),

pp. 51-80.

50 Nagin, “Deterrence in the 21stcentury”.

The conditions to establish deterrence for drug trackers would be

infeasible for most sovereign governments, for several reasons. First,

drug trackers are not easy to apprehend. In the countries that carry

out executions for drug oenses, the vast supply of drugs stands in

contrast to the few arrests that are made for drug tracking. Despite

the threat of execution, drugs remain available, large seizures occur

regularly, and few arrests are made. These arrests often are widely

publicized, partially establishing the conditions for deterrence, yet

there seem to be no measurable eects on the supply or price of

drugs in these countries.

Second, to increase the risks of apprehending and convicting drug

trackers, signicant investments in police and prosecution agencies

would be necessary above the current levels of investment, in turn

detracting from the enforcement of other crimes. Police eciency

would also have to improve markedly, the number of arrests for drug

oenses would have to increase signicantly, and corruption would

have to be eliminated. These reforms would strain legal institutions

and weaken other areas of public security. In addition, deterrence

requires eciency in conducting trials to reduce the time so that

drug oenses are temporally connected to arrests. Procedural rights

would be compromised under these conditions, challenging the

legitimacy of governments and courts. The central role of the drug

economy in some states also would pose a barrier to creating the

conditions necessary for deterrence, with institutional incentives o-

setting if not surpassing the demand for punishment and control of

drug tracking.

51 Fuller, “Prots of drug trade drive economic boom in Myanmar”.

“MANY TERRORISTS

VIEW EXECUTION AS A

FORM OF MARTYRDOM.”

—

Jerey Fagan

100

“They took us to trial, and the evidence was the

Stephen King novels that I read, the music I listened

to and the clothes that I wore. They found us

guilty, and I was sentenced to death.”

—Damien Echols

101

CHAPTER 3

DISCRIMINATION

This chapter contains articles by geographically diverse authors showing that,

all over the world, the death penalty disproportionately targets members of

marginalised groups. Discrimination can be based on various characteris-

tics—including racial, ethnic and cultural identity or mental disability—but

poverty almost always plays a role.

Damien Echols and Stephen Braga both describe the so-called West Memphis

Three murder case. He was one of the suspects and the only one sentenced to

death. Damien Echols writes about growing up in poverty and social isola-

tion, feeling dierent from other kids, and the comfort he received from the

books, music, and all-black clothes that others judged him for. At the age of

18, he was wrongfully convicted and sentenced to death. He describes the

horrors of death row and of life in the prison where he spent 18 years.

Stephen Braga, who was his lawyer during an advanced stage of the proceedings,

describes how, based on the West Memphis Three’s appearance and taste for

heavy-metal music, they were accused of being satanists, and how this, as well

as their inability to aord a better defence, led to a wrongful conviction. When

a documentary movie on the trial revealed its shortcomings, growing public

support for the West Memphis Three, including nancial donations, made it

possible to hire rst-rate lawyers on their behalf, and they won their freedom.

Stephen Bright, an academic, analyses the unequal application of the death

penalty in the United States. He nds that the likelihood of receiving the

death penalty relates not only to the crime committed but also to the social

and economic status of the accused. Almost all who are sentenced to death are

poor, and half are members of a racial minority; many did not have a proper

defence. Many have suered from a mental disability or were victims of

childhood abuse. Lawyers who were intoxicated or asleep during trial, were

absent during crucial testimony, did not know their client’s name, said nine

words during sentencing or missed the deadlines for appeals have contributed

to their clients’ convictions and ultimately their executions.

Usha Ramanathan, an activist, writes about poverty, women’s rights, ter-

rorism and the death penalty in her native India, where events such as the

2008 attack on Bombay and recent brutal crimes against women may have

Damien Echols, victim of wrongful conviction and death sentence, USA (West Memphis Three), exonerated after 18 years in prison, speaking at the United Nations Head-

quarters at OHCHR’s Global Panel “Moving away from the death penalty: Wrongful Convictions”, New York, 28 June 2013, © UN Photo/Evan Schneider

103102102

led to resurgence in support for the death penalty. She points to the dangers

that inamed public passions can pose to fair trials, as well as the way that

high-prole trials can further iname divisive emotions, and describes how

many women’s groups reject the notion that the death penalty should be

imposed in their name for the crime of rape.

Alice Mogwe, executive director of DITSHWANELO, the Botswana Centre

for Human Rights, examines the status of the death penalty in Botswana,

in the context of the African human rights architecture. The death penalty

remains on the books in Botswana and is mandatory for murder unless

there are extenuating circumstances. She examines the barriers faced by poor

people and members of ethnic and linguistic minorities in Botswana’s justice

system—including inadequate representation, lack of translation services in

this multilingual country and secrecy surrounding the clemency process—and

supports the call by the African Commission on Human and People’s Rights

for a moratorium on the death penalty.

Innocent Maja, a lawyer and a lecturer at the University of Zimbabwe, anal-

yses the extent to which Zimbabwe has implemented the United Nations

General Assembly resolution on the moratorium on the use of the death pen-

alty. Although there is no ocial moratorium, Zimbabwe has not carried out

an execution since 2004. The country’s 2013 Constitution severely limits the

circumstances in which a death penalty could be imposed, and there is currently

no death penalty law on the books that meets those criteria. But shortcomings

in the legal system—from the paucity of legal aid for indigent defendants to

appalling conditions for death-row prisoners—as well as the fact that Zimba-

bwe has paused and resumed executions before, call for a more nal and formal

end to the death penalty.

Arif Bulkan, an academic from Trinidad and Tobago, analyses the applica-

tion of the death penalty in the Commonwealth Caribbean. While the death

penalty has not been abolished there, its use has been limited by a series of

appeals-court rulings focusing on how it is carried out—for example, limiting

how long a prisoner can be kept on death row, making the pardons process more

accessible and transparent, enabling petitions to international treaty bodies, and

challenging mandatory sentencing. Despite these limits, severe problems in the

legal system—including failure to assess defendants’ mental and psychological

status, the poor quality of legal aid for indigent prisoners, and a low clearance

rate in murder investigations—combine to make the pattern of death sentences

that still do occur tragically arbitrary and useless as a deterrent.

THE TERRORS OF PRISON

FADE SLOWLY

Damien Echols

When I rst arrived on death row, the guards decided they were

going to welcome me to the neighbourhood. So they took me to

the part of the prison they call The Hole. It’s a very small, dark, lthy

place that’s in complete isolation. And for the next 18 days they beat

the hell out of me.They used to come in at about twelve or one

o’clock in the morning, and they would chain me to the bars of

the cell and beat me with nightsticks. They beat me so badly at one

point that I started to piss blood. I still wake up at night sometimes

dreaming that I’m pissing blood again.

They starved me. They tortured me.

Eventually word of what they were doing started to leak out into

the rest of the prison. Other prisoners started to hear about it. So

they went to a deacon from the Catholic Church, who used to

come to prison to bring Catholic inmates communion, and they

told him what was going on. And he went to the warden’s oce,

and he told the warden, “I know what you’re doing to this guy.

I know you’re killing him. And if it doesn’t stop, I’m going to

go public.”

So that night they took me out of The Hole and put me back in a regular

prison cell. The other prisoners told me later that they had expected to

see me carried out in a body bag any day. And I think the only reason

they didn’t murder me is because they realized they were being watched.

When I was a kid my family was beyond dirt poor. When we nally

moved into a trailer park with running water and electricity, we

thought we were really moving up in the world. I used to take refuge

in books and music. Reading became a sanctuary for me. It allowed

me to escape the world I lived in for a little while.

Damien Echols spent 18 years on death row for a crime he did not commit.

104 105

I’d read Stephen King novels over and over and listen to bands like

Iron Maiden. I started dressing in black all the time because it was like

a security blanket for me. It made me feel a little safer in an unsafe and

scary world. I didn’t have many friends; in fact, my only real friend

was a skinny blonde kid with a mullet named Jason Baldwin, and

Jason was with me the night I was arrested.

Jason, my sister, my girlfriend

and I were sitting in the living

room watching movies when

the cops started hammering on

the door. And when I opened

the door, they were pointing

guns at me. They swarmed

into the house like ants. They

stampeded over everything and

pawed through every possession my family owned. They put Jason

and me in handcus, threw us into the backs of cop cars, and took

us to jail.

I spent all night in a cell about the size of a closet. I wasn’t allowed to

go to the bathroom, wasn’t given so much as a drink of water. Every so

often a cop would come in and ask me if I had anything to tell him, or

if I was ready to make my confession yet. This went on all night, until

the next day when we were given an arraignment hearing.

At this hearing the judge told me that I was being charged with

three counts of capital murder, accused of killing three children as

part of a satanic sacrice. He said someone had confessed, but he

refused to read the confession in the courtroom. Instead, I was put

in a broom closet somewhere in the back of the jail and given a

transcript of the confession.

I was only 18 years old, in complete shock and trauma, and suering

from sleep deprivation. My life had just been destroyed. But even so,

I could see that there was something wrong with that document. It

made no sense. It was like some sort of bizarre patchwork Franken-

stein thing that they had stitched together.

“NOTHING IN

THIS CONFESSION

MADE ANY SENSE

WHATSOEVER, BUT IT

DIDN’T MATTER TO

THEM.”

—

Damien Echols

It turned out that they had picked up a mentally handicapped kid in

our neighbourhood and coerced him into making a confession, and

then he was led to implicate Jason and me. Nothing in this confession

made any sense whatsoever, but it didn’t matter to them. I was put in

a cell. I kept thinking,surely someone’s going step in and put a stop

to this. Surely, someone is going to rectify the situation. They can’t

put you on trial and prove you’ve done something you haven’t done.

It seemed to me that science would say that’s impossible.

But they did.

They took us to trial, and the evidence was the Stephen King novels

that I read, the music I listened to and the clothes that I wore. They

found us guilty, and I was sentenced to death—not once, not twice, but

three times. The judge read these death sentences in this really bored,

monotone voice, like it was just another day at the oce for him.

People asked me later, “What were you feeling when he was sentenc-

ing you to die?” It’s almost impossible to describe. If you’ve ever been

beaten, when you’re punched in the head, you don’t register pain. You

see a bright ash of light, hear a loud noise, and you’re completely

disoriented, youhaveno idea where you even are for a few minutes.

That’s what it was like when he was reading those death sentences; it

was like being repeatedly punched in the head.

They sent me to death row. I was in a cell for about a week before

I noticed a shadow on the wall. It was from a man who had already

been executed who was in the cell before I got there. He had stood

against the wall and traced around himself with a pencil really, really

lightly, and then lightly shaded it in. I didn’t even see it for about the

rst week—but after I saw it, I couldn’t un-see it. So for years I slept

on a dead man’s mattress,stared at a dead man’s shadow, and lived in

the cell with ghosts.

People led appeal after appeal on my behalf, all before the same

judge who sentenced me to death. He denied them all. Even when

new DNA evidence came in that excluded me and the other two

guys from the crime scene, the judge still said: “This is not enough.”

106 107

Then we were allowed to appeal to the Arkansas Supreme Court, and

by that time public awareness and interest in the case had been build-

ing. There’d been documentaries, books, and countless newspaper

and magazine articles and TV shows. So the Arkansas Supreme Court

justices knew they were being watched. In the end, the only thing

they really cared about was winning the next election. So they ruled

that all of the new evidence would be heard, and the prosecutors

realized that meant there was going to be anothertrial.

So a deal was hammered out—an Alford Plea. What an Alford Plea

means is that I plead guilty, and I walk out of the courtroom, and I

can still publicly maintain my innocence, but I can’t sue the state.

People have asked me what I was thinking about the day that I went

into court knowing that I could very well go home that day. And the

truth is, I wasn’t thinking anything. By that time I was so tired and

beat down that all I wanted to do was rest. I was dying. My health was

deteriorating rapidly. I was losing my eyesight. I knew I wasn’t going

to make it much longer.

The prosecutor said that one of the factors in his making this deal

was the fact that the three of us together could have collectively sued

the state for $60 million. I knew they could have had me stabbed to

death for $50 any day of the week. It happens in prison all the time.

So I knew if I didn’t take that deal, one way or another I would never

live to see the outside of those prison walls. So I took it.

I’ve been out of prison now for almost two years. I lived in terror

every single day for the rst year or so, but it’s getting better. I’m still

scared sometimes,but I’m trying to ght my way through it. And I

know that I will eventually be free from fear and anxiety. I’ll do it, and

I’ll be free, because if there’s one thing that I learned from 18 years in

prison, it was how to ght.

DAMIEN ECHOLS AND THE WEST

MEMPHIS THREE CASE: A SEARCH

FOR MOTIVE RUN AMOK

Stephen L. Braga

On a beautiful spring afternoon in 1993, three young boys dis-

appeared from their neighbourhood in West Memphis, Arkansas,

around dinnertime. The next day their bodies were found, naked,

bound and in horric condition, submerged in a creek in the

woods. Fear and panic quickly swept through the community, along

with rumours about the murders, including that a satanic cult was

to blame.

Shortly thereafter, three local teenagers—Damien Echols, Jason Bald-

win and Jessie Misskelley—were charged with the murders. Echols’s

own lawyer called him the “weird” kid in town because of the way

he dressed and acted, which—along with his rst name—played

right into the sensational nature of the allegations. Agreements were

reached to lm the teenagers’ trials and surrounding circumstances

for a documentary, with defence lawyers, prosecutors and even the

victims’ families playing leading roles. Less than a year later, the three

teenagers were convicted in two separate trials. Baldwin and Misskel-

ley were sentenced to life in prison without the possibility of parole;

Echols was sentenced to death by lethal injection.

Questions arose almost immediately about the validity of the teen-

agers’ convictions. The evidence seemed thin, and the alleged motive

was almost impossible to believe. Public release of the documentary

Paradise Lost spread those questions worldwide. Journalists, research-

ers, supporters and new counsel for the three teenagers began to

re-examine every aspect of the case. What they found was deeply

disturbing at every level, but perhaps nothing was more troubling

than the facts surrounding the prosecution’s purported proof of the

alleged motive for the murders.

1 Stephen Braga is a professor at the University of Virginia School of Law and counsel for

Damien Echols, whose essay also appears in this volume.

108 109

As the United States Supreme Court has noted, “when identity is in

question, motive is key.”

Identity was the issue in this case. There was

no question that the three young boys had been brutally murdered;

the only question was who did it. To convince the jury that the West

Memphis Three were the perpetrators of these crimes, the prosecu-

tors had to establish a motive for why they would kill three young

boys with whom they had no prior relationship.

The motive associated with the prosecution theory at trial was clearly

explained by prosecutor John Fogelman during his closing argument

to the jury:

That’s the only thing that matters, in relation to motive. The testi-

mony in this case was that these murders—when you take the crime

scene, the injuries to these kids, the testimony about the sucking of

blood—and do you remember there was testimony about that—in

the satanic areas that blood is a life force, there is a transference of

power from drinking of blood—when you take all of that together,

the evidence was that this murder had the trappings of an occult

murder. A satanic murder.

To establish this theory of motive, the prosecution used ques-

tionable science, awed forensic science and the testimony of a

prison informant, and played on the rampant fear and prejudice

in the community at the time. The jury bought it, hook, line

and sinker.

THE EXPERT TESTIMONY

The questionable science came in the form of testimony from Dale

Gris, a purported expert in satanic and occult behaviour. After the

trials, the institution from which Gris received his master’s and PhD

degrees (without ever attending a class or taking a test) was shut down

by the state of California. During his testimony, Gris conceded that

he had only previously worked on one criminal case involving an

alleged satanic motive, and that motive was not too hard to gure out

since a pentagram had been carved into the victim’s body.

2 House v. Bell, 547 U.S. 518, 540 (2006).

Given this background, it was hardly surprising that Gris’s tes-

timony about the West Memphis murders was a collection of

generalizations. According to Gris, the wearing of black clothing,

such as Damien favoured, was a sign of occult beliefs, as was listen-

ing to heavy metal bands like Led Zeppelin. The reading of books

about magic and horror, such as the Stephen King novels Damien

was fond of, was also a sign of an occult mindset, he said, as was

writing dark fantasy poetry. The fact that the murders happened on

the night of a full moon was yet another indicator of occult activity,

as was the location of the murders in a wooded area. In perhaps

the most outrageous aspect of his testimony, Gris responded to

the judge’s question about whether the fact that there were three

victims was relevant to his analysis by stating that it was because 666

was the number for the Devil and if that number was divided by

two the result was 333. Twenty years later, it is hard to do anything

but laugh at such ridiculous testimony, but at the time of Echols’s

trial it was deadly serious.

The only specics Gris relied on for his conclusions about the

murders were (1) forensic evidence that a knife was used to emascu-

late one victim and to create ritualistic patterned wounds on all three

victims, and (2) testimony by prison informant Michael Carson that

Jason Baldwin admitted details of the crime to him while they were

incarcerated together. Neither piece of evidence was accurate.

THE FLAWED FORENSICS

With great ourish during his closing argument, prosecutor John

Fogelman performed a demonstration with a large serrated knife and

a grapefruit in order to convince the jury that the knife had made the

allegedly serrated pattern wounds on the victims’ bodies. In his rebut-

tal closing argument, prosecutor Brent Davis added that the knife was

used in the genital mutilation of one of the victims. The knife had

been found in the lake behind Jason Baldwin’s home, which made it

all the more suspicious to the prosecutors and incriminating to the

jury. The prosecutors’ claims about the knife being used to inict the

victims’ injuries was based on the testimony of the state’s forensic

pathologist, Frank Peretti.

110 111

However, subsequent re-examination by several of the country’s lead-

ing forensic pathologists found Peretti’s testimony to be completely

wrong. Each of these experts, evaluating the evidence independently,

concluded that the injuries suered by the victims were caused by

post-mortem animal predation rather than by a knife. Thus, the inju-

ries with the alleged serrated-knife patterns and the emasculation of

one victim were caused by animals attacking the young boys’ bodies

in their watery grave, not by a knife used as part of a satanic ritual

killing. The unanimity of these experts is as striking as their ndings,

which leave no room for doubt that the forensic arguments used to

convict the West Memphis Three and to sentence Damien Echols to

death were wholly unfounded.

How could the state’s forensic pathologist have been so wrong? Per-

etti had failed the board examination for forensic pathologists twice,

yet Arkansas law permitted him to keep his state job. Arkansas law,

like that in many states, provided little funding for criminal defence

attorneys to hire their own experts in court-appointed criminal cases.

So the system enabled a weakly (if at all) qualied expert with the

imprimatur of a state title to impress the jury more than whatever the

defence could come up with on a limited budget.

Everyone recognizes that money can make a dierence in the eec-

tiveness of a criminal defence, but the West Memphis Three case

provides a particularly dramatic example of the human tragedy that

can result. At trial with limited resources, Damien Echols was unable

to eectively counter the state forensic pathologist’s evidence that

a knife had been used to commit the murders. After the trial, with

the nancing of numerous well-to-do supporters, Echols was able to

retain the world’s best forensic pathologists to testify, in unison, that

the state’s expert was completely wrong and that no knife had been

used in the crimes. The case for adequate defence funding in criminal

justice systems around the world could hardly be made more clear. It

can literally be a matter of life and death.

THE PRISON INFORMANT

In another of the trial’s dramatic moments, the prosecutors called

inmate Michael Carson to the stand to recount statements allegedly

made to him by Jason Baldwin about the murders while the two

men were briey incarcerated together. Carson said that Baldwin had

told him about sucking blood from a victim, which is what Gris

relied on for the blood-related element of his conclusion that the

crime had an occult aspect. Gris conceded on cross-examination

that if Michael Carson’s testimony was false, then there was no other

evidence in the case to connect Baldwin to the occult.

Although the jury accepted Carson’s testimony as credible, it too

turned out to be false on later re-examination. Prison informants

make notoriously unreliable witnesses, as Brandon Garrett’s landmark

book Convicting the Innocent makes clear.

Carson proved to be even

more unreliable than most. As Carson himself explained in the movie

West of Memphis,

he was a heavy drug user at the time of his testi-

mony, could not distinguish between reality and fantasy, and had no

idea what he was doing or why. To this day, Carson is not certain

whether Baldwin ever made the statements he testied about at trial,

and he has publicly apologized to Baldwin.

FEAR AND PREJUDICE

Like Salem, Massachusetts, during the witch hysteria of the late

1600s and New York City in the 1980s at the time of the Central

Park jogger’s brutal beating and rape (for which ve defendants were

wrongfully convicted), rural Arkansas was terried by the West Mem-

phis murders. Who could possibly have committed such unthinkably

heinous acts? Adding allegations of satanic activity with ritualistic

knife murders and the drinking of blood into the investigation of

these murders was like tossing a Molotov cocktail of prejudice into

the mix. Who could be impartial, dispassionate and analytical, who

would not be afraid in the face of such a panoply of evil? Due process

disappears when such fear and prejudice creep into the system to

warp people’s judgment.

Regrettably, fear and prejudice did not merely creep into the West

Memphis Three case—they were injected into the case by prosecutors

3 Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge,

Massachusetts: Harvard University Press, 2011).

4 A my Berg (director),

West of Memphis (Sony Pictures Classics, 2012).

112 113

and law enforcement authorities. In West of Memphis, Steve Jones, an

Arkansas State Criminal Justice ocial who searched for and found

the victims’ bodies, recalled a pretrial conversation with prosecutor

Fogelman in which, in response to Jones’s inquiry, Fogelman told him

that the case was not satanic and was “just a murder.” Unfortunately,

Jones told no one at the time about this.

During the subsequent trials, the

prosecutors used the satanic char-

acterization of the case whenever

and wherever they could. Such

appeals to jurors’ “passions and

prejudices” have long been out-

lawed precisely because of their

power to distract the jury from

an impartial evaluation of the evi-

dence and encourage an emotional

response to what they have heard. Yet those arguments were allowed

to be made in this case and proved damning.

Many other errors were committed during the trial. But on the basis

of the errors relating to motive alone, the defendants never had a

chance. In the juror’s minds, the weird kid with the bad attitude,

dressed in black, listening to violent metal music and reading coun-

terculture books, simply had to be the ringleader of these horrible

crimes—because it could not possibly have been a regular member

of the community. Or could it?

A FRESH LOOK AT MOTIVE

As part of the post-trial eorts to free the West Memphis Three,

the Echols defence team retained forensic proling expert John

Douglas, the former head of the FBI’s Behavioral Science Unit.

Douglas reviewed the crime without meeting any of the defen-

dants because he did not want personal relationships to play a

role in his analysis. Douglas could not have been more emphatic

in rejecting the prosecution’s theory that the crimes t a satan-

ic-murder pattern. As Douglas explained, in the early 1990s, the

FBI was ooded with claims of satanic crimes due to fears and

“TERRIBLE

TRAGEDIES

INVOLVING

SENSATIONAL

CRIMES TOO OFTEN

MAKE BAD LAW.”

—

Stephen L. Braga

rumours running rampant at the time. According to Douglas, the

FBI examined all of them and found that none of them consti-

tuted satanic crimes. Rather, they were all attributable to more

traditional motives for criminal activity.

As Douglas saw it, the murders of which the West Memphis Three

were accused were also explainable by a far more typical motive and

were likely committed by someone who had a personal relationship

with one or more of the victims and whose actions were triggered

by some cause arising from that relationship. Yet in their rush to

judgment to solve this crime under the mistaken notion of a satanic

motive, the West Memphis police ignored a number of leads and sus-

pects which would have more naturally t into Douglas’s prole for

the killer or killers.

CONCLUSION

An old adage tells us that “hard cases make bad law.” Terrible tragedies

involving sensational crimes too often make bad law as well. One

need look no further than this case, or that of the Central Park Five,

to see evidence of this, although there are many other examples as

well. When authorities use aggressive tactics to rush to judgment to

quell community fear in such notorious cases, and when those fearful

community members wind up serving as jurors reviewing evidence

of unspeakable horror, mistakes happen and wrongful convictions

result. Fortunately for the Central Park Five, New York had no death

penalty at the time of their wrongful convictions. Arkansas did have

the death penalty, and Damien Echols came within weeks of being

executed for a crime he did not commit.

The nality of the death penalty is its strongest point for those who

believe in it—and its weakest point for those who oppose it. After

watching a documentary on the Central Park Five, commentator

George Will summarized the conservative case against the death pen-

alty: “Its nality leaves no room for rectifying mistakes.”

This is not

just a liberal Democratic issue. It is a social justice issue.

5 George Will, “‘Central Park Five’ tells of a gross miscarriage of justice”, Washington Post,

12 April 2013.

114 115

As an empirical matter, we must acknowledge that mistakes happen

in an imperfect criminal justice system run by fallible human beings.

Those mistakes include wrongful convictions imposing the death

penalty. For example, the work of the Innocence Project demon-

strates that 18 of the rst 300 prisoners exonerated after wrongful

convictions on the basis of scientically unimpeachable DNA evi-

dence had been on death row. Eighteen people might have been

executed even though they were demonstrably innocent. The case of

Damien Echols is yet another instance.

The best judicial system in the world cannot guarantee 100 percent

accuracy. The risk of inaccuracy creates the very real possibility that

an innocent man or woman might be executed. No civilized society,

operating under any modern notion of the rule of law, can condone

such a possibility. We likewise cannot ignore it. The only sensible and

just approach in the face of such facts is a worldwide moratorium on

the death penalty.

IMPOSITION OF THE DEATH

PENALTY UPON THE POOR,

RACIAL MINORITIES, THE

INTELLECTUALLY DISABLED

AND THE MENTALLY ILL

Stephen B. Bright

The death penalty is imposed in the United States upon the poorest,

most powerless, most marginalized people in the society. Virtually all

of the people selected for execution are poor, about half are members

of racial minorities, and the overwhelming majority were sentenced

to death for crimes against white victims. Many have a signicant

intellectual disability or suer from a severe mental illness. Many

others were the victims of brutal physical, sexual and psychological

abuse during childhood and lived on the margins of society before

their arrests. Some are innocent. They are subject to discretionary

decisions by law enforcement ocers, prosecutors, judges and jurors

that are often inuenced by racial prejudice. Because of their pov-

erty, they are often assigned lawyers who lack the skills, resources and

inclination to represent them capably in capital cases.

One does not need to look far for illustrative examples. As of this

writing, the state of Georgia plans to execute Warren Hill, an African

American man, despite the fact that he is intellectually disabled.

The United States Supreme Court has held that the Constitution

does not allow the execution of a person who is intellectually dis-

abled (once called “mentally retarded”),

but Georgia requires that a

person facing death prove intellectual disability beyond a reasonable

doubt. Although four experts testied at the hearing on the issue

that Hill was not intellectually disabled, they all later changed their

1 Stephen Bright is president and senior counsel of the Southern Center for Human Rights in

Atlanta, Georgia, and Harvey Karp visiting lecturer at Yale Law School.

2 It has been delayed in doing so while the state’s supreme court considered and rejected his

challenge to the secrecy of its lethal injection procedures.

Owens v. Hall, 758 S.E.2d 794

(Ga. 2014).

Atkins v. Virginia, 536 U.S. 304 (2002) (using the term “mental retardation”).

116 117

opinions when they reviewed additional information about him. As

a result, all nine experts who have examined Hill have found that he

is intellectually disabled.

Nevertheless, the state and federal courts have held that they are pow-

erless to prevent a patently unconstitutional execution.

Before the Supreme Court held that the mentally retarded could not

be executed, a Florida court found that Freddie Lee Hall had been

“mentally retarded his entire life.”

But after the Supreme Court’s

decision, the Florida courts held that he is not retarded and could be

executed because of an IQ score above 70.

However, the United States

Supreme Court held that Florida could not treat an IQ score above 70

as nal and conclusive and, instead, must consider other evidence of

intellectual disability. Other states have fashioned their own denitions

of intellectual disability. The Texas Court of Criminal Appeals held

that someone with the severe mental limitations of Lennie in John

Steinbeck’s Of Mice and Men (1973) would be exempt from the death

penalty, but not others who were diagnosed by psychologists as intel-

lectually disabled.

This denition allowed Texas to execute Marvin

Wilson in 2012, even though he had an IQ of 61, which is below the

rst percentile in human intelligence, sucked his thumb, and could not

tell the dierence between left and right.

Glenn Ford, a black man, was released in March 2014 after 30 years

on death row in Louisiana’s notorious Angola Prison for a crime he

did not commit.

As a result of his poverty, Ford was assigned two

lawyers to represent him at his capital trial. The lead attorney was

4 Hall v. Florida, 134 S.Ct. 1986, 1991 (2014).

5 Ibid.; Andrew Cohen, “Supreme Court case may stop states that still execute mentally disabled”,

The Atlantic, 28 February 2014, available from www.theatlantic.com/health/archive/2014/02/

supreme-court-case-may-stop-states-that-still-execute-the-mentally-ill/283969/.

Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004).

7 Andrew Cohen, “Of mice and men: the execution of Marvin Wilson”, The Atlantic, 8 Aug

2012, available from www.theatlantic.com/national/archive/2012/08/of-mice-and-men-the-exe-

cution-of-marvin-wilson/260713/.

8 Andrew Cohen, “Freedom after 30 years on death row”, The Atlantic, 11 March 2014, available

from www.theatlantic.com/national/archive/2014/03/freedom-after-30-years-on-death-

row/284179/; Andrew Cohen, “Glenn Ford’s rst days of freedom after 30 years on death row”,

The Atlantic, 14 March 2014, available from www.theatlantic.com/national/archive/2014/03/

glenn-fords-rst-days-of-freedom-after-30-years-on-death-row/284396/; Andrew Cohen,

“The meaning of the exoneration of Glenn Ford”,

Brennan Center, 13 March 2014, www.

brennancenter.org/analysis/meaning-exoneration-glenn-ford.

an oil and gas lawyer who had never tried a case, criminal or civil,

before a jury. The second attorney had been out of law school for

only two years and worked at an insurance defence rm on slip-and-

fall cases. As often happens in capital cases, the prosecutors used their

peremptory strikes to keep blacks o the jury. Despite a very weak

case against him, Ford, virtually defenceless before an all-white jury,

was sentenced death.

Ford is just one of many people who were found guilty beyond a

reasonable doubt in capital and non-capital cases but were actually

not guilty at all. States have already executed innocent people—like

Carlos DeLuna and Cameron Todd Willingham in Texas

—and will

continue to do so as long as they have the death penalty.

Missouri executed John Middleton in July 2014, despite questions

about his guilt and his mental competence. United States Appeals Court

Judge Kermit Bye, dissenting from a decision vacating a stay granted

by a lower court, stated, “Missouri is positioned to execute a man who

may very well be incompetent. That fact simply cannot be denied or

overstated. But, for some reason, that fact has been ignored.”

Florida

executed John Ferguson, a black man, who suered from schizophre-

nia, in 2013 even though he believed that he was the Prince of God

and that after execution, he would be resurrected and return to earth

in that capacity. The federal Court of Appeals in Atlanta treated this

as nothing more than an unusual religious belief:

While Ferguson’s thoughts about what happens after death

may seem extreme to many people, nearly every major

world religion—from Christianity to Zoroastrianism—

envisions some kind of continuation of life after death,

often including resurrection. Ferguson’s belief in his ultimate

corporeal resurrection may dier in degree, but it does

9 James S. Liebman, The Wrong Carlos: Anatomy of a Wrongful Execution (New York, Columbia

University Press, 2014); and “The wrong Carlos”, available from www3.law.columbia.edu/

hrlr/ltc/; David Grann, “Trial by re: did Texas execute an innocent man?”,

The New Yorker, 7

September 2009, available from www.newyorker.com/reporting/2009/09/07/090907fa_fact_

grann?printable=true.

10 Chris McDaniel, “After delays, Missouri carries out sixth execution this year”, St. Louis Public

Radio, 16 July 2014, available from http://news.stlpublicradio.org/post/after-delays-missou-

ri-carries-out-sixth-execution-year.

118 119

not necessarily dier in kind, from the beliefs of millions

of Americans.

The court warned against treating unusual religious beliefs as proof

of mental illness. But religious delusions and obsessions are frequent

manifestations of mental illness. This was just an eort by judges to

gloss over the fact that Florida and other states are executing people

who are out of touch with reality.

POVERTY AND POOR LAWYERING

Georgia plans to execute Robert Wayne Holsey, an African Amer-

ican, even though he was represented at his trial by a lawyer who

drank a quart of vodka every night of trial and was preparing to

be sued, criminally prosecuted, and disbarred for stealing client

funds.

Holsey’s other court-appointed lawyer had no experience in

defending capital cases and was given no direction by the alcoholic

lawyer in charge of the case except during trial, when she was told to

cross-examine an expert on DNA and give the closing argument at

the penalty phase.

The lawyers failed to present mitigating evidence

that might well have convinced the jury to impose life imprisonment

instead of death: Holsey was intellectually limited and as a child had

been “subjected to abuse so severe, so frequent, and so notorious that

his neighbours called his childhood home ‘the Torture Chamber.’”

Holsey was by no means the rst person sentenced to death at a

trial where he was represented by a drunken lawyer. Ronald Wayne

Frye, executed by North Carolina, was represented by a lawyer who

drank 12 shots of rum a day during the penalty phase of the trial.

And there are other cases of intoxicated lawyers, drug-addicted law-

yers, lawyers who referred to their clients with racial slurs in front

of the jury, lawyers who slept through testimony (three people were

11 Ferguson v. Secretary, 716 F.3d 1315, 1342 (11th Cir. 2013).

12 Marc Bookman, “This man is about to die because an alcoholic lawyer botched his case”,

Mother Jones, 22 April 2014, available from www.motherjones.com/politics/2014/04/alcohol-

ic-lawyer-botched-robert-wayne-holsey-death-penalty-trial?page=2.

13 Ibid.

Holsey v. Warden, 694 F.3d 1230, 1275 (11th Cir. 2012) (Barkett, J., dissenting).

15 Jerey Gettleman, “Execution ends debatable case”,

Los Angeles Times, 31 August 2001, avail-

able from http://articles.latimes.com/2001/aug/31/news/mn-40577.

sentenced to death in Houston at trials in which their lawyers slept

lawyers who were not in court when crucial witnesses testied, and

lawyers who did not even know their client’s names.

There are lawyers who never read their state’s death penalty statute,

lawyers who led one client’s brief in another client’s death penalty

appeal without changing the names, and lawyers who missed dead-

lines that cost their clients review of their cases.

James Fisher Jr. spent 261/2 years in the custody of Oklahoma—

most of it on death row—without ever having a fair and reliable

determination of his guilt. The lawyer assigned to represent him

tried his case and 24 others, including another capital murder case,

during September 1983.

The lawyer made no opening statement or

closing argument at either the guilt or sentencing phase and uttered

only nine words during the entire sentencing phase.

On appeal, the

Oklahoma Court of Criminal Appeals pronounced itself “deeply dis-

turbed by defence counsel’s lack of participation and advocacy during

the sentencing stage,” but it was not disturbed enough to reverse the

conviction or sentence.

Nineteen years later, a United States Court of Appeals set aside

the conviction and death sentence, nding that Fisher’s lawyer was

16 Even though George McFarland’s lawyer was snoring, the presiding judge took no action,

saying, “The Constitution does not say that the lawyer has to be awake.” John Makeig, “Asleep

on the job: slaying trial boring, lawyer said”,

Houston Chronicle, 14 August 1992, p. A35.

McFarland’s conviction and death sentence were twice upheld by the Texas Court of Criminal

Appeals.

Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005); McFarland v. State, 928

S.W.2d 482 (Tex. Crim. App. 1996). Carl Johnson was executed even though his lawyer, Joe

Frank Cannon, slept during parts of trial. David Dow, “The state, the death penalty, and Carl

Johnson”,

Boston College Law Review, vol. 37, no. 4 (1 July 1996), pp. 691-711. Cannon also

slept during the trial of Calvin Burdine. The Texas Court of Criminal Appeals upheld the

conviction and sentence, but the federal court of appeals set aside the conviction, holding, over

a bitter dissent, that a sleeping lawyer is absent from trial and thus a denial of counsel.

Burdine v.

Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).

17 See Stephen B. Bright and Sia M. Sanneh, “Fifty years of deance and resistance after Gideon

v. Wainwright”,

Yale Law Journal, vol. 122, no. 8 (2013), pp. 2150-2174, available from www.

yalelawjournal.org/essay/fty-years-of-deance-and-resistance-after-gideon-v-wainwright;

Kenneth Williams, “Ensuring the capital defendant’s right to competent counsel: it’s time

for some standards!”,

Wayne Law Review, vol. 51 (2005), pp. 129-162; Jerey L. Kirchmeier,

“Drink, drugs, and drowsiness: the constitutional right to eective assistance of counsel and

the Strickland prejudice requirement”,

Nebraska Law Review, vol. 75 (1996), pp. 425, 455-462;

Bruce A. Green, “Lethal ction: the meaning of ‘counsel’ in the Sixth Amendment”, Iowa Law

Review, vol. 78 (1993), pp. 433 .

Fisher v. Gibson, 282 F.3d 1283, 1293 (10th Cir. 2002).

19 Ibid., p. 1289.

Fisher v. State, 739 P.2d 523, 525 (Okla.Crim.App.1987).

120 121

“grossly inept,” had “sabotaged” Fisher’s defence by repeatedly reit-

erating the state’s version of events, and was disloyal by “exhibiting

actual doubt and hostility toward his client’s case.”

The Court of

Appeals would not reach the same result today, because Congress

has severely restricted its power to review state court judgments and

grant habeas corpus relief.

Today, Fisher would probably be exe-

cuted. And Robert Holsey’s death sentence would almost certainly

have been set aside if the federal courts had considered his case before

the restrictions were adopted.

James Fisher was assigned another bad lawyer for his retrial in 2005.

The lawyer was drinking heavily, abusing cocaine and neglecting his

cases.

The lawyer phys-

ically threatened Fisher

at a pretrial hearing and,

as a result, Fisher refused

to attend his own trial.

He was again convicted

and sentenced to death,

but this time Oklahoma’s

highest criminal court

recognized the disgraceful incompetence of his lawyer and set the

conviction aside.

Prosecutors agreed to Fisher’s release in July 2010,

provided that he be banished from Oklahoma forever.

Juan Balderas was sentenced to death in Houston in March 2014.

He was represented by Jerome Godinich, an attorney who missed

the statute of limitations in two federal habeas corpus cases ve years

21 Ibid., pp. 1289, 1300, 1308.

22 The Antiterrorism and Eective Death Penalty Act, adopted in 1996, restricts federal review of

convictions and death sentences imposed in the state courts in many ways. Among its provisions

is one that provides that habeas relief may not be granted unless the state court’s decision

“was contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” 28 U.S.C. § 2254(d)(1) (2006). The

Supreme Court has held that a “state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.”

Harrington v. Richter, 131 S. Ct. 770, 786 (2011), quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004). The Court added in Richter: “If this standard is dicult to

meet, that is because it was meant to be” (ibid.).

Fisher v. State, 206 P.3d 607, 610-11 (Okla. Crim. App. 2009).

24 Ibid., p. 610.

25 Ibid., pp. 612-613.

26 Dan Barry, “In the rearview mirror, Oklahoma and death row”,

New York Times, 10 August

2010, available from www.nytimes.com/2010/08/11/us/11land.html.

“THE DEATH PENALTY

IS ONE OF AMERICA’S

MOST PROMINENT

VESTIGES OF SLAVERY

AND RACIAL OPPRESSION.”

—

Stephen B. Bright

earlier, depriving his clients of any review of their cases by inde-

pendent, life-tenure federal judges.

Both clients were executed. Yet,

despite such gross malpractice, the Texas Bar took no action, nor did

the Texas Court of Criminal Appeals. The trial court judges in Hous-

ton continued appointing Godinich to defend poor people accused

of crimes, including in capital cases. He has been the lawyer in as

many as 350 criminal cases at one time.

Micah Brown was sentenced to death in May 2014, represented by

Toby Wilkinson, who led appellate briefs in two capital cases in 2006

that contained gibberish, repetitions, and rambling arguments. In one

case, Wilkinson clearly lifted passages from one of his previous cases so

that in places the brief discussed the wrong crime and used the wrong

names. In the other case, Wilkinson included portions of letters sent to

him by his client.

No matter how egregiously lawyers handle a capital

case, Texas judges keep appointing them to represent others.

Lawyers have missed the statute of limitations in at least seven other

cases in Texas. In 2014, the federal courts refused to consider an appeal

in the case of Louis Castro Perez, who was sentenced to death in Texas,

because his lawyer without telling Perez or other counsel on the case

did not le a notice of appeal.

One judge dissented, pointing out

that the lawyer’s failure to le a notice of appeal was “an egregious

breach of the duties an attorney owes her client” and that Perez had

made a strong showing that he may have been sentenced to death in

violation of the Constitution.

In Florida, lawyers assigned to represent

condemned inmates have missed the statute of limitations in 34 cases,

depriving their clients of any review of their cases by federal courts.

Many people are sentenced to death and executed in the United

States not because they committed the worst crimes, but because they

had the misfortune to be assigned the worst lawyers. Over 100 people

27 Lise Olsen, “Lawyers’ late lings can be deadly for inmates”, Houston Chronicle, 22 March

2009, available from www.chron.com/news/houston-texas/article/Slow-paperwork-in-death-

row-cases-ends-nal-1736308.php.

28 Maro Robbins, “Convict’s odds today may rest on gibberish”,

San Antonio Express-News, 24

August 2006.

Perez v. Stephens, 745 F.3d 174 (5th Cir. 2014).

30 Ibid., pp. 182, 187, 191-92 (Dennis, J., dissenting).

Lugo v. Secretary, 750 F.3d 1198, 1216-18, 1222-26 (11th Cir. 2014) (Martin, J., dissenting)

(listing the 34 cases).

122 123

sentenced to death in Houston, Harris County, Texas, have been exe-

cuted in the last 40 years. The reason is no secret: Harris County

judges appoint incompetent lawyers to represent people facing the

death penalty

and, after they are sentenced to death, the condemned

are assigned equally bad lawyers to represent them in post-conviction

proceedings. There is not even the pretence of fairness.

United States Supreme Court Justice Ruth Bader Ginsburg has said, “I

have yet to see a death case, among the dozens coming to the Supreme

Court on eve of execution petitions, in which the defendant was well

represented at trial.”

United States Circuit Judge Boyce Martin has

pointed out that defendants with “decent lawyers” often avoid death

sentences, while those assigned bad lawyers are sentenced to death.

It is disturbing how commonly courts and prosecutors are willing

to overlook the gross incompetence of counsel when it occurs, and

how doggedly they try to defend the death sentences that result.

Trial judges, who are elected in most states, are often the ones who

appointed the incompetent lawyers. And they appoint them in case

after case, as Texas judges have done with Jerome Godinich and

Toby Wilkinson. Prosecutors have no incentive to demand that their

courtroom adversaries be qualied and eective. The poor quality of

counsel in capital cases is well known, but very little, if anything, is

being done about it in many states.

32 For example, one lawyer repeatedly appointed by judges in Houston had 20 clients sentenced

to death due largely to his failure to “conduct even rudimentary investigations.” Adam Liptak,

“A lawyer known best for losing capital cases”,

New York Times, 17 May 2010, available from

www.nytimes.com/2010/05/18/us/18bar.html?_r=0. Houston judges repeatedly appointed

Ron Mock, despite his poor performance in capital cases. Sara Rimer and Raymond Bonner,

“Texas lawyer’s death row record a concern”,

New York Times, 11 June 2000, available from

www.nytimes.com/2000/06/11/us/texas-lawyer-s-death-row-record-a-concern.html. Sixteen

people represented by Mock were sentenced to death. Andrew Tilghman, “State bar suspends

troubled local lawyer,”

Houston Chronicle, 12 February 2005. Another favourite was Joe Frank

Cannon, who was known for trying cases like “greased lightning” and not always being able to

stay awake during trials; 10 people represented by Cannon were sentenced to death. Paul M.

Barrett, “Lawyer’s fast work on death cases raises doubts about the system”,

Wall Street Journal,

7 September 1994.

33 Stephen B. Bright, “Death in Texas: not even the pretense of fairness”,

The Champion, vol. 23

(July 1999), pp. 1-10, available from http://library.law.yale.edu/sites/default/les/death_in_tex-

as_champion_99.pdf; Stephen B. Bright, “Elected judges and the death penalty in Texas: why

full habeas corpus review by independent federal judges is indispensable to protecting consti-

tutional rights”,

Texas Law Review, vol. 78 (2000), pp. 1805-1837, available from http://library.

law.yale.edu/sites/default/les/electedjudges.pdf.

