Capital Punishment: New Perspectives [1 ed.] 1472412206, 9781472412201

Table of contents :
Dedication
Contents
List of Figures and Tables
Notes on Contributors
Introduction • Peter Hodgkinson
Part I: New Perspectives and Challenging Questions
1 A Critique of Litigation and Abolition Strategies: A Glass Half Empty • Kerry Ann Akers and Peter Hodgkinson
2 Juvenile Death Penalty in Islamic Countries: The Road to Abolition is Paved with Paradox • Sanaz Alasti
3 Talking to Each Other in the Dark: The American Abolition Movement and the Christian Opportunity • Jeanne Bishop and Mark Osler
4 Non-refoulement Obligations Under International Law in the Context of the Death Penalty • Yuval Ginbar, Jan Erik Wetzel and Livio Zilli
5 Victims: Transforming the Death Penalty Debate • Jeanne Bishop and Mark Osler
6 The Greater Stigma? Family Visits to the Condemned • Seema Kandelia and Peter Hodgkinson
7 Children of Parents Sentenced to Death • Helen Kearney
8 Death Penalty Internships in the American South • Steven Shatz
Part II: Country Perspectives
9 Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General • Sandra Babcock and Ellen Wight McLaughlin
10 Taiwan: Cutting the Gordian Knot – Applying Article 16 of the ICCPR to End Capital Punishment • Nigel Li, Wei-Jen Chen and Jeffrey Li
11 Transnational Networks and Norm Compliance: Stopping Executions in Belarus • Volha Charnysh
12 Afghanistan: Death Penalty at the Crossroads • Art Cody and Dominique Day
13 The Death Penalty in Canada: Ethnicity, Abolition and the Current Debate • Margaret Dudgeon
14 Successful Capital Litigation in Uganda: A Counterintuitive Approach? • Graeme L. Hall
15 The End of the End: Understanding the Paradox of Capital Sentencing in Liberia • Jessie Munton
16 The Political Use of Capital Punishment in Communist Romania between 1969 and 1989 • Radu Stancu
17 Capital Punishment in Vietnam: Status and Perspective • Giao Vu Cong
Index

Citation preview

Capital Punishment: New Perspectives

Advances in Criminology Series Editor: David Nelken Recent titles in the series Penal Culture and Hyperincarceration The Revival of the Prison Chris Cunneen, Eileen Baldry, David Brown, Mark Brown, Melanie Schwartz and Alex Steel Governing through Crime in South Africa The Politics of Race and Class in Neoliberalizing Regimes Gail Super Locating Deviance Crime, Change and Organizations Gerald Mars Racialized Correctional Governance The Mutual Constructions of Race and Criminal Justice Claire Spivakovsky Transitional Justice Images and Memories Edited by Chrisje Brants, Antoine Hol and Dina Siegel The Arts of Imprisonment Control, Resistance and Empowerment Edited by Leonidas K. Cheliotis The Hidden Order of Corruption An Institutional Approach Donatella della Porta and Alberto Vannucci Comparative Criminal Justice and Globalization Edited by David Nelken Racial Criminalization of Migrants in the 21st Century Edited by Salvatore Palidda Pervasive Prevention A Feminist Reading of the Rise of the Security Society Tamar Pitch The full list of series titles can be found at the back of the book.

Capital Punishment: New Perspectives

Peter Hodgkinson University of Westminster, UK

First published 2013 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © PH Peter Hodgkinson has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the editor of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library The Library of Congress has cataloged the printed edition as follows: Capital punishment : new perspectives / By Peter Hodgkinson. pages cm. – (Advances in criminology) Includes bibliographical references and index. ISBN 978-1-4724-1220-1 (hardback) 1. Capital punishment i. hodgkinson, Peter, (director of the Centre for Capital Punishment S K5104.C375 2013 364.66– dc23  2013020317 ISBN 9781472412201 (hbk) ISBN 9781315570815 (ebk)

I dedicate this volume with all my love to my wife Sue; my children Andrew, Niall, Alasdair, Katie and Hannah; and grandchildren Isabella, Arabella and Thomas