34 Ruth Bader Ginsburg, “In pursuit of the public good: lawyers who care”, lecture at the District

of Columbia School of Law, 9 April 2001, available from www.supremecourt.gov/publicinfo/

speeches/viewspeeches.aspx?Filename=sp_04-09-01a.html.

Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting).

RACIAL DISCRIMINATION

The death penalty is one of America’s most prominent vestiges of

slavery and racial oppression.

It was essential to the institution of

slavery. Michigan abolished the death penalty in 1846, and other

northern states repealed their death statutes or restricted the use

of the death penalty before the Civil War. But that could not be

done in the South—in states that had a captive population. After

the Civil War, the death penalty continued to be imposed on Afri-

can Americans; some crimes were punishable by death depending

upon the race of the oender and the victim. Slavery was perpet-

uated through the system of convict leasing: Black people were

arrested on minor charges—such as loitering, not having proper

papers, or theft, and then leased to the railroads, coal mines and

turpentine camps.

Today, the courts remain the part of American society least aected by

the civil rights movement of the mid-20th century. Many courtrooms

in the South today look no dierent than they did in the 1950s. The

judge is white, the prosecutors are white, the court-appointed lawyers

are white, and, even in communities with substantial African Ameri-

can populations, the jury is often all white. It is well known and well

documented that a person of colour is more likely than a white person

to be stopped by police, to be abused during that stop, to be arrested

after the stop, to be denied bail when brought to court, and to receive

a severe sentence, whether it is jail instead of probation or the death

penalty instead of life imprisonment without the possibility of parole.

The two most important decisions made in every death penalty case are

made by prosecutors: whether to seek the death penalty and whether to

36 See Stephen B. Bright, “Discrimination, death and denial: the tolerance of racial discrimination

in the iniction of the death penalty”, Santa Clara Law Review, vol. 35 (1995), pp. 433-483,

available from http://library.law.yale.edu/sites/default/les/discrimination_death.pdf.

37 Douglas A. Blackmon’s

Slavery by Another Name: The Re-Enslavement of Black Americans from

the Civil War to World War II (New York, Doubleday, 2008) describes how slavery was perpetuated

until World War II in Alabama through convict leasing; David M. Oshinsky’s, Worse than Slavery:

Parchman Farm and the Ordeal of Jim Crow Justice (New York, Free Press, 1996) describes convict

leasing in Mississippi and other southern states.

38 See, for example, Amy E. Lerman and Vesla M. Weaver, Arresting Citizenship: The Democratic

Consequences of American Crime Control (Chicago, University of Chicago Press, 2014); Cynthia

E. Jones, “‘Give us free’: addressing racial disparities in bail determinations”, New York University

Journal of Legislation and Public Policy, vol. 16 (2013), pp. 919 ; Michelle Alexander, The New

Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, Free Press, 2010).

124 125

resolve the case through a plea bargain for a sentence less than death. Those

decisions are often inuenced by race. Some people who are intellectually

disabled or mentally ill reject plea oers with little or no understanding of

what they are doing and are later sentenced to death at trial.

Prosecutors continue to use their discretionary strikes to prevent or

minimize the participation of members of racial minorities on juries.

A Supreme Court decision purportedly preventing such discrimina-

tion by requiring prosecutors to give race-neutral reasons for their

strikes is widely regarded as a farce. After calling the process a “cha-

rade,” one court described it as follows: “The State may provide the

trial court with a series of pat race-neutral reasons . . . . [W]e wonder

if the reasons can be given without a smile. Surely, new prosecutors

are given a manual, probably entitled, ‘Handy Race-Neutral Expla-

nations’ or ‘20 Time-Tested Race-Neutral Explanations.’”

And,

indeed, just such a “cheat sheet” of pat race-neutral reasons to justify

the strike of any minority jury member came to light in North Car-

olina. A one-page handout titled “Batson Justications: Articulating

Juror Negatives” containing a list of reasons a prosecutor could give

for strikes of minorities was distributed at the Conference of District

Attorneys’ statewide trial advocacy course called “Top Gun II.”

North Carolina court found that a prosecutor had used reasons from

the list to justify striking African Americans in four capital cases.

The court also found that in capital cases in North Carolina, “pros-

ecutors strike African Americans at double the rate they strike other

potential jurors.”

The probability of such a disparity occurring in a

race-neutral process is less than one in ten trillion.

The court found

a history of “resistance” by prosecutors “to permit greater participa-

tion on juries by African Americans.” It continued:

39 People v. Randall, 671 N.E.2d 60, 65 (Ill. App. 1996). A judge discusses the reluctance of judges

to nd that prosecutors intentionally discriminated and then lied about it by giving pretextual

reasons for their strikes—the nding the Supreme Court requires to prohibit a strike motivated

by race—in Mark W. Bennett, “Unraveling the Gordian knot of implicit bias in jury selection:

the problems of judge-dominated voir dire, the failed promise of Batson, and proposed solu-

tions”,

Harvard Law & Policy Review, vol. 4 (2010), pp. 149 .

State v. Golpin, Cumberland Co., NC, Superior Nos. 97 CRS 42314-15, 98 CRS 34832,

35044, 01 CRS 65079, at 73-74, ¶¶ 68-72 (Dec. 13, 2012), available from https://www.aclu.

org/les/assets/rja_order_12-13-12.pdf.

41 Ibid., pp. 74-77, ¶¶ 72-79.

42 Ibid., pp. 112-201, ¶¶ 171-393. The Court found that prosecutors statewide struck 52.8 per

cent of eligible black venire members and 25.7 per cent of all other eligible venire members.

Ibid., p. 153, ¶ 254.

43 Ibid.

That resistance is exemplied by trainings sponsored by the North

Carolina Conference of District Attorneys where prosecutors learned

not to examine their own prejudices and present persuasive cases to a

diverse cast of jurors, but to circumvent the constitutional prohibition

against race discrimination in jury selection.

The Supreme Court has held that states must minimize the risk of

race coming into play in the decisions that lead to imposition of the

death penalty.

But this raises the question of how much racial bias is

acceptable in the process through which courts condemn people to

die. With the long history of slavery, lynchings, convict leasing, segre-

gation, racial oppression and now mass incarceration that has a much

greater impact on racial minorities, surely states should eliminate any

chance that racial prejudice might play a role. But there is only one

way to do that: by eliminating the death penalty.

DEATH FOR PEOPLE WITH INTELLECTUAL

LIMITATIONS AND MENTAL ILLNESSES

There are other equally troubling questions. How much uncertainty

is acceptable with regard to executing people of low intelligence and

people who are mentally ill? Are juries able to measure precisely the

degree of culpability of an intellectually disabled person? Are they

able to discern whether people are so intellectually disabled (or

“mentally retarded”) that they are exempt from the death penalty,

or not quite intellectually disabled enough, so that it is acceptable to

execute them? Is a jury capable of determining whether profoundly

mentally ill people are so impaired that their culpability is reduced,

so that they should be spared the death penalty, or so dangerous that

they should be executed?

Dierent people on dierent juries make those decisions, but it is

impossible for them to make them consistently or to know which

ones are reaching the right conclusions. Intellectual disability cannot

be precisely measured. Psychiatrists and psychologists do not fully

44 Ibid., pp. 4-5.

McCleskey v. Kemp, 481 U.S. 279 (1987); Turner v. Murray, 476 U.S. 28, 37 (1986).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that execution of the intellectually disabled,

then called the “mentally retarded,” violates the Eighth Amendment).

126 127

understand mental illness and often disagree with regard to its exis-

tence, severity and inuence on behaviour. Capital cases are often

inuenced by the passions and prejudices of the moment, which dis-

tort the decision-making process.

As a result, there are many intellectually disabled and mentally ill

people on death rows throughout the country. Among them is

Andre Lee Thomas, sentenced to death in Texas. He suers from schizo-

phrenia and psychotic delusions and has gouged out both his eyes.

After engaging in bizarre behaviour and attempting suicide, Thomas

stabbed and killed his wife and two children, acting upon a voice

that he thought was God’s telling him that he needed to kill them

using three dierent knives so as not to “cross contaminate” their

blood and “allow the demons inside them to live.” He used a dif-

ferent knife on each one and carved out the children’s hearts and

part of his wife’s lung, which he had mistaken for her heart, and

stued them into his pockets. He then stabbed himself in the heart

which, he thought, would assure the death of the demons that had

inhabited his wife and children.

After being hospitalized for his chest wound, he was taken to jail,

where he gave the police a calm, complete and coherent account

of his activities and his reasons for them. In jail, ve days after the

killings, Thomas read in the Bible, “If the right eye oends thee, pluck

it out.” Thomas gouged out his right eye. After being sentenced to

death and sent to death row, he gouged out his left eye and ate it.

Scott Panetti, sentenced to death in Texas, suered from schizophre-

nia, fragmented personality, delusions and hallucinations for which

he was hospitalized numerous times before committing the crimes

for which he was sentenced to death. He was unable to overcome

his mental illnesses even though he took medication that could

not have been tolerated by a person not suering from extreme

psychosis. One day, he dressed in camouage, drove to the home

of his estranged wife’s parents and shot and killed them in front of

47 Marc Bookman, “How crazy is too crazy to be executed?”, Mother Jones, 12 February 2013,

available from www.motherjones.com/politics/2013/02/andre-thomas-death-penalty-men-

tal-illness-texas;

Ex Parte Andre Lee Thomas, 2009 Westlaw 693606 (Tex. Crim. App. March 18,

2009) (Cochran, J., concurring).

his wife and daughter. He was found competent to stand trial and

allowed to represent himself. He wore a cowboy suit during trial

and attempted to subpoena Jesus Christ, John F. Kennedy, and a

number of celebrities, some dead and some alive. His behaviour at

trial was described as bizarre, scary and trance-like, rendering his

trial “a judicial farce.”

Since his trial in 1995, the courts have debated whether Mr. Panetti

understands the relationship between his punishment and the crimes

he committed, just as courts often wrestle with whether mentally ill

people are capable of participating in a trial, cooperating with their

lawyers and making decisions in their cases. Some experts testify that

they are capable, and other experts testify they are not. The prosecu-

tion will always present an expert who says the person is malingering,

even in cases in which, long before any criminal act, there was bizarre

behaviour, paranoia, delusions, treatment with psychotropic drugs,

hospitalizations, electroshock therapy, suicide attempts or self-muti-

lation. Judges, if they are free from political inuences in deciding

the issue, try to comprehend the incomprehensible and parse legal

concepts when dealing with manifestations of mental disorders. But

at best, their rulings are “a hazardous guess.”

The more fundamental question is why people like Andre Lee Thomas

and Scott Panetti, who are undoubtedly profoundly mentally ill, are

subject to the death penalty. Of course they committed horrendous

crimes, took innocent lives that left others suering and scarred for

life, and must be isolated to protect society. But through no fault of

their own, they are tormented souls suering from devastating aic-

tions that leave them unable to think and reason like people who are

not so aicted. That is greater punishment that any court can impose.

The intellectually disabled and mentally ill are at an enormous dis-

advantage in the criminal courts. Some have no family support, and

others have families aicted with the same limitations or disorders

that they have. Their court-appointed lawyers may know nothing

about their disabilities, have no idea how to interact with them, and

48 Panetti v. Quarterman, 551 U.S. 930, 936-37 (2007).

Ford v. Wainwright, 477 U.S. 399, 412 (1986), quoting Solesbee v. Balkcom, 339 U.S. 9, 23 (1950)

(Frankfurter, J., dissenting).

128 129

know nothing about how to conduct an investigation of the disability

or which experts to consult. In many cases, they do not have adequate

resources for expert consultation or testing.

The Alabama lawyers who represented Holly Wood, who was con-

victed of the murder of his ex-girlfriend, did not present his limited

intellectual functioning as a reason he should be spared the death pen-

alty. It would not have been dicult. Special education teachers who

had Mr. Wood in their classes at the local school would have testied

that his IQ was probably “low to mid 60s,” that Wood was “educable

mentally retarded or trainable mentally retarded,”

and that, even at

the time of his trial, he could read only at the third-grade level and

could “not use abstraction skills much beyond the low average range of

intellect.”

Alabama executed Mr. Wood, a black man, in 2010.

CONCLUSION

The United States promises equal justice for all in its Constitution and

its pledge of allegiance and above the entrance to its Supreme Court.

Yet poverty, race and mental impairment inuence the selection of

those who will be subject to what Justice Arthur Goldberg called the

“greatest conceivable degradation to the dignity of the human per-

sonality.”

Finality—not justice—has become the ultimate goal of the

American legal system. Processing cases in as little time as possible—

not competent representation, equal justice or protection of the most

vulnerable—is the concern of most courts, even in cases where life and

death are at stake. Technicalities and procedural rules made up by the

Supreme Court and Congress now prevent enforcement of the Bill of

Rights in most capital cases, particularly those with bad lawyers.

However, there is growing recognition that this is not moral, just or

right. Former President Jimmy Carter, who as Governor of Georgia

signed into law in March 1973 Georgia’s death penalty statute, called

on 12 November 2013 for an end to capital punishment, because it is

being imposed on the poor, members of racial minorities and people

50 Wood v. Allen, 542 F.3d 1281, 1324 (11th Cir. 2008) (Barkett, J., dissenting) (quoting testimony

of teachers), denial of relief armed, 558 U.S. 290 (2010).

51 Ibid. (Barkett, J., dissenting) (quoting the testimony of a psychologist of evaluated Wood.

52 Arthur Goldberg, letter to the editor,

Boston Globe, 16 August 1976.

with diminished mental capacity.

Supreme Court Justice John Paul

Stevens, who voted to uphold the death penalty in 1976, observed

before leaving the Court that there are fewer procedural protections

for those facing death, a strong probability that race inuences who

is sentenced to death, and a “real risk of error” with irrevocable con-

sequences. He concluded that “the imposition of the death penalty

represents ‘the pointless and needless extinction of life with only mar-

ginal contributions to any discernible social or public purposes.’”

The death penalty has recently been abandoned by Connecticut,

Illinois, Maryland, New Jersey, New Mexico and New York, and gov-

ernors have declared moratoriums on the death penalty in Colorado,

Oregon and Washington.

Perhaps there will be a re-examination of

the death penalty before too much more damage is done.

53 “Remarks by former U.S. President Jimmy Carter at the National Symposium on the Modern

Death Penalty in America”, 12 November 2013, available from www.cartercenter.org/news/

editorials_speeches/death-penalty-speech-111213.html; American Bar Association,

National

Symposium on the Modern Death Penalty, available from www.americanbar.org/groups/indi-

vidual_rights/projects/death_penalty_due_process_review_project/national_syposium_death_

penalty_carter_center.html (including videos of presentations by President Carter and others).

Baze v. Rees, 553 U.S. 35, 83 (2008) (Stevens, J., concurring), quoting Justice White’s concur-

ring opinion in Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J., concurring).

55 John W. Hickenlooper, Governor, State of Colorado, “Executive order: death sentence reprieve”,

22 May 2013, available from www.deathpenaltyinfo.org/documents/COexecutiveorder.pdf;

“Gov. John Kitzhaber of Oregon declares a moratorium on all executions”, available from

www.deathpenaltyinfo.org/gov-john-kitzhaber-oregon-declares-moratorium-all-executions;

Governor Jay Inslee of Washington, “Governor Inslee’s remarks announcing a capital punish-

ment moratorium”, available from www.deathpenaltyinfo.org/documents/InsleeMoratorium-

Remarks.pdf.

130 131

THE DEATH PENALTY IN THE

COMMONWEALTH CARIBBEAN:

JUSTICE OUT OF REACH?

Arif Bulkan

The Commonwealth Caribbean is made up of 12 independent

nations, all former colonies of Great Britain: Antigua and Barbuda,

the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica,

Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grena-

dines and Trinidad and Tobago. In the remaining countries of the

English-speaking Caribbean, namely the dependent territories of

Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Montserrat

and the Turks and Caicos, the death penalty was abolished in 1999.

The legal systems in these countries remain largely based on the

common law system they inherited from Great Britain. They diverged

during and after colonisation, but their structure and systems share the

same foundation, and substantive laws are similar in many respects. All

but three of the countries of the Commonwealth Caribbean have

retained the Privy Council based in London as their nal appellate

court—one residual element of colonialism that has proven signi-

cant in death penalty issues. Barbados, Belize and Guyana were the

rst countries to accept the appellate jurisdiction of the Caribbean

Court of Justice, which was established by treaty in 2001 and came

into operation in 2005 with its headquarters in Port of Spain, Trini-

dad and Tobago.

CURRENT STATUS OF THE DEATH PENALTY

In all the colonial possessions of Britain in the Caribbean, the death

sentence was mandatory for a number of oences including murder

and treason. After independence, although it was increasingly viewed

1 Arif Bulkan is a member of the Faculty of Law at the University of the West Indies.

2 Roger Hood and Carolyn Hoyle,

The Death Penalty: A Worldwide Perspective, 4th ed. (Oxford,

Oxford University Press, 2008), p. 104.

Agreement Establishing the Caribbean Court of Justice (14 February 2001), available from www.

caribbeancourtofjustice.org/court-instruments/the-agreement-establishing-the-ccj.

as incompatible with evolving human rights standards and ineective

as a tool of law enforcement, it survived constitutionally across the

Commonwealth Caribbean through one principal mechanism. This

was the constitutional savings clause, of which there are two types in

Caribbean constitutions:

• A “special savings” clause preserves punishments predating

independence from challenge based on the prohibition, in

the constitution’s bill of rights, of torture and inhuman and

degrading treatment. It can be found in the bill of rights of

all of the constitutions.

• A “general savings” clause preserves laws predating indepen-

dence from challenge based on any provision of the bill of rights.

This far more sweeping provision was only inserted in the con-

stitutions of the rst ve territories to achieve independence.

Theoretically, these provisions would protect the death penalty in

the Commonwealth Caribbean from challenge on human rights

grounds, since it predated the independence-era constitutions both

as a punishment and as a law. However, over a decade beginning in

the early 1990s, the Privy Council restricted the imposition of the

death penalty across most of the Commonwealth Caribbean. They

did so incrementally, principally by focusing on how the penalty was

imposed and carried out. Key issues addressed during this period are

described below.

Delays in carrying out sentences

In 1993, in a case from Jamaica in which two convicted murderers

had been on death row for more than 12 years, the Privy Council

held that the delay constituted cruel and unusual punishment, and as a

remedy they commuted the sentences of both to life imprisonment.

4 A standard formulation is that contained in s 7(2) of the Constitution of Antigua and Barbuda:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent

with or in contravention of this section to the extent that the law in question authorises the

iniction of any description of punishment that was lawful in Antigua on 31st October 1981.”

5 Jamaica, s 26(8) of the 1962 Constitution, replaced by section 13(12) in the amended 2011

version; Trinidad and Tobago, s 6; Guyana, article 152; Barbados, s 26; and the Bahamas,

article 30.

Pratt and Morgan v. AG of Jamaica (1993) 43 WIR 340.

132 133

In addition, they held that to keep any condemned prisoner on death

row for more than ve years would violate the constitutional prohi-

bition against inhuman or degrading punishment, and that the special

savings clause did not apply because the delay would not have been

lawful prior to independence. The punishment per se was not invali-

dated but rather its manner of implementation.

This was a ne distinction that some found unsupportable,

but

the impact was immediate and dramatic. In territories all across the

Caribbean, scores of condemned prisoners awaiting execution for

more than ve years became the beneciaries of the ban on excessive

delay, leading to the observation by two senior Caribbean judges that

the ve-year rule came to be applied with “guillotine-like nality.”

The ruling meant that Caribbean countries opting to retain the

death penalty had to ensure that their justice systems operated more

eciently. The position of the Privy Council on this was uncom-

promising: “a State that wishes to retain capital punishment must

accept the responsibility of ensuring that execution follows as swiftly

as practicable after sentence, allowing a reasonable time for appeal

and consideration of reprieve. . . . Appellate procedures that echo

down the years are not compatible with capital punishment. The

death row phenomenon must not become established as a part of

our jurisprudence.”

Pardons

Next to be addressed were the procedures around the granting of

pardons, also referred to as the exercise of the prerogative of mercy,

during which the totality of a condemned person’s case is consid-

ered by a committee that advises the head of state whether the death

sentence deserves to be commuted.

Historically, the condemned

person had no right to see the material being put before the Mercy

Committee or to make representations before it.

That position was

7 Berthan Macaulay, “The Jamaica Constitution: conict of powers—the Pratt and Morgan case”

(1993) 18 WILJ 45.

Joseph and Boyce v. AG of Barbados (2006) 69 WIR 104, per de la Bastide P and Saunders J

at [49].

9 Macaulay, “The Jamaica Constitution”, p. 359.

10 See, for example, Jamaica Constitution, ss. 90 and 91.

De Freitas v. Benny (1975) 27 WIR 318; Reckley v. Minister for Public Safety (No. 2) (1996)

47 WIR 9.

based on the view that mercy is not a legal right but an act of grace.

However, the Privy Council reconsidered this position, eventually

holding that the prerogative of mercy should be exercised by pro-

cedures that are fair and proper and amenable to judicial review.

In the case that resulted in this ruling, this meant that condemned

prisoners were held to be entitled to sucient notice of the date on

which their case would be considered so that they or their advisers

could prepare representations, which the committee would be bound

to consider.

This Privy Council decision was foreshadowed by the Court of Appeal

of Guyana, which had ruled shortly before that the exercise of the

prerogative of mercy operates more as a safety net for those wrongly

convicted than as an act of grace.

In that case, the court reasoned that,

as a constitutional republic, Guyana should not have the same reverence

for the prerogative, which is founded on the arbitrary will of kings. In

the case of the prerogative of mercy, this meant scrutinising, not the

decision itself, but the manner in which it was reached.

These decisions, too, aected many prisoners on death row, for irreg-

ularities in the way their cases had been reviewed potentially meant

they needed to be reconsidered. Inevitably, this entailed a further

delay, which would trigger the embargo on death-row waits of over

ve years.

Petitions to international bodies

When a country accedes to certain international treaties, its citizens

receive the right to petition the treaty body directly regarding a

breach of a right armed by the treaty. A possibly unanticipated

consequence was that as death row inmates availed themselves of

this right, the waiting time post-conviction lengthened. Often,

by the time a decision was delivered, the ve-year time limit had

expired, which meant that the state could no longer execute the

convict. In frustration, Caribbean states tried in a number of ways to

circumvent this problem. Guyana, Jamaica and Trinidad and Tobago

withdrew from Optional Protocol 1, which provides the right of

12 Lewis et al v. AG of Jamaica [2000] 3 WLR 1785.

Yassin and Thomas v. AG of Guyana GY 1996 CA 3 (Carilaw).

134 135

petition to the Human Rights Committee, and both Trinidad and

Guyana re-acceded with a reservation.

However, the Committee

held this reservation to be invalid, since by its discriminatory pur-

pose it oended basic principles embodied in the Convention,

and in response the government of Trinidad and Tobago withdrew

from the Protocol again in 2000. Other conicts involved attempts

to carry out executions while petitions were pending, one noto-

rious instance being the execution of Glen Ashby in 1994, just

one month before the ve-year post-conviction deadline would

have expired.

These tensions culminated in erce legal battles, as condemned

prisoners challenged the constitutionality of carrying out execu-

tions while petitions were still pending. Eventually, it was held by

the Privy Council in relation to Trinidad and Tobago that the due

process right entitled condemned prisoners to be allowed to com-

plete any appellate or analogous legal processes that were capable of

resulting in a reduction or commutation of their sentences before

that process was rendered nugatory by executive action (such as

prescribing unrealistic time limits for the petitions or executing

prisoners whose petitions were pending).

At that time, only the

Trinidad and Tobago Constitution used the language of “due pro-

cess” in its bill of rights, but this decision was shortly thereafter

held to be applicable to Jamaica (and by extension all the remaining

countries of the Caribbean except Guyana) through the guarantee

of protection of the law.

Defying predictions that it was going to reverse the perceived abo-

litionist tendencies of the Privy Council, the Caribbean Court of

Justice in its rst major death penalty appeal arrived at a similar

result, holding that to execute a prisoner while an international

petition is pending would be a violation of the right to protection

of the law.

14 Hood and Hoyle, The Death Penalty, p. 108.

Kennedy v. Trinidad and Tobago CCPR/C/67/D/845/1999, paragraph 6.7.

16 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 14

December 1994, E/CN.4/1995/61, paragraph 382.

Thomas and Hilaire v. Baptiste (1998) 54 WIR 387.

Lewis et al v. AG of Jamaica [2000] 3 WLR 1785.

Joseph and Boyce v. AG of Barbados (2006) 69 WIR 104.

Mandatory sentences

The next major development was related to the mandatory nature

of the death sentence. Early cases had espoused the view that this

aspect saved the death penalty from unconstitutionality since it

would be applied without discrimination to all those convicted of

murder.

By the time this view came to be rejected, the death sen-

tence was nonetheless held to be valid in the Caribbean because of

the special savings clause (preserving punishments predating inde-

pendence)—though not for long.

First, in countries such as Belize where the constitution had no

savings clause, the sentence was struck down because of its indis-

criminate scope—applying to all convictions for murder despite

the potential variations in culpability.

It was also struck down in

Jamaica, which had amended the substantive law to rationalise the

oence of murder.

In relation to this rationalisation, the Privy

Council held that there could be no category of capital murder

for which a conviction automatically resulted in a death sentence,

and since the law had been amended to create these oences, it

was no longer the protected pre-independence law and thus lost its

immunity. Reading amendments to the law in the Bahamas strictly,

the Privy Council overturned the mandatory aspect of the death

sentence there as well.

A more ingenious (and controversial) interpretation was applied to

the countries of the Eastern Caribbean, where, notwithstanding the

special savings clause, the mandatory nature of the death penalty

was struck down on the ground that this clause only preserved

punishments that were “authorised.” Since the death penalty was

mandated for certain oences, it could not be said to be authorised

and was therefore not protected by the clause, and thus it consti-

tuted a violation of the prohibition against inhuman and degrading

punishments.

20 De Freitas v. Benny (1975) 27 WIR 318; Ong ah Chuan v. Public Prosecutor [1981] AC 648.

Reyes v. the Queen [2002] UKPC 11.

Watson v. the Queen [2004] UKPC 34.

Bowe and Davis v. the Queen (2006) 68 WIR 10.

The Queen v. Hughes [2002] UKPC 12 (St Lucia); Fox v. the Queen [2002] UKPC 13

(St Vincent).

136 137

At the end of this unprecedented period of judicial activism, only three

countries were left with a mandatory death penalty: Barbados, Guyana

(which had abolished appeals to the Privy Council and was thus not

bound by any of these developments

) and Trinidad and Tobago. Bar-

bados and Trinidad and Tobago were able to retain the death penalty

because of the general savings clause,

since neither country had made

changes to the substantive law. In Guyana, statute has since restricted

the death penalty to certain categories of murder and eliminated its

mandatory aspect.

Thus, while the death penalty still exists across the

entire Commonwealth Caribbean, only Barbados and Trinidad and

Tobago apply it automatically to every conviction for murder.

APPLICATION OF THE DEATH PENALTY

There have been only a few scholarly analyses of the application

of the death penalty in the Caribbean, but even the most cursory

examination of decided cases suggests the existence of bias at sev-

eral stages, produced by factors such as economic status, social class

and mental capacity. These biases routinely aect the fairness of trials

(and by extension, the safety of convictions), because they inevitably

involve or lead to breaches of due process, liberty rights and evi-

dential safeguards. In Trinidad and Tobago in particular, a number of

recent studies have revealed fundamental deciencies in the criminal

justice system. These studies have been replicated to a lesser extent

in other locations, and considering them along with the case law, it

can be credibly argued that there are many concerns with regard to

the equitable application of the death penalty in the Commonwealth

Caribbean. Specic issues are considered below.

Mental capacity

In common law, the test for insanity is whether, at the time of the

act in question, the defendant was labouring under such a defect

of reason, due to a disease of the mind, as either not to know the

25 This was eected in stages in 1970 by the Guyana Republic Act 1970-9, s 8 and Judicial Com-

mittee (Termination of Appeals) Act 1970-14, and then in 1973 by the Constitution (Amendment)

Act 1973-19, s 4.

Boyce v. the Queen [2004] UKPC 32 (PC, Barbados); Matthew v. the State [2004] UKPC 33

(PC, T&T).

27 Criminal Law Oences (Amendment) Act 2010, Act 21-2010 [Guy].

nature and quality of his act or, if he did know this, not to know that

he was doing wrong.

From the time of its formulation in the mid-

19th century, this test was heavily criticised,

yet it has endured

in spite of complications regarding what constitutes a disease of

the mind and the potential injustice created by the requirement to

prove lack of knowledge of the quality of the act. A cursory check

of reported cases suggests that this test seems to be too technical

for judges to explain adequately or for jurors to evaluate sensibly,

with the result that many convictions are overturned on the basis

of incorrect directions.

Aside from its technicalities, another prob-

lem with the legal test seems to be the archaic understanding of

mental illness, and its divergence from what may actually constitute

a mental incapacity. This creates doubt as to whether directions

in any case are properly understood and acted upon, in addition

to the doubts as to whether the law adequately treats those with

mental illnesses.

A case that well illustrates these diculties is Stephen Robinson a/c

Psycho v. the State.

The appellant, a destitute and homeless person,

was convicted of the January 2002 murder of a security guard and

sentenced to death in 2009. Medical evidence established that he

had been diagnosed with schizophrenia since 1984. In the opin-

ion of both examining psychiatrists, he had been suering from an

episode when the murder occurred, based not only on this history

but also on his attire and unusual behaviour at the time in ques-

tion. There was no competing evidence to contradict the medical

evidence, but the jury rejected it, presumably on the belief that he

was experiencing a lucid interval. Thus, the opinion of two experts

(one with considerable experience) was discarded in favour of pure

speculation. This is dicult to justify, and it underlines the aws of

the outdated insanity

test, which are exacerbated by the rules of

criminal procedure under which a determination of insanity is a

question of fact for the jury.

28 (1843) 10 Cl & Fin 200.

29 John Cyril Smith and Brian Hogan,

Criminal Law, 7th ed. (London, Butterworths, 1992), p.

207.

30 Amnesty International,

Caribbean: Death Penalty in the English-Speaking Caribbean: A Human

Rights Issue (AMR 05/001/2012, 30 November 2012), available from www.amnesty.org/en/

library/info/AMR05/001/2012/en.

31 CATT Crim 12/2009, decision dated 29 July 2010, available from www.ttlawcourts.org.

138 139

The Court of Appeal of Trinidad and Tobago dismissed an appeal,

even while describing the outcome as unfortunate. Reinforcing the

incongruity of the decision was the majority’s concluding passage:

It is unfortunate that the application of clear legal [princi-

ples] should result in the imposition of the death penalty on

an individual who, on the evidence, has a long outstanding

mental disability. The apparent harshness of the result of

our decision might best be ameliorated, not by a distortion

of the law, but rather by petitioning the appropriate author-

ities, that is, the Mercy Committee.

There is something profoundly amiss with a justice system that

regards the outcome in a case as approximating an injustice but

shunts the responsibility for addressing that injustice to extrale-

gal means. Part of the reason for this outcome was that the legal

principles described as clear by the court are in actuality archaic

and repeatedly misapplied and misunderstood, so the matter

was more appropriate for resolution by the court rather than the

Mercy Committee.

Practical concerns also exist in relation to the institutional capac-

ity in many Caribbean states. A recent report of the World Health

Organisation disclosed several deciencies in mental health systems

across the Caribbean, including insucient facilities, outdated prac-

tices and lack of treatment protocols.

Some of this could probably

be traced to weak legislative frameworks, insofar as the majority of

countries have mental health legislation predating independence,

as well as to the under-resourcing of this sector, with an average of

only 3.8 per cent of health budgets in the region being devoted to

mental health.

Where mental health facilities are nonexistent or

substandard, criminal defendants may go undiagnosed and untreated.

Once caught up in criminal proceedings, it is not uncommon for

people to undergo trial, conviction and sentencing without any

32 Ibid., p. 25.

33 World Health Organization,

WHO-AIMS Report on Mental Health Systems in the Caribbean

Region (2011), available from www.who.int/mental_health/evidence/WHO-AIMS/en.

34 Ibid., p. 13.

recognition that legal liability may be absent due to a lack of

mental capacity.

The appellant in Nigel Brown v. the State

had been convicted of

murder and sentenced to death; after conviction, fresh evidence was

obtained from a psychiatrist that he was suering from a mental

disorder that called into question his capacity to plead and under-

stand the nature of a trial. In allowing his appeal, the Privy Council

criticized the failure of the system to detect this issue earlier:

There is no doubt that the appellant’s legal advisers should

have been alert to the question of his tness to plead. Yet

no medical evidence was adduced on his behalf nor was

this issue canvassed either on the trial or before the Court

of Appeal. This is a matter of obvious and grave concern.

The Board has been greatly exercised by the fact that these

reports have been produced ex post facto and without any

explanation as to why medical evidence on the issue of

tness to plead has not been produced before now.

A recent report by the Death Penalty Project concluded that

“the death penalty [in the Caribbean] is regularly being imposed

on persons with signicant mental illness and/or intellectual

disability.”

Expert evidence

Closely linked to the issue of mental incapacity are concerns about

the use and availability of expert evidence generally, in which crim-

inal defendants face a recurring disadvantage. This problem was

highlighted in a case from Barbados in which the prosecution relied

on the evidence of a forensic odontologist to establish that bite marks

35 Several of these cases are mentioned in Amnesty International, Caribbean: Death Penalty in the

English-Speaking Caribbean, pp. 18-21.

36 [2012] UKPC 2 (PC, T&T).

37 Ibid., paragraph 68.

38 Saul Lehrfreund, “The systemic failure to grant special protection and all guarantees to ensure

a fair trial in capital cases in the Caribbean, Africa and Asia”, presentation at the Oce of the

High Commissioner for Human Rights panel Moving Away from the Death Penalty—Wrong-

ful Convictions, United Nations Headquarters, New York, 28 June 2013.

140 141

on the arm of the respondent matched the teeth of the deceased.

For over three years the respondent tried to obtain an independent

assessment of the evidence by an expert of his own choosing, but

without success since this required highly specialised and expensive

expertise. The State was willing to underwrite only some of the cost

of the expert’s fees, and the Court of Appeal of Barbados agreed it

was under no obligation to do more than that.

Although the Court

of Appeal conceded that “bite mark analysis is a highly complex and

controversial subject and it is sucient to say for the purpose of this

judgment that the respondent may be at a disadvantage if he is unable

to obtain expert help in dealing with the evidence of the prosecu-

tion,”

it nonetheless held that the respondent was not entitled to

an expert funded by the State. No such right was established in the

Constitution, and in any case, an order to that eect would oend the

principle of separation of powers.

This decision was overturned on appeal, on the ground that the

respondent would be at such a disadvantage without expert evidence

of his own as to aect the fairness of the trial.

But the decision of

the lower court is instructive, as it reects the disadvantage suered by

criminal defendants without the resources to mount a proper defence.

Judges are not always sympathetic to the plight of low-income defen-

dants or willing to order the state to incur expenses on their behalf.

Even when a defendant ultimately succeeds, as in this case, a serious

cost of airing these issues is the time that it requires, since delays

are unpredictable and have the potential to prejudice the trial. The

result is to place poor people in a vulnerable and unequal position, a

disparity that takes on heightened signicance in death penalty cases.

The poster case for such inequality is Indravani Ramjattan v. the State,

where disabilities of poverty, class and gender combined to produce

an appalling instance of state-perpetrated injustice. Ms. Ramjattan was

convicted along with two codefendants of the murder of her husband

and sentenced to death, and it was not until her nal appeal had been

dismissed that she was allowed to present evidence of her mental state

39 AG of Barbados v. Gibson Civil Appeal No 8 of 2007 (decision dated 15 December 2009).

40 Ibid., paragraph 41.

Gibson v. AG of Barbados [2010] CCJ 3.

Indravani Ramjattan v. the State (1999) 54 WIR 383 (PC, T&T).

at the time of the crime. This evidence revealed a life of epic suering.

Regularly beaten as a child, she was taken out of school at age 13 and

married by her mother at age 17 to a man 18 years her senior.

Over

the course of 10 years she bore several children, all the while being

subjected to extreme physical and emotional abuse by her husband. He

repeatedly accused her of having other sexual relationships, while at the

same time boasting of his sexual encounters with other women. Vio-

lence was a norm of the relationship, including attempted strangulation,

wounding, bruising and rape—summed up by the Court of Appeal of

Trinidad and Tobago as a “reign of terror.”

Ms. Ramjattan eventually summoned up the courage to leave her hus-

band, escaping to live with her childhood sweetheart, but her husband

hunted her down and forcibly recaptured her. By the time they got

home, she was covered in blood; he then locked her in a bedroom

and told her that he was going to sink her head inside her neck with a

piece of wood. He struck her on the head, hands, arms, back and feet

until she fell unconscious. During the nal week of her husband’s life,

he tortured her and threatened to kill her and the children. All this was

corroborated by her 10-year-old daughter, who testied that her father

regularly beat her mother with his sts, belt and pieces of wood and

threatened to shoot her. She managed to write a letter to her boyfriend,

who came with the third accused to rescue her. The two men beat the

deceased and killed him. Although she was not present at the scene and

denied asking the men to kill her husband, she was convicted along

with the other two of his murder, and all three were sentenced to death.

It was only after Ms. Ramjattan lost her appeal that she was able

to secure a retrial. It was then revealed that she had been unable

to present evidence on her mental state earlier because she did not

have the money or a reasonable opportunity to engage a psychiatrist

to examine her and make a report capable of being used in legal

proceedings. The Privy Council was informed that it was not routine

in Trinidad for the mental health of defendants in murder cases to

be assessed at or before arraignment.

Her petition was allowed and

43 These facts are taken from the decision of the Court of Appeal at the re-hearing: Indravani

Ramjattan v. the State (No 2) (1999) 57 WIR 501.

44 Ibid., p. 504.

45 (1999) 54 WIR 383 at 385.

142 143

her case remitted to the Court of Appeal of Trinidad and Tobago to

consider the psychiatric evidence.

A litany of procedural irregularities were uncovered as well: Ms. Ram-

jattan had no counsel at the time of arrest, during the police interviews,

and for more than a year after her arrest. She was tricked into signing a

confession. She was pregnant at the time of her arrest, and subsequently

had a miscarriage while in custody, but received no medical treatment.

At the trial she was poorly represented, and her counsel did not present

any evidence of the abuse she had suered—which meant that the jury

was faced with a choice of acquittal or conviction for murder.

The Court of Appeal accepted the evidence of the psychiatrist that Ms.

Ramjattan, at the time of the crime, suered from an abnormality of

the mind capable of reducing her responsibility for the crime. It was

the doctor’s opinion that she had suered from symptoms of depressive

illness and post-traumatic stress disorder for several years leading up to

the time of the oence and that her psychological reactions were also

characteristic of battered-wife syndrome. For the rst time anywhere

in the Commonwealth Caribbean, evidence of battered-wife syn-

drome was accepted to establish a defence of diminished responsibility.

The Court of Appeal quashed Ms. Ramjattan’s conviction for murder

and substituted one of manslaughter. By this time, she had already spent

eight years in custody, four and a half on death row. Despite the horric

circumstances of her situation, the Court of Appeal still ordered her to

serve an additional ve years in prison.

This case demonstrates discrimination on several levels. The institu-

tional and systemic failings were especially acute, occurring at every

stage of Ms. Ramjattan’s life. The background facts, for example,

reveal an absence of state regulation so complete that it rendered girls

vulnerable to parental abuse and unable to access an education. Later

on, the same failings would enable a decade of spousal abuse without

the implementation of laws or the intervention of social services to

stem such horric and sustained violence.

When she acted to protect

herself, the State responded mechanically and harshly, convicting and

sentencing her to the ultimate penalty with no apparent realisation of

46 In the Court of Appeal, the Chief Justice described this situation as endemic in Trinidad and

Tobago: (1999) 57 WIR 501 at 504.

its own responsibility for the events. There were other failings as well:

a legal framework that denied the victim of extreme and sustained

physical abuse the defences of provocation and self-defence, exac-

erbated by an institutional structure that showed no understanding

or empathy for her circumstances. Her situation was aggravated by

poverty, and the absence of legal representation at crucial stages left

her at the mercy of the police, who in their own way continued the

abuse by denying her fundamental liberties.

Poverty and neglect were compounded by disabilities of gender

and race, the latter on display even at the level of the Court of

Appeal. Ms. Ramjattan was a woman of East Indian descent who

had formed a relationship with a man of African descent—not a

gure of much sympathy, as revealed in her treatment at various

levels in the criminal justice system and in the transcript of the

Court of Appeal proceedings. In his judgment, the Chief Justice of

Trinidad and Tobago commented:

It is, of course, no part of our duty to attribute or apportion

moral blame, particularly to a woman who was subjected

to that type of treatment. But we must not lose sight of

the fact that at the time of the murder she was carrying the

child of another man with whom she obviously, from her

evidence, hoped to make a new life. There is nothing wrong

with that, albeit that the other man appears to have been

married himself.

In other words, she did not t the stereotype of a victim as chaste

and passive—and despite the protestations of being nonjudgmental,

by referring to the adultery of both participants, the suggestion that

Ms. Ramjattan may have been undeserving of sympathy is a powerful

subliminal message of this passage.

There are indications that the inequalities suered by Ms. Ramjat-

tan exist structurally as well. In 2000 one commentator said that in

Trinidad and Tobago, “most of the women on death row are there as

47 Ibid.

144 145

a result of some form of domestic violence.”

Whether or not this is

still true, the multiple failings that existed in the Ramjattan case indi-

cate that gender bias in the criminal justice system is an overlooked

problem. One organisation, Equality Now, has suggested that the

discriminatory treatment of women works in the opposite direction

as well—that when they are murder victims, their perpetrators are

treated far more leniently than Indravani Ramjattan was.

Poverty and due process

In 2012 Amnesty International commented:

The criminal justice systems in many ESC countries are

struggling with caseloads that far exceed their capacity.

This often results in violation of due process and prolonged

delays. Factors contributing to delays include inadequate

stang levels, resources and legal representation; insucient

jurors; inadequate witness protection programmes; and high

and increasing crime rates. Weaknesses in forensic analysis

and delays in processing evidence in crime laboratories also

contribute to systemic delays and errors in trial proceedings

and scheduling.

These deciencies are intensied where defendants are poor and

unrepresented, a reality of many capital cases across the Caribbean.

Even though legal aid is provided by the state, the quality obtained

often reects the paltry remuneration oered. Moreover, legal aid is

activated for the rst time only at the preliminary inquiry, and after

that may not be consistent or structured. This means that at the crucial

pretrial and investigative stage, suspects are at the mercy of the state’s

powerful machinery. Violations thus ourish during this period when

suspects are likely to be held incommunicado, without access even to

relatives or friends, much less a lawyer. At this time, when a suspect is

48 Leonard Birdsong, “In quest of gender-bias in death penalty cases: analyzing the English speak-

ing Caribbean experience”, Indiana International & Comparative Law Review, vol. 10, no. 317

(2000), p. 324 .

49 See Equality Now, “Trinidad and Tobago: the imminent execution of a battered woman and

her defenders” (1 October1998), available from www.equalitynow.org/node/188.

50 Amnesty International,

Caribbean: Death Penalty in the English-Speaking Caribbean.

at his or her most vulnerable, it is easier to obtain signed confessions,

but the possibility that such confessions might be unreliable or just

plain fabricated is suggested by the number of convictions that are

challenged, often successfully, on this ground alone.

Even after legal aid is provided, it is by no means assured that crim-

inal defendants will have meaningful access to their advisers, who

tend to change multiple times throughout the process. There have

been several cases in which counsel was appointed on the day of the

trial and either forced to go on immediately or given only a short

adjournment

—or even for no counsel to be appointed, leaving the

defendant unrepresented.

It is also not unusual for very junior coun-

sel to be appointed—in one case, a lawyer of three months’ standing

was appointed for a defendant on the morning of the trial.

Predict-

ably, in these situations the quality of representation is far below the

standard required for a proper defence in any criminal case, much less

one in which the possible outcome is a death sentence.

These failings are powerfully exemplied in

Ann Marie Boodram v. the State,

another case from Trinidad and Tobago.

The appellant had been

assigned several lawyers before one was nally secured to represent

her during her retrial. The court-appointed defence counsel failed to

object to deposition evidence of a dead witness, failed to object to a

confession despite doubts as to its voluntary nature, including an alle-

gation that the appellant was raped by a senior police ocer involved

in the investigation, and most astonishing of all, conducted the major-

ity of the defence unaware that it was a retrial. When he became

aware of this, he failed to obtain the transcript of the earlier proceed-

ings. In quashing the conviction, the Privy Council concluded that

“Mr.Sawh’s multiple failures, and in particular his extraordinary fail-

ure ... to enquire into what happened at the rst trial, reveal either

51 The Ramjattan case is a good example of a common situation, but the ndings of the HRC

substantiate this failing in many cases. See Christopher Brown v. Jamaica (775/97); Kennedy v.

Trinidad and Tobago CCPR/C/67/D/845/1999; Errol Johnson v. Jamaica (588/94); Pennant

v. Jamaica (647/95); and the cases discussed by the Inter-American Commission on Human

Rights in The Death Penalty in the Inter-American Human Rights System: From Restrictions to

Abolition (OEA/Ser.L/V/II., Doc. 68, 31 December 2011), pp. 130-138.

52 Desmond Allum and Gregory Delzin,

Report on the Criminal Justice System in Trinidad and

Tobago (2003), paragraph 88.

Frank Robinson v. Jamaica, U.N. Doc. CCPR/C/35/D/223/1987 (1989).

Bernard v. the State (2007) UKPC 34 (PC, T&T).

55 [2001] UKPC 20 (PC, T&T).

146 147

gross incompetence or a cynical dereliction of the most elementary

professional duties.”

That this is not an isolated example is revealed

by the number of cases across the Caribbean where appeals have been

allowed because of inadequate representation.

Another problem with legal aid in most Caribbean countries is that

it is often provided for trials and appeals in capital cases, but only for

criminal and not constitutional proceedings,

and never for non-

trial necessities like preparing and

ling documents for an appeal.

This results in several injustices.

Criminal defendants—often poorly

educated and sometimes illiterate—

are unable to prepare a Notice of

Appeal. When they do, appeals are

usually conned to the deciencies

of the rst trial, and only rarely is

fresh evidence forthcoming. With

assignments occurring at the time

of trial, appellate lawyers frequently have little time to prepare the

case.

Moreover, the state has no obligation to facilitate appeals to

the Privy Council in London, and although a number of English

solicitors provide pro bono assistance in death penalty cases, where

the paperwork is not done in advance, this can be the end of the line

for poor appellants, as happened to the last person to be executed in

the Commonwealth Caribbean.

Charles Laplace was executed on 19 December 2008 in Saint Kitts and

Nevis, shortly after the Eastern Caribbean Court of Appeal upheld his

conviction for the murder of his wife. Laplace would have been entitled

to a further appeal to the Privy Council, but no appeal was led—pre-

sumably because he did not have the means or ability to do so. Laplace

was executed after four years on death row. It remains unclear whether

56 Ibid., paragraph 40.

57 For examples, see

Bethel v. the State (1998) 55 WIR 394 and Bernard v. the State (2007) UKPC

34 (PC, T&T).

58 Inter-American Commission on Human Rights,

The Death Penalty in the Inter-American

Human Rights System, pp. 139-146.

59 Allum and Delzin,

Report on the Criminal Justice System in Trinidad and Tobago, paragraph 86.

60 Ibid.

“THE BULK OF

KILLINGS GO

UNSOLVED, THE

MAJORITY OF

CONVICTIONS

ARE OVERTURNED

ON APPEAL…”

—

Arif Bulkan

the pardon guidelines established by the Privy Council

were faithfully

followed in his case—such as aording him the opportunity to see the

documents being presented to the Mercy Committee or to make rep-

resentations to it. That he was executed when he had not exhausted all

appeals is a graphic illustration of the disadvantages faced by the poor

and the inequalities of the system.

This situation is partly attributable to the breakdown in regional

policing systems, where inadequate training, unrealistic remuneration,

lack of eective oversight and high levels of corruption combine to

produce a toxic brew of incompetence and dishonesty.

Instead of

conducting proper analytical and forensic work, police investigators

in the Caribbean often rely solely on confessions, a practice that has

long been criticised.

Such deciencies inexorably aect the fairness

of trials, as demonstrated by the number of convictions overturned

for breaches of rights to due process and fair trial.

Arbitrary application

Recent studies of the death penalty in Trinidad and Tobago reveal

not just its utter inecacy as a deterrent but also the arbitrary nature

of its application. An analysis of recorded homicides in Trinidad and

Tobago between 1998 and 2002 established that the probability of

a killing resulting in a conviction for murder is extremely low, with

only 5percent of murders recorded by the police over this period

resulting in a conviction for murder by the end of 2002.

Over the

ve-year period examined, 633 deaths were recorded by the police as

murders, of which 280 (44.2 per cent) remained unsolved.

Of the 353 murders classied as solved by the police during this

period, only 33 resulted in a conviction for murder by the end of

2005. Moreover, the clear-up rate varies with the type of murder. The

authors adopted the categorisation of murders employed by the police:

61 Lewis et al v. AG of Jamaica [2000] 3 WLR 1785.

62 Carolyn Gomes, “Police accountability in the Caribbean: where are the people?”, paper pre-

sented at a Workshop on Police Accountability at the Civicus World Assembly, 23-27 May 2007,

Glasgow, Scotland.

63 Allum and Delzin,

Report on the Criminal Justice System in Trinidad and Tobago, paragraph 36.

64 Roger Hood and Florence Seemungal,

A Rare and Arbitrary Fate: Conviction for Murder, the

Mandatory Death Penalty and the Reality of Homicide in Trinidad and Tobago, report to the

Death Penalty Project (Oxford, Centre for Criminology, University of Oxford, 2006).

148 149

gang- and drug-related killings, killing in the course of a robbery or

other crime, killing in the course of a domestic dispute (where the

parties are related), killing in the course of an altercation not involv-

ing a domestic setting, and those with an unknown motive, also called

“body dumped” by the police. Of the 208 killings that were classied

as gang- or drug-related or involving body-dumping—just under a

third of the total—there were only two convictions for murder and

another two for manslaughter by the end of 2005. In contrast, killings

in the course of domestic violence, which represented 17 per cent

of recorded homicides, accounted for 52 per cent of the murders

solved. Thus, the proportion of murders that the police recorded as

solved was lowest for the category that has been increasing the most:

gang- and drug-related murders, and particularly those where the

victim’s body was dumped. Clear-up rates were most successful for

the crimes least likely to be the subject of a carefully planned act.

Review of the trials of all people charged with murder over the same

ve-year period revealed that, for the tiny proportion who were con-

victed of murder, only 8 per cent of their convictions stood after

appeal. The low conviction rate was most pronounced in gang- and

drug-related cases. Convictions were more likely to be for man-

slaughter than for murder.

Thus, the death penalty is infrequently applied in Trinidad and

Tobago. Paradoxically, the type of murder that is least likely to be

planned in advance and most likely to be committed in the heat of

emotion, without consideration of the threat of later punishment, is

the type most likely to end up with a conviction for murder. Even

in this category, as much as 60 per cent of killings do not result in

a murder conviction. Studies in other parts of the Caribbean also

indicate a low percentage of murder convictions. In the Bahamas,

for instance, while 333 murders were recorded between 2005 and

2009, only 10 cases resulted in murder convictions.

International law calls for the death penalty, if it is retained, to be

used only in the worst cases.

But this is certainly not the case in the

65 Amnesty International, Caribbean: Death Penalty in the English-Speaking Caribbean, p. 27.

66 The International Covenant on Civil and Political Rights, Article 6(2), states: “In countries

which have not abolished the death penalty, sentence of death may be imposed only for the

most serious crimes.”

Caribbean, where all available studies indicate that it is both infre-

quently and arbitrarily applied. The study summarized above likened

the possibility of receiving the death penalty in Trinidad and Tobago

to that of being struck by lightning.

This underlines the vagaries and

weaknesses of the criminal justice system and its profound unfairness

in capital cases.

CONCLUSION

Across much of the Commonwealth Caribbean, the bulk of killings

go unsolved, the majority of convictions are overturned on appeal,

the administration of justice is slow, and low-income suspects face

severe barriers to their ability to present an eective defence. There

is strong evidence that the death penalty disproportionately aects

the weak, poor and vulnerable. Caribbean states need to strengthen

their criminal justice systems at both the investigative and trial levels;

retaining the death penalty is unlikely to help them address their

rising crime rates.

67 Hood and Seemungal, A Rare and Arbitrary Fate, paragraph 98.

150 151

THE DEATH PENALTY IN INDIA:

DOWN A SLIPPERY SLOPE

Usha Ramanathan

The death sentence has generated a great deal of agonized deliberation

over the decades. It has been in the Indian Penal Code since 1860 and

the Criminal Procedure Code since 1898. India’s Constitution, pro-

mulgated in 1950, provided for the continuance of “all the law in force

in the territory of India immediately before the commencement of

this Constitution … until altered or repealed or amended” and “subject

to the other provisions of this Constitution” (Article 372). Article 21

of the Constitution reads: “No person shall be deprived of his life or

personal liberty except according to procedure established by law.”

This has been understood to mean that not only personal liberty, but life

itself, may be taken so long as it is “according to procedure established by

law.” This article in the Constitution does not establish the limits within

which this power over life and death is to be exercised; the challenge to it

has thus focused on judicial discretion, arbitrariness, delay, the method of

execution and how the president is to exercise clemency powers.

From 1950 to the early 1970s, Parliament concerned itself with taming

the death penalty. In the early 1960s, abolition of the death sentence

was raised in Parliament and sent to the Law Commission to be delib-

erated upon. Since then, the Supreme Court has addressed it, in part

because of abolitionist judges on the bench who argued that the death

sentence was unconstitutional, and partly because of the vagaries that

judicial discretion in sentencing brought with it.

And since the 1980s,

Parliament has altered its position, introducing the death sentence in the

Terrorism and Disruptive Activities (Prevention) Act 1985, the Narcot-

ics and Psychotropic Substances Act 1985 and its amendment in 1988,

section 364-A of the Indian Penal Code, which made kidnapping for

1 Usha Ramanathan is an independent law researcher working on the jurisprudence of law,

poverty and rights.

Jagmohan Singh v. State of Uttar Pradesh judgment dated 3 October 1972, reported in AIR 1973

SC 947, which was a decision of a bench of ve judges, Rajendra Prasad v. State of Uttar Pradesh

judgment dated 9 February 1979, reported in AIR 1979 SC 916, and Dalbir Singh v. State of Pun-

jab, with diering opinions by two judges on the death sentence in judgment dated 4 May 1979,

reported in AIR 1979 SC 1384, illustrate the turmoil in the court on the issue of the death penalty.

ransom punishable by death by amendment in 1993, the Prevention of

Terrorism Act 2002, and the Unlawful Activities (Prevention) Act 1967

as amended in 2004 for “commission of a terrorist act . . . if such act has

resulted in the death of any person.”

State legislatures have passed laws,

such as the Maharashtra Control of Organised Crime Act 1999, that

prescribe the death penalty where death results during the commission

of organized crime.

Until 1955, where an oence in the Penal Code was punishable by

either death or life imprisonment, the death sentence was the rule, and

a court imposing the lesser sentence was required, under Section 367

of the Criminal Procedure Code 1898, to set out “special reasons” for

that sentence. That requirement was repealed by Parliament in 1955.

A debate in Parliament in 1962 on abolition of the death sentence

led to the question being referred to the Law Commission for con-

sideration. The Law Commission concluded in 1967 that India was

not ready for abolition.

Addressing the question of whether a court

should be required to explain its choice between the death penalty

and any alternate punishment, the Commission said: “The adoption

of either alternative would mean, or be construed as meaning, a leg-

islative determination that the sentence for which reasons are to be

given is to be the exception, and the other sentence is to be the rule,”

and that the court should be required “to state its reasons, wherever it

awards either of the two sentences in a capital case.” A later report on

3 The Terrorism and Disruptive Activities (Prevention) Act lapsed in 1995, but cases registered

under the Act continued to trial and judgment and sentence. There are still prisoners on death

row under sentence of death convicted under this Act. The kidnapping provision was chal-

lenged in the Supreme Court and referred to a larger bench of three judges in

Vikram Singh v.

Union of India in judgment dated 2 July 2013, available from http://judis.nic.in/supremecourt/

imgs1.aspx?lename=40503. The matter is pending in the Supreme Court. Section 364A pre-

scribes that the court may impose the death penalty on a convict even where no death or hurt

was caused. Allegations of abuse of the provisions of Prevention of Terrorism Act resulted in the

law falling into political disrepute and being repealed by Parliament in 2004.

4 Section 3, Maharashtra Control of Organised Crime Act 1999. See also, section 3 of the Andhra

Pradesh Control of Organised Crime Act, 2001, and section 3 of the Arunachal Pradesh Con-

trol of Organised Crime Act, 2002.

5 The Law Commission of India has periodically revisited the death sentence, in 1967 in its 35th

Report (Capital Punishment), available from http://lawcommissionondia.nic.in/1-50/Re-

port35Vol1and3.pdf; in 1997 in its 156th Report on the Indian Penal Code, volume I, chapter

III, “Death penalty”, pp. 42-61, available from http://lawcommissionondia.nic.in/101-169/

Report156Vol1.pdf; in 2003 in its 187th Report on Mode of Execution of Death Sentence and

Incidental Matters, available from http://lawcommissionondia.nic.in/reports/187th%20report.

pdf. In May 2014, the Law Commission issued a Consultation Paper on Capital Punishment as

a prelude to a research project on the death penalty.

152 153

recommendations for revising the Code of Criminal Procedure 1898

reiterated this point.

Parliament was more categorical. The revamped Code of Crimi-

nal Procedure 1973 read: “When the conviction is for an oence

punishable with death or, in the alternative, with imprisonment for

life or imprisonment for a term of years, the judgment shall state

the reasons for the sentence awarded, and, in the case of sentence

of death, the special reasons for such sentence” (Section 354).

Parliament had decided that the death sentence would be the excep-

tion. A requirement was introduced at the same time that an accused,

upon conviction, must be heard before sentencing (Section 235).

CHALLENGES TO THE DEATH PENALTY

The court has been confronted with questions about the constitution-

ality of the death penalty since the early 1970s. In 1972, when the death

penalty was challenged as unconstitutional, the court responded with

caution about its role in deciding these matters, and about the sentence

itself. It held that the Code of Criminal Procedure 1898 prescribed the

procedures to be followed in trial and punishment, that so long as these

had not been shown to be invalid, they were valid.

This formalistic approach to the death sentence changed in the late

1970s. The weight of imposing a sentence of death rests on courts,

and the deep discomfort with the existence and exercise of judicial

discretion in matters of life and death has found expression in the

judgments of courts through the years.

6 Law Commission of India, 35th Report (Capital Punishment), pp. 254-255, paragraphs 821 and

822; Law Commission of India, 41st Report (The Code of Criminal Procedure, 1898) (1969)

volume I, p. 232, paragraph 26.10, available from http://lawcommissionondia.nic.in/1-50/Re-

port41.pdf.

7 Jagmohan Singh v. State of Uttar Pradesh in judgment dated 3 October 1972, reported in AIR

1973 SC 947.

8 See, for instance, Rajendra Prasad v. State of Uttar Pradesh judgment dated 9 February 1979,

reported in (1979) 3 SCC 646; Ediga Anamma v. State of Andhra Pradesh in judgment dated 11

February 1974, reported in (1974) 4 SCC 443; Dalbir Singh v. State of Punjab judgment dated

4 May 1979, reported in (1977) 3 SCC 745, where the majority of two judges expressed their

opposition to the death penalty while the dissenting judge said that abolition was the task of Parlia-

ment and not of the courts. Bachan Singh v. State of Punjab, reported in (1980) 1 SCC 754, was

referred on the same day, 4 May 1979, to a larger bench prompted by dierences between two judges

on the bench (which was of three judges) on whether Rajendra Prasad v. State of Uttar Pradesh,

which held that “special reasons” for imposing the death sentence must relate not only to the crime

but also to the criminal, was good law.

In 1980, a Constitution Bench of ve judges of the Supreme Court

debated the constitutionality of the death penalty.

Their decision

constitutes a landmark in the development of the law on the death

penalty in India. Four of the ve judges were unwilling to hold that

the death penalty was unconstitutional. But at the same time, they

adopted the “rarest of rare” standard. “A real and abiding concern

for the dignity of human life postulates resistance to taking a life

through law’s instrumentality,” the court said. “That ought not to be

done save in the rarest of rare cases when the alternative option is

unquestionably foreclosed.” The court was open to applying the test

of “aggravating” and “mitigating” circumstances when deciding on a

sentence, so far as that did not become a fetter on judicial discretion.

It also ruled that in “making the choice of punishment or for ascer-

taining the existence or absence of ‘special reasons’ in that context,

the Court must pay due regard both to the crime and the criminal.”



The dissenting judge, Justice Bhagwati, held that “insofar as [the law]

provides for imposition of death penalty as an alternative to life sen-

tence it is ultra vires and void as being violative of Articles 14 and 21

of the Constitution since it does not provide any legislative guidelines

as to when life should be permitted to be extinguished by imposition

of death sentence.”

Since then, issues such as what constitutes aggravating and mitigat-

ing circumstances, that the crime and the criminal ought both to

be considered in deciding the sentence, that hanging is a cruel and

unusual punishment, that it is not about a balance between mitigating

and aggravating circumstances but that there must be no mitigat-

ing circumstances to explain sentencing a person to death, that the

possibility of reform must be considered, and the widely varying

consequences of judicial discretion that make it a “lottery” have

challenged judicial thought.

Recent years, especially since 2009,

have witnessed renewed concern about the death penalty, especially

regarding judicial discretion in imposing it.

9 Bachan Singh v. State of Punjab, judgment dated 9 May 1980, reported in (1980) 2 SCC 684.

10 Ibid., paragraphs 132, 207, 201 and 199.

11 Ibid., paragraph 210.

12 Amnesty International,

Lethal Lottery: The Death Penalty in India—A Study of Supreme Court

Judgments in Death Penalty Cases 1950-2006 (London, 2008), available from www.amnesty.

org/en/library/info/ASA20/007/2008.

154 155

The “rarest of rare” standard, and the consideration of aggravating and

mitigating circumstances, have been integral parts of the law since the

pronouncement of the Constitution Bench in 1980 in the Bachan

Singh case. In 1996, in a decision of the Supreme Court in Ravji v.

State of Rajasthan

the Bachan Singh dictum was ignored and it was

held that it was “the nature and gravity of the crime but not the crim-

inal, which are germane for consideration of appropriate punishment

in a criminal trial.” Two accused were given the death sentence based

on this reasoning. Seven cases that followed relied on Ravji, leading

to 13 convicts being sent to death row without applying the Bachan

Singh procedure for determining the sentence. In 2009, the court

found that the Ravji court had been in contravention of the law.

This meant that there were people on death row who had not been

sentenced “according to procedure established by law.” In 2012, 14

former judges of the Supreme Court and the High Courts wrote to

the President of India drawing his attention to the error in the judg-

ments of the court that had sent 13 convicts to death row—including

two, Ravji Ram and Surja Ram, who had already been executed,

which the 14 former judges called the gravest miscarriage of justice

in the history of crime and punishment in independent India.

In 2004, Dhananjoy Chatterjee, a security guard at an apartment

block, was executed after having been convicted of the rape and

murder of a 14-year-old schoolgirl. This was believed to have

brought to an end a virtual moratorium with no executions in

almost 10 years. That is now known not to have been the case,

but at the time, the Ravji Ram and Surja Ram executions (which

13 Ravji v. State of Rajasthan, decided on 5 December 1996, reported in (1996) 2 SCC 175.

14 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra judgment dated 13 May 2009,

reported in (2009) 6 SCC 498. Two further decisions of the court—Dilip Tiwari v. State of

Maharashtra, decided on 10 December 2009, reported in (2010) 1 SCC 775, and Rajesh

Kumar v. State, decided on 28 September 2011, reported in (2011) 13 SCC 706—made the

same nding.

15 V. Venkatesan, “A case against the death penalty”, Frontline, 25 August-7 September 2012,

available from www.frontline.in/navigation/?type=static&page=archive. Since the letter

from the former judges, the President has commuted the sentence of three of the 13, and the

Governor of Orissa has done the same in a fourth instance; the mercy petition of six convicts

has been rejected by the Governor, and the matter is now pending in the Supreme Court in

three of the cases; Saibanna’s mercy petition was rejected, and his case is now pending in a writ

in the Karnataka High Court; Mohan Anna Chavan has had his mercy petition rejected by the

Governor, and the matter is now in the Ministry of Home Aairs. Information from the les of

Yug Chaudhry, lawyer, and Anup Surendranath, law teacher and researcher, personal communi-

cation, 28 July 2014.

occurred in 1996 and 1997) were not public knowledge. In the

eight years following Dhananjoy Chatterjee’s execution, there were

no further executions, at least in part because of the President not

agreeing to reject mercy petitions. Beginning in 2012, with the

hanging of Ajmal Kasab for his role in the attack in Mumbai in

November 2008, there has been a revival of executive sanction

for carrying out the death sentence. Afzal Guru, an accused in the

attack on Parliament in December 2001, was executed in February

2013. There followed a spate of rejections of mercy petitions by

the President which, but for the intervention of lawyers and civil

liberties organisations, who took the matter to the Supreme Court,

may have resulted in a steep climb in executions.

A decision of the

Supreme Court rst stayed the executions and then, essentially on

the ground of delay in carrying out the sentence, reduced the death

sentences to life imprisonment.

This has provided a much-needed

respite for those questioning the validity and fairness of this sen-

tence, but it is still some way from taking the death penalty out of

routine application, and further from doing away with it altogether.

Outside the courtroom, there has been public outrage over crime,

especially the frequency and brutality of crimes against women, par-

ticularly rape.

This has spilt into the courtroom, as when judges on

16 See, for instance, Mayura Janwalkar, “Dead against it”, Indian Express, 1 March 2014, available

from http://indianexpress.com/article/india/india-others/dead-against-it/. The Peoples Union for

Democratic Rights was among the petitioners who went to court to stop the executions; Shatrughan

Chauhan v. Union of India in judgment dated 21 January 2014, paragraph 2, available from

http://indiankanoon.org/doc/59968841/.

17 Shatrughan Chauhan v. Union of India in judgment dated 21 January 2014, paragraph 2, avail-

able from http://indiankanoon.org/doc/59968841/.

18 See, for example, Jiby Kattakayam, “Two admit to gang rape; anger spills over Delhi streets”,

The Hindu, 19 December 2012, available from www.thehindu.com/news/national/two-admit-

to-gangrape-anger-spills-over-delhi-streets/article4217180.ece?ref=relatedNews; “India Gate,

Raisina Hills closed for public, security beefed up”, The Hindu, 29 December 2012, available

from www.thehindu.com/news/cities/Delhi/india-gate-raisina-hills-closed-for-public-secu-

rity-beefed-up/article4252191.ece?ref=relatedNews; Betwa Sharma, “Photos: Indian court

echoes populist outcry, gives 4 rapists death sentence”, Vocativ, 11 September 2013, available

from www.vocativ.com/world/india/photos-india-demands-death-for-gang-rape-killers/;

Priyanka Kakodkar and Alok Deshpande, “Outrage in Mumbai over gang rape”, The Hindu, 20

March 2014, available from www.thehindu.com/news/national/other-states/outrage-in-mum-

bai-over-gang-rape/article5050225.ece.

“THERE IS, IN THE RESURGENCE OF THE DEATH

PENALTY, A LACK OF RESPECT FOR LIFE, FOR THE

LAW AND FOR PROCEDURE ESTABLISHED BY LAW.”

—Usha Ramanathan

156 157

the Nagpur bench of the Bombay High Court stated, while imposing

the death sentence on a defendant convicted of rape and 30 years

without remission on a co-defendant:

We also cannot ignore the recent amendments brought to

the Indian Penal Code on account of huge public hue and

cry that arose on account of dastardly act in the heinous and

gruesome rape and murder of Nirbhaya. The amendment as

a matter of fact echoes the sentiments of the society at large.

The sentiment of the society is glaring (sic), that such heinous

crime on hapless women are required to be dealt with an iron

hand. We have, therefore, no hesitation to hold that, in the

perception of the society it would surely be a “rarest of rare”

case wherein the death sentence is required to be imposed. .

. . As such, while deciding the present case, we will have to

keep ourselves aloof from our personal opinion as regarding

the desirability or otherwise of retaining death penalty. What

is required by us, is to decide as to whether in the perception

of the society at large, the present case is a case which can be

considered as rarest of rare case warranting death sentence.

Yet, there is a growing concern among judges about the use of judi-

cial discretion in deciding matters of life and death.

The resumption of executions in 2004 provoked much debate about

the death penalty. In June 2004, when it appeared that the date for

the execution of Dhananjoy Chatterjee might be xed, civil liberties

activists launched a series of initiatives to stop the execution, including

appealing to the President to exercise his power to commute the sen-

tence to life in prison, and going to court to halt the execution. These

eorts did not succeed, and Dhananjoy Chatterjee was hanged on 14

August 2004. Newspapers announced on 15 August, Independence

19 State of Maharashtra v. Rakesh Manohar Kamble in judgment dated 20 March 2014, pp. 109-

110 and 105, Nagpur Bench of the Bombay High Court at http://bombayhighcourt.nic.in/gen-

eratenewauth.php?auth=cGF0aD0uL2RhdGEvbmFnanVkZ2VtZW50cy8yMDE0LyZmbm-

FtZT1DUkNPTkYzMTMucGRmJnNtZmxhZz1O.

20 See, for instance, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra in judgment

dated 13 May 2009, reported in (2009) 6 SCC 498; Sangeet v. State of Haryana in judgment

dated 20 November 2012, reported in (2013) 2 SCC 452; Gurvail Singh v. State of Punjab in

judgment dated 7 February 2013, available from http://indiankanoon.org/doc/32917452/.

Day, that a virtual moratorium on the death penalty had been broken.

From June to August, there had been a urry of media reports on the

crime, the victim’s background, and the hangman.

Public opinion

was aroused to the point that the President, who would not sign the

death warrant for any other prisoner, signed this one.

Years later, the then President, Abdul Kalam, wrote about his sur-

prise that almost all cases of clemency “had a social and economic

bias” and that deciding the matter of clemency was one of the more

dicult tasks that he had to undertake as President. About the only

case in which he refused clemency, he said: “Of course there was one

case where I found that the lift operator (Dhananjoy Chatterjee) had

in fact committed the crime of raping and killing the girl without

doubt. In that case I armed the sentence.”

Nothing in the Presi-

dent’s statement explained why he made an exception of Dhananjoy

Chatterjee, whose case was based on circumstantial evidence. He was

from an impoverished background in rural West Bengal.

He had

been on death row for 10 years and there was nothing to indicate that

he had been any trouble while in prison that would warrant anxious

concern.. The public sentiment whipped up by the media, and the

call for the execution that it engendered, could oer an explanation.

RAPE AND THE DEATH PENALTY

In this period, members of the women’s movement met to discuss

how we should respond. The Indian women’s movement has had

violence against women on its agenda, and rape in particular, since

21 “Dhananjoy’s death”, Hindustan Times, 27 December 2004 at http://www.hindustantimes.com/

news-feed/nm3/dhananjoy-s-death/article1-26259.aspx; Sujoy Dhar, “Death penalty: an Indian

hangman speaks”, National Confederation of Human Rights Organizations, India, available from

http://nchro.org/index.php?option=com_content&view=article&id=5267:death-penalty--an-in-

dian-hangman-speaks&catid=2:capital-punishment&Itemid=10; Dipannita Ghosh Biswas,

“Hangman’s tale”, India Today, 27 June 2005, available from http://indiatoday.intoday.in/story/

documentary-on-hangman-nata-mullick/1/194691.html; “Hang him and save our daughters”,

Redi.com, 30 June 2004, available from www.redi.com/news/2004/jun/30hang.htm.

22 “APJ Abdul Kalam: Pendency of death cases had social, economic bias”, Times of India, 2

July 2012, available from http://timesondia.indiatimes.com/india/APJ-Abdul-Kalam-Pen-

dency-of-death-penalty-cases-had-social-economic-bias/articleshow/14590447.cms; A.P.J. Abdul

Kalam, Turning Points: A Journey through Challenges (New Delhi, HarperCollins Publishers

India with The India Today Group, 2012). The Supreme Court judgment, Dhananjoy Chatterjee v.

State of West Bengal in judgment dated 11 January 1994, reported in (1994) 2 SCC 220, records

him as having been a security guard.

23 Suhrid Sankar Chattopadhyay, “The case of death sentence” Frontline, 14-27 August 2004,

available from www.frontline.in/static/html/2117/stories/20040827004602100.htm.

158 159

at least 1979

. The law on rape, and on other forms of violence,

had been amended to reect the growing concern about tolerance

of crimes such as rape—where the process re-victimised the victim,

and all too often let the perpetrator o with a light sentence. In

2002, the Home Minister said in Parliament that he would introduce

the sentence of death for rape. This set o much discussion among

women’s groups, which rejected this penalty.

As a practical issue,

feminists like Vina Mazumdar expressed alarm that the possibility of

a death sentence was more likely to result in the victim of rape also

being murdered so as to remove the witness. This was not protec-

tion for women. As a political issue, the women’s movement and the

human rights movement, which overlapped signicantly, agreed that

the work of the state was to protect life and liberty, and it would

be unwise to hand over the power to kill to the state—and that the

death penalty was a diversion from the real issue, safety of women and

the working of the criminal justice system in a way that stigma and

disbelief would be displaced by a process that led to a fair trial and

conviction of the oender.

This was not an isolated resort to paternalism and patriarchy to address

the issue of rape. In the latest amendment to the Indian Penal Code in

2013, Parliament again acted to prescribe the death penalty in the name

of women. Until then, where the death sentence had been imposed for

rape, it has been because the rape was accompanied by murder. Without

murder, there could be no sentence of death. The 2013 amendment

introduced the death sentence in cases in which a person who has been

previously convicted for rape, or inicts “an injury which causes the

death of the person or causes the person to be in a persistent vegetative

state,” is subsequently convicted of as a repeat oence.

24 Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar,`An Open Letter

to the Chief Justice of India’ published in (1979) 4 SCC (Journal) 17; the case that prompted

the Open Letter was Tukaram v. State of Maharashtra in judgment dated September 15, 1978

reported in (1979) 2 SCC 143.

25 “Advani favours death sentence for rapists”,

Times of India, 26 November 2002, available

from http://timesondia.indiatimes.com/india/Advani-favours-death-sentence-for-rapists/article-

show/29451444.cms; Laxmi Murthy, “Why L.K. Advani is wrong”, Boloji, 12 January 2003,

available from www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=6324; “Advani

remarks, a political grandstand play”, The Hindu, 29 November 2002, available from http://hin-

du.com/2002/11/29/stories/2002112905720900.htm; “Death penalty for rapists”, news24

archives, 27 November 2002, available from www.news24.com/World/Death-penalty-for-rap-

ists-20021127.

There is a signicant prelude to this amendment. In December

2012, a young woman accompanied by a friend boarded a bus after

watching a lm and was brutally raped; she died of her injuries less

than two weeks later. There was an outpouring of anger against a

government that had paid little or no attention to the lack of safe

spaces for women in the city. The incident revealed the inadequate

approach to crime prevention, and it was suggested that the crime

could have been prevented if the police had acted when alerted. In

a bid to contain the reaction, the central government set up a com-

mittee of three people— Justice J.S. Verma, former Chief Justice

of India, Justice Leila Seth, former Chief Justice of the Himachal

Pradesh High Court, and Gopal Subramanium, a senior counsel

in the Supreme Court Bar—to report on how the law should be

changed to deal with the escalating violence against women. The

committee heard women’s groups expressly reject the introduction

of the death penalty in the name of protecting women. Its report

included the following:

Taking into account the views expressed on the subject by

an overwhelming majority of scholars, leaders of women’s

organisations, and other stakeholders, there is a strong

submission that the seeking of death penalty would be a

regressive step in the eld of sentencing and reformation.

The law was amended to include the death penalty despite this advice.

In April 2014 it produced the rst conviction and sentence of death,

leading a legal scholar and women’s rights activist to lament that:

The verdict, though expected, has left us with a bitter

taste and a sense of betrayal. Not only is the sentence

meted out to the young boys from impoverished back-

ground too harsh, but our fear is that it will set a bad

precedent and serve to dilute the “rarest of rare” premise

upon which a verdict of death penalty must hinge as per

our criminal jurisprudence.

26 Justice J.S. Verma (Chairperson), Report of the Committee on Amendments to Criminal Law

(2013), p. 245, paragraph 24.

160 161

While most countries are moving towards abolition of

death penalty, this is a move in the reverse direction.

One of those implicated in the December 2012 rape and murder was

a juvenile. The clamour to have the law amended so that a juvenile

could stand trial as an adult because of the heinous nature of the

crime also saw a case being led in the Supreme Court asking that

the age at which a person may stand trial be reduced from 18 to 16.

The Supreme Court turned down the petition, citing, among other

things, developments in international law.

This case is symptomatic of expressions of public ire that have now

become common. Who was this boy? A national daily newspaper who

visited his village quoted his mother as saying “I thought he was dead”:

Ever since she was told that her son had been arrested in

a gang rape case—police claim he was the most brutal of

the six—the woman has not stirred out of her home. It’s

a hut with no roof, only a plastic sheet as cover. Residents

of the village say the family of the juvenile is the poorest

among them. When The Sunday Express met the juve-

nile’s mother, she said her son used to send them Rs 600,

twice a year. But that stopped ve years ago. Neighbours

told her he had been spotted at a hotel in East Delhi where

he worked as a waiter. Later, they told her they couldn’t

nd him. She said he left the village eleven years ago. “His

father is mentally ill. He was the eldest, so he went to

Delhi to work at a hotel with some people from the village.

Rs 600, twice a year, was a big help,” she said.

27 Flavia Agnes, “Opinion: Why I oppose death for rapists”, Mumbai Mirror, 5 April 2014, avail-

able from www.mumbaimirror.com/mumbai/cover-story/Opinion-Why-I-oppose-death-for-rapists/

articleshow/33250078.cms.

28 Subramanian Swamy v. Raju thru Member, Juvenile Justice Board, judgment dated 28 March

2014, available from http://judis.nic.in/supremecourt/imgs1.aspx?lename=41356.

29 Prawesh Lama, “I thought he was dead, says mother of juvenile accused”, The Sunday Express,

6 January 2013, available from http://archive.indianexpress.com/news/i-thought-he-was-

dead-says-mother-of-juvenile-accused/1055151/; Matthias Williams and Arup Roychudhury,

“Delhi rape accused lived on margins of India’s boom” Reuters,12 January 2013, available

from http://in.reuters.com/article/2013/01/12/india-rape-delhi-accused-juvenile-ram-

sin-idINDEE90B01S20130112.

It is one of the tragedies reected in this episode that the police

visited the village twice after the crime: once to inform the parents

about the arrest, and a second time as part of their inquiries into his

age. In the years between his leaving home and the crime, the state

seems not to have been there. The public outcry after the crime was

directed as much at the failures of the state, but the trial and con-

viction of the four accused and the focus on the juvenile defendant

deected attention and anger to the accused and the crime.

Poverty is invariably accompanied by powerlessness in the making

of criminal law policy. The idea of post-conviction investigation is

nonexistent. Far too often the criminal justice system has failed to

produce convincing convictions. A well-respected public intellectual,

Gopalkrishna Gandhi, who has also served in the bureaucracy and

been a governor, said recently:

There has been a steady, and now a steep, decline in the

ability of the system to deal with crime. The machinery

grows, crime grows. But the latter, remaining one step ahead.

Attempts to preserve the legitimacy of the system, however,

have produced ironic phenomena such as scapegoating,

which amounts to saying “Go nd someone, anyone, but

there needs to be a conviction.”

TERRORISM AND THE DEATH PENALTY

In 1985, the Terrorism and Disruptive Activities (Prevention) Act

started a dilution of procedure and process in the conduct of criminal

trials. It survived till 1995, when it lost political support. In 2002,

following an attack on Parliament in December 2001, the Preven-

tion of Terrorism Act was enacted; it survived until 2004. The trials

under these laws have, however, been taken to judgment. There are

features of trial under these extraordinary laws that hold them apart

from regular law. For instance, they create special tribunals to deal

with terrorist oences. The Evidence Act 1872 makes confession to

30 Gopalkrishna Gandhi, “Eclipse at noon: shadows over India’s conscience”, D.P. Kohli Memorial

Lecture delivered on 15 April 2014 in New Delhi.

162 163

a police ocer inadmissible

—an implicit acknowledgment of the

prevalence of torture and coercion during investigation. But anti-ter-

ror laws make confessions to a police ocer admissible, so long as

the police ocer is of a certain rank, the presumption being that

high-ranking ocials will not be complicit in torture.

Disturbing decisions may result from the process. Illustratively,

Devinder Pal Singh Bhullar’s petition for clemency was rejected

by the President on 8 May 2011.

Bhullar’s wife then moved the

Supreme Court seeking commutation on the ground of delay and

because, while in prison, he had become mentally ill, and in keeping

with human rights norms, a person with mental illness should not be

executed. On 12 April 2013, a bench of the Supreme Court refused

relief, holding that the factor of delay in execution was inapplicable

in situations where the conviction was under the terrorism law or

similar statutes.

The court refused to accept the document on his

mental health condition, saying that it did not convince the court that

the convict was of unsound mind suciently to halt execution. On

31 March 2014, this decision was categorically set aside by a larger

bench of the Supreme Court,

but not before the vagueness in the

application of the law was revealed.

It seems clear that anti-terror laws are made in political contexts that

are invariably weighted against a distinctive community of people. In

1985, militancy in Punjab led Parliament to enact the anti-terrorism

law. People tried under this law were almost invariably Sikhs. And the

carrying out of the sentence of death could be understood to serve

the symbolic purpose of establishing that the state was dealing with

31 See Arup Bhuyan v. State of Assam judgment dated 3 February 2011, available from www.

indiankanoon.org/doc/792920/.

32 This provision, Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, which

makes admissible confessions made to a police ocer, was upheld by the Supreme Court in

Kartar Singh v. State of Punjab in judgment dated 11 March 1994, reported in (1994) 3 SCC

569 even as, p. 687, paragraph 250.

33 For a brief setting out of the circumstances of Bhullar’s case, see Usha Ramanathan, “Futile

penalty”, Frontline, 25 August-7 September 2012, available from www.frontline.in/navigation/?-

type=static&page=archive.

34 Devinder Pal Singh Bhullar v. State of NCT of Delhi in judgment dated 12 April 2013, available

from http://judis.nic.in/supremecourt/imgst.aspx?lename=40266.

35 Navneet Kaur v. State of NCT of Delhi in judgment dated 31 March 2014, available from

http://judis.nic.in/supremecourt/imgst.aspx?lename=41363, exercising its “inherent jurisdic-

tion.” This is in the nature of a power given to the Supreme Court in the Constitution, Article 142,

for “doing complete justice.”

terror. Jinda and Sukha, who were tried and executed for the murder

of General Vaidya, were convicted on the basis of their alleged con-

fessions.

They refused to appeal the decision, seeing their executions

as their martyrdom. Rajoana, convicted of the assassination of the

ex-Chief Minister of Punjab, has refused to appeal or claim clemency,

writing to the Chief Justice of the High Court that “the legal system,

judicial system of this Country and the rulers of this Country have

been discriminating” and that “slavery of such system is not accept-

able to me.”

That the death penalty has been counterproductive

in dealing with terrorist crimes is evident. Years after militancy in

Punjab had reached a quietus, the death sentences given to these

prisoners only served to reopen wounds.

The 1985 anti-terrorism law was applied in dealing with the after-

math of the assassination of former Prime Minister Rajiv Gandhi in

May 1991. A total of 26 people were tried for the crime in a special

court; all 26 were convicted and sentenced to death. The Supreme

Court later acquitted 19 of the 26 of the capital oence. One person

was acquitted altogether, and 18 others were convicted of lesser

oences and released soon after the case concluded. The sentence of

death was conrmed for four of the prisoners.

None of the accused

who stood trial were at the core of the conspiracy. Till 17 May 1991,

the court observed in its judgment, only three people—Sivarasan,

Subha and Dhanu—knew the object of the conspiracy, which was to

kill Rajiv Gandhi. One of them was the suicide bomber, who died

on the spot; all three were dead before they could be sent to trial. The

four people, one woman and three men, who were given the death

sentence, were peripheral participants at best. Perarivalan, for instance,

was convicted of having purchased a 9-volt battery used in the explo-

sive device that killed Rajiv Gandhi. His knowledge, according to the

court, was that a 9-volt battery can be used to detonate an explosive

device; and, although the court did not attribute knowledge of the

crime to any of the accused before 17 May 1991 (the assassination

36 State of Maharashtra v. Sukhdeo Singh judgment dated 15 July 1992, available from http://indi-

ankanoon.org/doc/1824507/.

37 Ruchi Gupta, “Why Balwant Singh Rajoana never appealed his death sentence”, Times of

India, 29 March 2012, available from http://timesondia.indiatimes.com/india/Why-Balwant-

Singh-Rajoana-never-appealed-against-his-death-sentence/articleshow/12458451.cms.

38 State through Superintendent of Police, CBI/SIT v. Nalini judgment dated 11 May 1999, report-

ed in (1999) 5 SCC 253.

164 165

was on 21 May), it declared that he was “in the thick of conspiracy.”

The leadership in this conspiracy was seen as leading up to Sri Lankan

separatist leader Prabhakaran, but he could not be reached by the law.

The people who could be found, it appears, received the penalty

that could not be imposed on those who were truly responsible for

the assassination.

Perarivalan (Arivu) has asserted his innocence through the years. In

2006, his protestation of innocence was published as a book, An Appeal

from the Death Row: Rajiv Murder Case—The Truth Speaks, with

a series of forewords written by retired judges, senior journalists and

human rights activists. In November 2013, newspapers carried a star-

tling statement: A retired police ocer who had recorded Perarivalan’s

confession had said, in a documentary, that he had not recorded it

verbatim. V. Thiagarajan IPS (retired), who was the then CBI SP of

the Kerala Branch, said he had been assigned the task of recording

the statement of accused persons in 1991. “Arivu told me that he did

not know why they asked him to buy that [the battery]. But I did not

record that in the confessional statement. Then the investigation was in

progress, so that particular statement I did not record. Strictly speaking,

law expects you to record a statement verbatim. . . . we don’t do that in

practice,” The Hindu reported him as saying.

Mr. Thiagarajan went on to explain that though he felt this

before, he could not do anything at that stage. With regard

to Arivu in particular, he always felt “a little uneasy” that

the confessional statement was not appreciated the way it

should have been. “Supercially they took it and jumped

to the conclusion. . . . they took a strong view that Arivu

knew of the killing and he bought the battery. That is not

the truth. We cannot speculate, it is very dangerous to spec-

ulate.” And that “there was subsequent internal evidence to

clearly say that Arivu had no prior knowledge that Gandhi

was going to be killed.”

39 Judgment of Justice D.P. Wadhwa in State through Superintendent of Police, CBI/SIT v. Nalini

judgment dated 11 May 1999, reported in (1999) 5 SCC 253.

40 S. Vijay Kumar, “Former CBI ocial says he did not record Perarivalan’s confession verbatim”,

The Hindu, 24 November 2013, available from www.thehindu.com/news/national/tamil-nadu/

former-cbi-ocial-says-he-did-not-record-perarivalans-confession-verbatim/article5384370.ece.

On 18 February 2014, the Supreme Court commuted the sentences of

the three people still under a sentence of death in connection with the

Rajiv Gandhi assassination to life imprisonment on the ground of delay.

In an attack on Parliament in December 2001, though all ve intrud-

ers were shot dead, four others were charged and tried for having

conspired in the attack. All four were convicted, and three were

given the death sentence. By the time the case had run its course

through the High Court and the Supreme Court,

two had been

acquitted, including Gilani, who had been given the death sentence

by the trial court. Shaukat had the death sentence reduced to 10

years in prison, and Afzal Guru was given the death sentence. Afzal

Guru was hanged in February 2013, in circumstances that have raised

serious questions about violations of procedure and about the ethics

of executions carried out by the court in secrecy and announced

after their occurrence.