This page has been left blank intentionally

Contents List of Figures and Tables   Notes on Contributors  

ix xi

Introduction   Peter Hodgkinson

1

Part I  New Perspectives and Challenging Questions 1

A Critique of Litigation and Abolition Strategies: A Glass Half Empty   Kerry Ann Akers and Peter Hodgkinson

29

2

Juvenile Death Penalty in Islamic Countries: The Road to Abolition is Paved with Paradox   Sanaz Alasti

63

3

Talking to Each Other in the Dark: The American Abolition Movement and the Christian Opportunity   Jeanne Bishop and Mark Osler

85

4

Non-refoulement Obligations Under International Law in the Context of the Death Penalty   Yuval Ginbar, Jan Erik Wetzel and Livio Zilli

95

5

Victims: Transforming the Death Penalty Debate   Jeanne Bishop and Mark Osler

113

6

The Greater Stigma? Family Visits to the Condemned   Seema Kandelia and Peter Hodgkinson

127

7

Children of Parents Sentenced to Death   Helen Kearney

145

8

Death Penalty Internships in the American South   Steven Shatz

167

Capital Punishment: New Perspectives

viii

Part II Country Perspectives 9

Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General   181 Sandra Babcock and Ellen Wight McLaughlin

10

Taiwan: Cutting the Gordian Knot – Applying Article 16 of the ICCPR to End Capital Punishment   Nigel Li, Wei-Jen Chen and Jeffrey Li

209

11

Transnational Networks and Norm Compliance: Stopping Executions in Belarus   Volha Charnysh

229

12

Afghanistan: Death Penalty at the Crossroads   Art Cody and Dominique Day

13

The Death Penalty in Canada: Ethnicity, Abolition and the Current Debate   Margaret Dudgeon

275

14

Successful Capital Litigation in Uganda: A Counterintuitive Approach?   Graeme L. Hall

297

15

The End of the End: Understanding the Paradox of Capital Sentencing in Liberia   Jessie Munton

319

16

The Political Use of Capital Punishment in Communist Romania between 1969 and 1989   Radu Stancu

337

17

Capital Punishment in Vietnam: Status and Perspective   Giao Vu Cong

Index  

255

359

381

List of Figures and Tables Figures 2.1 2.2 2.3 2.4

Status of the death penalty in 47 Islamic jurisdictions as of March 2010   Juvenile executions in the world since 1990   Juvenile execution rates in six Islamic countries since 1990   Juvenile executions in the United States and Iran since 1990  

64 65 71 75

Capital crimes leading to the execution of child offenders in Islamic countries since 1990  

74

Tables 2.1

11.1 Transnational network for the abolition of the death penalty in Belarus   11.2 Ending executions in the FSU  

232 241

13.1 Origin   13.2 European capital defendants   13.3 Female capital defendants   13.4 Religion   13.5 Over-representation  

283 284 285 285 286

17.1 17.2 17.3 17.4 17.5 17.6 17.7

List of provisions governing capital punishment in the Penal Code of 1985   List of provisions governing capital punishment in the Penal Code of 1999   Differences between definitions of capital punishment in the Penal Codes of 1985 and 1999   List of articles governing capital punishment in the Penal Code of 1999, revised 2009   The application of the death penalty in Vietnam during 1999–2002   List of crimes for which the government abolished capital punishment in the Draft Law on Amending and Supplementing the Penal Code of 1999   Opinions on the death penalty of the first group  

364 366 368 369 374 376 377

x

Capital Punishment: New Perspectives

17.8 Opinions on the death penalty of the second group   17.9 Reasons for supporting abolition of capital punishment   17.10 Opinions on the deterrent effect of capital punishment  