Nothing more is known about who the

ve intruders were. The Home Minster said from the oor of the

Assembly that they were Pakistani terrorists, because “the dead men

looked like Pakistanis,” and no further information has emerged since

then. But this resulted in troops being massed along the border in an

eyeball-to-eyeball confrontation; and the High Court increased the

sentence from life imprisonment to death for the oence of waging

war, as conspirators, because “the clouds of war with our neighbour

loomed large for a long period of time” and “the nation suered not

only an economic strain but even the trauma of an inhuman war.”

41 T. Suthendra Raja @ Santhan v. Union of India judgment dated 18 February 2014, available

from http://judis.nic.in/supremecourt/imgst.aspx?lename=41228. This followed a ruling earlier

in the year in the landmark case of Shatrughan Chauhan v. Union of India judgment dated 21

January 2014, reported in (2014) 3 SCC 1). The death sentence of the fourth person who had

been handed the death penalty by the courts, Nalini, was commuted to life in prison on 24 April

2000 after Sonia Gandhi, wife of the slain former Prime Minister, petitioned for clemency. Nalini

had by then had a child while in prison.

42 State v. Mohd Afzal judgment dated 29 October 2003, reported in (2003) 107 Delhi Law Times

385, available from http://indiankanoon.org/doc/1031426/; State (NCT of Delhi) v. Navjot

Sandhu judgment dated 4 August 2005, available from http://indiankanoon.org/doc/1769219/.

43 See also Nirmala George, “India’s secret executions cause concern in the wake of Mohammad

Afzal Guru hanging”, Hungton Post, 23 February 2013, available from www.hungtonpost.

com/2013/02/23/indias-secret-executions-mohammad-afzal-guru-_n_2749329.html; Usha

Ramanathan, “The disturbing truth about an execution”, The Hindu, 13 March 2013, available

from www.thehindu.com/opinion/lead/the-disturbing-truth-about-an-execution/article4501567.

ece.

44 Nirmalangshu Mukherji (2005), December 13, available from http://books.google.co.in/

books?id=PeVW26gYhsYC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onep-

age&q&f=false; see also, Usha Ramanathan, “A case for a public inquiry”, Frontline, 23 April-6

May 2005, available from www.frontline.in/navigation/?type=static&page=archive.

166 167

There are questions about what the death penalty has achieved in

cases such as these. Considering the role attributed to those given

the death sentence, the potential for defence seems small. There

may be an element of retribution which answers the call of the

“collective conscience” of the people—a reason that the court has

used to explain why it arms the death sentence.

Women’s rights

and human rights activists and others have distanced themselves

from this imagined collective,

even as the death penalty has indeed

become a rallying cry for those angry and rendered insecure by

a state that seems unable to ensure safety. The death penalty has

intensied controversy generated by the failures of the criminal

justice system.

The trial, conviction and execution of Ajmal Kasab, the sole surviving

member of the attack on Bombay in November 2008, raises some of

the same concerns as the anti-terror cases described above, but there

is more.

Ajmal Kasab was a Pakistani national who, along with nine others,

entered Bombay illegally and attacked and killed 164 people, injuring

many others. He was charged with killing seven people as well as

other oences. How is a fair trial to be ensured in an environment

that is (with reason) hostile to an accused foreigner whose country

does not extend any support—in law, language or any other way—

and whose understanding is limited by his experience and education

and by the isolation of prison life?

45 Machhi Singh v. State of Punjab judgment dated 20 July 1983, reported in (1983) 3 SCR 413,

p. 431.

46 See, for instance, Justice JS Verma (Chairperson),

Report of the Committee on Amendments to

Criminal Law (2013), p. 245, paragraph 24; Flavia Agnes, “Opinion: Why I oppose death for rap-

ists”, Mumbai Mirror, 5 April 2014, available from www.mumbaimirror.com/mumbai/cover-story/

Opinion-Why-I-oppose-death-for-rapists/articleshow/33250078.cms.

47 Voices were raised against the death sentence given to Devinder Pal Singh Bhullar in Punjab

(for example, www.siasat.pk/forum/showthread.php?175761-Bhullar-case-Akali-Dal-seeks-

PM-s-intervention-Sikh-s-Upset-in-India), Afzal Guru in Kashmir (for example, www.bbc.

com/news/world-asia-india-21406874), the Tamilnadu government’s decision to remit the

sentences of those incarcerated in connection with the Rajiv Gandhi assassination (Arundhati

Ramanathan, “Tamil Nadu decides to free Rajiv Gandhi case convicts”,

Livemint, 19 February

2014), which the Centre protested the state government did not have the authority to do, and which

has now been referred to a ve-judge bench of the Supreme Court for a decision (“SC refers case of

Rajiv Gandhi’s killers to Constitution Bench”, Tehelka, 25 April 2014, available from www.tehel-

ka.com/sc-refers-case-of-rajiv-gandhis-killers-to-constitution-bench/), Rajoana in Punjab (“India

puts Sikh radical Rajoana’s execution on hold”, BBC News, 28 March 2012, available from www.

bbc.com/news/world-asia-india-17532832).

This problem is not unique to Kasab; it is uncomfortably common,

but only the politically explosive cases seem to reach the public eye,

and this needs the attention of the international community.

That Kasab was put through the “ossication test” to establish

whether or not he was a juvenile should worry those watching the

use of the death penalty. The eects on the trial of the publicity

surrounding the case—the crime occurred in public, and parts of

his involvement were aired in the media, which raised the pitch of

public disapprobation—have yet to be fully understood. The case

presents a range of traditional fair-trial concerns, including legal

assistance and representation, defence access to documents, and lan-

guage barriers.

Clemency jurisdiction

The Indian Constitution gives the executive, acting through the Pres-

ident (Article 72) or the governor of a state (Article 161), the power

to commute the death sentence. The power has in recent times been

used to reject mercy petitions, clearing the way for executions.

The

Supreme Court has stepped in and, essentially accepting the ground

of delay, reduced the sentences from death to life.

In the meantime,

the record raises questions about how clemency is exercised. Bandu

Baburao Tidake’s death sentence was commuted by the President on

2 June 2012—but he had been dead since 18 October 2007; “the

report about his death apparently did not reach the Home Ministry

when it recommended his commutation.”

No guidelines apply to

48 Mohammed Ajmal Kasab v. State of Maharashtra in judgment dated 29 August 2012, available

from http://supremecourtondia.nic.in/outtoday/39511.pdf. See also Ritesh K. Srivastava, “Legal

aid for Kasab?”, Zee News, available from http://zeenews.india.com/MumbaiTerror/story.aspx-

?aid=498251; V. Venkatesan, “Gaps in Kasab case”, Frontline, 3-16 November 2012, available

from www.frontline.in/static/html/2922/stories/20121116292203700.htm.

49 Bharti Jain, “President rejects mercy pleas of Nithari killer, 5 others”, Times of India, 19 July

2014.

50 Shatrughan Chauhan v. Union of India judgment dated 21 January 2014, reported in (2014) 3

SCC 1; T. Suthendra Raja @ Santhan v. Union of India in judgment dated 18 February 2014 at

http://judis.nic.in/supremecourt/imgst.aspx?lename=41228; Navneet Kaur v. State of NCT of

Delhi in judgment dated 31 March 2014, available from http://judis.nic.in/supremecourt/imgst.

aspx?lename=41363.

51 Manoj Mitta, “After six years on death row, spared for being a juvenile”, Times of India, 21

August 2012, available from http://timesondia.indiatimes.com/india/After-six-years-on-death-

row-spared-for-being-a-juvenile/articleshow/15577973.cms; V. Venkatesan, “A case against the

death penalty”, Frontline,25 August-7 September 2012, available from www.frontline.in/static/

html/2917/stories/20120907291700400.htm.

168 169

executive clemency, and no reasons are required to be given. While

the death penalty is still on the statute book, the mercy jurisdiction

has to be re-imagined as a state responsibility. Ravji Ram and Surja

Ram were executed in 1996 and 1997 after an erroneous judgment

was reached without following the procedure established by law—a

constitutional prerequisite to depriving life. Ankush Maruti Shinde,

a convict on death row, was declared a juvenile and removed from

death row;

there is nothing to indicate an enquiry into why a juve-

nile was made to stand trial in a capital case.

CONCLUSION

In recent years, India has seen a number of troubling events related

to the death penalty. Two people have been executed under an order

arrived at without following the procedure established by law. An

amendment to the criminal law provides for the imposition of the

death sentence where hurt or death is threatened, even where it may

not have been caused. A law made under the pretext of protect-

ing women prescribes an alternative sentence of death for a repeat

oender who has been convicted of rape. The threat of execution of

people convicted in anti-terror cases has given rise to a politics that

exacerbates regional and community passions. A juvenile has been

made to stand trial, convicted and sent to death row, from where he

was removed only after a human rights lawyer took his matter to a

sessions court, and where the judge was willing to entertain a petition

in a matter that had already been decided by the Supreme Court.

The reaction to the involvement of young persons in violent crime,

including rape, has generated a clamour for reducing the age of the

juvenile from 18 to 16. A President has written, in an autobiograph-

ical account of his years in oce, that in his experience, almost all

pending cases “had a social and economic bias.” Secret executions

have been carried out. The judiciary has expressed concern about the

injustices that the criminal justice system has been seen to produce,

including delay and error, while the executive has set the clock back

on executions. The Law Commission has found that there has been

no research on the death penalty, and so we know very little about its

ecacy or its absence. And a number of other ills beset the criminal

52 Venkatesan, “A case against the death penalty”.

53 Mitta, “After six years on death row, spared for being a juvenile”.

justice system, including torture in custody, poor investigative skills,

severe deciencies in legal aid and legal representation, overcrowded

dockets, delays and lack of witness protection.

At this point, the reasonableness of the death penalty is questionable.

There is no evidence that it has any deterrent eect. Whether exe-

cutions happen in secret or in public, are barely noticed or treated

as spectacles, the logic of the sentence is not evident. “Collective

conscience” seems to have substituted for all other understandings

of punishment, along with a return of retribution. The recent spate

of rejections of clemency applications threatens to lead to a spate of

executions. There is, in the resurgence of the death penalty, a lack of

respect for life, for the law and for procedure established by law.

170 171

THE DEATH PENALTY IN

BOTSWANA: BARRIERS

TO EQUAL JUSTICE

Alice Mogwe

Discrimination is treating people dierently based on their actual or

perceived membership in a certain group or category, “especially in a

worse way from the way in which you treat other people.”

Exclusion

forms the basis of discrimination. In addressing the topic of discrim-

ination and the death penalty, I would like to take you on a journey

through my country, Botswana, a country that has retained the death

penalty. We have a population of about 2 million. Our most recent

execution was in 2013, when Orelesitse Thokamolelo was hanged on

27 May.

Opponents of the death penalty believe that its arbitrariness and the

inuence of socio-political and economic conditions on its imple-

mentation mean that it must be abolished. Studies have found that

the eect of race and class on human rights have serious implications

for defendants’ ability to obtain a fair trial and equal access to justice.

The permanence of the death penalty makes its use particularly dire

when there is any question about the fairness of the trial.

THE AFRICAN HUMAN RIGHTS CONTEXT

Botswana is a member of the African Union and the African Com-

mission on Human and People’s Rights. The right to life is protected

in the following documents:

• The African Charter on Human and Peoples’ Rights, Article

4, states, “Human beings are inviolable. Every human being

1 Alice Mogwe is director of DITSHWANELO, the Botswana Centre for Human Rights.

Cambridge Dictionaries Online, “Discrimination”, available from http://dictionary.cambridge.

org/us/dictionary/british/.

3 Amnesty International,

United States of America: Death by Discrimination: The Continuing Role

of Race in Capital Cases (2003); International Federation for Human Rights and Center for

Constitutional Rights, Discrimination, Torture, and Execution: A Human Rights Analysis of the

Death Penalty in California and Louisiana (2013).

shall be entitled to respect for his life and the integrity of his

person. No one may be arbitrarily deprived of this right.”

• The African Charter on the Rights and Welfare of the

Child, Article 5, states, “Every child has an inherent right

to life. This right shall be protected by law. . . . [the] death

sentence shall not be pronounced for crimes committed

by children.”

• The Protocol to the African Charter on Human and People’s

Rights on the Rights of Women in Africa, Article 4, states,

“Every woman shall be entitled to respect for her life and the

integrity and security of her person.”

In 1999, the African Commission adopted a resolution at its 26th

ordinary session in Kigali, Rwanda, urging States parties to the Afri-

can Charter to consider the possibility of a death penalty moratorium

and eventual abolition. In 2006 the Working Group on the Death

Penalty was established. In October 2012, its mandate was renewed

and expanded and it was renamed the Working Group on Death

Penalty and Extrajudicial, Summary or Arbitrary Killings in Africa. It

reports twice a year to the African Commission.

The Working Group’s Study on the Question of the Death Penalty in

Africa was adopted by the African Commission at its 50th ordinary

session in 2011. The study was ocially launched in April 2012, in

collaboration with the partners of the Working Group, namely, the

International Federation for Human Rights, FIACAT and World

Coalition against the Death Penalty. One of the key strategies recom-

mended in the study is that the ACHPR should continue working

closely with United Nations organs, in particular the Oce of the

High Commissioner for Human Rights, as well as with national

human rights institutions and civil society organisations, to mobilise

action towards the abolition of the death penalty.

Another key strat-

egy recommended in the study is the production of a protocol to the

African Charter on Human and Peoples’ Rights on the abolition of

the death penalty in Africa.

4 Part VII, Strategies, p. vi.

5 Ibid., p. vii.

172 173

As at January 2014, the status of the death penalty in Africa could be

summed up as follows:

• 17 formally abolitionist countries: Angola, Benin, Burundi,

Cabo Verde, Côte d’Ivoire, Djibouti, Gabon, Guinea-Bissau,

Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and

Principe, Senegal, Seychelles, South Africa and Togo.

• 24 de facto abolitionist countries (no executions for

at least 10 years—the year of the last execution is given in

parentheses): Burkina Faso (1988), Cameroon (1988), Cen-

tral African Republic (1981), Chad (2003), Comoros (1997),

Republic of the Congo (1982), Democratic Republic of the

Congo (2003), Eritrea (before independence in 1993), Ghana

(1993), Guinea (2001), Kenya (1987), Lesotho (1995), Liberia

(2000), Madagascar (1958), Malawi (1992), Mauritania (1987),

Morocco (1993), Niger (1976), Sierra Leone (1998), Swazi-

land (1982), Tanzania (1994), Tunisia (1991), Zambia (1997)

and Zimbabwe (2003).

• 2 retentionist countries observing a moratorium on

executions: Algeria and Mali.

• 11 retentionist countries: Botswana, Egypt, Equatorial

Guinea, Ethiopia, Gambia, Libya, Nigeria, Somalia, South

Sudan, Sudan and Uganda.

In Botswana, the most recent execution was in 2013. As at 13 June

2013, Botswana had executed 47 people since independence in 1966.

THE BOTSWANA HUMAN RIGHTS CONTEXT

Botswana is a signatory to the International Covenant on Civil

and Political Rights, which refers to the death penalty in Article 6:

“Anyone sentenced to death shall have the right to seek pardon or

commutation of the sentence. . . . Sentence of death shall not be

6 Hands O Cain (2014).

7 T. Kgalemang, “Botswana hangs 47 since independence”,

Botswana Gazette, 13 June 2013,

available from www.gazettebw.com/?p=3350.

imposed for crimes committed by persons below 18 years of age and

shall not be carried out on pregnant women.” Botswana is a State

party to the African Charter on Human and Peoples’ Rights and the

African Charter on the Rights and Welfare of the Child, but not to

the African Charter on Human and People’s Rights’ Protocol on the

Rights of Women in Africa.

The Botswana Constitution (Section 3) recognises the right to life,

liberty and security of the person and protection of the law. However,

the Penal Code provides for the death penalty for murder, treason,

instigating a foreigner to invade Botswana and committing assault

with intent to murder in the course of piracy. The Botswana Defence

Force Act also contains capital oences: aiding the enemy, cowardly

behaviour and mutiny.

The Penal Code provides that any person convicted of murder shall

be sentenced to death unless the court believes that there are exten-

uating circumstances. To determine the extenuating circumstances,

the court shall take into consideration the “standards of behaviour

of an ordinary person of the class of the community to which the

convicted person belongs” (Section 203). The Penal Code further

states that the death sentence shall not be pronounced against any

person who is under the age of 18 or pregnant women under

any circumstances (Section 26). When a woman facing a death sen-

tence can prove that she is pregnant, her sentence will be reduced to

life imprisonment.

BARRIERS TO EQUAL JUSTICE

DITSHWANELO, the Botswana Centre for Human Rights, worked

on a death penalty case (DITSHWANELO v. Attorney General of

Botswana

)—that exemplies some key barriers to equal justice for poor

people and ethnic minorities in Botswana. Tlhabologang Maauwe and

Gwara Brown Motswetla, two indigenous men of the Basarwa/San

ethnic group, were found guilty of the murder of a herdsman whose

ox they had killed. The Basarwa/San are generally poor and have few

economic and educational opportunities. They tend to depend for sur-

vival on employment by wealthier cattle owners and on government

8 MISCRA Case No. 2 of 1999.

174 175

assistance programmes. At the time of the murder, Botswana was expe-

riencing the severe drought of 1994-1995. The crops had failed, and

the families of the defendants had little to eat. The only animals in the

area which the families were legally allowed to hunt were squirrels,

but they had not been successful in nding any. Mr. Maauwe and Mr.

Motswetla killed a stray ox, and when the herdsman came across them

with the remains of the ox, a ght ensued and the herdsman was killed.

They were arrested for the murder.

During the original trial, some of the defendants’ court-appointed

lawyers never consulted them, a clear case of inadequate represen-

tation. The prison log books did not contain any evidence of the

lawyers visiting their clients in prison. One of the pro deo lawyers

ed Botswana amid allegations of fraud. The other initially resisted

handing over his le to DITSHWANELO, until he was informed

that a court order would be sought. The le contained no con-

sultation or trial notes. Mr. Maauwe and Mr. Motswetla had not

been informed by their legal representatives about their options

under Botswana law—an accused can choose to remain silent or

give sworn testimony subject to cross-examination or an unsworn

statement not subject to cross-examination. While the latter can be

persuasive to the court, it has less evidentiary weight than sworn

testimony. Both men had given unsworn statements without being

informed of the implications. No substantive extenuating circum-

stances were presented to the court following the handing down of

the death sentence.

In January 1999, DITSHWANELO intervened in the case upon

reading in the media about their impending execution. The judge

recognised that lack of resources and remoteness from centres of

development and communication can militate against an individual’s

access to human rights. He also recognised that certain “organisations

may have the ability to motivate the protection of individuals, who

may not be able to act for themselves in any meaningful way.” He

consequently recognised that DITSHWANELO had legal standing

in the case.

9 Elizabeth Maxwell and Alice Mogwe, In the Shadow of the Noose (Gaborone, DITSHWANE-

LO, 2006), pp. 30 and 40.

10 Ibid., p. 42.

The two men were ultimately released in 2006, following the Court

of Appeal decision to grant a permanent stay, prohibiting the carrying

out of both men’s death sentences as well as any further criminal

proceedings against them in relation to the death of the herdsman.

Arrested in 1995, they were released seven years after coming to

within hours of their execution in 1999.

This case illustrates a number of the problems defendants can have

in accessing equal justice; these will be discussed further in the sec-

tions below.

Access to representation

The Constitution guarantees the right to legal representation in

criminal cases at the accused’s own expense (Section 10). State-

funded (pro deo) counsel is available for defendants charged with

a capital oence. The Government recognises that the fees paid to

counsel are not attractive compared with those that obtain in private

practice. The Registrar of the High Court has reportedly tried to

address the problem by instructing every law rm to take up one pro

deo case a year, but this has not resolved the problem of the quality

of representation for the indigent.

The University of Botswana runs

a legal clinic staed by law students and supervised by a law lecturer

in an attempt to ll the void, but it is poorly resourced. A few NGOs

provide extremely limited legal aid for the indigent. In 2011, a State-

funded Legal Aid Project was established. It is, however, limited to

civil matters.

The indigent experience discrimination as they are forced to rely

on a legal system to which their access is limited because of their

poverty and poor education. They are dependent on the pro deo

system, which tends not to attract skilled, experienced and commit-

ted lawyers. Senior lawyers tend to refer pro deo cases to their junior

partners. The role of non-governmental organisations is critical in

facilitating access to justice for the poor.

11 Botswana Initial Report to the United Nations Committee on Civil and Political Rights, 12 Sep-

tember 2005, Article 6 (Right to Life), p. 42.

176 177

Transparency of clemency proceedings

The Constitution (Sections 53 and 54) provides for appeal to the

President for the commutation of the death sentence on the advice

of the Advisory Committee on the Prerogative of Mercy. Neither the

appellant nor his or her legal representative have the right to appear

before the Committee. The lawyers and families of the appellant learn

of the outcome of an unsuccessful appeal through the announcement

of the execution after it has been conducted.

In 1998, DITSHWANELO

wrote to the Commissioner of

Prisons to enquire about the

outcome of the clemency pro-

cess of Mr. Maauwe and Mr.

Motswetla. The response from

the Commissioner of Prisons

was that such information was

classied.

The secrecy sur-

rounding the clemency process renders it a ritualistic process with

little substantive signicance for those seeking mercy. There has been

only one reported case of a commutation of a death sentence to a life

sentence since independence in 1966; this occurred in 1975.

In the case of Lehlohonolo Bernard Kobedi v. the State Court of Appeal,

Mr.Kobedi’s new legal representative presented new ballistic evidence

that proved that he could not have committed the murder. However,

according to the rules of the court, that evidence ought to have been

presented to the lower court, and it was not admissible. The Court

declared itself “functus ocio,” or unable to act further in the case, and

advised that the appellant seek mercy from the President. The request

for mercy was not successful, and Mr. Kobedi was executed.

Defendants represented by inexperienced counsel, who lack the resources

and commitment to adequately prepare for capital cases, experience dis-

crimination as they have less chance of receiving a fair trial. Even an

12 Ibid., p. 32.

Botswana Initial Report to the United Nations Committee on Civil and Political Rights, p. 43.

14 Criminal Appeal No. 25 of 2001, High Court Criminal Trial No. F.29 of 1997.

“DISCRIMINATION

IS A PROBLEM IN

THE APPLICATION

OF THE DEATH

PENALTY AROUND

THE WORLD.”

—

Alice Mogwe

ideal judicial system is run by human beings, and all humans are fallible.

A clemency process provides an essential “fail-safe.”

But in Botswana,

the exercise of the prerogative of mercy (clemency) is not guided by any

publicly accessible procedures or restricted by rules of evidence.

Language barriers

Botswana is home to more than 30 ethnic groups. Its ocial language

is English and its national language is Setswana, the language of eight

of the ethnic groups. Language barriers can seriously hinder the judi-

cial process, from investigation to interrogation and appearance in

court. In the case of DITSHWANELO v. Attorney General of Botswa-

na,

the prisoners, Mr. Maauwe and Mr. Motswetla, were illiterate

and did not know their exact dates of birth. They could understand

some words of the national language, Setswana, but spoke neither

Setswana nor the other commonly spoken language of their area,

iKalanga. They spoke Secherechere, a dialect of Sesarwa.

They argued that they had not understood the confession documents

on which they had axed their thumbprints, had not been able to

communicate with the authorising ocer when their statements

were taken in Setswana, and had complied when asked for their

thumbprints because they feared the police. The three-way commu-

nication in the High Court—Sesarwa to Setswana to English—used

a dialect of Sesarwa unknown to them. They had a letter written

on their behalf stating, “We are Basarwa and we do not understand

Setswana well. Therefore we had diculties in communication at the

High Court.” The Registrar of the High Court received the letter,

but neither assigned them a new lawyer nor placed the letter in their

le for the Court of Appeal. It was during the case that the issue of

poor interpretation, inability to communicate and the letter that had

been written about it were discovered and raised.

Members of ethnic minorities who cannot communicate in the lan-

guage(s) of the court depend on the help of skilled translators. Often

these are not provided. Their combination of poverty and illiteracy

15 H errera v. Collins, 506 US 390 (1993), quoted in Amnesty International, United States of America:

Death by Discrimination.

16 MISCRA Case No. 2 of 1999.

178 179

made it impossible for Mr. Maauwe and Mr.Motswetla to meaning-

fully engage the legal system and receive a fair trial.

Race

Race has not been a striking factor in most capital cases in Botswana

courts. There has, however, tended to be a noticeably dierent reaction

when a white person is involved in a case, whether as a victim or a

perpetrator. In 2001, South African Mariette Bosch was executed after

being found guilty of murdering the wife of a man with whom she was

engaged in a romantic aair. They married three months after the murder.

Ms. Bosch was the rst white person to be executed in Botswana. Local

lawyer Themba Joina, whose black male client Lehlohonolo Kobedi (also

a non-national, from Lesotho), was on death row at the time, said, “The

foreign media were only concerned about Bosch because she is white.

Since she was hanged, we don’t see cameras in Botswana anymore.”

There was a marked dierence in international reaction to the execution

of Ms. Bosch, including from international human rights organisations,

compared with other executions before and since.

Secrecy of executions

Those on death row in Botswana suer due to the secrecy with

which the death penalty is carried out. The accused is entitled to a

minimum of 24 hours notice. In many cases, legal representatives and

family members are not notied prior to the execution. In one case,

while the legal representatives were preparing a request for clemency,

the accused were executed. Lehlohonolo Kobedi, whose case was dis-

cussed above, had written asking DITSHWANELO to visit him on

death row. The Commissioner of Prisons refused to grant permission

for this visit, and Mr. Kobedi was executed soon thereafter.

Other challenges to fair and equal access

Additional concerns include delays in processing of cases and phys-

ical distance from urban areas where most legal services are located.

17 Executed Today, “2003: Lehlohonolo Bernard Kobedi”, archive for 18 July 2013, available

from www.ExecutedToday.com. Mr. Joina’s client was Lehlohonolo Kobedi, whose case was

discussed above.

Families of victims of murder and families of the executed are

excluded from the judicial process. Various groups working with

families of victims have raised concerns about the death penalty and

its inability to bring them closure. Others have expressed serious dis-

comfort at not being kept informed about the progress of the cases

of their family members. Within a retributive justice system, there is

little room for restoration or restitution.

CONCLUSION

Discrimination is a problem in the application of the death penalty

around the world. It remains an open question whether it will be

possible to end discrimination without systemic change concerning

the fundamental issue of access to justice for all.

The call by the African Commission on Human and People’s Rights

for a moratorium on the death penalty appears to be bearing fruit

in Africa. With only 11 of the continent’s 54 states actively retaining

the death penalty, there is hope that the message will be heard that it

violates the most fundamental of all human rights. Commitment to

sustainable people-centred development, based on promotion, pro-

tection and respect for human rights, is key to ensuring that the full

range of rights—civil, political, socio-economic and cultural, includ-

ing the right to life—are enjoyed by all citizens. As United Nations

Secretary-General Ban Ki-moon has said, “The right to life is the

most fundamental of all human rights.”

18 Ban Ki-moon, “Secretary-General’s message to the International Commission against the

Death Penalty”, delivered by Ms. Kyung-wha Kang, Deputy High Commissioner for Human

Rights, Geneva, Switzerland, 25 February 2013.

180 181

THE DEATH PENALTY IN

ZIMBABWE: LEGAL AMBIGUITIES

Innocent Maja

On 20 December 2012, the United Nations General Assembly passed

Resolution 67/176, Moratorium on the Use of the Death Penalty.

It recommended among other things reduction of the number of

oences punishable by death, restrictions on who can be sentenced to

death and a moratorium on executions. This paper analyses the extent

to which Zimbabwe, which retains the death penalty,

has heeded

these recommendations.

REDUCTION OF THE NUMBER OF OFFENCES

PUNISHABLE BY DEATH

Since independence, the list of crimes punishable by death has

changed several times. The 1979 Constitution applied the death pen-

alty to nine oences (including attempted murder, rape and political

violence). This list was limited to murder, treason and mutiny in the

1990s.

In the year 2000, the Genocide Act extended the imposi-

tion of the death penalty to genocide crimes that result in death. In

2004 the Criminal Law (Codication and Reform) Act expanded

the application of the death penalty to attempted murder, incitement

or conspiracy to commit murder and terrorism-related crimes that

result in death.

However, Section 48(1) of the 2013 Constitution establishes a right

to life limited only by Section 48(2), which provides that a “law may

permit the death penalty to be imposed only on a person convicted

of murder committed in aggravating circumstances.” Under Section

48(2), there is still no mandatory death penalty. The death penalty

could be established if a law were passed imposing it for murder in

1 Innocent Maja is a senior partner in Maja & Associates and a lecturer at the University of Zim-

babwe.

2 From 1980 to 2004, when the last executions were carried out, 78 people were executed.

3 Sections 20(1) and 47(2-3) of the Criminal Law (Codication and Reform) Act [Chapter 9:23]

and Section 75(1-2) of the Defence Act [Chapter 11:02].

aggravating circumstances, but passage of such a law is discretionary,

as shown by the use of the word “may.”

At the time of this writing, no law had been passed imposing the

death penalty. Thus, technically a person convicted of murder com-

mitted in aggravating circumstances cannot be sentenced to death.

To formally abolish the death penalty, Zimbabwe could take the step,

in realigning the laws—especially the Criminal Law (Codication

and Reform) Act, the Criminal Procedure and Evidence Act and the

Defence Act—of removing all provisions relating to the death penalty

from the statute books.

RESTRICTIONS ON WHO CAN BE SENTENCED

TO DEATH

Resolution 67/176 encourages the progressive restriction of the use

of death penalty on children below age 18 and pregnant women.

Section 48(2)(c) of the Zimbabwean Constitution provides that the

death penalty must not be imposed on people who were less than

21 years old when the oense was committed, people more than

70 years old and women. Thus the potential imposition of the death

penalty is restricted to men aged between 21 and 70 who commit

murder in aggravating circumstances.

The Zimbabwean government is urged to totally abolish the death

penalty for a number of reasons:

4 This is radically dierent from the pre-2013 Constitution, under which the death penalty

was mandatory unless extenuating circumstances were proved. For instance, section 47(2) and

(3) of the Criminal Law (Codication and Reform) Act [Chapter 9:23] states that “a person

convicted of murder shall be sentenced to death unless (a)the convicted person is under the

age of eighteen years at the time of the commission of the crime; or (b) the court is of the

opinion that there are extenuating circumstances; in which event the convicted person shall

be liable to imprisonment for life or any shorter period. (3) A person convicted of attempted

murder or of incitement or conspiracy to commit murder shall be liable to be sentenced

to death or to imprisonment for life or any shorter period.” Section 337 of the Criminal

Procedure and Evidence Act [Chapter 9:07] empowers the High Court to sentence to death

any person who commits murder unless there are extenuating circumstances. The lacuna that

currently exists is that these laws have not yet been revised to align with the

new Constitution.

“PEOPLE CONVICTED OF MURDER ARE

USUALLY REPRESENTED ON A PRO BONO

BASIS BY JUNIOR LAWYERS.”

—Innocent Maja

182 183

1. People convicted of murder are usually represented on a pro

bono basis by junior lawyers inexperienced in trial work.

Legal representation is also limited to the trial stage. This

essentially means that people convicted of murder who

cannot pay for legal representation go through the appeal

process without it.

2. Even though Section 112 of the Constitution empowers the

President to commute a sentence of death upon submission

of a mercy petition, presidential discretion in this matter is

broad. There is no right for the petitioner to be heard. Nei-

ther is the court permitted to inquire into the manner in

which the President exercises this discretion.

3. Inmates sentenced to death are kept in cells that are small

and dirty and have little ventilation and no sanitary facilities.

They use a 20-litre bucket to relieve themselves. They are

kept in solitary connement for 23 hours a day with very

limited access to the outside world. This section of the prison

is referred to as the condemned section.

The trauma that

death penalty inmates experience is further worsened by the

delay in executions.

4. The method of killing by hanging

is horrendous, inhuman,

brutal and uncivilised.

MORATORIUM ON EXECUTIONS

There are currently 90 male inmates on death row. The last exe-

cution was carried out in 2004 when Stephen Chidumo and

others were executed for murder. The current Minister of Justice,

Emerson Mnangagwa, is on record as opposing the death penalty

and saying that he would rather resign than sign an execution

warrant. However, there is no ocial moratorium on executions.

5 See Catholic Commission for Justice and Peace v. Attorney General and Others, 1 Zimbabwe Law

Reports 242 (1993), Supreme Court, Harare, Zimbabwe.

6 Section 339(2) of the Criminal Procedure and Evidence Act. Section 75(1) and (2) of the

Defence Act [Chapter 11:02] provides that a sentence of death passed by a court martial shall

be executed in private by a ring squad.

7 See the Tanzanian High Court decision of

R v. Mbushuu, Tanzania Law Report 146 [1994],

High Court, Dodoma, Tanzania.

Even though Zimbabwe can be deemed a de facto abolitionist

country, its refusal to adopt an ocial moratorium on executions,

coupled with the employment of an executioner in 2011, raises the

question of whether Zimbabwe intends to resume executions.

It is recommended that the Zimbabwean government maintain the

status quo of not executing those on death row and go a step further to

commute death sentences to either life imprisonment or a lesser penalty.

8 This fear is not misplaced. In 1995, Zimbabwe resumed executions after seven years of not

executing. It will be sad if history repeats itself.

184

“The way to restore a wrong is not through

another wrong. Rather, a counterweight is needed, so

that the more evil there is on the one side, the more

good there is on the other side.”

—Mario Marazziti

185

CHAPTER 4

VALUES

This chapter, which focuses on values, contains articles by a Catholic nun who

works with prisoners on death row, two authors active in both civil society

and politics and two experts in human rights. Sister Helen demonstrates the

fruitlessness of the death penalty from the perspective of the healing process for

family members of the victims. Marazziti nds arguments against the death

penalty in the world’s religions, while Bhatti warns of its social and political

dangers. Rodley describes the evolution of Human Rights Committee’s juris-

prudence on the death penalty, while Heyns focuses on the right to life and

the way that the UN and regional bodies increasingly interpret it to reduce the

scope of the death penalty.

Helen Prejean, a Catholic nun, has for over three decades engaged in accom-

panying the condemned on death row and through this experience, has also

come to know many murder victims’ families. From her experience, wounded

and grieving families—even after many years of waiting—can never be healed

by watching the Government kill the perpetrators. What they need instead are

compassionate people who will accompany them on the long road to healing,

as well as counselling and sometimes nancial help.

Mario Marazziti, an Italian parliamentarian and aliate of the Commu-

nity of Sant’Egidio, a Christian lay association, examines the doctrines of

Buddhism, Hinduism, Judaism, Islam and Christianity as they apply to the

death penalty, looking for arguments against it. Each of these large, complex

communities of believers has an ancient tradition that has inspired both rever-

ence for life and, sometimes, support for the taking of life. But while individual

believers have sometimes chosen death, he argues, these religions’ core teachings

emphasize the sacredness of life.

For Dr. Paul Bhatti, civil society activist and former Minister for National

Harmony and Minorities Aairs in Pakistan, giving or taking a human life is

a divine prerogative. However, there are social and political arguments against

the death penalty as well. National criminal justice systems are less than

perfect, and the death penalty can be misused against political opponents. He

argues that imposing the death penalty on terrorists is dangerous, as it may

transform criminals into martyrs, justify the taking of life, and aid future

recruitment.

Parents of victim granting mercy to convicted murderer by removing the rope from around his neck and halting the execution at the last minute. © EPA/Arash Khamooshi

186 187

Nigel Rodley, member and a long time Chair of Human Rights Commit-

tee, describes the process of broadening and deepening of the human rights

consciousness that has led to the death penalty to be discussed in human

rights terms. If the state is the principal guarantor of human rights, why

would the state then deprive anyone from the inherent right to life?

Christof Heyns, the UN Special Rapporteur on extrajudicial, summary and

arbitrary executions, and Thomas Probert, his colleague from the University

of Pretoria, point to an emerging consensus that at least the practice of exe-

cutions is no longer acceptable for the UN human rights mechanisms, leaving

states to determine the best manner in which to achieve a moratorium.

Regional organizations can act as important fora for discussion of trends

towards abolition that are more regionally, and perhaps culturally, sensitive.

DEATH PENALTY: VICTIMS’

PERSPECTIVE

Sister Helen Prejean

Over the three decades I have been engaged in accompanying the

condemned on death row and seeking every means I know to save

their lives, I have also come to know many murder victims’ families.

At rst, I was so intimidated by the enormity of their loss and sorrow

that I avoided them. I wondered why they would want to have any-

thing to do with me, working passionately to abolish the very penalty

they were seeking. Staying away from them was a very big mistake.

I’ve learned a lot since, and I wish to share some of what I’ve learned

with you, whom I regard as our most representative global forum to

achieve peace.

I’m pleased that you’re hosting a forum to explore the plight of

murder victims’ families vis a vis the death penalty. In my experience

I’ve seen over and over the tragic eects that government’s imposition

of death to the oenders wreaks on these families, despite the popular

perception (or, perhaps, at root, the political assumption) that only

the execution of the perpetrator is capable of rendering “justice” to

those harmed by their crimes.

We couldn’t have a more direct view into the tragic dynamic that

occurs between victims’ families and the death penalty than what

happened in Boston on June 24, 2015: the day of Dzhokhar Tsar-

naev’s formal sentencing to death for his participation in the Boston

Marathon bombing in 2013. As part of this proceeding, victims’ fam-

ilies are allowed to present Victim Impact statements about how the

crime has aected their lives, which is unspeakably horrible. As they

testify about their loss, grief, and traumatized lives, most believe the

death penalty is justied, and some express their deance by refusing

to call themselves “victims,” determined to carry on with their lives.

Not all, however, seek death. Some want to see Mr. Tsarnaev live

1 Sister Helen is a Roman Catholic nun, a member of the Congregation of St. Joseph and a leading

American advocate for the abolition of the death penalty.

188 189

in prison for the rest of his life because they consider that a greater

punishment, others, so that over time he can come to grips with

and take responsibility for his horrendous crime. I have witnessed

this tragic scene many times: victims’ families in the public spotlight,

laying bare their pain, reliving their unspeakable trauma – all because

their testimony is a necessary part of prosecution’s decision to seek a

sentence of death.

Descending now into the complexity of the legal machinery of death

- if Mr. Tsarnaev’s fate had been left to a Massachusetts’s jury, no

death penalty would have been sought. That’s because, since the late

60s, Massachusetts has not had the death penalty. But in this case the

federal government, designating the bombings as a “terrorist” attack,

trumped state law and sought the death penalty. Consequently, during

the trial traumatized victims’ families have had to recount and re-live

their horror over and over: once during the guilt phase, again during

the sentencing phase, and now again, at the formal sentencing. If

government prosecutors had chosen, they could have accepted the

defendant’s admission of guilt and apology and sentenced him to life

imprisonment, where he would have disappeared behind prison walls,

and victims’ families would seldom if ever hear his name again. But

now on the news they will hear his name again and again as the years

of appeals drag on, which capital cases inevitably bring in their wake.

In an eort to avoid this very situation, after Mr. Tsarnaev was found

guilty, the Richard family, whose young son, Martin, was killed in the

bombing, made a public plea on the front page of the Boston Globe

begging prosecutors, not to seek the death penalty. To no avail.

My state, Louisiana, was the rst state to oer victims’ families the

option to witness the execution of the perpetrator convicted of kill-

ing their loved one. The rationale was straightforward: who better

than these families deserve to be ocial witnesses for the state? In my

book, Dead Man Walking, I tell of one such victim’s family, the Har-

veys, for whom the execution of Robert Lee Willie, the killer of their

daughter could not happen quickly enough. A week before Willie’s

execution in the electric chair, Vernon Harvey held his own press

conference, urging the authorities to “bring it on” and he wished he

could be the one to “pull the switch.” What I’ll always remember (as

spiritual advisor to the condemned, I was also present at the execu-

tion) is that immediately after the execution, members of the media

asked Mr. Harvey if witnessing the execution had satised him, and

he said, “Anybody got any whiskey? Anybody want to dance? We

killed that SOB tonight, and I got to watch him die! Then he added:

“But you know what? The SOB died too quick. I hope he burns

in hell.” And as he said this he jerked his thumb downward over and

over. As I heard him that night, I remember thinking to myself that

this poor, distraught man could have watched his daughter’s murderer

die a thousand times, and it would never be enough. And now that

the object of his hatred was dead, where could all that pent-up rage

of his go? My image of him that night is of a very thirsty man who

had just drunk a long drink of salt water.

I’ve been studying the death penalty in the U.S. for a very long time.

I keep learning about it, and one of the key things I’ve learned about

its application is that very few death sentences are actually handed

down, and then, how exceptionally few murder victims’ families ever

get to witness the execution of their loved one’s killer. And then it

is almost exclusively reserved for those who kill people of European

descent, almost never those who murder people of color. Evidently

their lives, their deaths don’t seem to matter in the same way, no out-

rage is felt at their passing, and, often enough no serious investigation

of their murders is pursued.

When we do abolish the death penalty in the U.S. and we are now on

our way toward that day as public support plummets and executions

become more and more rare, a signicant part of our enlightenment,

I believe, will be the recognition that wounded, grieving families,

after long years of waiting, can never be healed by watching as the

government kills the perpetrator. If anything, witnessing such vio-

lence only serves to re-traumatize them. Such was the testimony of

many murder victims’ families to the legislature in New Jersey as the

state set about to repeal the death penalty in 2007, the rst state to

legislatively do so in the modern era. “Don’t kill for me” they said.

“THERE’S NOTHING HONOURABLE IN KILLING

FELLOW HUMAN BEINGS WHO ARE DEFENCELESS.”

—Sister Helen Prejean

190 191

In my journey on this death penalty road, I have seen how the violent

process of government killings produces its own collateral victims:

among them, guards in execution squads whose job demands that

they must seize from their cells prisoners, rendered defenseless, and

forcibly strap them down onto gurneys to be killed. In my book,

Dead Man Walking, I tell the story of Major Kendall Coody in Loui-

siana, who assisted in ve executions. One day he called me into his

oce and conded that he was going to quit his job, that he couldn’t

be part of executions anymore, that he knew the crimes of the men

and how ghastly their murders were, but he said that when you’re up

close to it, when you’re the one to take an alive human being out to

kill them, and knowing that they’re defenseless and can’t ght back,

and how afterwards you come home and you can’t sleep and you

can’t eat and you know you just can’t do it anymore.

Prison wardens, whose job it is to signal the executioner to begin

the killing, are also emerging as victims of the death penalty process.

Former Florida Warden Ron McAndrew presided at three exe-

cutions, and that was more than enough for him. He now speaks

publicly, testifying openly that he is still in therapy, trying to heal from

his participation in executions and how the memory of them haunts

him still. He tells how he had taken on the job as prison warden,

believing it was an honorable profession to protect the citizens and

possibly help to restore the fractured lives of the prisoners. But pre-

siding at executions had undone him. There’s nothing honorable in

killing fellow human beings who are defenseless, he says.

What murder victims’ families really need, I’ve found out, are com-

passionate people to talk to, who will accompany them on the long

road to healing. They need counseling and sometimes nancial help

when they lose their jobs because the trauma and grief causes them

to lose focus or even the energy to get out of bed to go to work.

Parents who lose a child often also lose their marriage. Seventy per-

cent of them divorce. They need counseling and encouragement and

community support. And the siblings of murdered children all too

often slip through the cracks and are in need of attention and help.

In one grieving family I knew, the parents became so xated on the

court proceedings and getting the perpetrator executed that their

younger daughter became invisible to them. She told me that all

they cared about, all they ever talked about was getting justice for

her dead sister, and she didn’t matter anymore, and how they would

always remember the anniversary date of her sister’s death, but when

her birthday came, they never even noticed. Sometimes families

even need nancial help with funeral expenses. Most States have

Victim Compensation Funds, but they’re often meager and dicult

for families to access. And now most District Attorneys’ oces have

victims’ assistance sta, whose job it is to reach out in a supportive

way to families traumatized by murder. But murders are many and

the sheer numbers of hurting families are overwhelming. And when

DAs are more bent on chalking up capital convictions than on real

justice, the only murder victims’ families that matter to them are the

ones who agree to testify in support of the death penalty. Meanwhile,

the enormously inated cost of seeking the death penalty sucks the

coers dry, pre-empting real and eective eorts toward actual crime

prevention. Which, as I see it, is at the heart of the heart of the matter.

The most genuine help we can ever give victims’ families, the best

would be to prevent the violence and crime that makes them victims’

families in the rst place.

192 193

WORLD RELIGIONS AND

THE DEATH PENALTY

Mario Marazziti

After the Dalai Lama nished speaking at an event on the Capitoline

Hill in Rome, I asked him to be one of the rst signatories of the

Community of Sant’Egidio’s Appeal for a Moratorium on the Death

Penalty. He accepted immediately—he signed in green ink—and

frankly, it was no surprise. Who more than the Dalai Lama is identi-

ed with unconditional respect for life?

Buddhism, however, exists in many forms, so it is hard to say that

it has one clear message on the death penalty. And so it is with all

world religions. On the one hand, their core teachings seem to argue

strongly against taking life; on the other, religious bodies have often

vigorously supported the death penalty.

BUDDHISM

All schools of Buddhism emphasize compassion, nonviolence and

respect for human life, and they encourage their adherents to abstain

from killing or injuring any living creature. But the Buddha, while

against physical punishment in general, left no clear statement about

capital punishment.

The way to restore a wrong is not through another wrong. Rather,

a counterweight is needed, so that the more evil there is on the one

side, the more good there is on the other side. Buddhists believe in

the cycle of birth and rebirth, Samsara, and that the death penalty

will negatively aect both souls, the one who is punished and the

one who punishes. Trying to gain recompense for evil, even violent

death, by inicting further death will simply cause a greater imbal-

ance in the world; only rehabilitation has a chance to restore the

harmony in life.

1 Mario Marazziti, spokesperson for the Community of Sant’Egidio and currently a member of

the Italian legislature.

The cruel ultimate punishment has little chance of healing society

and re-establishing the law, because excessive cruelty injures the mind

of the oender and of those who administer death, whatever the

reason. Compassion cannot cope with capital punishment; if a crime

is horrible, as a last resort, the oender should be banished from the

community so as not to do any further harm.

But in many countries where Buddhism is inuential, such as Myan-

mar and Thailand, the death penalty is still legal and executions are

still carried out; the practical needs of the society have prevailed. It

seems that capital punishment and Buddhism are on two opposite

sides philosophically but not historically.

Buddhist doctrines hold nonviolence and compassion for all

life in high regard. The First Precept of Buddhism requires

individuals to abstain from injuring or killing all living

creatures and Buddha’s teaching restricts Buddhist monks

from any political involvement. Using historical documents

and interviews with contemporary authorities on Buddhist

doctrine, our research uncovered a long history of political

involvement by Buddhist monks and Buddhist support of

violence. Yet, there seems to be limited Buddhist involve-

ment in Southeast Asian countries in death penalty issues.

...

The death penalty is inconsistent with Buddhist teachings.

... Yet, evidence suggests that most Southeast Asian coun-

tries practiced capital punishment long before the Buddhist

inuence emerged in India in 400 to 500 B.C.

Tomoko Sasaki, a former member of the Japanese parliament, evoked

retribution: “A basic teaching [in Japanese Buddhism] is retribution.

If someone evil does something bad, he has to atone with his own life.

If you take a life, you have to give your own.”

The concept of retri-

bution could be seen as consistent with the central concept of karma

in Buddhism, the way in which the Buddha explained inequality and

2 Leanne Fiftal Alarid and Hsiao-Ming Wang, “Mercy and punishment: Buddhism and the death

penalty”, Social Justice, vol. 28 (2001), pp. 231-247.

3 Charles Lane, “Why Japan still has the death penalty”,

Washington Post, 16 January 2005.

194 195

contradictions in the world. But capital punishment can be a deadly

interruption of the possibility of balancing the dierent karmas and

improving the world, favouring a higher level of mercy and life: a

death sentence would be a powerful obstacle to communication

between the reproductive karma, the supportive karma, the obstruc-

tive karma and the destructive karma.

When the Dalai Lama subscribed to the appeal I submitted on

behalf of the Community of Sant’Egidio in Rome, he also sub-

mitted this message, read at an event organized by Peace Center on

April 9, 1999:

The death penalty fullls a preventive function, but it

is also very clearly a form of revenge. It is an especially

severe form of punishment because it is so nal. The

human life is ended and the executed person is deprived

of the opportunity to change, to restore the harm done or

compensate for it. Before advocating execution we should

consider whether criminals are intrinsically negative and

harmful people or whether they will remain perpetually

in the same state of mind in which they committed their

crime or not. The answer, I believe, is denitely not.

However horrible the act they have committed, I believe

that everyone has the potential to improve and correct

themselves. Therefore, I am optimistic that it remains pos-

sible to deter criminal activity, and prevent such harmful

consequences of such acts in society, without having to

resort to the death penalty.

HINDUISM

“An eye for an eye makes the whole world blind.” This adage of

Mahatma Gandhi, who is regarded as a sage by many Hindus and

others, is often quoted by opponents of the death penalty. India, while

home to diverse religions, is heavily inuenced by Hinduism. The

country recently restarted executions after an almost decade-long de

facto moratorium. But given the small number of executions, the

death penalty is almost non-existent.

Those who do support the death penalty give reasons that are dier-

ent from those most often heard in the West. The founder of the Hare

Krishna movement, Srila Prabhupada, said that the reason a murderer

should be condemned to death is so that “in his next life he will not

have to suer for the great sin he has committed.”

Another Hindu

thinker has argued that

Hinduism is full of compassion and forgiveness. Leave

aside human beings; we are supposed to be kind even to

insects and animals. We are not supposed to kill a small

insect. Therefore, taking the life of a human being is a very

big issue for us. Our Hindu dharma is very clear that use

of violence against anyone is not allowed. Any other type of

punishment may be given, but we should not take anyone’s

life. Our scriptures and Vedas do not favor capital punish-

ment. They advocate the principle of non-violence.

That is akin to the teachings that Mahatma Gandhi made well

known, rooted in Ahimsa, a Hindu form of thinking based on

non-violence: “By birth I am a Vaishanavite, and was taught Ahimsa

in my childhood. ... In its negative form, it means not injuring any

living being, whether by body or mind. I may not therefore hurt the

person of any wrong-doer, or bear any ill will to him and so cause

mental suering.”

This attitude is very nearly inscribed in the Indian Constitution,

where the death penalty is reserved for “the rarest of the rarest cases.”

On the one hand, this means that the framers of the Constitution must

have approved of capital punishment; on the other hand, it suggests

that disagreement among them was strong enough that they sought

to strictly limit its use. Babasaheb Ambedkar, a primary architect of

the Indian Constitution, wanted to keep capital punishment out of

it. He said that while many people who believe in nonviolence may

not follow it in practice, “they certainly adhere to the principle of

non-violence as a moral mandate which they ought to observe as far

4 Srila Prabhupada, Bhagavad-Gita as It Is (New York, Macmillan, 1968).

5 Samvidananda Saraswati, the head of Kailam Ashram, in

Hinduism Today (October-December

2006).

196 197

as they possibly can” and therefore “the proper thing for this country

to do is to abolish the death sentence altogether.”

JUDAISM

The Bible and the Talmud contain passages treating the death penalty

as legitimate and widespread: 36 crimes in the Bible are punished by

death, among them idol worship, profanation of the Sabbath, adultery,

incest and public incitement to apostasy. The Mishnah (Sanhedrin

7:1) lists the methods of execution as slaying by the sword, stoning,

burning and strangling. But it also says that a death sentence can

only be imposed after a trial before 23 judges. Other Talmudic texts

contain discussions that lead towards a denial of the right to execute,

requiring at least two witnesses to testify to something that is unlikely

in practice: both that they witnessed the brutal crime for which the

defendant is on trial, and that they had warned the defendant in

advance so that he or she had full awareness that it would incur the

death penalty. In this perspective, not even the defendant’s own con-

fession was accepted as evidence.

The Mishnah Makkot (1:10) says: “A Sanhedrin that puts a man to

death once in seven years is called destructive. Rabbi Eliezer ben Aza-

riah says: even once in seventy years. Rabbi Akiba and Rabbi Tarfon

say: had we been in the Sanhedrin none would ever have been put to

death. Rabbi Simeon ben Gamaliel says: they would have multiplied

shedders of blood in Israel.”

Like Hinduism, Judaism seems to have developed a gap between

theory and practice on capital punishment. Scriptural passages

favouring the death penalty are set against the respect for human life

and the uniqueness of each life, created in the divine image and with

the sacred right to life:

One of the most striking expressions of this in Jewish

Jurisprudence is the text of the admonition recorded in the

Mishnah (Sanhedrin 4:5) given by the court to witnesses

in capital cases. “Know you,” the judges would say to the

witnesses “that capital cases are not like civil cases ... for

in civil cases (if false testimony is given intentionally or

unintentionally and the defendant is unjustly convicted)

he may make nancial restitution and thus atone (for his

sin or error). While in capital cases, his blood and that of

his descendants through all eternity are upon him. For that

reason the human being was (originally) created singly; to

teach you that he who destroys one person’s life, it is consid-

ered as if he destroyed a whole world, and he who preserves

one person’s life, it is as if he has preserved a whole world.

... And to declare the greatness of the Holy One Blessed

be He, for when a human person mints coins from the one

mold they all appear identical, but the Holy One Blessed

be He “minted” every person from the mold of the rst

human being, but not one is identical to another, therefore a

person should say, the world was created for me.

In Orthodox Judaism, it is held that in theory the death penalty is a

just punishment for some crimes.

However, in practice the applica-

tion of such a punishment can only be carried out by humans whose

system of justice is nearly perfect.

When the State of Israel was founded, the Knesset ruled as a secular

body. And the Knesset decided to abolish the death penalty com-

pletely except as a punishment for genocide or treason committed in

time of war. Israel has administered capital punishment only once, to

Adolf Eichmann, a principal organizer of the Holocaust.

In the United States, the Central Conference of American Rabbis and

the Union for Reform Judaism have publicly opposed the death pen-

alty since 1959. The Union for Reform Judaism has stated: “We believe

that there is no crime for which the taking of human life by society is

justied, and that it is the obligation of society to evolve other methods

in dealing with crime.” This practical approach is echoed, but strength-

ened by a refusal “both in concept and in practice” —formally stated

by the Central Conference of American Rabbis in 1979.

6 David Rosen, Judaism and Human Rights.

7 “Orthodox Judaism”,

Wikipedia, available from http://en.wikipedia.org/wiki/Orthodox_Juda-

ism.

198 199

The Union for Reform Judaism has appealed “to our congregants

and to our co-religionists and to all who cherish God’s mercy and

love to join in eorts to eliminate this practice [capital punishment]

which lies as a stain upon civilization and our religious conscience.”

ISLAM

The mercy of God is at the centre of Islam’s vision about the death

penalty. But of Arab and Islamic countries, only Albania has repealed

capital punishment. Several countries with a large Muslim popula-

tion, such as Algeria, Bosnia, Morocco, and even Pakistan, with the

largest death row in the world, have a de facto moratorium. Thus,

there is no automatic relationship between being strongly rooted in

Islam and using capital punishment.

Forgiveness is in principle always preferable to retribution, since for-

giveness and peace are crucial Koranic themes. The mainstream of

Islam prefers forgiveness and peace; the umma or Muslim community

is spread across a huge variety of nations, uniting more than one bil-

lion people with many diverse traits. In 2005, Muslim scholar Tariq

Ramadan called in Geneva for a global moratorium of executions in

the Islamic world.

The Koran (6:151) says: “Take not life, which God has made sacred,

except by way of justice and law.” Some Islamic countries have estab-

lished sharia (Islamic law), while others follow secular law. The 2011

Moroccan Constitution says that Islam is the religion of the State, but

not that Morocco is an Islamic State. Article 20 says: “The right to life

is every human being’s right.” In February 2013, the group Moroc-

can Parliamentarians against the Death Penalty was organized, a few

months before the Fifth World Congress against the Death Penalty

took place in June 2013 in Madrid, where the process of creating an

international network of World Parliamentarians against the Death

Penalty was begun.

In Islamic law the death penalty is related to two types of crime. One

is intentional murder. In these cases, the families of the victims are

given the option to insist on the death penalty, ask for compensation

instead, or simply forgive. Their decision is binding on the state.

The second type of death-penalty-eligible crime, according to the

Koran, includes fasad l-ardh—spreading mischief in the commu-

nity or in the land. This can have a broad meaning or a strict one,

but it includes acts thought to undermine the authority of the state

or destabilize the community. This can be a way for authoritarian

regimes to control opposition, spread terror or eliminate political

opponents. Treason, but also apostasy, terrorism, rape, piracy, adultery

and homosexual activity may fall in this group of capital crimes.

The Koran (5:32) says: “Whoever slays a soul, unless it be for man-

slaughter or for

mischief in the land,

it is as though he slew

all men; and whoever

keeps it alive, it is as

though he kept alive

all men.”

Imad-ad-Dean Ahmad, the President of the Minaret of Freedom

Institute, said:

The views of American Muslims on the death penalty

vary somewhat, but the range is narrow compared to the

enormous disagreements among Christians. All Muslims

accept the permissibility of the death penalty because it

is addressed in the Qur’an. However, our views range

from those who would apply it for a moderately short list

of crimes (short compared to the enormous list of capital

crimes in the Old Testament) to those who would apply it

to a somewhat shorter list still, and nally, to those who

would call for a moratorium on the death penalty in Amer-

ica altogether.

In fact, those references in the Koran may be read as narrowing dra-

matically the circumstances in which a murderer’s life can be taken,

and as well as providing an exemption from the general prohibition

on killing a human being.

“THE CRUEL ULTIMATE

PUNISHMENT HAS LITTLE

CHANCE OF HEALING

SOCIETY.” —

Mario Marazziti

200 201

Many majority-Muslim countries are considering ocial steps

towards a legal moratorium, and many are already applying a de facto

moratorium. But it remains an open question whether capital pun-

ishment is structurally related to Islam. Theoretically, there is some

limited acceptance of the death penalty in the Koran. But opposition

to capital punishment is a giant leap forward compared to the habits

of the people to whom the Koran was rst addressed. Most Koranic

commentators would have diculty in accepting that the interpreta-

tion of the text may have evolved over time. But some hold that it can

and must be interpreted and that, to be faithful to the deep meaning,

an evolving interpretation is necessary.

Siti Musdah Mulia, a professor of Islamic theology and Islamic law

at the University of Jakarta, is ghting for an end to the use of the

death penalty in Indonesia, the most populous Muslim country in

the world. Indian Muslim scholar Wahiduddin Khan, a peace activist

and author of a commentary on the Koran, explained to me that if

among God’s creations, human beings are the most perfect (Koran,

Sura al-Isra’, 17:70), they must be respected without prejudice to race,

ethnicity, religion, colour, language or gender. One form of respect

for human beings is not to take their lives (Koran, 27:33; 5:32) or

cause them to suer physical or psychological pain (5:45).

Iman al-Ghazali, who died in AD 1111, said that the core objective

of Islam is to protect ve basic human rights: the rights to life, free

expression of opinions, religious freedom, reproductive health and

property, which later became known as al-kulliyah alkhamsah. In these,

Siti Musdah Mulia found a basis for acceptance of something like a

declaration of human rights and said that “the Islamic teaching is not

compatible with the death penalty.”

CHRISTIANITY

From its beginning, the Christian church was marked by a strong

rejection of the death penalty and of violence. Nonviolence was part

of the moral framework of the rst generations of Christians. This

included refusal to serve in the army and was connected to refusal to

honour the Emperor as a divinity.

The Bible contains many references to killing and to crimes punish-

able by death. But even the famous eye-for-an-eye code was a way

of reducing revenge and punishment from “seventy times seven” to a

more proportionate measure. And the seal on Cain’s forehead to pro-

tect him from physical vengeance, after he killed his brother, showed

a second line of teaching that culminated in the Book of Job, where

life and the soul are in the hands of God and no one else can have

power over them. Thus, no state has the authority to take life away.

Finally, the commandment to love one’s neighbour and the Gospels’

call to break down walls between the enemy and the brother, as in

the parable of the Good Samaritan, and the invitation to forgive and

not even to say a bad word to the one who oends us, are just some

of the many reasons that the taking of human life has been considered

incompatible with Christianity.

In the fourth century AD, Roman Emperor Constantine legalized

Christianity and established a special link between religion and

politics. Beginning with the Council of Arles, military service was

no longer banned; rather, to refuse to serve in the army caused

exclusion from the sacraments. Not long afterwards, St. Augustine

introduced the concept of just war. The legitimization of the death

penalty continued in the Middle Ages. St. Thomas Aquinas argued

for it, introducing the concept of a higher good for society, which

may require the acceptance of a lesser good or an evil. Centuries

later, Martin Luther argued that the power of life and death that is

in God’s hands had been delegated to the political authorities. He

opposed the use of the death penalty for ecclesial crimes, so as not

to mingle the gospel and human rules, in which regard he diered

from other Protestant thinkers such as Calvin and Zwingli, who

considered heresy a crime with political consequences and as such

punished by ordinary laws.

With the Second Vatican Council, the Catholic Church came closer

to the original spirit of Christianity and contributed to Europe’s pro-

cess of relinquishing the death penalty. Paul VI abolished the death

penalty in the Vatican State in 1967. Its full elimination from the

Penal Law was carried out by John Paul II in 2001.

202 203

On Christmas day 1998, during the Urbi et Orbi blessing, John Paul

II called for a ban on the death penalty. On 23 January 1999, in

Nuestra Senora de Guadalupe basilica in Mexico City, while reaf-

rming the need to ght for a “culture of life ... from conception

to natural death,” he launched the appeal: “Never again terrorism and

narco-tracking, never again torture and the death penalty.” In St.

Louis four days later, he said “I renew the appeal . . . to end the death

penalty, which is both cruel and unnecessary.”

With John Paul II there was an acceleration away from the death

penalty. While the new catechism of the Catholic Church still

acknowledges the death penalty as an option, it speaks to its practical

inutility in the presence of alternative means to guarantee security

and eective, rehabilitative punishment. Thus, the rst step has been

a practical and partial repudiation of the death penalty.

Cardinal Ratzinger, later Pope Benedict XVI, established a dierence

in moral gravity between the violation of life through euthanasia and

abortion (exclusion from the sacraments) and the violation of life

through participation in a war or in carrying out the death penalty.

John Paul II had already asked the Governor of Missouri to save the

life of a prisoner sentenced to death during his visit to the state and

inaugurated the regular intervention of the Holy See to try to stop

individual executions in the United States and elsewhere.

Nowadays the Christian churches are among the organizations with

the longest and most continuous advocacy against the death penalty.

In 2007, the Primate of the Church of England, Rowan Williams, said:

People will sometimes still speak as if the only way of

honouring the value of human life, let’s say in the case of

murder, were to take a life as a punishment. And I think

there is a contradiction in there somewhere. The culture

of life means a culture of profound respect for every life,

however much we may disapprove of actions or wish to

condemn them. The culture of life is one which is essentially

a culture of hope. And the death penalty is one of those

things which always speaks against hope.

In so many countries where the death penalty exists, it is not

the death penalty alone, it is the whole environment that

grows up around it: the environment of the condemned cell,

of the long periods where many people wait for execution.

I have been in countries where people . . . have been on

death row for 20 years. That is an inhumanity. I’ve also

been in countries where it’s quite clear that certain races,

certain classes, certain sections of the population are much

more likely to receive the death penalty than others. So we

need to remember: it’s not only the iniction of death itself,

it is everything that goes with it that dehumanizes.

Pope Francis reminded us in 2014 that our world still asks for “human

sacrices” and “laws allow to do so.” He could not be clearer.

204 205

THE DEATH PENALTY AS A

HUMAN RIGHTS ISSUE

Nigel S. Rodley

For the rst 70 years of the 20th century, law students examined the

question of the death penalty, if their curriculum touched on it at all,

either as an ordinary criminal-justice policy issue or in the context

of theoretical conceptions of legal justice. When discussed in Parlia-

ment in the United Kingdom, the discourse fell largely within the

same paradigms: Did the ultimate penalty deter and so prevent capital

crime, and did it oer an appropriate form of justice for the grave

crimes (in practice, murder) for which it was meted out? Another key

element was public opinion: Was the public ready for abolition? The

answer to the last question was invariably negative; in fact, although

the death penalty was eectively abolished in Britain as long ago as

1965, it was not until 2015—50 years later—that public support for

the death penalty dropped below 50 per cent.

It seems that in any national debate on the death penalty similar

notions are in play. But a new, potent dimension has been added: the

human rights perspective. In line with a broadening and deepening

human rights consciousness that moved from marginality onto the

centre stage of international politics in the last quarter of the 20th

century, the death penalty, too, came to be analysed and discussed in

human rights terms. After all, if human rights values proclaim that

every human being has the inherent right to life, by what logic could

the state, the principal guarantor of human rights, deprive someone of

life? In the naïve words of a lapel badge of that decade: “Why do we

kill people to show that killing people is wrong?” Moreover, if Article

5 of the Universal Declaration of Human Rights (UDHR) ordained

that “no-one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment,” by what mental gymnastics

could deliberately and cold-bloodedly putting someone to death be

exempted from categorization as cruel, inhuman and degrading?

1 Sir Nigel Rodley is Professor of Law and Chair of the Human Rights Centre, University of Es-

sex, and a Member and former Chairperson of the United Nations Human Rights Committee.

2 NatCen Social Research, British Social Attitudes, “Support for the death penalty falls below 50% for

the rst time,” 26 March 2015, available from www.bsa.natcen.ac.uk/media-centre/latest-press-re-

leases/bsa-32-support-for-death-penalty.aspx?_ga=1.76012437.189869271.1430156008.

THE UNITED NATIONS AND THE DEATH

PENALTY

It was no accident that many of the early discussions on the death

penalty at the United Nations took place from a crime prevention

rather than a human rights perspective. The rst product of that

approach was Marc Ancel’s seminal 1962 study Capital Punishment,

the rst of several periodic studies of the practice. There is only one

explicit reference to human rights in this 68-page study:

At the end of the second world war, there was a renewed

upsurge of those humanitarian tendencies which, like the

desire to safeguard human rights and human dignity, had

been the mainspring of the movement for the abolition of

the death penalty.

The issue of the death penalty, then, may have been like human

rights issues, in the sense of reecting analogous humanitarian ten-

dencies, but it was not itself a human rights problem. Even in the

section of the study dealing with the “present state of the contro-

versy,” Ancel only mentioned that capital punishment was “a form

of cruelty and inhumanity unworthy of a civilization which claims

to be humane.”

This is at least resonant with the prohibition in

Article 5 of the UDHR.

The United Nations has dealt with the death penalty in theory

and as applied in practice. The human rights implications of the

(mis-)application of the death penalty have always been easy to

recognize. This has not been so true of the death penalty as an

institution. If the death penalty were acknowledged as inherently

violating human rights, then the conclusion would have to be that it

is unlawful under international law, since there is no doubt that the

human rights that are principally at issue (right to life, prohibition

of cruel punishment) are solidly grounded in international law. Yet,

for virtually all of the last century, a majority of states were reten-

tionist in law and a majority of these in practice. So, since states are

3 Marc Ancel, Capital Punishment (New York, United Nations Department of Economic and

Social Aairs, 1962), paragraph 1.

4 Marc Ancel, Capital Punishment, paragraph 227.

206 207

the framers as well as the subjects of international law, it was clear

that states were not prepared to recognize the death penalty as being

incompatible with that law.

From this it followed that they could

not accept an interpretation of the human rights in question that

would acknowledge that the death penalty transgressed them. This

reected a political stand-o that had rst appeared at the time of

the drafting of the UDHR itself. Article 3 of the UDHR declares,

“Everyone has the right to life, liberty and the security of person.”

That is all that is said of the right to life. Voices had been raised to

bring the death penalty within its remit, but the matter was left for

further consideration in the context of drafting the International

Covenant on Civil and Political Rights (ICCPR).

In fact, the human rights dimension of the death penalty issue was

referred to as early as the rst General Assembly resolution contem-

plating abolition. This was Resolution 2857 (XXVI) in 1971, in which

the Assembly modestly armed (in operative paragraph 3) that “the

main objective to be pursued is that of progressively restricting the

number of oences for which capital punishment may be imposed,

with a view to the desirability of abolishing this punishment in all

countries.” The purpose was stated as “fully to guarantee the right to

life, provided for in article 3 of the Universal Declaration of Human

Rights.” This elegant language managed to invoke the values under-

lying the right to life without requiring acceptance that its current

interpretation prohibited the death penalty. At the time, there was no

consensus that the UDHR was legally binding.

The resolution was far from uncontroversial. It was adopted by a

vote of 59 in favour and 1 against, with 54 abstentions. Thus, the

armative votes barely exceeded the rest. Moreover, it remained

the high point for the next quarter of a century in United Nations

action promoting the normative proscription of the death penalty.

In 1977, General Assembly Resolution 32/61, this time accepted by

consensus, picked up the same language but dropped the phrase “in

all countries.” The human rights language was moved from an oper-

ative paragraph to the preamble; but this time, by referring not only

5 See William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd edition (Cam-

bridge, Cambridge University Press, 2002).

6 Lilly E. Landerer, “Capital punishment as a human rights issue before the United Nations,”

Revue des droits de l’homme – Human Rights Journal, vol. 4 (1974), 511, 517-518.

to Article 3 of the UDHR but also to Article 6 of the ICCPR, the

Assembly invoked the notion of legal obligation, though evidently

a limited obligation (as discussed below), and only applicable to the

states parties to the ICCPR.

For some two decades after 1977, attempts failed even to rearm

the limited normative proscription of the death penalty achieved in

1971. A number of retentionist countries mobilized against abolition

with some success. Thus, at the Sixth United Nations Congress on

the Prevention of Crime and the Treatment of Oenders in Caracas

in 1980, a vigorous attempt by Austria and Sweden to promote aboli-

tion in a full-throated human rights framework was beaten back and

the sponsors had to withdraw the text to avoid defeat. The text would

have called for “the total abolition of capital punishment throughout

the world.” The human rights perspective was framed as follows:

Capital punishment raises serious questions in relation to

respect for the dignity of all human beings and for human

rights, in particular, the right to life, which is the most

fundamental of all human rights, and the right not to be

subjected to cruel, inhuman or degrading punishment.

The scene had been set by the Secretary-General himself, who

opened the Congress by stating that “the taking of life of human

beings violates respect for the dignity of every person and the right to

life, as declared in the basic postulates of the United Nations.”

Eectively the last attempt in that United Nations venue to address

the issue took place at the Eighth United Nations Crime Congress

in Havana in 1990. All that would have been sought was a rear-

mation of the language of the General Assembly resolutions of the

1970s, together with a recommendation that states consider impos-

ing a moratorium of at least three years. The draft resolution was

approved by a majority, but not the two-thirds majority needed for

adoption. By then, action on the issue had moved to the human

rights sector. The 1970s resolutions were the main abolitionist legacy,

7 UN Doc. A/CONF.87/C.1/L.1. On these and subsequent proceedings in the crime congresses

and the General Assembly, see Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under

International Law, 3rd edition (Oxford, Oxford University Press, 2009), pp. 284-286.

8 UN Doc. A/CONF.87/9, paragraph 98.

208 209

with their invocation of the right to life but not the prohibition of

cruel punishment. The crime prevention part of the Secretariat (now

the United Nations Oce on Drugs and Crime) is still responsible

for commissioning the (now quinquennial) United Nations studies

on the death penalty.

After the disappointment at the 1980 Caracas Crime Congress, the

governments traditionally most active on the issue (Austria, Costa

Rica, Italy, Portugal and Sweden, joined by the Federal Republic

of Germany) introduced a draft optional protocol to the ICCPR,

whereby states becoming parties would commit themselves to

abolition. The ICCPR had not required states parties to abolish

the death penalty. Its Article 6(6) stated that nothing in it should be

invoked to justify non-abolition, but it did allow retentionist states

to become parties, while subjecting them to certain restrictions.

The Human Rights Committee, the expert body established to

monitor implementation of the Covenant, stated that Article 6

“refers generally to abolition in terms which strongly suggest . . . that

abolition is desirable.”

It also asserted that “all measures of abolition

should be considered as progress in the enjoyment of the right to

life.” Thus the 1980 draft was aimed at translating desirability into

legal obligation.

In 1982, the Assembly referred

the matter to the Commission on

Human Rights, which two years

later passed the buck further

down to its expert sub-body, the

Sub-Commission on Prevention

of Discrimination and Protec-

tion of Minorities. Despite not having a specic mandate to adopt a

text (as opposed to studying the idea), the Sub-Commission decided

to adopt an amended draft text on the recommendation of Special

Rapporteur Marc Bossuyt. The Sub-Commission forwarded the text

to the Commission, which referred it on, through the Economic and

Social Council to the General Assembly. The Assembly, by a majority

vote (59 votes for, 26 against and 48 abstentions), adopted the text of

9 “General comment no. 6: the right to life” (1982), reproduced in UN Doc. HRI/GEN/1/

Rev.9 (Vol. I) (2008), paragraph 6.

what is now the Second Optional Protocol [to the ICCPR] Aiming

at the Abolition of the Death Penalty.

The preamble to the Protocol refers to the right to life in language

borrowed from the Human Rights Committee’s general comment on

ICCPR Article 6; it also directly cites UDHR Article 3 and ICCPR

Article 6. It does not explicitly invoke the prohibition of cruel pun-

ishment, though it expresses the belief that abolition “contributes to

the enhancement of human rights and progressive development of

human rights.” Presumably, the drafters preferred to avoid the use

of language like “cruel, inhuman or degrading” to characterize the

penal practices of states that may not yet be ready to ratify but would

be willing to abstain from voting on adoption of the text, as long as

they did not feel insulted. Meanwhile, by 1994, the Human Rights

Committee was making clear that, had Article 6 of the ICCPR not

provided for retention, Article 7’s prohibition of cruel punishments

would have been applicable.

Also in 1994, Italy tried unsuccessfully to get another weak abo-

litionist resolution through the General Assembly.

In 1997, Italy

decided to centre its eorts on the United Nations Commission

on Human Rights, where it successfully proposed a stronger text.

This repeated the earlier General Assembly call for the progressive

restriction of capitally punishable oences and establishment of a

moratorium “with a view to completely abolishing the death pen-

alty.”

After a number of resolutions reiterating this language, by

2003 the Commission was able to make the stronger direct call, in

its Resolution 2003/67, “to abolish the death penalty completely

and, in the meantime, to establish a moratorium on executions.”

It repeated the approach in its nal substantive session in 2005

(Resolution 2005/59). Like earlier initiatives, it referred to UDHR

Article 3 and ICCPR Article 6.

10 Ng v. Canada, UN Doc. CCPR/C/49/D/469/1991 (1994), paragraph 16.2; see William A.

Schabas, The Death Penalty as Cruel Treatment and Torture (Boston, Northeastern University Press,

1996).

11 States would merely have been invited to “consider” progressive restriction of the number of

capitally punishable oences and the “opportunity” of instituting a moratorium, albeit with the

ambitious goal of abolition by the year 2000; UN Doc. A/C.3/49/L.32 (1994).

12 Commission on Human Rights Resolution 1997/12—27 for, 11 against and 14 abstentions;

see Nigel S. Rodley and Matt Pollard, The Treatment of Prisoners under International Law, 286-287.

“WHY DO WE KILL

PEOPLE TO SHOW THAT

KILLING PEOPLE IS

WRONG?”

—Nigel S. Rodley

210 211

The successor Human Rights Council has not so far addressed the issue.

Nor has it needed to, for the issue has now returned to the General

Assembly. In 2007, Italy successfully proposed General Assembly Reso-

lution 62/149, calling for “a moratorium on executions with a view to

abolishing the death penalty.” The resolution’s preamble acknowledged

the important role of the Commission on Human Rights. While the

softening of the language on abolition to a tone reminiscent of earlier

formulations is notable, the General Assembly’s support for a morato-

rium is an important step. It was controversial, but an absolute majority

voted for it (104 for, 54 against and 29 abstentions). Since then, several

similar resolutions have been adopted, with a larger adopting major-

ity each time. The latest was General Assembly Resolution 69/186 in

2014, with 117 votes in favour, 37 against and 34 abstentions.

One other development in these resolutions has been the invocation

of human rights in general terms, without reference to any specic

right, even the right to life. The UDHR and ICCPR are invoked in

the preamble without reference to specic articles, with the state-

ments that “the use of the death penalty undermines human dignity”

and a moratorium “contributes to the enhancement and progressive

development of human rights.” It is hard to evaluate the signicance

of this. On the one hand, no right is identied as being (potentially)

violated by the death penalty. On the other, the language implies that,

in addition to the right to life, other rights relating to human dignity

may be at stake. The most prominent of these would be the right not

to be subjected to torture or cruel, inhuman or degrading treatment

or punishment, which has traditionally been depicted as at the core

of the notion of human dignity.

For instance, according to Article 2

of General Assembly Resolution 3452 (XXX) of 1975, “Any act of

torture or cruel, inhuman or degrading treatment or punishment is

an oence to human dignity.”

THE ROLE OF CIVIL SOCIETY

If substantial majorities of United Nations member states are now will-

ing to express themselves repeatedly in favour of abolition of the death

penalty, this must be primarily attributable to the fact that a clear major-

ity (105) of the world’s 198 states are now abolitionist for all crimes

(98) or for “ordinary crimes” (crimes not imperilling state security,

such as treason or other serious crimes committed in wartime) (7). In

comparison, in 1973, only 25 states were abolitionist. That was the year

that Amnesty International adopted a policy supporting abolition of the

death penalty, not only in political cases but also for ordinary crimes.

In 1977, Amnesty International convened a major international con-

ference on abolition of the death penalty that took place in Stockholm.

It was accompanied by a book-length report on the death penalty

worldwide, and it met while representatives of the organization were

receiving the Nobel Peace Prize in Oslo. This conuence of events led

to substantial media coverage of the issue. After that, the organization

intensied its existing collaboration with other non-governmental

organisations (NGOs) in the human rights eld to promote abolition

and, particularly important, to intervene to try to save people sentenced

to death from execution. Whatever the individual results of such actions

were, it was evident that international awareness of the issue was on the

rise. This took place within the context of a dominant human rights

discourse. NGOs had no hesitation in invoking both the right to life

and the prohibition of cruel and inhuman punishment. Human rights

discourse was beginning to play an inuential role in international

politics generally; the death penalty component of it caught this wave.

At the United Nations, NGOs did not play a powerful role in insti-

gating action, and they were unable to prevent the setbacks discussed

earlier. However, at the regional level, their role was unmistakable. In

1983, the Council of Europe adopted the Protocol to the European

Convention of Human Rights, which pledged states to abolition of

the death penalty, at least for ordinary crimes. The initiator of the

process leading to this achievement was Austrian Justice Minis-

ter Christian Broda, who had attended the Stockholm conference.

Four years later, in a speech in Strasbourg accepting the Council of

Europe’s 1987 Human Rights Prize, he said:

We owe to the World Conference against the death pen-

alty, organized in Stockholm by Amnesty International on

10-11 December 1977, the idea . . . that anyone who

opposes torture must favour abolition of the death penalty.

13 Council of Europe, press release, 28 January 1987, doc. D (87) 3.

212 213

Amnesty International went on to lobby Council of Europe member

states in favour of adoption (and later ratication) of the Protocol. It is

also likely that its adoption inuenced the adoption, six years later, of

the Second Optional Protocol to the ICCPR. To this extent at least,

it may be inferred that NGOs inuenced the adoption of the latter

protocol, and from a purely human rights perspective.

HUMAN RIGHTS ISSUES IN THE APPLICATION

OF THE DEATH PENALTY

The human rights dimensions of the application of the death penalty

have been more evident and less controversial. Thus, General Assem-

bly Resolution 2393 (XXIII) of 1968, invoking Articles 3 and 5 of

the Universal Declaration of Human Rights, called on governments

of retentionist countries “to ensure the most careful legal procedures

and the greatest possible safeguards for the accused in capital cases.” In

1980, General Assembly Resolution 35/172 urged states “to respect

as a minimum standard the content of the provisions of articles 6, 14

and 15 of the International Covenant on Civil and Political Rights.”

The formula was followed in several subsequent resolutions.

The signicance of this was that states were being asked to respect

treaty-based standards, regardless of whether they were parties to the

treaty. Those standards involved substance as well as procedure. Article

6 requires that the death penalty be reserved for only the most serious

crimes and crimes not contrary to other provisions of the Covenant

(evidently implying those involving the exercise of the other human

rights, such as the freedoms of speech, assembly and association).

Articles 6 and 15 both prohibit retroactive punishments of any sort,

particularly in capital cases. Article 14 lays down the basic elements

of a fair trial and requires the possibility of review by a higher tri-

bunal. Article 6 also demands the possibility of seeking pardon or

commutation of sentence. And it insulates from the death penalty

people who committed crimes when they were under 18 years old,

as well as pregnant women. These standards were resumed and given

some limited elaboration in Economic and Social Council Resolu-

tion 1989/64 on Safeguards Guaranteeing Protection of the Rights

of Those Facing the Death Penalty.

The case law of the Human Rights Committee is also relevant to

interpretation of the ICCPR provisions. Each of the standards lends

itself to extensive commentary, but this is not the place for that.

Rather, the message is that, to the limited extent that the death pen-

alty may still be permitted, human rights are centrally relevant to the

legitimacy of its application in practice.

Furthermore, one only has to read the other chapters of this book

to see how human rights principles are oended by the inherently

and inescapably arbitrary and discriminatory application of the death

penalty. The maintenance of the death penalty and respect for human

rights must surely soon come to be seen universally as mutually

incompatible goals.

214 215

THE RIGHT TO LIFE AND THE

PROGRESSIVE ABOLITION

OF THE DEATH PENALTY

Christof Heyns and Thomas Probert

By a number of measures, support for the death penalty is dimin-

ishing worldwide. There has been a slow but steady decline in the

number of states that legally recognise it.

The number of states that

actually practise the death penalty also continues to drop.

Moreover,

while the death penalty used to be a global practice, of all executions

known to have been conducted in 2014 outside of China, nearly

three-quarters took place in just three countries: Iran, Iraq and Saudi

Arabia.

If unconrmed reports of a drastic reduction in executions

in China over the last decade are accurate,

then the absolute number

of people being executed per year is also going down. If represented

as executions per capita, the trend is even more striking.

It would appear, therefore, that the death penalty is in gradual—

quite possibly terminal—decline worldwide. This chapter places this

observation in the context of the treatment of the right to life in

international law, which is evolving towards the idea that life may as

a general rule not be taken intentionally except if there is no other

1 Christof Heyns is the United Nations Special Rapporteur on extrajudicial, summary or

arbitrary executions and professor of human rights law at the University of Pretoria, where he

co-directs the Institute for International and Comparative Law in Africa. Thomas Probert is the

senior researcher of the Unlawful Killings Unit of the Centre for Human Rights at the Univer-

sity of Pretoria and a research associate at the Centre of Governance and Human Rights at the

University of Cambridge.

2 According to the classication of abolition used by Amnesty International, Fiji became the 99th

abolitionist state in early 2015.

3 According to Amnesty International, at least 22 countries were known to have carried out

executions in 2014. Though this number is the same as in 2013, and a slight increase from 21

in 2012, the trend over the last two decades has been one of decline from a high of 41 in 1995.

See Amnesty International, Death Sentences and Executions in 2014 (London, Amnesty Interna-

tional, 2015), p. 5.

4 Amnesty International do not attempt to estimate the number of people executed in China,

where the extent of the practice remains a state secret, but is thought to extend to thousands

of executions each year. Of the remaining States, Iran executed at least 289 people, Iraq at least

61, and Saudi Arabia at least 90, out of at least 607 executions worldwide. Next in number of

executions was the United States (35), followed by Sudan (at least 23) and Yemen (at least 22).

See Amnesty International, Death Sentences and Executions in 2014, p. 5.

5 Dui Ha, “China executed 2,400 people in 2013, Dui Hua”, 20 October 2014, available from

http://duihua.org/wp/?page_id=9270.

way to preserve another person’s life. This evolution is taking place

in the context of an international legal framework that imposes an

obligation on states at least progressively to work towards abolishing

the death penalty. In the context of that framework, there is a trend

among a range of international actors explicitly to turn away from

capital punishment.

In the gradual transition away from the death penalty, many have

worked in a way that was in practice abolitionist, while taking care

to note that international law was not inherently abolitionist.

understanding of the international law surrounding the right to life

(such as the International Covenant on Civil and Political Rights,

Article 6) as being at least “progressively abolitionist” could allow

an approach that is more in line with current state practice. It thus

seems fair to say that international law is abolitionist in the sense that

it requires the abolition of the death penalty, either immediately, or

through the taking of steps in that direction. States that expand the

scope of the death penalty are not acting in conformity with their

international obligations, but so are states that maintain the status quo

and do not take measures to reduce the scope and application of this

form of punishment. This normative position has been reinforced by

important initiatives taken by regional mechanisms, which can play

a signicant role in the promotion and protection of the right to life

around the world.

THE “PROTECT LIFE” PRINCIPLE

If one proceeds from the starting point that each life is of immea-

surable value and each unwarranted loss of life is a tragedy, then it is

clear that there is no room for complacency as long as there is deadly

violence anywhere.

Yet encouragement can be taken from the gen-

eral trend worldwide towards the realisation of what might be termed

the “protect life” principle, which underlies the understanding of

the right to life in international law. This principle requires that, as a

6 The mandate of the United Nations Special Rapporteur on extrajudicial, summary or arbitrary

executions (most recently stated in July 2014 by Human Rights Council Resolution 26/12)

includes a responsibility “to monitor the implementation of existing international standards on

safeguards and restrictions relating to the imposition of capital punishment.” For an example of

an interpretation of the mandate as at least formally non-abolitionist, see Philip Alston, Report

of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on Mission to the United

States (28 May 2009) [A/HRC/11/2/Add.5], paragraph 3.

216 217

general rule, for one human being to take the life of another, the act

must as a minimum be necessary in order to save another life.

The

“protect life” principle is the standard posed in law enforcement and

in personal self-defence and the defence of others.

It is increasingly

seen as the global norm, and there is arguably increasing compliance

in practice as well.

There has thus been a gradual movement away from the historical

notion that the state could use force against its population to protect

law and order (or the sovereign power of the ruler) or to impose

other abstract values and towards the notion that it may use force

only to protect life and limb.

It is also possible to discern the impact of the “protect life” principle

on the application of the death penalty. Not long ago, there were few

constraints on using the death penalty to enforce state authority in

general or to punish a wide range of oences. Now, if used at all, it is

only as a punishment for the “most serious crimes,” understood to be

crimes involving murder.

The contemporary approach is moving closer to the “protect life”

principle, insofar as the intentional taking of life—murder—is usually

seen as the only crime that merits the death penalty. However, this

approach still falls short of fully honouring the “protect life” princi-

ple, because the taking of life by the state comes as a punishment after

the act, and its value as a deterrent, once assumed, is now strongly

contested.

If the death penalty cannot be shown to prevent loss

of life, there is little justication for its potential violation of human

rights—it does not meet the “protect life” standard.

Regrettably, though the standard of “most serious crimes” is well

established in international human rights law, some states that still

7 See Principle 9 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Ocials,

adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treat-

ment of Oenders, Havana, Cuba, 27 August to 7 September 1990, available from www.ohchr.

org/EN/ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx.

8 Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions

(1 April 2014) [A/HRC/26/36], paragraphs 70-73.

9 This historical shift has been explored by theorists such as Michel Foucault, among others.

10 J. J. Donohue and J. Wolfers, “Uses and abuses of empirical evidence in the death penalty de-

bate”, Stanford Law Review, vol. 58 (2006), pp. 791-846.

impose the death penalty do so for lesser crimes, often meeting with

strong condemnation from the international community.

THE REQUIREMENT FOR PROGRESSIVE

ABOLITION UNDER INTERNATIONAL LAW

The stronger the normative consensus on the “protect life” principle

grows, the more apparent it becomes that the death penalty, even if

conned to the most serious cases, does not sit easily with human

rights norms. While this tension is not new, the increasing willingness

of human rights actors to address the question of capital punishment

lends support to the contention that there is a logic of progressive

realisation (normally associated with social, economic and cultural

rights) within international law concerning the death penalty.