377 378 378

Notes on Contributors Kerry Ann Akers has worked with the Centre for Capital Punishment Studies [CCPS] for a number of years, in Uganda, Malawi and Kenya. Principally based in Uganda with the CCPS, Kerry implemented a programme which builds the capacity of criminal justice actors. As a consultant for UNICEF Kerry designed a juvenile diversion programme currently being applied in Uganda. She has worked with various organisations focusing on issues such as juvenile justice, children detained with their mothers in prison, mental health in prisons, torture and education in Ugandan prisons, as well as conducting human rights capacity building workshops for the Nigerian Prison Service. As the Criminal Justice Lecturer and Module Leader at Westminster University, she led research groups focusing on mothers and children in prison. Kerry has acted in the role of adviser to organisations such as War Child, Babies in Prison, and Hope for Children and has sat on expert panels including a UK panel focusing on the health of childbearing prisoners, and the consultancy panel re the Ugandan Mental Health Bill. In the UK, Kerry has worked on various prisoners’ rights issues, including judicial reviews. She is a contributor to the Huffington Post UK and has authored a number of articles for other news outlets. She is now based in the Middle East and is a criminal justice project manager for an NGO in Afghanistan. Sanaz Alasti is Assistant Professor of Criminal Justice at Lamar University, Texas State University System, and legal specialist at the Law Library of Congress. She is the author of several books on criminal law, the criminal justice system, comparative punishment practices and rituals, and criminology. In addition to her professional experience as a post-doctorate at Harvard University School of Law (2010–2012), she is the recipient of the Teaching Appreciation Award from Criminal Justice Department, Heald College, San Francisco (2010); the Merit Scholarship, Golden Gate University School of Law (2004); the Graduate Student Award, Criminology Department, Tehran University (2003); and the Top Student Award, Allame Tabatabaee University School of Law (2001). Alasti attended numerous conferences in the US, Middle East and Europe to discuss the arbitrariness of capital punishment. She has recently been invited to Italy as a lecturer to provide instruction to military officers, legal advisors, political and policy advisors on Middle Eastern criminal justice systems at a seminar hosted by NATO School. Her interviews have been featured in the magazines such as the New Yorker and the Examiner.

xii

Capital Punishment: New Perspectives

Sandra Babcock is a Clinical Professor and Clinical Director of the Centre for International Human Rights at Northwestern University School of Law. From 2000 to 2006 she was Director of the Mexican Capital Legal Assistance programme, a project funded by the Government of Mexico to assist its nationals in capital cases at trial and on appeal. Sandra was counsel to the Government of Mexico in the case of Avena and Other Mexican Nationals (Mexico v. United States), a case brought by Mexico in the International Court of Justice on behalf of 52 Mexican nationals on death row. Sandra lectures widely on the application of international law in death penalty cases, and has been engaged for several years in improving access to justice for prisoners facing the death penalty in Malawi. She continues to represent Mexican nationals facing the death penalty around the United States. Sandra is the founder and editor of Death Penalty Worldwide, a website and database that provides comprehensive information on the application of the death penalty around the world. She has published several articles, including ‘The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penalty Cases’, Syracuse Law Review, 62, (2012), 183; ‘International Standards on the Death Penalty’, Thomas M. Cooley Law Review, 28 (2011), 103; ‘Human Rights Advocacy in United States Capital Cases’, in The Contemporary Human Rights Movement in the United States (2007); ‘The Global Debate on the Death Penalty’, in American Bar Association, Human Rights (Spring 2007), and ‘The Growing Influence of International Tribunals, Foreign Governments and Human Rights Perspectives in United States Death Penalty Cases’, in Centre for Capital Punishment Studies, Occasional Papers, vol. 2 (August 2005). She received her BA in International Relations from Johns Hopkins University in 1986, and her JD from Harvard Law School in 1991. Jeanne Bishop is the sister of Nancy Bishop Langert, who was shot to death in 1990 along with her husband and unborn child. Since the murders of her family members, Jeanne has been an advocate for non-violence, including abolition of the death penalty. With the organization Murder Victims’ Families for Human Rights, an organization of homicide victims’ family members who oppose the death penalty, she has spoken against the death penalty internationally, most recently in Japan and Mongolia. In the United States, her work helped lead her home state of Illinois to abolish its death penalty in 2011. That work often centres on the role of her Christian faith in the death penalty debate. Her chapter in Religion and the Death Penalty: A Call for Reckoning (Eerdmans, 2004) was described by one reviewer as ‘the best reason to buy the book’. She has written on faith and the law for The Huffington Post, CNN.com, Sojourners, The Christian Century and Sightings,  an online commentary of the Martin Marty Centre for the Advanced Study of Religion at the University of Chicago Divinity School. Her collaboration on a mock death penalty trial of Jesus Christ with her co-author, Prof. Mark Osler, has brought the issue of faith and executions to audiences in the US death penalty states of Texas, Oklahoma, Virginia, Tennessee, Colorado and California, among others. 