During the drafting of the International Covenant on Civil and

Political Rights of 1966, the compromise between abolitionist and

retentionist states was to prohibit arbitrary deprivation of life (in para-

graph 1 of Article 6), while still carving out some space for the death

penalty (in paragraph 2) by stating that “in countries which have not

abolished the death penalty” it may be imposed only for the “most

serious crimes,” subject to certain further restrictions. This exception

was expected to shrink. According to the chairperson of the drafting

group, the wording of Article 6, paragraph 2, was intended to “show

the direction” in which it was hoped that practice would move,

meaning that a “constant reappraisal” of the scope of the term would

be necessary. The wording chosen reected the expectation that the

category of permissible capital oences would narrow over the years

as the value attached to life and other human rights increased.

This expectation is underlined in Article 6, paragraph 6, which states

that nothing in Article 6 “shall be invoked to delay or to prevent the

abolition of capital punishment by any State Party”. The fact that the

death penalty has a foothold, albeit a shrinking one, in article 6 (2),

may thus not serve as an argument against the contention that the

modern interpretation of rights such as the right against torture, cruel

11 Roger Hood, “The enigma of the ‘most serious’ oences”, Working Paper No. 9 (Center for

Human Rights and Global Justice, New York University School of Law, 2006), p. 3. Also see

William A. Schabas, The Abolition of the Death Penalty in International Law, 3rd ed. (Cambridge,

UK, Cambridge University Press, 2002), p. 68

218 219

or inhuman dignity or treatment, or the right to dignity, demand an

end to this form of punishment.

This approach that article 6 (2) envisages the withering away of the

death penalty was armed in 1971 by the United Nations General

Assembly, which armed in Resolution 2857 (XXVI) that “in order

fully to guarantee the right to life . . . the main objective to be pursued

is that of progressively restricting the number of oenses for which

capital punishment may be imposed, with a view to the desirability

of abolishing this punishment in all countries.”

While the debate continues about whether the death penalty con-

icts with the right to life, it has meanwhile become widely seen as

a violation of the right to be free from torture and cruel, inhuman

or degrading treatment or punishment, the right to equality and the

right to dignity. The debate has thus taken a practical turn, leaving the

question of whether the death penalty per se is a violation of the right

to life, and turning to the practical question of whether it can ever be

implemented without violating other human rights. Likewise, as dis-

cussed above, the mandate of the special rapporteur on extrajudicial,

summary or arbitrary executions has in the past been interpreted as

not necessarily abolitionist, instead focusing on ensuring that relevant

international safeguards are observed.

However, given the shift that has taken place in state practice, it seems

accurate to say that the mandate of the special rapporteur is at least

progressively abolitionist. For the same reason, it is no longer nec-

essary to state in an unqualied manner that the death penalty per

se is not contrary to the requirements of international law. Over the

past several years, the perspective has emerged that international law

requires the progressive abolition of the death penalty. This is not to

say that it requires immediate compliance, as is usually the case with

civil and political rights. Instead, the drafting history suggests that

international law requires at least the gradual, progressive abolition

of the death penalty, as is often the case with socio-economic rights.

The progressive-abolition perspective is further bolstered by the

language of the Second Optional Protocol to the International Cov-

enant on Civil and Political Rights of 1989, which observed that the

language of Article 6 “refers to abolition of the death penalty in terms

that strongly suggest that abolition is desirable” and underlined that

“all measures of abolition of the death penalty should be considered

as progress in the enjoyment of the right to life.”

This would bring the mandate into line with most global human

rights organisations, the Secretary-General of the United Nations,

and the Oce of the High Commissioner for Human Rights, all of

which are unambiguous in their calls for the end of at least the practice

of the death penalty. In July 2014, stating that the death penalty “has

no place in the 21st century,” the United Nations Secretary-General

called on states to support the biennial General Assembly resolution

calling for a global moratorium on its application.

The language of

these resolutions has been designed to be broad and inclusive, calling

not for the abolition of the death penalty but for a moratorium on

executions with a view to future abolition. The goal of these General

Assembly resolutions thus ts the pattern described above—progres-

sive abolition.

A moratorium does not completely solve the problem of the death

penalty. The Special Rapporteur on torture and other forms of cruel,

inhuman and degrading treatment or punishment has expressed the

view that lengthy detention on death row, even if a moratorium is in

place, may constitute cruel and inhuman treatment. However, from

the perspective of the right to life, a moratorium is a very helpful

step forward; it allows the sometimes lengthy processes of legal and

constitutional reform to take place without further loss of life.

Each iteration of the General Assembly resolution has been passed

by a wider margin, reecting the progressive global movement away

from the death penalty. In 2014, 117 states voted in favour of the

resolution, an increase from 111 in 2012, 109 in 2010, 106 in 2008

and 104 in 2007.

The ways in which states vote on United Nations moratorium reso-

lutions has been taken into account in several instances. For example,

12 UN News Service, “Death penalty has no place in 21st century, declares UN chief”, 2 July

2014, available from www.un.org/apps/news/story.asp?NewsID=48192#.U_WzhsWSySp.

13 The most recent of these resolutions, General Assembly Resolution 69/186, was adopted in

December 2014.

220 221

in 2014, the Human Rights Committee, in a decision concern-

ing extradition to Ghana, found that, although there had been no

recorded execution for more than 20 years, a de facto moratorium

did not ensure that an execution would not be carried out in the

future, citing as a consideration the fact that Ghana had not voted

for any of the United Nations resolutions calling for a moratorium.

On the other hand, several United Nations special rapporteurs were

concerned by executions that took place in Somalia earlier in 2015.

A statement issued through the Oce of the High Commissioner for

Human Rights drew attention to the fact that Somalia had voted for

the 2012 resolution calling for a global moratorium, and that Somalia

was therefore directly contravening its commitments at the interna-

tional level.

The United Nations currently regards 10 years as a suitable threshold

for a state to pass without conducting an execution before it might

be considered de-facto abolitionist. One could debate which country

is more de facto abolitionist—one that has not executed anyone for

ve years since a change of administration and in that time has voted

for three General Assembly resolutions calling for a death-penalty

moratorium, or one that has not executed anyone for 10 years but has

consistently opposed these resolutions? In either case, the subsequent

resumption of executions would be regarded as a step backwards

and—depending on the circumstances, especially regarding notice

given—possibly an arbitrary killing; but the question remains, in

which case would it be the greater surprise?

The trend towards the abolition of the death penalty is not linear, and

a number of states have resumed the death penalty or increased its

14 Human Rights Committee decision in Johnson v Ghana (2014) [CCPR/C/110/D/2177/2012]

paragraph 7.2.

15 UN News Centre, “Somalia: UN rights oce calls for moratorium after ‘hasty’ execution

of alleged murderer”, 4 April 2014, available from www.un.org/apps/news/story.asp?News-

ID=47503&Cr=death+penalty&Cr1=#.U_XvE8WSySp

scope. In the past two years, 10 countries have conducted executions

after a period of two years or more without any. In some cases—for

example, The Gambia, India and Nigeria—the practice of non-ex-

ecution had been rmly entrenched.

Another troubling recent

phenomenon has been the sentencing of large groups of individuals

in mass trials, which has occurred in several countries including in

Viet Nam and Egypt. This has led to serious concerns that such mass

trials violate international fair-trial standards and other safeguards.

Without a fair trial, the death penalty cannot be applied in a non-ar-

bitrary fashion.

These setbacks notwithstanding, it can still be said that the normative

shift of international law away from the death penalty is reected

and reinforced by state practice. Though the number of executions in

any given year varies (at least in part because in several jurisdictions

around the world the full statistics are not publicly available), the fact

that international law explicitly prevents states that have abolished

the death penalty from re-introducing it means that the number of

abolitionist states should always be increasing.

It seems likely that in the coming years a number of factors will play

a role in further reducing the space for the death penalty. Meanwhile,

there will be increased pressure on states and corporations that col-

laborate with states that carry out executions, as well as increased

pressure for transparency, since General Assembly Resolution 69/186

has called on states to release information about their use of the death

penalty. In an interconnected world there will be less room for states

to hide their practices and insulate themselves from scrutiny and pres-

sure. The fact that China has become identied as the only country

not publicly revealing its execution gures may exert pressure to

change its practice.

The increased availability of DNA testing has the potential of showing

that the death penalty has been wrongfully imposed, which under-

mines its credibility. The global visibility of botched executions and

16 See Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execu-

tions (6 August 2014) [A/69/265].

17 See Human Rights Committee decision in Piandong et al. v Philippines (no. 869/1999) CCPR/

C/70/D/869/1999 paragraph 7.4.

“TRADITIONALLY, THE DEATH PENALTY WAS THE

NORM, NOW ABOLITION IS THE NORM.”

—Christof Heyns and Thomas Probert

222 223

the resulting embarrassment is also likely to discourage the practice.

It will become increasingly dicult to execute someone in a manner

agreed to be humane. Hanging, shooting by ring squad, electrocu-

tion, asphyxiation and lethal injection have all in one way or another

become discredited or at least seriously questioned. But what are

the alternatives?

There seems to be a growing disbelief in the myth of deterrence.

In spite of all the opposition to the death penalty and the increased

availability of crime data, the deterrent eect of capital punishment

has not been proven. And the onus is on those who want to limit the

right to life to justify that limitation. Those relying on deterrence

alone to justify the death penalty need to address the fact that to

obtain its maximum possible deterrent eect, it would have to be

mandatory, or at least highly probable, and therefore used on a sub-

stantial scale across most categories of homicide—which is not an

option for democratic states bound by the rule of law and concern

for human rights.

There is increasing support for the view that the death penalty vio-

lates the prohibition of torture and cruel, inhuman and degrading

treatment or punishment. The normative perspective has shifted:

While traditionally, the death penalty was the norm, now abolition

is the norm. The onus is on those states that want to retain the death

penalty to justify their position. The increasing number of states that

have either abolished the death penalty, ceased to practice it or revised

the law to restrict its scope—often in the context of engagements

with international human rights bodies—presents a clear pattern.

This trend increases the weight of the claim that international law

requires the gradual abolition of the death penalty.

THE IMPORTANCE OF REGIONAL INITIATIVES

Regional human rights systems play an important role in the protec-

tion of the right to life, including with respect to the death penalty.

The system is a holistic unit, with each component playing a vital role.

Regional systems are in many cases closer to the people concerned

18 For a general discussion of deterrence, see Roger Hood and Carolyn Hoyle, The Death Penalty:

A Worldwide Perspective, 5th ed. (New York, Oxford University Press, 2015), chapter 9.

than the global system and, as such, are able to facilitate greater par-

ticipation in the international system and to foster its legitimacy.

The Council of Europe is the only regional human rights mechanism

to have achieved universal abolition in practice, through its Protocol

6 (1983) and Protocol 13 (2002). Three Council of Europe member

states, (Armenia, Azerbaijan and Poland) have abolished the death

penalty but not ratied Protocol 13. Russia has not abolished the

death penalty in law, but it has not applied it since 1999 following

a moratorium decision by its Constitutional Court.

In continuing

this moratorium and trying to move towards abolition, the Court has

highlighted that invitation into the Council of Europe occurred in

part because of its expressed intention to establish a moratorium and

take steps towards abolition.

Signicantly, from the perspective of the progressive-abolition argu-

ment advanced above, the European Court of Human Rights argued

in 2010 that the protocols, combined with state practice across the

region, “are strongly indicative that article 2 has been amended so

as to prohibit the death penalty in all circumstances.”

In July 2014,

the Court held that “the fact that imposition and use of the death

penalty negates fundamental human rights has been recognised by

the member States of the Council of Europe.”

This represents the

moment of realisation for a process of progressive abolition, whereby

the death penalty is declared to be a violation of the European Con-

vention despite the explicit wording adopted 60 years earlier.

Article 2(1) of the European Union Fundamental Rights Charter,

which is part of the European Union Treaty, states that “everyone has

the right to life.” According to Article 2(2), the death penalty may not

be imposed or executed. Formal abolition of the death penalty is a

condition of entry into the European Union. It is also a central plank

of the human rights component of its foreign and security policy.

19 See Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execu-

tions (6 August 2014) [A/69/265].

20 Constitutional Court of the Russian Federation, Decision No. 3-P/1999 (2 February 1999).

21 Constitutional Court of the Russian Federation, Decision No. 1344-O-R/2009 (19 Novem-

ber 2009).

22 European Court of Human Rights, Al-Sadoon and Mufdhi v. UK, [no. 61498/08], 2 March 2010,

paragraph 120.

23 European Court of Human Rights, Al Nashiri v. Poland, [no. 28761/11], 24 July 2014, paragraph 577.

224 225

The Organization for Security and Co-operation in Europe also has

an admirable record: Of its 57 participating states, all but six have

abolished the death penalty, and only two—the United States and

Belarus—still carry out executions. It does not explicitly require the

abolition of the death penalty, but participating states have commit-

ted to limiting its use to the most serious crimes and in a manner

not contrary to their international commitments, and to keeping

the question of eliminating capital punishment under consideration

(agreed, respectively, in Vienna in 1989 and Copenhagen in 1990).

In addition, participating states that retain the death penalty have

pledged to ensure transparency regarding its application by making

relevant information available to the public and to other partici-

pating states (agreed at Copenhagen in 1990). The Organization’s

Oce for Democratic Institutions and Human Rights monitors the

situation regarding the death penalty in member states and produces

an annual report.

In Africa, 43 states have abolished the death penalty either in law

or in practice, with only 11 having conducted executions in the last

10 years. An Additional Protocol to the African Charter on Human

and Peoples’ Rights on the death penalty has been developed and

is in the process of being adopted.

The African Commission on

Human and Peoples’ Rights is also developing a general comment

on the right to life.

There has also been a role for sub-regional mechanisms in Africa

with respect to the death penalty. In 2014, the Community Court

of Justice of the Economic Community of West African States ruled

against Nigeria to uphold the rights of a juvenile defendant, arming

that execution of a minor and execution while an appeals process is

on-going are violations of international human rights protections.

In order to become a member the Community of Portuguese Lan-

guage Countries, it is necessary at least to have a moratorium on

24 Organization for Security and Cooperation in Europe, Oce for Democratic Institutions and

Human Rights, The Death Penalty in the OSCE Area: Background Paper 2014 (Warsaw, 2014),

available from www.osce.org/odihr/124105.

25 Declaration of the Continental Conference on the Abolition of the Death Penalty in Africa

(the Cotonou Declaration), available from www.achpr.org/news/2014/07/d150.

26 Avocats Sans Frontières France, “West African court nds against Nigeria in abusive capital

cases”, 3 July 2014, available from www.worldcoalition.org/nigeria-ecowas-court-death-penal-

ty-human-rights-minor-appeal.html.

executions. It has been suggested that this may account for the mora-

torium announced in Equatorial Guinea in 2014. Unfortunately, two

weeks before the announcement, the government had executed at

least four people, its rst executions since 2010.

In the Americas, the death penalty is still legal in several countries.

However, with the exception of the United States, the region has

been execution free for several years.

The Protocol to the American

Convention on Human Rights to Abolish the Death Penalty has

been ratied by 13 states.The Inter-American Court of Human

Rights observed in 1983 that the imposition of the death penalty in

states which have not abolished it must strictly meet international

procedural standards; its application must be restricted to the most

serious crimes; and the personal circumstances of the defendant must

be taken into account.

Several rulings have held that the death

penalty may only be imposed for the most serious crimes resulting in

the loss of life.

The Association of Southeast Asian Nations Inter-governmental

Commission on Human Rights is developing a thematic study of the

right to life, with a particular focus on the question of a moratorium on

the death penalty. This is an important development with much potential.

The Arab Charter on Human Rights (Articles 6 and 7) established

safeguards regarding the application of the death penalty—that it be

imposed only for the most serious crimes, and always with the right to

seek pardon or commutation, that under no circumstances could it be

applied for political oenses, and that it could not be inicted on those

under 18 or pregnant or nursing mothers.

27 Amnesty International, “Equatorial Guinea: executions just weeks before announcement

of a ‘temporary moratorium’ on the death penalty raise serious questions”, 26 March

2014, available from www.amnesty.org/en/documents/document/?indexNumber=A-

FR24%2F001%2F2014&language=en.

28 The United States ranks fth in the world in terms of number of executions, but within the

country, there is signicant variation. In 2015 Nebraska became the 19th state (in addition to

the District of Columbia) to abolish the death penalty. Governors in Colorado, Oregon, Penn-

sylvania and Washington have also established moratoria. Another ve states, in addition to the

federal government and the US military, have not conducted an execution for 10 years and by

some measures might be considered abolitionist in practice.

29 Inter-American Court of Human Rights, Advisory Opinion OC-3/83 (1983)paragraph 55.

30 Inter-American Court of Human Rights, Hilaire, Constantine and Benjamin et al. v Trinidad and

Tobago, 21 June 2002, IACHR Series C No 94; Dacosta Cadogan v Barbados, Case 1460-01,

Report No. 7/08, IACHR Series L/V/II.130 Doc. 22, rev. 1 (2008); Raxcacó-Reyes v Guatemala,

6 February 2006, IACHR Series C No 143.

226 227

culturally, sensitive. They are forums in which individual member

states often feel more prominently represented. European and Amer-

ican human rights mechanisms have shown how emerging regional

consensus (in advance of global consensus) can be employed to

achieve traction for regional agreements or standards on the issue of

the death penalty. Eorts along similar lines are under way in the Afri-

can Commission on Human and Peoples’ Rights and the Association

of Southeast Asian Nations. These eorts are encouraging for those

working more broadly on the right to life, and should be supported.

Of the 53 members of the Commonwealth, 35 still have the death pen-

alty on their statute books, and some (ve in 2013) conduct executions.

The Privy Council’s jurisprudence has played a role in the demise of

the mandatory death penalty in the Commonwealth Caribbean, but

its legitimacy as standard bearer for the constitutional principles of the

Commonwealth could be challenged.

CONCLUSION

It is time for the world community to close the chapter on the death

penalty, not only because of its eects on those directly and indi-

rectly involved, but also because it distracts attention from the other

human rights challenges that lie ahead. The international community

has placed violence reduction on the post-2015 development agenda.

If this leads to evidence-based evaluations of the drivers of violence

and best mechanisms for its reduction, then it seems likely that the

anachronistic nature of the death penalty will become increasingly

clear. Ending the death penalty could serve as an inspiration about

the possibility of the greater realisation of the right to life in general.

Public calls for a moratorium from high-prole gures—ranging

from the Secretary-General of the United Nations to the High

Commissioner for Human Rights—speak to an emerging consen-

sus that the practice of executions is no longer beyond the scope of

human rights mechanisms. International law makes clear the desir-

ability of abolition but leaves states to determine the best manner

in which to achieve it. In the 50 years since the pronouncement of

the International Covenant on Civil and Political Rights, some 160

countries have abolished the death penalty either in law or practice.

While waiting for the remaining states to nd the appropriate vehi-

cle for abolition, it is important that international actors, including

regional organisations, continue to insist that, when the death penalty

is imposed, it is within the very narrow scope allowed by law.

Regional organisations can also act as important forums for discus-

sion of trends toward abolition that are more regionally, and perhaps

31 For a critical appraisal, see Quincy Whitaker, “Challenging the death penalty in the Caribbean:

litigation at the Privy Council”, in Against the Death Penalty: International Initiatives and Implica-

tions, Jon Yorke, ed. (Farnham, UK, Ashgate, 2008), pp. 101-124.

228 229

TOWARDS A MORATORIUM

ON THE DEATH PENALTY

Paul Jacob Bhatti

Life is a precious gift from Almighty God, and only God has the right

to give it or take it away. There is no justice without life, and you can’t

appreciate life if you don’t reject death.

Some people believe that the death penalty is warranted under lim-

ited circumstances and with the strictest procedural safeguards. But

even in the best jurisdictions, mistakes happen, evidence is incom-

plete, and innocent people are erroneously executed.

In the worst jurisdictions, and there are many, the death penalty is

used by fanatics and fascists to purge innocent religious and political

minorities in the name of extremist ideologies and agendas. Due to

political strife, war, poverty and famine, the best jurisdictions can and

do devolve into the worst, making even well-reasoned death penalty

schemes a moral landmine.

For these reasons, I see no viable moral basis for capital punishment

to remain a sentencing option in any criminal justice system. The risk

and the injustice of losing innocent human life is too great.

I realize that implementing a moratorium on the death penalty is no

trivial matter. This is a complex question with no simple solutions. Prov-

identially, such a moratorium is now vigorously supported by a wide and

growing array of inuential religious scholars, human rights activists and

political and social leaders. In the 1970s, some 20 countries had abolished

capital punishment. Today about 160 countries have stopped using it, either

by law or on a de facto basis. The momentum is palpable and energizing.

There is growing agreement that the essential objectives the

death penalty is meant to serve—crime control, deterrence and

1 Paul Jacob Bhatti is a surgeon and former Pakistani Minister for National Harmony and Mi-

nority Aairs.

retribution—can be achieved without it, and are often not achieved

with it. And it is necessary to understand that the death penalty

causes loss of innocent human life in two ways: through mistakes and

through deliberate misuse.

First, our criminal justice systems are less than perfect. In many

jurisdictions, money and greed drive biased and corrupt tribunals

or kangaroo courts to adjudicate unjust convictions, resulting in the

imprisonment and execution of the innocent while the guilty rich

and powerful walk free.

Erroneous convictions also occur when poor and poorly educated

defendants cannot aord competent legal counsel, witnesses make

honest mistakes about identities and other facts of the case, evidence

is fabricated or suppressed, and juries are prejudiced or incompetent.

Convictions in these instances can result in the shedding of innocent

blood, an intolerable cost.

The United States is a country with a vigorous and venerable legal

tradition, known for its strong constitutional procedural safeguards

regulating the imposition of capital punishment. But even in this juris-

diction, appellate courts have reversed numerous death sentences based

on procedural and evidentiary errors in the trial courts. A staggering

study by Columbia Law School reported on the exoneration of many

death row convicts using newly available DNA testing technology.

The work also underscores the high percentage of reversible errors in

death penalty sentences in the United States from 1973 to 1995.

In July 2013, the Washington Post reported that the Department of

Justice and Federal Bureau of Investigation had agreed to review

thousands of cases in which hair sample analysis methods that modern

scientic assessments have deemed deeply awed may have led to

wrongful convictions. More than 120 convictions have already been

reported as suspicious, including 27 death penalty convictions.

innocent people are being executed in the United States, a country

with vast legal and technical resources, the problem is likely to be

2 Jerey A. Fagan, Capital Punishment: Deterrent Eects and Capital Costs (New York, Columbia

University School of Law, 2014).

3 Spencer S. Hsu, “Convicted defendants left uninformed of forensic aws found by Justice

Department”,

Washington Post, 16 April 2012.

230 231

much worse in poor and developing countries with limited proce-

dural safeguards and more readily compromised judiciary systems.

Second, there is outright malevolent use of legal systems, and

the death penalty in particular, to purge, control, intimidate and

manipulate populations. And herein lies my main argument. It is

no secret that fanatic extremists, often pursuing religious or racial

purity, twist the criminal justice system to their own ends to extir-

pate religious and political minorities. Hitler and Stalin are obvious

examples. Therefore, protecting religious and racial minorities is a

moral cause of the same order as the ght against human tracking

and child prostitution, or past wars against Nazism and other racist

and fascist tyrannies.

It is a moral cause undergirded by comprehensive and unassailable

arguments. These arguments are self-evident and resonate with fun-

damental principles concerning the value of human life articulated

in the constitutions of the Member States of the United Nations

and the holy scriptures of the world’s great faiths. An international

moratorium on the death penalty is an indispensable component in

our ght to eliminate wrongful executions and the terroristic use of

capital punishment.

State-sanctioned executions of the innocent tend to occur in many

places where the justice system is less than transparent and heavily

inuenced or controlled by fanaticism, extremism, terrorism and

racism; my country, Pakistan, is no exception.

My late brother, Shahbaz Clement Bhatti, was a lifelong human rights

activist. He founded a minority rights movement, the All Pakistan

Minorities Alliance, and courageously promoted religious freedom in

Pakistan and advocated for the protection of the basic human rights

of all peoples, especially the poor. He became the rst Federal Min-

ister of Minorities in Pakistan in 2008. He opposed the death penalty

and, in 2008, worked within the Government of Pakistan to support

the United Nations General Assembly’s proposed moratorium on the

death penalty. He was assassinated in 2011 for his convictions and

faith while driving to work from our mother’s home. Today, the All

Pakistan Minorities Alliance continues to aid victims of oppression,

discrimination and violence. Whenever possible, it seeks to identify

and assist the falsely accused and imprisoned.

Before I discuss moving forward to change policy, I want to discuss

how the death penalty can actually encourage terrorism and perpet-

uate a culture of death.

A government-sanctioned execution broadcasts an unambiguous

message to citizens that punishment by death is justied. But the

problem is that terrorists are co-opting the state’s prerogative for their

own malicious objectives. Death perpetuates death. On the face of

it, the death penalty seems an expedient tool in the ght against

terrorism, but the opposite is true in many countries like Iran, Iraq

and Pakistan. In this environment, the death penalty is not a deterrent

but an incentive to high-risk terror.

In many countries it is not uncommon for convicts under a death

sentence to escape prison by force or subterfuge. Many instances of

these “walking dead” escaped convicts attacking and killing innocent

victims plague our headlines. This is an issue stuck in the morass of an

underfunded criminal justice and prison system.

Even more disturbing is the morbid and warped interplay

between fanatic religious extremism, illiteracy and poverty. The

vast majority of suicide bombers and other criminal extremists

originate in societies where the illiteracy and poverty rates are

high. Entrenched poverty leads to suering, loss of hope and

opportunity and a sense of grievance. In Pakistan, half of all adults,

including two out of three women, are illiterate. In 2012, an esti-

mated 20 million children of all school ages, including 7.3 million

primary-school-age children, did not attend school. Poor and

illiterate people are susceptible to predatory extremist ideologies

and agendas. Empty stomachs and empty heads make children

especially easy prey for extremists.

In many countries children are actively recruited and brainwashed

in extremist ideologies and agendas. They inculcate our children

with the conviction that to kill and/or die a martyr in the name of

their religion is not only the norm, but also the basis for an eternal

232 233

reward. The children grow up with no other objective in life than

to die for their ideology.

No major religion advocates hatred, violence and discrimination. All

condemn killing in the name of religion. In the Holy Koran, killing

one human being is con-

sidered the equivalent of

killing all of humanity. But

there are religions in many

parts of the world that have

been hijacked to attack,

divide, control and create

hatred and fear among

innocent people, including towards dierent faiths. This misuse of

religion is a violation of human rights. It is evil.

In fanatic and fundamentalist societies, the presence of religious minori-

ties sometimes triggers aggressive reactions from those who view them

as a threat. Often, false accusations are made to settle personal scores

and to target easy victims, who mostly belong to the oppressed and

marginalized sector of the community—and to further extremist agen-

das, breeding real acts of violence against them, including execution.

My brother, the late Shahbaz Bhatti, was a strong advocate of a mor-

atorium on the death penalty in Pakistan to protect the poor and

religious minorities from being executed by fanatic extremists under

false charges and lesser forms of overt discrimination and harassment.

Although he is no longer with us, his work continues and there is still

much hope.

Implementing an international moratorium on the death penalty will

reap enormous benets that will cascade through the generations.

• First, the execution of innocent defendants caused by judicial

corruption, jury bias and error, technological malfunctions

and defects in procedural safeguards will halt immediately.

• Second, fanatic extremists will lose a powerful tool for con-

trolling and intimidating populations, when religious and

“NO MAJOR RELIGION

ADVOCATES HATRED,

VIOLENCE AND

DISCRIMINATION.”

—

Paul Jacob Bhatti

racial identity will no longer be crimes subject to capital

punishment. This will be a great day indeed.

• Third, religious extremists may be discouraged from com-

mitting acts of terror if they face spending the rest of their

lives in a jail cell, instead of the delusion of instant glory

through martyrdom by state execution.

I propose that we move forward towards implementing a morato-

rium on the death penalty as a major component in the creation of

a peaceful and better world. It is imperative, in these perilous times,

that the United Nations act now to overcome evil with good. We

seek to promote a fair and just world, where peace, security, welfare

and human dignity are the bedrock and baseline of who we are and

how we live.

Let us join together to impose a universal moratorium on the death

penalty. Let us save all those innocent children who are victims of an

imposed ideology that leads them to kill and die for a false reward.

Let us work together to educate our children so that they have a true

hope of becoming productive and informed citizens. And let us pray

together that Almighty God grant us the strength and resources to

resist and overcome the spirit of terror with whatever is true, noble,

right and pure.

234

“Our mission is to continue advocating, because the matter

is not just about people whom we need to save from a

barbaric and ineective punishment, but also about helping

society advance towards a higher degree of civilization. ”

— Moncef Marzouki

235

CHAPTER 5

ROLE OF LEADERSHIP

Chapter 5 contains articles dealing with the importance of leadership in

moving away from the death penalty.

Federico Mayor, President of the International Commission against the

Death Penalty, oers practical examples from a number of countries—

such as Haiti, Mexico, Mongolia, Rwanda, Senegal, South Africa and the

United States—of the key role of political leadership in the abolition of the

death penalty. This includes political and judicial leaders but also lawyers,

members of the media, and religious and civil society leaders.

Mai Sato, an academic from Japan working in the UK, demonstrates how

oering a life sentence without parole as an alternative to the death penalty

decreases popular support for the death penalty.

Contributions of Heads of States or Governments reect their commit-

ment and contribution to move away from the death penalty globally or

nationally. Didier Burkhalter, President of the Swiss Confederation (2014)

pledges for a dialogue and experience sharing on the death penalty as

the best way in moving away from it. Tsakhiagiin Elbegdorj, President of

Mongolia, describes the process how Mongolia under his leadership moved

away from the death penalty, motivated by human rights concerns. Laurent

Fabius, Foreign Minister of France, explores the long path that France took

towards abolition. Moncef Marzouki, President of Tunisia (2011-2014),

speaks of his personal commitment and dierence it has made in Tunisia.

Matteo Renzi, Prime Minister of Italy, describes the relevance of the UN

moratorium resolutions in moving away from the death penalty. Boni Yayi,

President of Benin, describes the process in his country, calling others to

follow their example.

Prime Minister of Italy, Mr. Matteo Renzi, greats the (former) President of Tunisia, Mr. Moncef Marzouki (sitting), at the high-level event on “Moving Away from the Death

Penalty: National Leadership”, held on the margins of the General Assembly general debate, New York, 25 September 2015; UN Photo/Amanda Voisard

236 237

LEADERSHIP AND THE

ABOLITION OF THE

DEATH PENALTY

Federico Mayor

Principled political leadership, within the domestic realm and inter-

nationally, is an essential factor in the momentum that is driving the

movement for the abolition of the death penalty. The role played

by leaders—such as prime ministers, presidents, ministers, author-

ities within ministries dealing with domestic and international

aairs, national human rights institutions, the judiciary (including

judges and magistrates who pass rulings that shape the debate and

jurisprudence), lawyers and bar associations, and key gures in the

media, religious bodies and civil society organisations—has been

and will remain crucial to ensuring progress towards a world free of

capital punishment.

Ultimately, it is the state that must decide to abolish the death penalty

and protect the fundamental human right to life. Political leadership

has been very important in overcoming domestic opposition to abo-

lition in several countries. Political leaders have recognized that while

public opinion is relevant, nations face diculties if popular senti-

ment, which is dicult to gauge accurately, is allowed to determine

penal policy. Experience shows that the majority of the public is

willing to accept abolition of capital punishment once it is achieved.

Leaders of several countries have initially granted clemency or

imposed moratoriums on executions which, in turn, have paved the

way for legislative or constitutional repeal of capital punishment.

Many leaders have recognized the ever-present risk of executing

innocent people, as well as other powerful arguments for abolition,

including the discriminatory and arbitrary nature of judicial pro-

cesses and the danger of capital punishment being used as a tool of

political repression.

1 Federico Mayor is President of the International Commission against the Death Penalty.

International leadership is very important and complements domes-

tic political leadership in abolishing capital punishment. Often, it is

a response to pressure, support and recommendations from inter-

national bodies such as the United Nations General Assembly, the

United Nations Secretary General and the Oce of the High Com-

missioner for Human Rights; treaty bodies such as the Human Rights

Committee, the Committee against Torture and the Committee on

the Rights of the Child; and statements and reports that are drafted by

special procedures. The role of regional bodies such as the European

Union, Organisation of American States and African Union has been

important in ensuring that Europe (barring Belarus), the Americas

(with the exception of the United States of America) and Africa

(with the exception of ve countries) have become execution-free.

The majority of the executions take place in regions such as Asia and

the Middle East where there are no regional organisations spanning

the continent (such as the European Union and organisations men-

tioned above) and where regional leadership is weak or non-existent.

THE INTERNATIONAL COMMISSION AGAINST

THE DEATH PENALTY

The International Commission against the Death Penalty (ICDP),

founded in Madrid in October 2010, is currently composed of 14

people of high international standing from all regions of the world

who act with independence and neutrality. Its commissioners are

leaders, with long and respected experience in public life, who believe

in the fundamental right to life and who are using their moral voice,

inuence and access to advocate with leaders and governments of

death-penalty-retentionist countries for abolition of capital punish-

ment. These individuals include former presidents, prime ministers,

government ministers and senior United Nations ocials, a former

US state governor, a former judge and president of the International

Court of Justice, a senior judge and a leading academic. Each com-

missioner has expertise in international law and human rights and

has shown leadership in and commitment to the global abolition of

capital punishment. Their experience and knowledge enable them

to address politically sensitive issues and engage with senior ocials

from countries where the death penalty is still used. Their knowledge,

inuence and broad geographical representation provide ICDP with

238 239

a high prole in the international arena.

ICDP opposes the death

penalty under any circumstances, believing that it violates the right to

life enshrined in the Universal Declaration of Human Rights

ICDP works with the United Nations and other international and

regional organizations, governments, parliamentarians, lawyers, media

and nongovernmental organizations to further the abolition of the

death penalty worldwide. Its work is supported by a diverse group of

18 states from all regions of the world that are committed to aboli-

tion. Its secretariat is located in Geneva.

DIFFERENT PATHWAYS TO ABOLITION

Countries have arrived at the same goal—abolishing the death pen-

alty—in dierent ways. A few examples are described below.

In Haiti, political leaders helped prepare the ground for changing

the penal code; the commutation of all death sentences under the

1987 Constitution was a key step in that direction. The penal code

of 1953 had established the death penalty for criminal and political

oences. During the presidency of Francois Duvalier between 1957

and 1971, numerous death sentences were imposed following sum-

mary trials, and executions were frequently carried out in public. A

1985 governmental decree abolished the death penalty for political

oences except high treason. Following the collapse in 1986 of the

Jean-Claude Duvalier government, which had been responsible for

widespread human rights violations, former government ocials

were sentenced to death for human rights abuses. A new Consti-

tution in 1987, approved in a national referendum under President

Henri Namphy, abolished the death penalty. All death sentences were

commuted. The 1987 Constitution was temporarily abolished fol-

lowing a military coup in 1988, but President Leslie Manigat issued

a decree on 12 July 1988 rearming the abolition of the death pen-

alty. Haiti has since supported four resolutions of the United Nations

General Assembly calling for a moratorium on the application of the

death penalty, most recently in 2012. During its Universal Periodic

Review in 2011, Haiti agreed to sign and ratify the Second Optional

Protocol to the International Covenant on Civil and Political Rights,

2 The ICDP’s website can be found at www.icomdp.org/.

which is the only international treaty with global coverage that calls

for abolition of the death penalty.

Mexico abolished the death penalty in 2005, rst in legislation and

then in a constitutional amendment. The last execution, of a soldier

under the Code of Military Justice, was carried out in 1961. Most

Mexican states had already abolished capital punishment by the end

of the 19th century. The Code of Military Justice did, however, retain

capital punishment for specic oences, and people were occasionally

sentenced to death under its provisions. There was widespread oppo-

sition from Catholic bishops, political leaders, senators and prominent

lawyers to a suggestion by a presidential candidate in 1988 to hold

a referendum on reintroducing the death penalty. In April 2005, the

only remaining provision in the Mexican criminal law permitting

the death penalty was abolished. The Mexican Chamber of Depu-

ties unanimously voted to reform the Code of Military Justice and

replace capital punishment with prison terms of 30 to 60 years for

serious oences. To reinforce abolition at the constitutional level, the

Mexican House of Representatives approved a constitutional reform

bill in June 2005 that explicitly prohibits the death penalty for all

crimes. President Vicente Fox signed the bill amending Articles 14

and 22 of the Constitution of the United Mexican States, and it came

into force on 9 December 2005.

In Senegal, a predominantly Muslim country, the abolition of the

death penalty took place due to a number of factors including

a change in the position of President Abdoulaye Wade to support

abolition, along with the assertion by then Justice Minister Sergine

Diop that crime gures were not lower in retentionist countries than

in abolitionist countries, and advocacy by civil society organisations.

Since independence in 1960, Senegal had carried out two executions,

the last in 1967. The penal code provided for the death penalty for

oences including murder and made it mandatory for, among others,

espionage and treason. Discussion about constitutional reform in

2001 included the possible abolition of the death penalty, though at

that time it was resisted by President Wade, who argued that abolition

should be brought about through legislation. Article 7 of the 2001

Constitution stated that “all human life is sacred and inviolable” and

that everyone has the right to life. When the courts handed down

240 241

death sentences in 2003 and 2004, a vigorous debate on the death

penalty resumed, especially when a bill to abolish it was presented in

parliament in 2004. With the support of Justice Minister Diop, civil

society organisations and, most importantly, President Wade, the bill

was unanimously approved by the Government in July 2004, and on

10 December 2004, the Senegalese parliament abolished the death

penalty by a large majority.

In South Africa, the Constitutional Court played a key role by ruling

that the death penalty violated human rights as a form of cruel, inhu-

man or degrading

punishment. During

the apartheid era, the

death penalty was

widely and dispropor-

tionately used against

the black population.

In 1990, anti-apartheid leader Nelson Mandela, who had been tried for

oences carrying the death penalty and proclaimed it to be a barbaric

punishment, was released from prison, and negotiations for constitu-

tional change started. Abolition of the death penalty became a litmus

test for the creation of a social order, and a tribunal was established to

review all death sentences imposed before July 1990. The last execu-

tion was carried out in 1991, and the Minister of Justice proclaimed a

formal moratorium on executions in 1992 pending the introduction

of a bill of rights. The new Constitutional Court made a landmark

judgement in its rst case, the State v. T. Makwanyane and M. Mchunu,

where it concluded that the death penalty was a form of cruel, inhu-

man or degrading punishment, prohibited by the interim Constitution.

Despite opinion polls showing a majority in favour of retaining capital

punishment, the African National Congress supported abolition. South

Africa’s Constitution was adopted in May 1996, and it retained the

wording of the 1993 interim Constitution guaranteeing the right to

life as a fundamental right and abolishing the death penalty. In 1997, the

parliament formally abolished the death penalty for all crimes by pass-

ing the Criminal Law Amendment Act, which removed all references

3 In the Matter of the State v. T. Makwanyane and M. Mchunu, case no. CCT3/94, Constitu-

tional Court of the Republic of South Africa, 1995. Available from www.saii.org/za/cases/

ZACC/1995/3.pdf.

“POLITICAL LEADERSHIP

IS A KEY FACTOR IN THE

ABOLITION OF THE DEATH

PENALTY.” —

Federico Mayor

to the death penalty from the statute book, and abolition came into

force in 1998. In November 2006, the Constitutional Court ruled that

the Government had fully complied with its 1995 judgement on the

unconstitutionality of the death penalty.

In Mongolia, President Tsakhiagiin Elbegdorj has been leading the

move towards abolition of capital punishment, including acceding to

the Second Optional Protocol to the International Convention on

Civil and Political Rights, which is the only treaty with global scope

to abolish the death penalty. President Elbegdorj initially announced

a moratorium on the death penalty in January 2010, emphasising the

need to follow the worldwide trend towards abolition. In a landmark

speech to the State Great Khural (parliament), President Elbegdorj

listed eight reasons for rejecting the death penalty, including the irrep-

arable nature of any error in imposing it, its historical use in political

purges, the international community’s calls for abolition and its lack

of a deterrent eect. He said, “There could be a multitude of reasons

and varying circumstances and settings for committing a crime that

carries a death penalty. Yet the guiding principle for the Head of State

on whether to approve a death penalty must be single. That single

principle is to pardon the oender. As the Head of State of Mongo-

lia, I will remain faithful to this principle because it guarantees and

safeguards the value of human life.”

In January 2012, the Mongolian

parliament approved a bill to end the death penalty by acceding to

the Second Optional Protocol, and later that year, Mongolia acceded

to the protocol. Although death-penalty provisions remain in the law

until repealed by parliament, accession marked Mongolia’s interna-

tional commitment to abolish the death penalty.

In the United States of America, as of this writing the only country

in the Americas carrying out executions in 2013-2014, a number

of governors and state legislatures are moving to repeal capital pun-

ishment, although at the federal level the death penalty remains in

force. Not only has the number of total executions in the United

States decreased, but several states have either abolished the death

penalty or established an ocial moratorium. Recent states to abolish

4 Tsakhiagiin Elbegdorj, “The path of democratic Mongolia must be clean and bloodless”, speech

by the president at the State Great Khural, 14 January 2010, available from www.president.mn/

eng/newsCenter/viewEvent.php?cid=&newsId=122&newsEvent=President%20on%20Cli-

mate%20Change.

242 243

the death penalty include Illinois (2011), Connecticut (2012) and

Maryland (2013); as of this writing, the total number of abolitionist

states was 18. Essential for these developments has been the work

of individual state governors, including Patrick Quinn of Illinois,

Dannel Malloy of Connecticut and Martin O’Malley of Maryland,

who have campaigned for abolition or commuted death sentences

to life imprisonment. In November 2011, Governor John Kitzhaber

of Oregon imposed a moratorium on executions in the state and

said that a re-evaluation of capital punishment was long overdue.

Washington, Governor Jay Inslee announced a moratorium on the

death penalty on 11 February 2014 for as long as he is in oce.

Connecticut, a bill abolishing the death penalty was passed by the

state legislature in April 2012. Governor Malloy, who signed the bill

into law, said:

I spent years as a prosecutor.... I learned rst-hand that

our system of justice is ... subject to the fallibility of those

who participate in it. I saw people who were poorly served

by their counsel. I saw people wrongly accused or mistak-

enly identied. I saw discrimination. I came to believe that

doing away with the death penalty was the only way to

ensure it would not be unfairly imposed.

Governor Malloy highlighted the important role played by victims’

families who lobbied the state legislature against the death penalty.

When the death penalty was abolished in Connecticut, 48 percent

of the voters of the state were reported to be in favour of the death

penalty, with 43 percent against.

In Rwanda, the death penalty was abolished in the aftermath of

the 1994 genocide, in which an estimated 800,000 Rwandans

were murdered. The involvement of the international community

5 Death Penalty Information Center, “Gov. John Kitzhaber of Oregon declares a moratorium on

all executions” (Washington, DC, 26 November 2011).

6 Amnesty International, “Momentum against death penalty continues as Washington state

governor announces moratorium on execution” (AI Index No. AMR/51/011/2014,

12 February 2014).

7 International Commission against the Death Penalty, “How states abolish the death penalty”

(Geneva, 2013), p. 31.

8 Ibid., p. 31.

in establishing accountability triggered Rwanda’s move towards

abolition of capital punishment. Prior to the genocide, capital pun-

ishment existed in Rwanda for a wide range of criminal oences,

and the State Security Court had jurisdiction over cases of a politi-

cal nature, including oences punishable by death. Executions were

occasionally carried out. In 1987, President Juvenal Habyarimana

commuted all existing death sentences to life imprisonment, a

move that benetted 537 prisoners. Some of those charged with

involvement in the 1994 genocide were tried in Rwandan domestic

courts, and in 1998, 22 people convicted of leading the genocide

were executed.

Meanwhile, when the United Nations Security Council had estab-

lished the International Criminal Tribunal for Rwanda (ICTR) in

November 1994, the death penalty was excluded as punishment in

spite of strong opposition from Rwanda. This decision presented a

problem for the government: A fundamental injustice would occur

if suspects tried in domestic courts were sentenced to death while

thousands of genocide suspects living abroad, some held by the

ICTR, including alleged ringleaders, received life imprisonment at

most. Indeed, governments detaining suspects who had ed abroad

as well as the ICTR refused to extradite them to Rwanda, because

of the death penalty as well as concerns about the lack of fair trial

guarantees, which had been a long-standing concern in cases related

to the death penalty. These concerns rst prompted the enactment, in

2007, of a special transfer law prohibiting execution of suspects due to

be transferred from the ICTR to local Rwandan courts. In October

2006, the political bureau of the ruling party strongly recommended

abolition, and in January 2007, the cabinet approved plans to abolish

capital punishment. The Chamber of Deputies and the Senate passed

abolition bills, and the Law Relating to the Abolition of the Death

Penalty entered into force in July 2007 when it was ratied by Pres-

ident Paul Kagame. It abolished the death penalty for all crimes and

removed it from the Penal Code. President Kagame observed that his

country’s history of genocide was a primary factor in the abolition of

the death penalty. All death sentences (about 600) were commuted

to life imprisonment.

244 245

ICDP COMMISSIONERS’ CONTRIBUTIONS

ICDP commissioners

all have a strong record of promoting human

rights and are committed to providing political leadership to the

cause of abolishing the death penalty worldwide. Their experience

and knowledge enables them to address politically sensitive issues and

engage with senior ocials from countries where the death penalty

is still retained. This section highlights the leading role some of the

commissioners have played in the cause of abolishing the death pen-

alty in their home countries.

Robert Badinter (Minister of Justice, 1981-1986, France) was

well known for challenging the death penalty in the courts before

becoming Minister of Justice. As a lawyer, he argued successfully, six

times between 1976 and 1980, against the death penalty as cruel and

inhuman punishment that risked innocent people being executed.

French President François Mitterrand, who had declared his opposition

to the death penalty a few weeks before the 1981 elections, appointed

Mr. Badinter to be Minister of Justice in his new Socialist government.

President Mitterrand’s call for abolition during the election campaign

was controversial, as public opinion largely favoured capital punishment.

Mr. Badinter, as Minister of Justice, introduced a death penalty abolition

bill in the National Assembly in September 1981 under the quick vote

procedure. In October 1981, after the bill passed the National Assembly

(363 to 117) and the Senate (160 to 26), the death penalty was abolished

for all civil and military oences in France. Abolition followed a long

public debate, presidential pardons, a cross-party study group, legal action

in the courts and decisive action by President Mitterrand and Minister

of Justice Badinter. In 2007, abolition of the death penalty was incorpo-

rated in the French Constitution by President Jacques Chirac by means

of a constitutional amendment passed in parliament. Article 66-1 of the

French Constitution provides that “no one shall be sentenced to the

death penalty.”

Glor ia Macapagal-Arroyo (President, 2001-2010, the Philippines)

commuted all death sentences to life imprisonment during her

9 Navi Pillay, former High Commissioner for Human Rights, has recently been appointed as

ICDP commissioner.

10 Ibid., pp. 13-15; International Commission against the Death Penalty,

Annual Review 2010-

2012 (Geneva, 2013), p. 21.

presidency and signed a law abolishing the death penalty in 2006.

Philippines presidents played a very important role in the abolition

of capital punishment. The Philippines was the rst country in Asia

to abolish the death penalty for all crimes, in 1987 under President

Corazón Aquino. The death penalty was reintroduced in 1993, and

executions were resumed in 1999; the last execution was carried out

in 2000. In early 2000, the Philippines had one of the highest rates

of death sentences in the world. Shortly after assuming the presi-

dency in 2001, Ms. Macapagal-Arroyo announced a death penalty

moratorium. This decision followed a campaign against reimposi-

tion of capital punishment by civil society organisations including

the Catholic Bishops’ Conference and the Philippines Commission

on Human Rights. On 15 April 2006, on the occasion of Easter,

President Macapagal-Arroyo announced the commutation of all

death sentences to life imprisonment, aecting over 1,200 people.

She wrote a letter to then Senate President Franklin M. Drilon on

the urgent need for “abolishing the death penalty as its imposition

was shown to have not served its principal purpose of eectively

deterring the commission of heinous crimes,”

adding that abolition

would remedy the ndings that the death penalty was anti-poor as

it was often those who could not aord legal representation who

were sentenced to death. The Philippines Congress took swift action

and in June 2006, the Senate (16 to 0, with one abstention) and the

House of Representatives (119 to 20) passed bills abolishing the death

penalty. President Arroyo issued a statement saying, “We celebrate the

victory of life as I thank Congress for its immediate action in abolish-

ing the death penalty law.”

The law entered into eect on 24 June

2006, with President Macapagal-Arroyo signing the Act Prohibiting

the Imposition of the Death Penalty in the Philippines.

Ibrahim Najjar (Minister of Justice, 2008-2011, Lebanon),

an eminent lawyer, scholar and law professor, is seen as one of the

leaders of the death penalty abolitionist movement in Lebanon. As

Minister of Justice, he promoted laws in many elds, including pre-

vention of arbitrary detention and protection of human rights, and

11 International Commission against the Death Penalty, “How states abolish the death penalty”,

p. 21.

12 Ibid., p. 21.

13 Ibid., pp. 20-22; International Commission against the Death Penalty,

Annual Review 2010-

2012, p. 21.

246 247

worked to repeal capital punishment in Lebanon’s Penal Code. His

tenure as Minister of Justice is considered one of the most produc-

tive periods for the judiciary and the promotion of draft laws. After

recognising that abolition of the death penalty in Lebanon was a

contentious issue, he continued working towards the achievement

of a “more humane and more ecient justice system.”

In 2008, he

introduced a draft law to abolish the death penalty in Lebanon. Had

it been accepted, capital punishment would have been replaced by

life imprisonment.

In 2010 he was awarded the National Medal for

Human Rights in recognition of his draft law to abolish the death

penalty in Lebanon. Mr. Najjar continues to advocate the abolition

of capital punishment in Lebanon. In June 2014, he was part of a

delegation of ICDP commissioners which I led. We held discussions

related to the death penalty with Prime Minister Tammam Salam,

members of parliament, lawyers, diplomats and important members

of civil society. During a speech in Lebanon as an ICDP delegate in

June 2014, he said, “In Lebanon, we are witnessing a tendency to steer

away from the death penalty when we take note [that] the Parliament

has introduced no new legal sanctions constituting expansion of the

death penalty in the recent past. The dependence on death penalty

has ended. For me, the death penalty is premeditated murder; it is not

objective. Its abolition has to be achieved through constant consensus

and placed within the context of Lebanese and regional peace.”

Lebanon remains a death-penalty-retentionist country; the last

executions, of three men, were carried out in January 2004. (The

last public executions were carried out in May 1998 and sparked

uproar because the gallows did not work properly.) In July 2001, the

Lebanese parliament voted unanimously leave the application of the

death penalty to the discretion of judges. The Lebanese Constitution

requires the signature of the president, the prime minister and the

minister of justice to carry out an execution. In September 2011, the

Lebanese parliament approved a bill amending law No. 463/2002 on

the implementation of sentences, creating a formal status for those

14 International Commission against the Death Penalty, Annual Review 2010-2012, p. 23.

15 Ibid., p. 21.

16 International Commission against the Death Penalty, “President of ICDP Mr Federico Mayor,

Commissioners Ms Hanne Sophie Greve and Mr Ibrahim Najjar leads ICDP mission to

Lebanon” (Geneva, 16 June 2014), available from www.icomdp.org/cms/wp-content/up-

loads/2014/06/18-ICDP-Press-Statement-Lebanon-16-June-2014.pdf.

“sentenced to death without being executed.” Although this amend-

ment did not abolish the death penalty, it has enhanced the unocial

position of the Lebanese authorities in favour of a de facto morato-

rium on executions. As of June 2014, there were at least 57 prisoners

sentenced to death in Lebanon.

Bill Richardson (Governor, 2002-2010, New Mexico, USA)

signed a death penalty abolition bill into law in March 2009,

makingthe state of New Mexico the15th US state to abolish cap-

ital punishment. He was then in his second term as Governor of

New Mexico, re-elected in 2006 with the support of 69 per cent of

voters, representing the largest margin of victory for any governor

in state history.Since the resumption of executions in the United

States in 1977, New Mexico had carried out one execution, in 2001.

A statewide poll in 2008 showed that 64 percent of New Mexi-

cans supported replacing the death penalty with life imprisonment

without parole and restitution to victims’ families. In New Mexico’s

case, factors that helped abolition included lobbying against the death

penalty by prominent voices within the Catholic Church and fami-

lies of murder victims, legislators citing the high cost of executions,

and a 2008 study by the New Mexico Law Review on the application

of capital punishment between July 1979 and December 2007 that

found that the imposition of the death penalty was inuenced by

where or when the crime was committed and the race or ethnicity

of the victim and the defendant. The death penalty abolition bill was

passed with cross-party support by the State Senate (24 to 18) and

House of Representatives (40 to 28) in March 2009. Governor Rich-

ardson then sought the views of citizens and was urged by former US

President Jimmy Carter to support the bill.

Governor Richardson justied his decision to sign the death penalty

abolition bill, which he called the most dicult of his life, by refer-

ring to inmates who had been exonerated after being sentenced to

death: “The sad truth is that the wrong person can still be convicted

in this day and age, and in cases where that conviction carries with it

the ultimate sanction, we must have ultimate condence, I would say

certitude, that the system is without aw or prejudice. Unfortunately,

248 249

this is demonstrably not the case.”

He also commented: “In a society

which values individual life and liberty above all else, where justice

and not vengeance is the singular guiding principle of our system of

criminal law, the potential for wrongful conviction and, God forbid,

execution of an innocent person stands as anathema to our very sen-

sibilities as human beings.”

Another factor had been the worldwide

trend towards abolition of the death penalty: “From an international

human rights perspective, there is no reason the United States should

be behind the rest of the world in this issue.”

CONCLUSION

Political leadership is a key factor in the abolition of the death pen-

alty, which has gained momentum in recent years, with the United

Nations now estimating that over 160 countries have abolished capital

punishment or do not execute. In Haiti, political leaders have helped

lay the groundwork for change in the penal code, while in Senegal,

abolition came about due to a change in the President’s viewpoint,

backed up by the Justice Minister’s view that there was no evidence

of a deterrent eect. The role of the President was key in Mongolia,

which acceded to the Second Optional Protocol to the Interna-

tional Convention on Civil and Political Rights, thereby voluntarily

making an international commitment to abolish capital punishment

prior to removing it from national law. In Mexico, abolition was a

consequence of constitutional amendment, while in South Africa, the

Constitutional Court played a key role, during the era ending apart-

heid, upholding the abolitionist ideals of leaders like Nelson Mandela.

Abolition in Rwanda came in the aftermath of the 1994 genocide,

with an international tribunal leading the way in ensuring the end of

capital punishment. In the United States, governors of 18 states have

led the move to abolish capital punishment.

While States have adopted dierent pathways to end the cruel, inhu-

man and degrading practice of the death penalty, it is evident that

17 Death Penalty Information Centre, “Governor Bill Richardson signs repeal of the death penal-

ty” (Washington, DC, 19 March 2009).

18 “Bill Richardson”,

International Commission against the Death Penalty, available from www.

icomdp.org/bill-richardson.

19 International Commission against the Death Penalty, “How states abolish the death penalty”,

p. 32.

political leadership has played a crucial part in ensuring and deepen-

ing the abolitionist trend. The four ICDP commissioners highlighted

in this article have played a leading role in the abolition of the death

penalty in their countries. The ICDP itself is a manifestation of the

need for this political leadership to expand eorts to abolish capital

punishment from the national to the international arena. ICDP, I

believe, is able to bring experienced, eminent, respected voices to the

cause of abolition, in a way that complements the work of other insti-

tutions. Rejecting capital punishment is about choosing what kind of

society we want to live in, and which values—including human rights

and dignity, democracy and the rule of law—we want to uphold.

250 251

VOX POPULI, VOX DEI?

A CLOSER LOOK AT THE

“PUBLIC OPINION” ARGUMENT

FOR RETENTION

Mai Sato

For countries and organisations that oppose the death penalty, any

state execution is a violation of human rights or risks a miscarriage

of justice that is both severe and uncorrectable. Abolitionist states

and organisations have urged retentionists—through international

treaties, soft-power diplomacy and other campaigns—to change their

point of view. An eminent legal scholar predicted nearly 20 years ago

that abolition may become a customary norm and reach the status of

“jus cogens [a fundamental principle of international law from which

no derogation is permitted]. . . in the not too distant future.”

Today,

while abolitionist states have become the clear majority, it is also true

that retentionist states have continued to carry out the death penalty.

Japan was the rst country in the world known to have abolished the

death penalty; no executions were carried out from 810 to 1156.

Today, however, Japan retains the death penalty.

While its use is far

from aggressive, with about ve executions per year during the last

20 years, prisoners on death row have been hanged every year (except

for 2011). The United Nations Human Rights Committee (hereafter

the Committee) has repeatedly raised concerns over Japan’s failure to

full its obligations under the International Covenant on Civil and

1 Mai Sato is Research Ocer at the Centre for Criminology, University of Oxford. This chapter

summarises the main arguments in her book The Death Penalty in Japan: Will the Public Toler-

ate Abolition? (Berlin, Springer, 2014).

2 W. A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge, Cam-

bridge University Press, 1997), p. 20.

3 D. T. Johnson and F. Zimring, The Next Frontier: National Development, Political Change, and

the Death Penalty in Asia (Oxford and New York, Oxford University Press, 2009); K. Kikuta,

Q&A: Shikei Mondai no Kiso Chishiki / Q&A: Basic Knowledge of the Issues Surrounding

the Death Penalty (Tokyo, Akashi Shoten, 2004).

4 In Japan, 18 crimes are eligible for the death penalty. In practice, however, its use is restricted to

a limited subset of these crimes, with almost all prisoners sentenced to death for one of three

crimes: murder, robbery resulting in death, or rape on occasion of robbery resulting in death. In

relation to murder (as with all other oences on the list), the death penalty is discretionary rather

than mandatory and is normally imposed only when a defendant is convicted of multiple killings.

Political Rights,

and the Council of Europe has made numerous

resolutions critical of Japan, even threatening to take away its observer

status.

However, Japan has retained its observer status and, despite

condemnation by the Committee, has openly and without much (if

any) political damage continued to carry out executions.

This illustrates an important limitation of international human rights

law: The implementation of human rights norms is possible only if states

choose to be bound by them. Human rights is a socially constructed

concept that needs to be embraced and accepted to be eective, rather

than a set of self-evident principles that exists independently—not a

“truth” that people will one day naturally “come round to” but a con-

cept that requires negotiation and persuasion to become operational.

This perspective is often neglected or forgotten when abolitionist

scholars and international organisations engage with retentionist states.

Public opinion and government legitimacy

The clearest example of this in the Japanese context relates to public

opinion, which the Japanese government has raised as the main obsta-

cle to abolition for over 30 years. However, the Committee has not

fully engaged with this argument, either to respond to it or to refute

it.

For example, in responding to Japan’s state party report, which

consistently makes the public opinion argument, the Committee

5 UN Human Rights Committee, “Concluding observations of the Human Rights Commit-

tee: Japan”, 19 November 1998 (CCPR/C/79Add.102); UN Human Rights Committee,

“Concluding observations of the Human Rights Committee: Japan”, 18 December 2008

(CCPR/C/JPN/CO/5); UN Human Rights Committee, “Concluding observations of the

Human Rights Committee: Japan”, 20 August 2014 (CCPR/C/JPN/CO/6) Documents

available from: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx-

?Lang=en&TreatyID=8&DocTypeID=5. Japan ratied the Covenant in 1979 but has not yet

signed or ratied the Second Optional Protocol to the Covenant.

6 Council of Europe, “Resolution 1253 (2001): Abolition of the death penalty in Council of Eu-

rope in observer status” (Strasburg, Council of Europe, 2001); Council of Europe, “Resolution

1349 (2003): Abolition of the death penalty in Council of Europe in observer status” (Strasburg,

Council of Europe, 2003); Council of Europe, “Doc. 10911: Position of the Parliamentary

Assembly as regards the Council of Europe member and observer states which have not abol-

ished the death penalty (Report of the Committee on Legal Aairs and Human Rights of the

Parliamentary Assembly of the Council of Europe)” (Strasburg, Council of Europe, 2006). Japan

was granted Council of Europe observer status in 1996. Under Statutory Resolution (93) 26,

Japan must accept the principles of democracy, the rule of law and the enjoyment of all persons

within its jurisdiction of human rights and fundamental freedoms.

7 For a more detailed discussion of the dialogue between the Japanese government and interna-

tional organisations, see M. Sato, “Challenging the Japanese government’s approach to the death

penalty”, in

Confronting Capital Punishment in Asia: Human Rights, Politics, Public Opinion and

Practices, Roger Hood and Surya Deva, eds. (Oxford, Oxford University Press, 2013) pp. 205-217.

252 253

in 2008 wrote, “regardless of opinion polls, the state party should

favourably consider abolishing the death penalty”; its 2014 response

did not address the issue at all.

The following statement is what the Japanese government wrote in

its most recent state party report:

Presently, the death penalty is believed to be unavoidable

by a large number of Japanese people in cases of extremely

malicious or atrocious crimes (armed by 85.6 percent

in the latest opinion survey conducted from November to

December 2009 . . . and there is no end to atrocious crimes

in Japan.

The Japanese government’s argument is twofold. First it makes a the-

oretical claim that the decision to retain or abolish should depend

on public opinion, based on the idea of popular sovereignty and the

importance of maintaining the legitimacy of criminal justice agencies

and criminal law. Second, it presents its own survey evidence to sup-

port its theoretical position.

While deferring to public opinion on human rights issues is often

criticised as unprincipled, the concept of popular sovereignty is in fact

enshrined in instruments such Article 1 and 2 of the United Nations

Charter and Article 25 of the International Covenant on Civil and

Political Rights. It is based on the idea that the legitimacy of the state

is formed by the will or consent of its people. The interdependence of

law and public opinion, and the need for legal systems to command

popular support, have long been recognised.

Public perception of

the legitimacy of government policies and laws is a key determinant

8 UN Human Rights Committee, “Concluding observations of the Human Rights Committee:

Japan”, 18 December 2008 (CCPR/C/JPN/CO/5), paragraph 6; UN Human Rights Com-

mittee, “Concluding observations of the Human Rights Committee: Japan”, 20 August 2014

(CCPR/C/JPN/CO/6). Documents available from: http://tbinternet.ohchr.org/_layouts/

treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=5

9 UN Human Rights Committee, “State party report to the Human Rights Committee: Japan”,

9 October 2012 (CCPR/C/JPN/6), paragraph 104. Document vailable from: http://tbinter-

net.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocType-

ID=45&DocTypeID=29

10 P. Robinson, “Empirical desert”, in Criminal Law Conversations, P. Robinson, S. Garvey and K.

Ferzan, eds. (Oxford, Oxford University Press, 2009); P. Robinson and J. Darley, Justice, Liability,

and Blame. Community Views and the Criminal Law (Boulder, Colorado: Westview Press,

1995).

of public acceptance of and compliance with them. Criminologists

have also argued for the importance of maintaining legitimacy and

warned against disregarding public opinion completely.

“It is only

when the perspectives of everyday members are enshrined in insti-

tutions and in the actions of authorities that widespread legitimacy

will exist.”

Legitimacy based on public perceptions is often called subjective or

empirical legitimacy.

It can be contrasted with objective legitimacy,

which occurs when an institution can be shown to meet criteria

for legitimacy, however these criteria are derived. Objective legiti-

macy involves normative judgments about the criteria to be applied

and assessments as to whether these criteria have been met. It is

within this top-down perspective that the human rights approach

ts. Subjective/empirical legitimacy occurs when citizens perceive

an institution as legitimate, regardless of the objective standards that it

may (or may not) meet. Clearly it is possible for political and justice

institutions to achieve objective legitimacy without subjective legit-

imacy or vice versa.

The relevance of public opinion to penal policy is not conned to the

death penalty debate. For instance, penal populism can result in over-re-

sponsiveness to public opinion in penal policy, manifesting itself in

counterproductive laws such as “three strikes” provisions for mandatory

imprisonment.

More positive examples of responsiveness to public

opinion include victim impact statements and the use of jury trials.

What happens if subjective legitimacy is eroded? What are the con-

sequences of going against public opinion? One example is Mexico’s

attempt to combat drug tracking, which has led to clear damage to the

rule of law.

A combination of ineectiveness in policing and extralegal

11 D. Garland, “A note on penal populism”, in Globalised Penal Populism and Its Countermea-

sures, Japanese Association of Sociological Criminology, ed. (Tokyo, Gendaijinbunsha, 2009);

J. Roberts and M. Hough, Understanding Public Attitudes to Criminal Justice (Maidenhead:

Open University Press, 2005).

12 T. Tyler, Why People Obey the Law (Princeton, New Jersey: Princeton University Press, 2006).

13 M. Zelditch, “Theories of legitimacy”, in The Psychology of Legitimacy: Emerging Perspectives

on Ideology, Justice, and Intergroup Relations, J. T. Jost and B. Major, eds. (Cambridge: Cambridge

University Press, 2001).

14 F. E. Zimring, G. Hawkins, and S. Kamin, Punishment and Democracy: Three Strikes and You’re Out

in California (Oxford: Oxford University Press, 2001).

15 T. R. Tyler, ed., Legitimacy and Criminal Justice (New York, Russell Sage, 2007).

254 255

practices led to loss of public trust in the criminal justice system, which

in turn led to the establishment by activists of a new grass-roots system

operating outside the formal legal structure. Unpaid volunteers have

acted as police, court and penal system, often using torture and vigi-

lantism. Governments are naturally concerned that their penal policies,

including abolition of the death penalty, do not erode public percep-

tions of the legitimacy of the criminal justice system—which could

result in noncompliance with the law, lack of cooperation with the

criminal justice system, and vigilantism. One country where the death

penalty policy was at least claimed to be central to popular trust in the

criminal justice system was the Philippines. The government explained

to the Committee in 2002

that the abolition of the death

penalty had “undermined the

people’s faith in the Govern-

ment and the latter’s ability to

maintain peace and order in

the country.”

As noted earlier, the public-opinion-based argument for retention of

the death penalty has two elements. It must demonstrate that reten-

tion is central to popular trust in the criminal justice system and

that abolition would result in the erosion of political and judicial

legitimacy. This would establish a theoretical basis for the argument.

However, my view is that the biggest challenge to this approach is in

proving empirically that legitimacy depends on retention. For example,

the Japanese government’s argument for retaining the death penalty

is based on the assumption that the survey it conducts has accurately

captured public opinion—a claim that is challenged below.

A closer look at the Japanese survey results

Some retentionist states may claim that there is strong public sup-

port for retention without oering evidence or based on a survey

conducted elsewhere on an ad hoc basis. The Japanese government

16 UN Human Rights Committee, “State party report to the Human Rights Committee:

Phillippines”, 18 September 2012 (CCPR/C/PHL/2002/2 ), paragraph 494. Document

vailable from: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.as-

px?Lang=en&TreatyID=8&DocTypeID=45&DocTypeID=29

takes the argument more seriously by carrying out its own survey

(hereafter the survey), which is contracted to an independent market

research company and has been carried out approximately every ve

years since 1956. Each survey has interviewed nationally represen-

tative samples of Japanese men and women aged 20 and over, using

two-stage stratied random sampling. This needs to be acknowledged

as a systematic attempt to measure public opinion. But does the result

demonstrate that retention of the death penalty is critical to main-

taining social order and legitimacy?

The most recent survey was conducted at the end of 2014; reportedly, 80

percent of respondents were in favour of retention. The result has been

cited by the Ministry of Justice as proof that abolition is not yet possible.

Arguably, however, the survey results do not prove that abolition of the

death penalty would harm the criminal justice system’s legitimacy.

For the last ve sweeps of the survey, the government has used the

same measure of support for retention. Respondents are invited to

choose from two statements the one that reects their viewpoint. The

retentionist position is phrased in broad terms: “The death penalty is

unavoidable in some cases.” By contrast, the abolitionist option states,

“The death penalty should be abolished under all circumstances.” The

80 per cent response reported as supporting the death penalty refers

to respondents who considered that the death penalty is unavoidable

in some cases rather than enthusiastically embracing retention.

The retention option also includes an option to support future abo-

lition. Of the 80 per cent of respondents who considered the death

penalty to be unavoidable in some cases, 41 per cent (a third of the

total sample) supported future abolition. When respondents who sup-

port future abolition are not included, under half (46 per cent) of the

total sample can be considered to whole-heartedly support retention.

In addition to the question concerning future abolition, one new

question was added to the 2014 survey. It concerned the introduc-

tion of life imprisonment without parole as an alternative to the

17 Minutes of the press conference available from the MoJ website: http://www.moj.go.jp/

hisho/kouhou/hisho08_00616.html).

18 Even with this wording, the percentage of people who chose this option dropped by 6 percent

from the 2009 survey.

“WHETHER OR NOT THERE

IS A DETERRENT EFFECT IS

A MATTER OF EVIDENCE

AND NOT OPINION.”

—Mai Sato

256 257

death penalty. This question further qualies public commitment to

retention.

Of the respondents, 38 per cent said that the death penalty

should be abolished if life imprisonment without parole was intro-

duced, 52 per cent said that it should be kept, and 11 per cent said

they didn’t know.

Based on the 2014 survey results, it is possible to argue that respon-

dents who (1)consider the death penalty to be unavoidable in some

cases, (2) do not accept the possibility of future abolition, and (3) do

not agree with replacing the death penalty with life imprisonment

without parole amount to only 34 per cent of all respondents. In

other words, behind the 80 per cent support reported in headlines,

the majority of the public do in fact accept the possibility of future

abolition, especially if alternative punishments are available. If hard-

core retentionists make up only 34 per cent of the public, it does

not seem persuasive to argue that abolition would erode trust in the

criminal justice system.

Another vulnerability of this argument is the question: What gure

should be the threshold when judging how essential retaining the

death penalty is to maintaining legitimacy? The Japanese government

has not attempted to answer this question. It is obviously not an easy

question to answer, but it is essential to any public-opinion-based

argument for keeping the death penalty.

One further point undermines the presumed importance of reten-

tion for the Japanese public. Those who are committed to retaining

the death penalty tend to hold inaccurate beliefs about its eect. The

survey asks respondents about their perception of the deterrent eect

of the death penalty. In the 2014 survey, 58 per cent of respondents

thought crime would increase if the death penalty were abolished, 14

per cent thought it would not increase, and 28 per cent chose “don’t

know/cannot say”—which is the correct answer if one accepts the

increasing academic consensus that it is virtually impossible to prove

or disapprove a deterrent eect.

19 The percentages do not add up to 100 due to the rounding up of gures.

20 See National Research Council, Deterrence and the Death Penalty, Daniel S. Nagin and John V.

Pepper, eds. (Washington, DC, National Academies Press, 2012).

In addition, whether or not there is a deterrent eect is a matter of

evidence and not opinion. Hence, it is puzzling as to why the survey

has consistently included this question for over 50 years. Nothing has

been done to address public misconceptions about deterrence, nor

has any analysis taken into account those respondents who express

support for the death penalty based on inaccurate beliefs.

Linked to the issue of inaccurate public beliefs, secrecy is a salient

feature of the Japanese death penalty system. In December 2007 the

Japanese government, for the rst time, announced the names of pris-

oners and the crimes they committed after each execution. Before this,

the number of executions was published in newspapers in just one sen-

tence such as, “Today, two people were executed.” It is still the case that

prisoners about to be executed are notied only a few hours before

the execution, which gives no time for them to get in touch with their

lawyer or their family.

In most cases, the families of prisoners are

informed only after the execution has taken place. Furthermore, there

is still no ocial information regarding how prisoners are selected for

execution, the treatment of prisoners on death row, or the cost of exe-

cutions. This has led scholars to state that “the secrecy that surrounds

capital punishment in Japan is taken to extremes not seen in other

nations”

and that the public only has a very abstract idea of the pun-

ishment.

Recently, a series of social experiments showed that the vast

majority of the public did not possess basic knowledge about the death

penalty, including whether an execution had taken place in the current

year, and that many people changed their views when they received

additional information.

The government has so far failed to reconcile

its secrecy on the use of the death penalty with its delegation of power

to the (poorly informed) public to decide whether to retain it.

Examination of the 2014 survey demonstrated that the wording of a

question and the knowledge of a respondent can dramatically aect

survey results. Does this render surveys unreliable? Furthermore, critics

who question the relevance of public opinion to death-penalty policy

21 K. Kikuta, Q&A, pp. 73-78.

22 D. T. Johnson, “When the state kills in secret: capital punishment in Japan”, Punishment and

Society, vol. 8, no. 3 (2006), pp. 251-285, at p. 251.

23 S. Dando, “Toward the abolition of the death penalty”, Indiana Law Journal, vol. 72 (1996), pp.

7-19, at p. 10.

24 M. Sato, The Death Penalty in Japan.

258 259

argue that almost all countries that abolished the death penalty did so

through judicial or political leadership, despite public support for the

death penalty.

In my view, these criticisms do not disprove the value

of survey evidence as a social barometer to inform policy decisions. If,

contrary to expectations based on survey results, countries have abol-

ished the death penalty without eroding the legitimacy of the criminal

justice system, this should cause us to question the reliability of those

survey results—and more importantly, their interpretation—not to

negate a role for public opinion in the death penalty debate.

Concluding remarks

The Japanese government’s justication for retaining the death pen-

alty is that abolition would erode the legitimacy of and public trust in

the criminal justice system, leading to victims’ families taking justice

into their own hands. This justication is based on the results of a

regularly administered public opinion survey, which is said to show

strong public support for the death penalty. However, a close analysis

of the results of the 2014 survey fails to validate this claim. Just over

a third of respondents were committed to retaining the death penalty

at all costs, while the rest accepted the possibility of future abolition,

with some of them seeing this as contingent on the introduction of

life imprisonment without parole as an alternative sentence. These

ndings hardly describe a society that expects the strict application of

the death penalty and whose trust in justice depends on the govern-

ment’s commitment to retaining it. My reading of the 2014 survey

is that the Japanese public is ready to embrace abolition. Japan, after

all, is a signatory to the International Covenant on Civil and Political

Rights, which calls on states not to delay or prevent abolition, so this

should be welcome news for the Japanese government!

25 P. Hodgkinson, “Replacing capital punishment: an issue of eective penal policy”, in The

International Leadership Conference on Human Rights and the Death Penalty, Conference Brochure 1

(European Commission, American Bar Associations, and Japan Federation of Bar Associations,

unpublished, 2005); R. Hood and C. Hoyle, The Death Penalty: A Worldwide Perspective (Oxford,

Oxford University Press, 2015); D. T. Johnson and F. Zimring, The Next Frontier: National Devel-

opment, Political Change, and the Death Penalty in Asia (Oxford and New York, Oxford University

Press, 2009). Hodgkinson (p. 46) argued that “universally public opinion supports the death

penalty and this is important in that politicians many of whom are mesmerised by such polls

are reluctant to question them or to encourage a more authoritative evaluation. . . . Few coun-

tries would have abolished the death penalty if they had waited for public approval.”

LEADERSHIP THROUGH

DIALOGUE

Didier Burkhalter

Each country has its own way of dealing with the death penalty,

and Switzerland is no exception. In the Swiss case, use of the death

penalty had been steadily declining when legal experts working on

the unication of the Swiss penal code in the 1930s decided that

it was time to end the problematic punishment. Thus, abolition of

the death penalty for ordinary crimes entered into force in 1942

and for military crimes in 1992. Since 2000, the Swiss Constitution

has forbidden the use of the death penalty. The Swiss experience

demonstrates the length of time an abolition process can take, from

initial questioning to full de jure abolition. This is a process that needs

to be driven by leadership.

Switzerland’s ambition is to act as a catalyst in the universal abo-

litionist movement. One cannot create political will in countries

where there is none, nor can one impose abolition where there

hasn’t been a mature and serious debate on the death penalty. But

we can kindle the ame already burning in those countries that

have yet to complete their abolition process. As foreign minister, I

have set universal death penalty abolition as a Swiss foreign policy

priority and as a goal, shared with many colleagues around the

world, to be reached by 2025.

Switzerland’s strategy is straightforward. Bilaterally, we foster and sup-

port discussions between key actors who are open to sharing their

views on the death penalty. We nourish those discussions with facts,

expert analyses and technical support. Where there is growing agree-

ment that steps can be taken towards abolition, we remain ready to

provide pragmatic assistance when appropriate. Multilaterally, we also

play a proactive role in shaping international norms and standards

towards a more restrictive use of the death penalty.

There is increasing awareness that the death penalty cannot be car-

ried out without violating international human rights law. Executions

1 Didier Burkhalter is a member of the Federal Council and the minister of foreign aairs of

Switzerland.

260 261

justice system is an accepted norm of international law, enshrined in

the International Covenant on Civil and Political Rights. Countries

from every region of the world have set an example in ending the

use of capital punishment, including Benin, Cambodia, Canada, Cap

Verde, Costa Rica, Latvia, Mexico, Mongolia and Timor-Leste.

CHALLENGING THE MYTH OF DETERRENCE

Though a conversation on abolition is always possible, it isn’t always

easy. There are often technical issues that need to be resolved, such as

penal code reform. In countries willing to revisit the death penalty

issue, revising sentencing practices and nding alternatives to capital

punishment can be a lengthy but necessary process. And there is always

a need for local experts to lead the work on legal reform, at times

also to exchange experiences with international experts from countries

with similar justice systems, before abolishing the death penalty.

The persisting myth of deterrence is a challenge almost everywhere.

It is tempting to assume that the threat of execution must discour-

age heinous crimes. However, compelling research has shown that

the death penalty does not deter violent crime any more than harsh

alternative sanctions such as life imprisonment. Other factors, such as

having an ecient police force, are the ones that actually matter in

eectively ghting crime.

Executing drug mules would not stop the ow of illicit drugs. Tracking

will continue as long as there are consumers, as well as people desper-

ate enough to risk entering the drug tracking business for rapid but

often small economic gain. Executing the mentally ill would not make

the community safer, but putting in place programs to address mental

illness will. Both of these scenarios would not only violate international

law, they would also be unethical, inhumane and ultimately pointless.

Yet one of the most common arguments in defence of the death pen-

alty is linked to the same illusion of deterrence. Executing individuals

who are incarcerated, and thus have already ceased to be a threat to

society, is not being tough on crime. Emphasizing the deterrence

rationale is fear mongering, and it is dishonest towards citizens who

have legitimate concerns about their safety. We need to move away

from reliance on this cruel punishment and to focus instead on eec-

tive and ecient crime prevention.

constitute inhumane and degrading treatment and fundamentally

contradict Article 10 of the International Covenant on Civil and

Political Rights, which states that the essential aim of any penitentiary

system shall be the reformation and social rehabilitation of prisoners.

The death penalty also takes a heavy toll on prisoners’ families, par-

ticularly their children, violating the fundamental right of each child

to have a family. These are but a few of the principles that Switzer-

land defends in international forums, foremost the United Nations

Human Rights Council and General Assembly.

Through the strength of its convictions and its openness to sharing

ideas and experiences, Switzerland is committed to remaining active

in eorts to abolish the death penalty.

THE MANY FACETS OF THE DEATH PENALTY

DEBATE

The global trend towards abolition of the death penalty is undeniable.

In December 2014, Madagascar adopted a bill to abolish the death

penalty. In February 2015, Fiji completed its full de jure abolition

process. In March, Côte d’Ivoire and Suriname both scrapped the

death penalty. Whilst a few countries have resumed executions, there

is a growing international consensus that the death penalty is neither

a useful nor a viable sentence.

In the handful of countries where there seems to be little or no hope

of abolition in the near future, what we confront is not a hard bed-

rock of unshakable opposition, but rather a sturdy door. Trying to

break down the door will only alienate those on the other side. But

by respectfully ringing the doorbell and showing patience, one can

engage in productive conversations with those who disagree. However

strong the dierences, it is the experience of Switzerland that when

it comes to the death penalty, there is always room for discussion.

Sometimes the exchanges can be technical, on topics such as criminal

justice reform and alternative sentencing. Other times they are ideo-

logical, philosophical, or even theological, for instance on the purpose

of criminal justice. Overall, though, abolition of the death penalty is

a human rights issue that transcends cultural barriers and speaks to

our common humanity. Compassion is common to every civilization,

religion and region. Rehabilitation as the central goal of the criminal

262 263

is a strong empirical argument to be made that its use inevitably

violates human rights—a case Switzerland is making with a broad

coalition of like-minded countries in international forums.

Public opinion is important, but can be a double-edged sword in the

push for universal abolition, as few people are genuinely committed

to learning about the death penalty’s true consequences. To make

matters worse, some politicians misuse perceived majority support

for the death penalty as the primary justication for not opposing

it. In the numerous countries where abolition took place in spite

of majority opposition, opinions evolved gradually to favour aboli-

tion. Indeed, opinions can change quickly when people are presented

with facts. This has for instance been the case in California, the most

populous state in the United States, where there has been a gradual

shift in public attitudes towards the death penalty. Support for cap-

ital punishment dropped from 63% in 2000 to 52% in 2012, when

the state voted on abolition. Criminologists in particular have been

instrumental in demonstrating that public support for capital punish-

ment, even in the most hard-line countries, is limited at best.

Transparent reporting and public action can be a substantial force

for abolition. Victims’ families in countries including the United

States and Japan have been vocal in saying that the death penalty

does not oer closure for the loss of a loved one; rather, it per-

petuates violence and hatred. Hundreds of innocent people have

now been exonerated from death row because of wrongful convic-

tions and, knowing better than anyone the pain of that experience,

several have been touring the world to tell their story or have it

recorded by the media. Hearing about the injustice of wrongful

convictions and executions is uncomfortable, but it is important to

realize the implications of what can otherwise be too easily forgot-

ten: No criminal justice system is without error. Prosecutors and

judges are human, and despite the best eorts and safeguards, they

make mistakes like anyone else.

“DEATH PENALTY CANNOT BE CARRIED OUT

WITHOUT VIOLATING INTERNATIONAL HUMAN

RIGHTS LAW.”

—Didier Burkhalter

For Switzerland, leadership is expressed in action rather than grand

discourse. My country is opposed to the death penalty everywhere

and under all circumstances, but it is unrealistic to expect that reten-

tionist countries will accept this stance immediately. Long-term

engagement, incremental action, attentiveness and fact-based discus-

sion are the means by which to move forward. With the right amount

of research, and dissemination to the right actors, it is possible to

revive dialogue everywhere, even where it seems to be dying out.

THE INTERNATIONAL MOVEMENT FOR

ABOLITION

Finding the right interlocutor and the proper approach can be daunt-

ing challenges, as every abolition process is dierent, with its own

context and opportunities. In some countries, abolition requires

the political courage of a few committed leaders. This was famously

the case in France, where Robert Badinter, then minister of justice,

spearheaded abolition through incisive and eloquent prose. In most

countries, however, there is no single event or single politician that

changes the political landscape. Instead it is often a lengthy process,

edged forward by the tenacity of committed parliamentarians and

political leaders. These commendable women and men deserve the

support of the international community.

In other countries, the judiciary can be the best entry point for

addressing capital punishment. Though the death penalty is technically

permitted under international law, legally putting someone to death

is impossible. International law restricts the use of the death penalty

to only the most serious crimes, while mandatory death sentencing is

illegal. In the rarest-of-the-rare cases where the death penalty could

be applicable, there has to be due process. Every prisoner has the right

to appeal up to the highest judicial body of his or her country, as well

as to request clemency. Appeal and clemency procedures invariably

take years, during which the condemned is subjected to the intense

psychological hardship of impending death. Any individual would be

severely psychologically aected by such a process, which amounts to

cruel and degrading treatment. In addition, in every country that still

practices the death penalty, it is disproportionately imposed on the

marginalized, the weak, the poor and the vulnerable. Though capital

punishment may at rst seem consistent with international law, there

264 265

Switzerland will continue to lead through dialogue in the years to

come. We are counting on the support of many partner countries

interested in open and comprehensive engagement. I believe addi-

tional partners will join us soon, and working together with the few

countries still using the death penalty, we can achieve universal abo-

lition by 2025.

SMART LEADERSHIP

The death penalty debate is complex, multifaceted, politically sensitive

and often misunderstood. Doing research, disseminating information

and holding conferences, seminars and workshops - all of these are

important, but they are not sucient to achieve abolition. Leadership

is always necessary to instigate major change.

The abolitionist movement needs to adapt to remaining challenges

and move forward by committing to a new, smart form of leadership,

in which governments, parliamentarians, judges, academics, members

of the media, artists and activists all build on each other’s comple-

mentary strengths. An unwaveringly principled stance needs to be

combined with inclusive and respectful engagement. Switzerland has

been proactive in consolidating a network of smart leaders, many of

whom have years of experience working for universal abolition of

the death penalty. To facilitate the emergence of new leaders, espe-

cially where nearly everything has yet to be done, is a gratifying task.

Dialogue may not be what immediately comes to mind when talking

about leadership. Yet some of the greatest progress towards abolition

has been achieved thanks to individuals willing to engage in pro-

ductive dialogue. Spending time and resources, fostering dialogue,

providing facts, listening to arguments and striving to nd a way for-

ward is in itself a valuable form of leadership. There is enough work

remaining to be done for each of us to have a leadership role to play.

There is also potential for complementarity between gentle support

and full-throated advocacy, as long as actors in both these roles take

the time to study and strategize together. This collaborative planning

is the essence of smart leadership.

I am personally convinced that there are no good arguments in favour

of the death penalty. Quite the contrary: the death penalty creates

more problems than it purports to solve. I believe that under no cir-

cumstances is it just for a human being to take the life of another

human being. We are all awed, we make mistakes, and our imperfec-

tion needs to be acknowledged in the way in which we construct our

criminal justice systems. The death penalty does not make the world

safer, and it most certainly does not make it better.

266 267

Mongolia was one of the few countries to re-introduce the death

penalty. In 1953, the Presidium of the People’s Great Khural adopted

Decree 93, which resolved to abandon capital punishment, but 10

months later it retreated from this decision. Most of those sentenced

to death were people in their 20s to 40s. And most of them had

committed a crime for the rst time.

I would like to mention the main arguments that led me to oppose

the death penalty:

• Removing the death penalty does not mean removing pun-

ishment. Criminals fear justice, and justice must be imminent

and unavoidable. But we cannot repair one death with another.

• The state has no right to risk making a judicial or procedural

mistake when deciding a question of life and death. Such

mistakes are unacceptable. Mistakes and miscarriages of jus-

tice in applying the death penalty can only be prevented by

closing the door to it altogether. Only then will we be able

to genuinely honour human life and human rights and create

conditions to safeguard them.

On 13 March 2012, the Mongolian Parliament ratied the Second

Optional Protocol to the International Covenant on Civil and Politi-

cal Rights, indicating that the country is poised to completely abolish

the death penalty.

Mongolia is taking steps to abolish the death penalty both in law and

practice. The criminal code is being amended to comply with the

Second Optional Protocol. Comments from Amnesty International

and specialized United Nations agencies were solicited in the course

of the drafting. The draft Law on Crimes proposed life imprisonment

as the harshest criminal sentence.

Mongolia is committed to contributing to international cooperation to

abolish the death penalty. Mongolia shares the concern over the contin-

ued use of the death penalty in a number of countries. Consistent with

our opposition to capital punishment, Mongolia calls upon all states that

have not yet done so to join the vast majority of countries that do not

execute in the name of the law. It is important to underline the role and

critical importance of international and regional organizations, particu-

larly the United Nations, in the eort to abolish the death penalty.

MONGOLIA HONOURS

HUMAN LIFE AND DIGNITY

Tsakhiagiin Elbegdorj

I am glad to be part of the movement away from the death penalty,

and I am condent that this book will be an indispensable reference

to national leaders working to advance a moratorium on the imposi-

tion of the death penalty and its eventual abolition.

In 2010 Mongolia announced a mor-

atorium on executions as a rst step

towards abolition of the death penalty.

Our decision received acclamation

internationally and set the standard for

other countries in the “worst execu-

tioner” region. It was a dramatic decision. No known human society

has been fully able to prevent humans from killing one another. Every

community demands from its state severe punishment of criminals.

Yet states have the ability to stop taking citizens’ lives. None of the

abolitionist countries repealed the death penalty under pressure from

public opinion. But the number of countries that have abolished this

punishment grows year by year.