Notes on Contributors

xiii

A criminal defence attorney with the Office of the Cook County Public Defender and an Adjunct Professor at Northwestern University School of Law, Jeanne was educated at Northwestern and Yale Law School. She serves on the Advisory Board of Northwestern’s Centre on Wrongful Convictions, which is responsible for a number of exonerations of death row prisoners, and is a recipient of Northwestern’s Alumni Award for Outstanding Public Service. She also serves on the Advisory Board of the Martin Marty Centre and as an officer of the Chicago Innocence Project. Volha Charnysh is a PhD candidate in Government at Harvard University. Her research is at the intersection of comparative politics and political psychology, and her regional expertise is in Central and Eastern Europe. Volha is studying the long-term effects of ethnic diversity and population movements on community formation and the resulting social and cultural change. Her other work covers two broad themes: democratization (norm diffusion, civil society movements, EU conditionality) and the relationship between identity and policy preferences. Volha is currently a Fellow of the programme on Global Society and Security at Harvard’s Weatherhead Centre for International Affairs. She is also an affiliate of Harvard’s Minda de Gunzburg Centre for European Studies. Volha is originally from Belarus. She is executive editor for Belarus Digest, a project that provides non-partisan analysis of Belarus-related events and publications. She also draws political cartoons on Belarusian and international politics. Her website is www. charnysh.net. Wei-Jen Chen is a lawyer at Lee and Li, Attorneys-at-Law.  She is currently an SJD student at National Taiwan University, where she received her first LLM, and is expecting another LLM from Harvard Law School in 2014. Art Cody is the Death Penalty Abolition programme Associate with the Proteus Fund and a member of the Committee on Capital Punishment of the Association of the Bar of the City of New York He has litigated capital habeas cases in Texas and Alabama. As a Captain in the US Navy Reserve, he served as the Staff Director of the Rule of Law section of the US Embassy in Kabul from May 2011 until May 2012. He is a frequent speaker on Afghan rule of law issues. Art is a graduate of the US Military Academy at West Point, holds a Master’s degree in Systems Management from the University of Southern California, and graduated Magna Cum Laude from Notre Dame Law School, where he was the Executive Editor of the Notre Dame Law Review. Giao Vu Cong is one of several experienced local experts in human rights in Vietnam. He gained his first Master’s degree in Constitutional Law in Vietnam in 2003, his second Master’s degree in International Human Rights from the Raul Wallenberg Institute on Human Rights and Humanitarian Law, Sweden in 2005, and a PhD in Human Rights and Peace Studies from Mahidol University, Thailand in 2011.

xiv

Capital Punishment: New Perspectives

Giao took part in research and taught Human Rights in the Research Institute of Human Rights of Ho Chi Minh National Political Academy, Vietnam from 1996 to 2006, and worked for the Vietnam Lawyers’ Association as the Head of External Relations from 2006 to April 2009. Since April 2009, he has been teaching Human Rights and Constitutional Law at the School of Law of Vietnam National University in Hanoi. He now also holds the position of Vice Director of the Institute of Public Policy and Law, a newly established civil society organization think-tank in Vietnam established in May 2012. Giao has completed and co-ordinated many research projects on human rights for the institutions listed above, including some on death penalty issues. Dominique Day is a Senior Rule of Law Advisor for the US State Department at the US Embassy in Kabul. Prior to that, she served as a State Department Senior Rule of Law Advisor in Basra, Iraq. Dominique graduated from Harvard University and Stanford Law School prior to practising law in New York City and in state and federal courts throughout the US. Dominique is an experienced criminal defence attorney, complex civil and commercial litigator, and non-profit manager, in addition to her work in international rule of law. Margaret Dudgeon holds a law degree from Lancaster University and a Postgraduate Diploma in Legal Practice from the College of Law, Chester. She was called to the Isle of Man Bar in 2008 and has practiced criminal and civil litigation. Margaret developed a strong interest in capital punishment and detention following an extended internship with the Centre for Capital Punishment during 2009–10, where she was placed with the Malawi Legal Aid Department. In Malawi, she researched prison conditions, access to health care for detainees and assisted defence lawyers during capital murder trials. Margaret recently graduated with an advanced LLM degree in Public International Law from Leiden University, where she specialized in peace, justice and development. Her Master’s thesis focused on the international legal protections relating to detainees. Since relocating to Canada, Margaret has worked as a volunteer lawyer for the BC Civil Liberties Association (BCCLA) in Canada where she contributed to various constitutional cases including the BCCLA’s challenge to the lawfulness of solitary confinement in Canadian federal prisons. She is currently articling with Edelmann & Co, a criminal defense and immigration firm, based in Vancouver. In her spare time, Margaret is a site team leader for the Canadian Red Cross Detention Monitoring program. Yuval Ginbar is a Legal Adviser at the International Secretariat of Amnesty International in London. Previously, he worked with B’Tselem, the Israeli Information Centre for Human Rights in the Occupied Territories and the Public Committee Against Torture in Israel, to whose work he still occasionally contributes. His book Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification for Torture was published by Oxford

Notes on Contributors

xv

University Press in 2008 (an updated paperback edition was published in 2010). He has also published a number of articles as well as lecturing extensively. Graeme L. Hall, DEUF, LLB (Hons), MA is a barrister and was called to the Bar of England and Wales by Lincoln’s Inn in 2011. Graeme is currently completing pupillage with Doughty Street Chambers, a leading national and international human rights and civil liberties set which is committed to protecting and promoting the rights of the world’s most vulnerable people. During 2011–12 Graeme designed, implemented and co-ordinated a project to increase the capacity of capital offence defence lawyers representing inmates detained in Luzira maximum security prison in Kampala, Uganda. Peter Hodgkinson entered the university world via employment as a Probation Officer in Inner London, where he developed an interest and expertise in working with life-sentenced and mentally disordered offenders. He has an honours degree in Psychology and a Certificate of Qualification in Social Work and these, together with his experience of working with offenders and a stint as Forensic Social Work Adviser, have informed both his teaching and the establishment of the Centre for Capital Punishment Studies at the University of Westminster, of which he is founder and director. He was appointed an Officer of the Most Excellent Order of the British Empire (OBE) in the Queen’s Birthday Honours of 2004 for his work promoting human rights. Seema Kandelia is a Senior Lecturer at the School of Law, University of Westminster. Her main teaching areas are in the fields of criminal justice and human rights law. Seema has extensive experience of working in the human rights field, including postings with the OSCE Secretariat in Prague, the UN Office of the High Commissioner for Human Rights in Geneva and the Commonwealth Human Rights Initiative in New Delhi. During 2003–2008 Seema worked as a postgraduate researcher for the Centre for Capital Punishment Studies, where she focused on issues surrounding victims and the death penalty, public reassurance and alternatives to capital punishment. She has also monitored capital punishment developments in the USA, the Philippines, the Middle East and Africa, and issues regarding juveniles, mental impairment and innocence. Seema has published a number of articles on the death penalty and related human rights/criminal justice issues. Helen Kearney works on human rights and refugees issues at the Quaker United Nations Office (QUNO) in Geneva, with a particular focus on children of incarcerated parents. Located in Geneva and New York, QUNO represents the Friends’ World Committee for Consultation, an international non-governmental organization with General Consultative Status at the UN. Quakers have a long history of work on criminal justice, and QUNO has been working on issues related to women and children in prison since 2003.