Mongolia is a dignied country, and our citizens are dignied people.

As president, I encouraged my people to end the death penalty, which

degrades our dignity. I said I wanted to be a president who can tell his

citizens: “I will not deprive you of your life under any circumstances,

knowingly, on behalf of the state.” Our people say that a human life is

more precious than all the wealth that the Earth can carry. The road

that a democratic Mongolia takes should be clean and bloodless.

Mongolians have suered enough from the death sentence. Between

October 1937 and April 1939, in 51 sessions of the Special Full-Power

Committee, which then functioned in place of the courts, 20,474

Mongolian citizens were sentenced to death. In just one session, a mass

death sentence for 1,228 people was issued, including eight women.

1 Tsakhiagiin Elbegdorj is president of Mongolia. This article draws on the statement he made at

the Leadership and Moving Away from the Death Penalty event at the United Nations in New

York on 25 September 2014.

“WE CANNOT

REPAIR ONE DEATH

WITH ANOTHER.”

—Tsakhiagiin Elbegdorj

268 269

The majority of States already share the conviction that the death

penalty is the opposite of justice.

During the last few decades, the death penalty has lost ground. Two

thirds of the world have already abolished it or have adopted a mor-

atorium, as compared to only 16 in 1977. Each time an execution is

stayed, each time a death sentence is commuted or a new moratorium

is adopted, it is a victory.

But we should stay engaged, as the ght for universal abolition has

not ended yet.

First of all, because a moratorium remains reversible, and a number of States

have broken what until now they had respected, at times for long periods.

Also, because every year worldwide thousands of women and men

are still sentenced to death: in 2014, the number of death sentences

increased by 28% compared to the previous year, according to the

latest report by Amnesty International.

Finally, because every year more than a dozen of countries continue

to execute hundreds or even thousands of people on death row.

In view of these long-term advances but also taking into account

short-term backtracking, it is essential to ensure a strong mobilization

towards universal abolition, for all crimes.

This is the reason why I chose to prioritize this ght in the context

of the French diplomacy, by launching a world campaign towards

universal abolition of the death penalty. This campaign mobilizes our

entire network at dierent levels.

What do we do concretely?

Our embassies and cultural centers are active on the ground to alert,

mobilize, advocate. By organizing conferences, partnerships with

NGOs, media awareness campaigns, creation or strengthening of abo-

litionist networks around the world, our diplomats are consistently

engaged in the abolitionist ght.

TOWARDS UNIVERSAL ABOLITION

OF THE DEATH PENALTY

Laurent Fabius

France’s commitment to universal abolition of the death penalty is a

ght for the progress of mankind.

It is a ght that we share with the whole abolitionist movement.

It is by joining our eorts that all of us, governments, regional and

international organizations, parliamentarians, militants, researchers,

advocates, and citizens, will get there.

The articles that appear in the publication that you are holding reect

the mobilization of all sectors of society and regions of the world

towards abolition. France is especially pleased to contribute to spread-

ing this publication in francophone and Arabic-speaking regions, and

I hereby thank the High Commissioner for Human Rights for his

active engagement in this cause.

The testimonies of individuals who have been wrongly convicted, the

studies of the researchers, the articles written by NGO representatives

remind us that the death penalty is ineective, it is unjust and it is

inhumane.

The evidence is in that it is not an eective punishment against crim-

inal behavior: it doesn’t deter crime.

The unjust nature of the death penalty is conrmed by the inequality

it perpetuates: the punishment varies depending on social status or

ethnic aliation. How can one accept that those factors determine

life and death?

Because mistakes are unavoidable and irreversible, the death penalty

is fundamentally a human rights violation. It is not justice. It is the

failure and the negation of justice.

1 Laurent Fabius is the Minister of Foreign Aairs and International Development of France.

270 271

society, show it the way. To this end, one needs courage, determina-

tion and perseverance.

The abolitionist cause requires speaking out against fake certitudes,

ghting bias. Public opinion, urgent priorities or the need to ght

threats such as terrorism or drug tracking are often invoked to jus-

tify the death penalty. These arguments cannot justify maintaining

such a cruel, degrading and inhumane punishment. Those who sup-

port the death penalty often see it as a trade o against the need for

security. One can support the need for security – we all do – while at

the same time opposing the death penalty.

In view of the obligation to protect life, each political or judicial actor

should appeal to his/her courage.

The French experience conrms that courage will pay o. Today, the

majority of the French population supports the choice made by our

leaders thirty years ago, despite the then public opinion. Abolition has

been reected in our constitution in 2007. It is now part of our heritage.

The decision to abolish capital punishment is not a matter of political

expediency. It is not a matter of culture, despite what some claim. It

is a matter of principle.

We must pursue our eorts to advocate that it is both just and pos-

sible to abolish capital punishment, regardless of the circumstances.

The path towards abolition is long and winded. But in view of our

shared ideals of justice and human dignity, each person on death row

is one too many.

To those who still resort to the death penalty or remain hesitant

we say, using the words of Victor Hugo, “you may not abolish capital

punishment today, but make no mistake about it, you will abolish it tomorrow

or your successors will”.

Let’s not waste time or lives. Abolishing the death penalty is allowing

justice and mankind to evolve. All those who commit to this path,

will nd France standing by their side.

We engage with all key stake-

holders: parliamentarians, as

abolition is the result of legislative

revision; attorneys, who are on

the frontline defending people

on death row and who contrib-

ute to evolving the thinking on the death penalty; journalists, who can

inform about the reality surrounding the death penalty, especially in

those countries where executions are carried out in secret; but also the

youth, because they are tomorrow’s citizens and decision-makers.

We are also engaged, together with our EU partners, at the mul-

tilateral level. In the context of the UN, we use our inuence to

strengthen the abolitionist movement.

In the General Assembly, France is fully engaged in the ght for the

adoption of the resolution on a universal moratorium, as a rst step

towards complete abolition. In the Human Rights Council, France

has made the ght against the death penalty a priority, including by

acknowledging the human rights violations stemming from it.

The international community has a special responsibility, as capital

punishment is a threat to the universal principles it supports.

However, we should not forget the role that each individual can play,

our personal responsibility on the path towards abolition.

All the countries that have succeeded in the ght against capital pun-

ishment have been able to do so because of the strong political will

and determination of a few individuals.

This is exactly what happened in France. Our path towards abolition

was particularly long: the rst attempts to abolish capital punishment

date back to the beginning of the French Revolution. This issue divided

France, one of the last countries in Western Europe to abolish it, in 1981.

At the time, public opinion was mostly in favor of the death penalty.

However, public opinion cannot be used as a pretext to maintain

capital punishment. In order to abolish it, one needs to be ahead of

“PUBLIC OPINION

CANNOT BE USED AS A

PRETEXT TO MAINTAIN

CAPITAL PUNISHMENT.”

—Laurent Fabius

272 273

In other words, I was digging my own political grave by systemati-

cally pardoning people who were sentenced to death and pardoning

other detainees on national holidays.

What complicated things further for me was the constitutional strug-

gle, as I strived for the inclusion of an article on the abolition of the

death penalty. I had been working for abolition since the early 1990s,

as soon as I became chairman of the Tunisian League for Human

Rights. I remember that the ght started when a well-known news-

paper made a call in a large headline to execute 12 times a criminal

who had raped and killed 12 children. That day even the members

of the executive board of the League preferred not to take an active

stance against the death penalty, as society was deeply shocked by this

atrocious crime. But I insisted that it was, on the contrary, an oppor-

tunity for us to assume our intellectual responsibility and confront the

(understandably tense) public with our ideas.

In articles and heated public debates, I reiterated the usual arguments

against capital punishment, and these were the same arguments that I

used in my speech to Tunisia’s National Constituent Assembly to call

for abolition:

• The death sentence neither cancels nor compensates for the

atrocity of the crime, but rather adds another layer of atrocity.

• There is no proven link between the application of this sen-

tence and a decline in crime rates; sometimes the opposite

happens.

• Most convicts receiving the sentence come from the poor-

est sections of society as well as minorities and the political

opposition.

• Judicial errors are more common that we think, and they

cannot be redressed after an execution is carried out.

These logical arguments, which reject the use of a cure that is more

painful than the disease itself, failed to convince the 217 members of

the Constituent Assembly, and therefore the draft law was not debated.

CHALLENGES RELATED TO

ABOLITION OF THE DEATH

PENALTY IN ARAB AND ISLAMIC

COUNTRIES: TUNISIA’S MODEL

Mohamed Moncef Marzouki

A few days after my election as president of the Republic of Tunisia on

12 December 2011, I discovered to my astonishment that there were

220 prisoners on death row. Many in this group had been sentenced

to death a long time ago, but they had neither been executed nor had

their sentence commuted to life imprisonment. Before he was ousted

by the revolution, the dictator had adopted the policy of neither apply-

ing the sentences (as they would further tarnish his dark record of

human rights violations) nor commuting them (as he did not want to

turn public opinion, which supported the death penalty, against him).

I signed a decree to replace the death penalty with life imprisonment,

a decision that in my opinion has changed the lives of many people

who had to bear the weight of psychological torture for years. I was

soon faced with the consequences of this act. Each time the amnesty

committee brought me an amnesty decree, I signed it as a matter of

principle, without even looking at the case. On one occasion the

Minister of Justice insisted that I hear the details of the case, perhaps

with the hope that I would not readily approve the amnesty. So I

went through the details of a horrendous crime. To everyone’s aston-

ishment I signed the amnesty in the midst of what felt like silent yet

heavy disapproval. I knew that that move would further complicate

matters for me, including at the political level.

It was customary to reduce overcrowding in prisons by releasing

young or sick detainees, or those convicted of minor crimes, on

national holidays. But on each occasion the opposition accused me of

releasing dangerous criminals. These attacks were widely supported

by the media, which used to report on every crime that occurred as

a crime committed by someone who was pardoned by the president.

1 Mohamed Moncef Marzouki is the former president of the Republic of Tunisia.

274 275

nowhere, because it gives us only two choices: Advocate for abolition

outside the Islamic framework, or accept the death penalty and give up

our hope of seeing Tunisia in the circle of civilized countries.

But because I am a faithful Muslim and cannot extract myself from

the value system within which I grew up, I found an answer in the

following verse: “Whoever kills a soul unless for a soul or for corrup-

tion in the land, it is as if he had killed all mankind, and whoever saves

it, it is as if he saved all mankind.” In my opinion, this verse warns

against killing an innocent person mistakenly or unfairly—which is

common under capital punishment—because the act of killing all

mankind, even symbolically, is an extraordinary responsibility no one

is able to bear.

This is why I argue that we have to give up a right which the Koran

considers lawful but which, when interpreted and applied by humans,

has led to killing all mankind on countless occasions. The Koran does

not accept this.

The intellectual debate on this issue will certainly continue for years,

and it will be dicult to convince society even after terrorism has

been defeated. But our mission as human rights defenders is to con-

tinue advocating, because the matter is not just about people whom

we need to save from a barbaric and ineective punishment, but also

about helping society advance towards a higher degree of civilization.

I was appalled that my closest friends and colleagues in human rights

organizations did nothing either.

I am very proud of the constitution ratied by the Constituent Assem-

bly on 27 January 2014, which guarantees many rights and freedoms.

But I would have been even more proud had Tunisia become the rst

Arab country to join the circle of democratic countries and civilized

nations that have abolished this barbaric punishment.

We need to make sense of this failure in a country that was oered an

historic opportunity, having known a democratic revolution, a strong

human rights movement, and a fervent opponent of capital punish-

ment as head of state.

There are two causes for this failure, one contextual and one structural.

Contextually, the drafting of the constitution, which started after the

October 2011 elections and lasted until January 2013, was marred

with terrorist attacks that resulted in many losses in the ranks of the

army and the police. At these martyrs’ funerals and subsequent meet-

ings with their families at the Carthage Palace, all I could hear were

the cries of these families for retaliation against those who killed their

sons, sometimes expressed with extremely violent imagery. In such

circumstances it is very dicult to advocate for abolition.

The structural cause was even more dicult to overcome: the dom-

inant religious culture that considers capital punishment part of

Islamic sharia law, and therefore not open to debate. For many years

in the human rights struggle, I consistently made reference to verses

of the Koran that encourage pardon, forgiveness and mercy, all of

which are core values of our noble Islamic religion.

But every reference I made was countered by a reference to other parts

of the Koran that explicitly call for retaliation. Such a position leads

“I WAS DIGGING MY OWN POLITICAL GRAVE

BY SYSTEMATICALLY PARDONING PEOPLE WHO

WERE SENTENCED TO DEATH.”

—Mohamed Moncef Marzouki

276 277

Every country has a responsibility to respect human rights for the

good of their own people and for the rest of humankind. We should

exercise our individual and shared responsibility not just in the inter-

est of people living today, but for all future generations.

As prime minister of Italy, I take pride in the fact that my country is

highly regarded for its engagement in the campaign for a moratorium on

the death penalty. This endeavour is deeply rooted in the Italian identity;

historical, cultural and religious factors have all played a fundamental role.

But let me be clear: This is also a success story about good leadership.

More than two centuries ago, in 1786, the Grand Duke of Tus-

cany, Leopold I, abolished capital punishment in his territories. This

decision was inspired by the philosophical and juridical reection

of another great Italian, Cesare Beccaria, who 20 years before had

published a book titled On Crimes and Punishments, in which he con-

demned the use of torture and capital punishment and underlined

the lack of scientic evidence on the deterrent value of the death

penalty. Beccaria was able to show that the death penalty is useless

and unnecessary, arming at the same time that its abolition would

represent a signicant contribution to human progress.

In the 18th century Italy was not the unied state it is today, but in

many aspects it was already a nation, with a common heritage, lan-

guage, history and values. The arguments provided by Cesare Beccaria

and the example set by Grand Duke Leopold have remained vivid in

the hearts and minds of Italians until today. Great leadership inspired

by ideas and a clear vision of the future can make change happen. In

1889, the now unied Kingdom of Italy abolished the death penalty,

except in the military code. Under fascism, the death penalty was rein-

troduced, but as soon as democracy was re-established after the Second

World War, the death penalty during peacetime was completely abol-

ished. Further steps were later taken to completely abolish the use of

capital punishment under all circumstances, and today Italian legislation

is fully compliant with the standards set by the United Nations and

the Council of Europe. But even in a country where the campaign for

abolition of the death penalty has deep roots in history and enjoys a

wide consensus among the population, it has taken time and eort to

introduce the necessary legislative reforms to fully enact it.

THE ROLE OF LEADERSHIP

Matteo Renzi

As a country that has traditionally supported multilateralism and

is inclined towards dialogue and mediation, for both historical and

geographical reasons, Italy has always attached great importance

to the promotion of human rights in international relations. In

particular, Italy has been actively engaged in the campaign for a

moratorium on the death penalty, which was one of the priorities

of the Italian rotating Presidency of the Council of the European

Union for the second semester of 2014.

I am therefore very grateful

for the opportunity to contribute to this publication and elaborate

on the role of leadership in advancing this campaign.

The United Nations plays a unique role in calling on the entire

international community to work in a more coordinated and eec-

tive manner to ensure the respect of human rights and fundamental

freedoms. I would like to thank in particular Secretary-General Ban

Ki-moon for his tireless work in advocating for a moratorium of

the use of the death penalty worldwide. His strong leadership, deep

personal commitment and inspiring words are instrumental to the

success of the campaign. I would also like to thank the Assistant

Secretary-General for Human Rights Šimonovic´ and the Oce

of the High Commissioner for Human Rights for their excellent

work in assisting and coordinating activities in this eld.

Since my appointment as prime minister of Italy, I have grown even

further in my rm belief in the importance of promoting and pro-

tecting human rights and fundamental freedoms. Promoting respect

for human rights for all without distinction is not only a matter of

ethics, but a necessary condition to maintain international peace and

security and foster economic and social development.

1 Matteo Renzi is president of the Council of Ministers of the Republic of Italy.

2 The Italian Presidency had the following priorities in the eld of human rights: to further the

campaign for a moratorium on executions, to ensure freedom of religion and belief and the

protection of religious minorities, and to promote women’s rights (in particular, by combating

gender-based violence, female genital mutilation and early and forced marriages).

278 279

When we rst started the campaign for a moratorium on the death

penalty, many looked with scepticism at our eorts and our chances of

success. Some argued that a resolution should not cover a topic that is

still considered by many states to be a matter of domestic jurisdiction;

for others, the non-binding nature of the resolutions meant they were

unlikely to bring about signicant change. However, we believed, and

we still do, that every battle for the promotion of human rights is worth

ghting. And it pays o. The increasing number of countries that over

the years have voted in favour of the moratorium (or abstained) shows

a clear international trend in favour of limiting the scope and conse-

quences of the death penalty. In a true testimony to the importance and

universality of this campaign, the United Nations General Assembly

resolutions have received the support of ever more countries from all

regions of the world, at dierent stages of economic development, with

populations belonging to dierent religions.

By emphasising the need to establish a moratorium on executions

with a view to abolishing the death penalty, the resolutions have been

supported by countries that have legally abolished the death penalty

(perhaps a long time ago), as well as by countries that have introduced

a de facto moratorium or intend to do so, while the death penalty

remains part of their legal framework. Many countries have not been

able to abolish the death penalty but have taken steps in this direction.

The campaign for the moratorium has kept the momentum going

and focused the attention of the international community on this

important topic.

One of the lessons we have learned in this experience is that no single

strategy can be considered more successful than others to advance

the movement in favour of the moratorium. However, undoubtedly,

strong leadership is always necessary.

Political leaders have a special responsibility in this regard. First and

foremost, they can build consensus in favour of a moratorium within

“POLITICAL LEADERS ARE CALLED TO PLAY A

GUIDING ROLE AND MAKE THE CASE FOR THE

ABOLITION OF THE DEATH PENALTY.”

—Matteo Renzi

Italian opposition to the death penalty is grounded in history, but

it looks to the future as well. Building on the progress achieved at

home, it was natural for Italy to set out on a worldwide campaign for

a moratorium on the death penalty and to put it at the forefront of its

foreign policy priorities. Italy rst tabled a draft resolution on a mor-

atorium at the United Nations General Assembly in 1994. While the

resolution failed (by only a handful of votes), this outcome conrmed

the importance and the urgency of the campaign. There was wide

support for our initiative, but it became clear that enhanced eorts

were needed to win the hearts and minds of all members of the inter-

national community. Indeed, Italy continued to work on building a

broad international coalition in favour of the moratorium, in close

cooperation with its European partners and with the strong support

of civil society organisations. I personally remember the initiatives

and debates on this topic within Italian civil society, including the

youth movement. It was thanks to these tremendous collective eorts

that the rst resolution on a moratorium on the use of the death

penalty was adopted in 2007. This was indeed a historical moment for

the entire international community!

Four more resolutions were approved in 2008, 2010, 2012 and 2014.

Each resolution has been a landmark for the campaign on the mor-

atorium as it has focused attention on dierent aspects of this issue.

For instance, the 2012 resolution called for the rst time on states

to progressively restrict executions involving children and pregnant

women. It also more clearly identied the information states should

make available on their use of the death penalty—the number of

people sentenced to death, the number of people on death row and

the number of executions carried out.

The most recent resolution was tabled for approval at the 69th Session

of the United Nations General Assembly in December 2014. Italy

worked with enhanced eorts alongside the cross-regional group of

co-sponsors to obtain the widest possible support for the new reso-

lution. I am honoured to have contributed to the outreach to other

countries by participating in the supporting event Moving Away from

the Death Penalty: National Leadership, organized by Italy and the

United Nations—along with Benin, Mongolia and Tunisia—during

the 69th General Assembly session in September 2014.

280 281

Italy’s experience as a useful example of positive synergy between

national governments and civil society organisations. The Italian

Ministry of Foreign Aairs and International Cooperation has estab-

lished a special partnership with Comunità di Sant’Egidio, Hands

o Cain and the Italian branch of Amnesty International. These

organisations have been engaged for a long time in awareness-rais-

ing projects. Their global outreach has signicantly contributed to

the success of the campaign for a moratorium on the death penalty.

Their eorts have eectively complemented activities undertaken at

the institutional level.

In many countries, religious leaders can also play a role in the cam-

paign for the moratorium, in particular where religion and politics

are closely intertwined, or for instance the judicial power is held by a

religious authority. In some cases such a positive interaction could be

more complex, but constructive dialogue is always the best tool for

promoting human rights, even in the most dicult contexts.

Other examples of successful outreach include initiatives carried out

together with the academic or judiciary community of countries

where capital punishment is still practised. Although in such countries

the abolition of the death penalty may not be possible in the short

term, dialogue between human rights experts and legal practitioners

could produce signicant results and pave the way for future changes.

In this regard, the support of the United Nations, mainly through the

activities of the Oce of the High Commissioner for Human Rights,

can provide invaluable help.

In conclusion, the conditions of individual countries may dier, but

the campaign for a moratorium on the use of the death penalty with

a view to its eventual full abolition will only be successful if it can

count on strong leadership at all levels. Successful political leaders

are able to overcome setbacks and diculties by reaching out to all

interested parties at the institutional level and within civil society.

This continuous dialogue is instrumental to building the consensus

we need to steadily progress towards a world where justice does not

require the loss of a human life.

the wider political community of their country. I am honoured that

all Italian political actors and institutions have shown full and unwav-

ering support for the campaign. This level of support is particularly

important in countries where capital punishment still exists. In these

circumstances, political leaders are called to engage constructively with

parliaments to facilitate the legal reforms required, so that changes to

establish a de jure moratorium or abolition can be enacted according

to a sustainable reform path and within an appropriate time frame.

Political leaders also play an important role in mobilising public opin-

ion in favour of the abolition of the death penalty, for instance through

awareness campaigns, public debates and specic educational programs

in schools. I am deeply touched by the experiences of those political

leaders that have directly witnessed the eects of the use of the death

penalty and are actively engaged in the campaign for the moratorium.

Such strong leadership is even more necessary when countries con-

front signicant threats to their security, including organized crime and

terrorism. Although there is increasing evidence that the death penalty

is not an eective deterrent to crime, statistics are not always enough

to sway public opinion. The sense of insecurity caused by extremism

and widespread violence may lead people to believe that the death

penalty could restore security. It is exactly in such cases, however, that

political leaders are called to play a guiding role and make the case

for the abolition of the death penalty, even if it may seem dicult to

justify. Political responsibility to stop crime and violence does not need

to lead to compromises in terms of human rights. On the contrary, it

makes the promotion and protection of human rights and fundamental

freedoms even more necessary. For instance, enhanced eorts could be

made to ensure that terrorists and those responsible for violations of

international humanitarian or human rights law are held to account

through existing international criminal justice mechanisms.

The success of the campaign for a moratorium does not depend

only on the contribution of political leadership. All international and

national institutions and all sectors of civil society should play a lead-

ing role. It is crucial, for example, to enhance cooperation between

political institutions and nongovernmental organizations that possess

specic expertise on the subject. In this regard, I would like to recall

282 283

The main challenge the gov-

ernment faces is the need to

mobilize the necessary means

and nancial resources to

refurbish or build modern

infrastructure including

high-security prisons, in line

with international standards, to carry out life sentences. The goal is

to ensure that perpetrators of armed robberies resulting in casualties

are not released to resume their criminal activities at the expense of

society.

We consider that the international community should pursue and

strengthen its outreach eorts to convince an increasing number of

states to adopt a moratorium with a view to abolishing the death

penalty. The abolition of the death penalty is a ght for the progress

of humanity, and Benin wishes to thank civil society organisations for

their remarkable work towards an evolution of minds and mentalities

to that end.

At the United Nations, this progress is already visible and needs to

be strengthened. It is heartening to see that several states that used to

abstain or vote against the resolution on the moratorium are changing

their vote, and we have to pursue our eorts to support them further.

“THE DEATH PENALTY

HAS TURNED OUT TO BE

INEFFECTIVE IN THE FIGHT

AGAINST CRIME.”

—Boni Yayi

A FIGHT FOR THE PROGRESS

OF HUMANITY

Boni Yayi

The death penalty has turned out to be ineective in the ght against

crime. It never helped curb the crime rate in the countries that make

use of it; in fact, as criminals know what fate is in store for them, they

become more aggressive.

The death penalty does not provide satisfaction to the families of the

victims, as an execution cannot soothe their pain. Also, the numerous

judicial errors that have been discovered, leading to stays of execution,

should force a reection in society about the need to abandon this

form of punishment.

The Republic of Benin has fully adhered to the Second Optional

Protocol of the International Covenant on Civil and Political Rights,

aiming at abolishing the death penalty, since 2013.

Even before 2013, death sentences imposed by the courts of Benin

were not carried out. The last execution took place in 1987; after

that, Benin observed a de facto moratorium. Since Benin became

party to the Second Optional Protocol, no court in Benin can

sentence people to death. The government informed all courts

of Benin accordingly, specifying the new international norm to

which Benin had become a party. Benin’s new draft penal code

has annulled all provisions relating to the death penalty, based on

the principle of the superiority of ratied international law over

domestic legislation.

It is important to recognize that the practice followed in Benin is

the result of a process of sensitisation which gained the trust of the

people of Benin, who traditionally value human life and believe that

the death penalty is not justice but rather a failure of justice. These

outreach campaigns have been very successful.

1 Boni Yayi is the president (chief of state and head of government) of the Republic of Benin.

284

“Rejecting capital punishment is about choosing

what kind of society we want to live in, and which

values—including human rights and dignity,

democracy and the rule of law—we want to uphold.”

— Federico Mayor

285

CHAPTER 6

TRENDS AND PERSPECTIVES

This chapter deals with empirically measurable trends regarding the death

penalty and the role of political leadership in shaping those trends. Although

there is a clear long-term trend away from the death penalty, data about

increases in passed death sentences in 2014 are deeply concerning. Political

leadership is urgently needed to keep us on the abolitionist track.

Salil Shetty, Secretary General of Amnesty International, oers a cau-

tiously optimistic analysis of global trends in the death penalty from 2014.

Amnesty International has been monitoring trends in the use of the death

penalty for more than three decades. There is no doubt that the world has

moved away from the death penalty during this time. In 1945 only eight

countries had abolished the death penalty; today, 100 countries have fully

abolished it. However, each year there is both good and bad news. According

to Amnesty International, in 2014, the number of passed death sentences

rose by 28 per cent compared to the previous year.

In 2014, an alarming number of countries used the death penalty to

respond to real or perceived threats to state security and public safety posed

by terrorism, crime (especially drug tracking) or internal instability. As

in the past, unfair trials, “confessions” extracted through torture or other

ill-treatment, the use of the death penalty against juvenile oenders and

people with mental or intellectual disabilities, and for crimes other than

“intentional killing” continued to be concerning features of the use of the

death penalty.

286 287

GLOBAL DEATH PENALTY

TRENDS IN 2014

Salil Shetty

Amnesty International has been campaigning for abolition of the

death penalty since 1977. As part of this work, the organization

monitors the use of capital punishment globally and publishes annual

gures on the number of countries known to have carried out judi-

cial executions, as well as the number of people known to have been

sentenced to death or executed. This annual report also looks at how

capital punishment is applied and at trends in its use, as far as these

can be determined.

One of the greatest challenges we face each year is the lack of ocial

information on the application of the death penalty in most countries

that retain it. Using a variety of non-governmental sources, we are

able to establish what we term credible minimum gures—meaning

that we can say that at least this number of people were executed or

sentenced to death. The true gures are often higher.

THE 2014 FIGURES

Amnesty International recorded executions in 22 countries in 2014,

the same number of countries as in 2013.

Although the number

remained constant, there were some changes in the countries carry-

ing out executions. Seven countries that executed in 2013 did not do

so in 2014 (Bangladesh, Botswana, Indonesia, India, Kuwait, Nigeria

and South Sudan), while seven others resumed executions (Belarus,

Egypt, Equatorial Guinea, Jordan, Pakistan, Singapore and the United

Arab Emirates).

At least 607 people were executed, and at least 2,466 people were sen-

tenced to death. These gures represent a decrease in the number of

executions compared to in 2013 (at least 778) but a sharp increase in

1 Salil Shetty is secretary-general of Amnesty International.

2 All data in this article are drawn from Amnesty International, Death Sentences and Executions in

2014 (London, Amnesty International, 2015), available from www.amnestyusa.org/research/

reports/death-sentences-and-executions-2014.

the number of death sentences (at least 1,925). Whilst the challenges

of data collection referred to above mean that year-on-year com-

parisons should be treated with caution, some specic developments

during 2014—such as mass death sentences imposed in Egypt—shed

light on the increase in this gure.

At least 509 death sentences were imposed in Egypt in 2014. These

included the mass death sentences handed down by Egyptian courts

after mass trials that were grossly unfair. For example, the Minya

criminal court imposed death sentences on 37 people in April 2014

and 183 people in June 2014.

In December 2014, the Giza criminal

court recommended death

sentences against 188 people

for involvement in the killing

of 11 police ocers in Giza

in August 2013.

Amnesty International’s

annual gures do not include

the thousands of people

sentenced to death and executed in China. In 2009, Amnesty Interna-

tional stopped publishing estimates for China, where data on capital

punishment are considered a state secret. Instead, we challenge the

Chinese authorities to prove their claims that they are reducing the

application of the death penalty by publishing the gures themselves.

In 2014, as in 2013, it was also impossible to conrm if judicial exe-

cutions took place in Syria. In addition, no information could be

conrmed on North Korea.

The following methods of executions were used: beheading (Saudi

Arabia), hanging (Afghanistan, Bangladesh, Egypt, Iran, Iraq, Japan,

Jordan, Malaysia, Pakistan, Palestine, Singapore, Sudan), lethal injec-

tion (China, United States, Viet Nam) and shooting (Belarus, China,

Equatorial Guinea, North Korea, Palestine, Saudi Arabia, Somalia,

Taiwan, United Arab Emirates, Yemen). As in previous years, there

3 The death sentences followed referrals from the court to the grand mufti, Egypt’s highest reli-

gious ocial. Egyptian criminal courts must refer a case to the grand mufti for review before

handing down a death sentence; however, the opinion of the grand mufti is advisory and not

binding.

“WHEN IT COMES TO

THE DEATH PENALTY,

HUMANITY’S GOAL

IS CLEAR”

—

Salil Shetty,

Amnesty International

288 289

were no reports of judicial executions carried out by stoning. In the

United Arab Emirates, one woman was sentenced to death by ston-

ing for committing “adultery” while married. Public executions were

carried out in Iran and Saudi Arabia.

Justiﬁcations for the use of the death penalty

In 2014 an alarming number of countries used the death penalty to

respond to real or perceived threats to state security and public safety

posed by terrorism, crime or internal instability. This is not a new

phenomenon, but it has become a serious concern for the abolition-

ist movement as we see more countries and politicians attempt to

defend the use, or resumption, of executions as a solution to crime

and terrorism. As this publication and others have made clear, there

is no evidence that the death penalty has a greater deterrent eect

on crime than imprisonment. When governments present the death

penalty as a solution to crime or insecurity, they are not only mis-

leading the public but also failing, in many cases, to take the necessary

action to prevent and respond to crime through robust and rights-re-

specting criminal justice systems.

China, Iran, Iraq and Pakistan executed people convicted of terrorism

in 2014, while Cameroon and the United Arab Emirates expanded

the scope of the death penalty to include terrorism-related crimes.

On 17 December 2014, Pakistan lifted a six-year moratorium on

civilian executions for terrorism-related oences. The decision was in

response to a horric attack the day before on a school in Peshawar

that left more than 149 people dead, including 132 children. Seven

people, all of whom had been convicted under an anti-terrorism law,

were executed in less than two weeks. The government also pledged

to execute hundreds of people on death row who had been con-

victed of terrorism-related oences. By 28 April 2015, the country

had already executed 100 people.

4 See Amnesty International, Not Making Us Safer: Crime, Public Safety and the Death Penalty

(London, Amnesty International, 2013), available from www.amnesty.org/en/documents/docu-

ment/?indexnumber=act51%2f002%2f2013&language=en.

Also in December 2014, Indonesia announced its intention to resume

executions for drug-related oences to confront what it called a

national emergency. On 19 January 2015, six people were executed

and the Indonesian authorities announced plans to put more people

to death throughout the year. On 28 April, eight people, including

Indonesian and foreign nationals, were executed by ring squad. All

of them had been convicted of drug tracking. The executions went

ahead despite international calls for clemency.

China made use of the death penalty as a tool in the Strike Hard

campaign against terrorism and violent crime in the Xinjiang Uighur

Autonomous Region. Three people were sentenced to death in a

mass sentencing event that was held in an outdoor sports arena in

May 2014. Those sentenced had been convicted of terrorism, separat-

ism and murder. Between June and August, 21 people were executed

in the Xinjiang Uighur Autonomous Region in relation to various

terrorist attacks.

Jordan resumed executions at the end of 2014 after an eight-year

hiatus, executing 11 men for murder. The executions followed the

establishment, weeks before, of a special committee of the Cabinet

to look into lifting the suspension on executions as a deterrent to

murder and in response to public demand.

The ongoing use of the death penalty in

contravention of international law

In 2014, as in the past, many of the states that retain the death penalty

continued to use it in contravention of international law and stan-

dards. Unfair trials, “confessions” extracted through torture or other

ill-treatment, and the use of the death penalty against juvenile oend-

ers and people with mental or intellectual disabilities and for crimes

other than intentional killing continued to be concerning features of

the use of the death penalty.

People with mental or intellectual disabilities were under sentence of

death in several countries including Indonesia, Japan, Malaysia, Paki-

stan, Trinidad and Tobago and the United States.

290 291

Several countries continued to hand down death sentences and

execute people for crimes that did not involve intentional killing

and therefore did not meet the threshold of “most serious crimes”

prescribed by Article 6 of the International Covenant on Civil and

Political Rights, which is widely understood to mean crimes involving

intentional killing. The death penalty was imposed or implemented

for drug-related oences in China, Indonesia, Iran, Malaysia, Saudi

Arabia, Singapore, Sri Lanka, Thailand, the United Arab Emirates and

Viet Nam.

Other capital crimes that did not meet the standard of “most seri-

ous crimes” but for which the death penalty was imposed in 2014

included economic crimes such as corruption (China, North Korea

and Viet Nam), armed robbery (Democratic Republic of the Congo),

committing adultery while married (United Arab Emirates), rape

that resulted in death (Afghanistan), rape committed by a repeat rape

oender (India), rape (Saudi Arabia, United Arab Emirates), kidnap-

ping (Saudi Arabia), torture (Saudi Arabia), insulting the prophet of

Islam (Iran), blasphemy (Pakistan), and witchcraft and sorcery (Saudi

Arabia).

Finally, acts described as treason, acts against national security, col-

laboration with a foreign entity, espionage, participation in an

insurrectional movement, terrorism and other crimes against the state,

whether or not they led to a loss of life, were punished with death

sentences in Lebanon, North Korea, Palestine (in the West Bank and

in Gaza), Qatar and Saudi Arabia.

REGIONAL DEVELOPMENTS

Amnesty International recorded at least 46 executions in three coun-

tries in sub-Saharan Africa in 2014, compared to 64 in ve countries

in 2013. The countries known to have executed people were Equa-

torial Guinea, Somalia and Sudan. Sub-Saharan Africa also saw several

positive developments with states taking steps towards abolition, as

discussed in the next section.

The number of judicial executions conrmed in the Middle East and

North Africa decreased from at least 638 in 2013 to at least 491 in

2014. However, it should be noted that obtaining complete and reli-

able data on the use of the death penalty in the region is particularly

dicult, especially for countries such as Iran, Iraq, Saudi Arabia and

Yemen. The internal armed conict in Syria meant that informa-

tion on the use of the death penalty in the country could not be

conrmed.

In the Americas, the United States remained the only country to

carry out judicial executions. However, the number of executions

dropped from 39 in 2013 to 35 last year, reecting a steady decline in

executions over the past years.

Only seven states executed in 2014

(down from nine in 2013), with four (Texas, Missouri, Florida and

Oklahoma) responsible for 89 per cent of all executions. The state of

Washington imposed a moratorium on executions in February 2014.

The overall number of death sentences decreased from 95 in 2013 to

77 in 2014.

Amnesty International recorded 32 executions in the Asia-Pacic

region (excluding China), compared to 37 in 2013. The number of

death sentences recorded in 2014 decreased by 335 compared to

2013 (from 1,030 to 695—again, excluding China). Pakistan and

Singapore resumed executions in 2014, and Indonesia announced its

intention to end a moratorium on civilian executions—acting on this

statement of intent in 2015, as noted above.

The Pacic continued to be the world’s only virtually death-penal-

ty-free zone, although the governments of both Papua New Guinea

and Kiribati took steps to resume executions or introduce the death

penalty.

In Europe and Central Asia, Belarus—the only country in the region

that executes people —put at least three people to death during the

year, ending a 24-month hiatus. The executions were marked by

secrecy; family members and lawyers were informed only after the fact.

5 Death Penalty Information Center, “Executions in the United States,” available from www.

deathpenaltyinfo.org/executions-united-states; Amnesty International, “Death penalty,” www.

amnesty.org/en/what-we-do/death-penalty/.

292 293

POSITIVE DEVELOPMENTS IN 2014

There were positive developments recorded in 2014 that are worth

celebrating. In December 2014, the National Assembly of Mada-

gascar adopted a bill to abolish the death penalty. Similar bills were

pending before legislative bodies in Benin, Chad and Mongolia and

were approved by the parliaments of Fiji and Suriname early in 2015.

The Parliament of Barbados has started considering draft legislation

aimed at abolishing the mandatory death penalty.

States gave more support to international treaties and resolutions

favouring abolition of the death penalty. El Salvador, Gabon and

Poland became state parties to the Second Optional Protocol to the

International Covenant on Civil and Political Rights, aiming at the

abolition of the death penalty. In May 2014, Poland also ratied Pro-

tocol No. 13 to the (European) Convention for the Protection of

Human Rights and Fundamental Freedoms, concerning the aboli-

tion of the death penalty in all circumstances.

In December the UN General Assembly adopted its fth resolution on

a moratorium on the use of the death penalty. The number of votes in

favour of Resolution 69/186 increased by six, from 111 in 2012 to 117 in

2014, while 38 countries voted against and 34 countries abstained. New

votes in favour of the 2014 resolution came from Equatorial Guinea,

Eritrea, Fiji, Niger and Suriname. In a further positive sign, Bahrain,

Myanmar, Tonga and Uganda moved from opposition to abstention.

Amnesty International recorded 112 exonerations of death row pris-

oners in nine countries: Bangladesh (4), China (2), Jordan (1), Nigeria

(32), Sudan (4), Tanzania (59), United States (7), Viet Nam (2) and

Zimbabwe (1). These are minimum gures, and the real gures may

be higher. The release of prisoners from death row on the grounds

of innocence exposes the fallibility of human justice and has sparked

debates on the death penalty in several countries, including countries

where support for it has traditionally been strong, such as China,

Japan, the United States and Viet Nam.

In 2014, activism by people committed to abolition of the death

penalty helped to stop executions in several countries. Chandran s/o

Paskaran was spared execution in Malaysia on 7 February 2014 after an

outcry from human rights groups, including Amnesty International.

ThankGod Ebhos was sentenced to death in Nigeria in 1995. On

23 June 2013, he was taken to the gallows with four other men, all

of whom were hanged in front of him. At the last minute, the prison

authorities realized that ThankGod Ebhos’s death sentence required

a ring squad and he was returned to his cell. On 24 October 2014,

following campaigns against his execution, ThankGod Ebhos was

released from death row.

Meriam Yehya Ibrahim was released from prison in Sudan on 23 June

2014. Her death sentence for apostasy, imposed by a Khartoum court

on 15 May, was overturned by an appeals court. Meriam Yehya Ibra-

him’s case attracted widespread international attention, with over one

million people responding to Amnesty International’s appeal for her

release.

Although each year Amnesty International records both negative and

positive developments on the death penalty, the long-term global

trend is unmistakably positive. In 2014, 22 countries executed; two

decades ago, in 1995, that number stood at 41. Today 100 countries

have fully abolished the death penalty, and many more have not exe-

cuted anyone for so long that Amnesty International considers them

to be “abolitionist in practice.” In total 140 countries, over 70 per

cent of the countries in the world, are abolitionist in law or practice.

Amnesty International opposes the death penalty in all cases without

exception regardless of the nature or circumstances of the crime; guilt,

innocence or other characteristics of the individual; or the method

used by the state to carry out the execution. The death penalty vio-

lates the right to life and is the ultimate cruel, inhuman and degrading

punishment; it should be totally abolished.

294 295

AFTERWORD

It is vital that we encourage people to join the movement to end the

death penalty, which negates the right to life and raises important

human rights concerns.

No judiciary is mistake-free. In practice, the decision to put someone

to death is often arbitrary, and the odds are often stacked against the

poor, the powerless, and people who belong to racial, religious, ethnic

or sexual minorities. An alarming body of evidence also indicates that

even well-functioning legal systems have sentenced to death men and

women who were subsequently proved innocent. When a miscarriage

of justice results in someone being put to death, the state becomes a

murderer. Furthermore, there is no evidence that the death penalty

deters crime. The real deterrent is not the severity of punishment but its

certainty. We need to focus resources and policy on strengthening the

justice system—not on the brutal and arbitrary practice of executions.

The global trend towards the abolition of the death penalty has accel-

erated remarkably in recent years, and today most countries either have

abolished it or observe a moratorium. Distressingly, among the states

that do continue to execute people, several use this penalty for oences

that do not meet the threshold of “most serious crimes,” after legal

proceedings that clearly violate human rights standards for a fair trial.

I urge every reader to consider the facts with an open mind. To me,

the arguments are convincing and decisive: On every level—from

principle to practice—the death penalty is wrong.

Zeid Ra’ad Al Hussein

United Nations High Commissioner for Human Rights

“CONSIDER THE FACTS WITH AN OPEN MIND.”

—Zeid Ra’ad Al Hussein

296 297

ACKNOWLEDGEMENTS

Many people contributed to this publication in dierent ways.

Secretary-General Ban Ki-Moon not only provided the preface for

this book, he participated in four of our death-penalty-related events

as the keynote speaker. His involvement helped to mobilise a large

participation by Member States as well as civil society, including aca-

demia, at the events.

Amnesty International and

others helped us establish

contacts with many pan-

ellists whose contributions

are included in this book.

The Governments of Benin,

Chile, Italy, Mongolia, the

Philippines and Tunisia co-

organised events with us,

and the Government of Italy

contributed nancially to the

production of this publication.

Colleagues from the Oce of the High Commissioner for Human

Rights in Geneva led by Navi Pillay, the High Commissioner for

Human Rights until recently and the new High Commissioner Zeid

Ra’ad al-Hussein, have been extremely supportive of the New York-

based panels on the death penalty as well as this publication.

Daily challenges would not have allowed me to edit this book

without help and support from all New York Oce of the High

Commissioner sta.

Thank you all!

Ivan Šimonovi´c

Editor

The Colosseum is illuminated with the ‘Cities of

Life’ logo to support the campaign against the death

penalty, in Rome, Italy, 30 November 2011.

298

1975 2015

MOVING AWAY FROM THE DEATH PENALTY

ARGUMENTS, TRENDS AND PERSPECTIVES

Between 2012 and 2015 OHCHR organised in New York a series of knowledge

events on moving away from the death penalty. These events brought together

representatives of Member States, academia and civil society, as well as legal

experts and victims of wrongful convictions. This publication consists of a

series of articles from the panellists, and reﬂects a diversity of geographic

experiences – Africa, Americas and the Caribbean, Asia and Europe, with

articles exploring compelling arguments relevant in deciding in favour of

moving away from the death penalty.

• Despite the greatest judicial eorts, wrongful convictions are simply not

avoidable. Capital punishment is too ﬁnal and irrevocable. It prohibits the

correction of mistakes by the justice system and leaves no room for human

error, with the gravest of consequences.

• There is no evidence of a deterrent eect of the death penalty. Statistics

from countries that have abolished the death penalty indicate no increase

in serious crime.

• The death penalty is not imposed in a just and equal way. Those sacriﬁced

on the altar of retributive justice are almost always those who are vulnerable

because of their poverty, minority status or mental disability.

• Not all victims and their family members support the death penalty. And even

for those who seek it, long delays and the small percentage of executions

actually carried out often cause frustration and delay closure.

• Furthermore, as long as the death penalty exists, it can be misused, to target

particular social groups or political opponents.

ISBN 978-92-1-154215-8