xvi

Capital Punishment: New Perspectives

Before joining QUNO, Helen spent several years teaching college students from the US about European Politics and Art History in Spain, Italy and France. She was a youth worker in London and Guatemala, working primarily with young offenders, and a sports teacher at an international school in the UK. She has an undergraduate degree in Modern Languages from Cambridge University, with a year abroad studying Politics, and a Master’s in Human Rights from Sussex. Helen is also a part-time Psychology student with the Open University. Jeffrey Li is a lawyer at Lee and Li, Attorneys-at-Law. He has an LLM from National Taiwan University and has just received another LLM from Harvard Law School. Nigel Li has an LLM from Harvard Law School, and is an Adjunct Professor at the Graduate School of Law at Soochow University and the Graduate Institute of Political Science at National Taiwan University. He is Secretary General of the Chinese Society of Constitutional Law, and a Partner at Lee and Li, Attorneysat-Law. Ellen Wight McLaughlin graduated from the Northwestern University School of Law in 2010. As a law student, she participated in the Centre for International Human Rights, part of Northwestern’s Bluhm Legal Clinic. Under the direction of Professor Sandra Babcock, she travelled to Malawi with a team of lawyers and law students to interview prisoners who had been sentenced to the mandatory death penalty. In 2010–11, Ellen served as a law clerk to the Hon. Danny J. Boggs of the US Court of Appeals for the Sixth Circuit. She is currently a law clerk to the Hon. Joan B. Gottschall of the US District Court for the Northern District of Illinois. Jessie Munton is currently in the Philosophy PhD programme at Yale University. She has a BPhil. in Philosophy and a BA in Classics and Philosophy from Oxford University. She also has a Graduate Diploma in Law. Jessie has previously interned for the Centre for Capital Punishment Studies, working at the Foundation for Human Rights Initiative in Kampala, Uganda. While there, she helped prepare mitigation pleas for death row inmates, and conducted research on mental health and the death penalty. She has also worked giving legal advice to refugees and asylum seekers in Egypt at Africa and Middle East Refugee Assistance. Mark Osler is a Professor of Law at the University of St. Thomas in Minneapolis, and a graduate of the College of William and Mary and Yale Law School. His work frequently strikes at the intersection of law and faith. He is currently the head of the Association of Religiously Affiliated Law Schools and in 2012 was awarded the Byrd Preaching Chair at St. Martin’s-by-the-Lake Episcopal Church. As lead counsel, he won the case of Spears v. United States (2009) in the US Supreme Court, where the court held that sentencing judges can categorically reject the 100:1 ratio between crack and powder cocaine in the federal sentencing guidelines. His work on one case is portrayed in the Samuel Goldwyn film

Notes on Contributors

xvii

American Violet. His book Jesus on Death Row (Abingdon Press, 2009) challenges the death penalty based on the experience of Christ as a criminal defendant. He writes regularly on religion and law for CNN, MSNBC, and the Huffington Post, and has been interviewed as an expert on CNN, NPR’s Morning Edition and ABC’s Good Morning America, and in hundreds of newspapers and news sources. Steven Shatz is the Philip & Muriel Barnett Professor at the University of San Francisco School of Law, and a graduate of the University of California (Berkeley) and Harvard Law School. He teaches Death Penalty Law, as well as courses in Criminal Law, Criminal Procedure and Federal Courts, and is Director of the school’s Keta Taylor Colby Death Penalty Project, whose purpose is to involve students in work directed at the interim reform, and ultimate abolition, of the death penalty in the US. He is the author of two casebooks – Cases and Materials on the Death Penalty (Thomson/West, 2001, 2005, 2009) (with Nina Rivkind) and California Criminal Law: Cases and Problems (Lexis, 1999, 2004, 2011) – as well as numerous journal articles. Steven has conducted three empirical studies of the California death penalty, and has published four journal articles reporting several of his findings. He has been qualified as an expert witness on California criminal law, and has testified on behalf of the defence in federal court and state court concerning his findings and their relationship to the constitutionality of the California death penalty scheme. In 2008, at the invitation of the California Commission on the Fair Administration of Justice, he testified before the Commission, and submitted written materials, concerning death eligibility under the California death penalty scheme. He has also consulted with defence counsel in scores of death penalty cases in California and other states. Radu Stancu, archivist and historian, is editor and curator at the National Archives of Romania in Bucharest, and a member of the editorial board of Revista Arhivelor (Archives Review). His research interests include inter-war political doctrines in Romania, the history of communism, the legal and medical history of communist Romania, capital punishment and documentary editing. In 2012 he gained an MA in Central European History from the Central European University in Budapest, and he is preparing a volume on capital punishment in communist Romania including official documents about the legal framework, the influence of politics and the actual use of the death penalty, as well as a large set of clemency petitions. Jan Erik Wetzel is an Adviser on the Death Penalty at the International Secretariat of Amnesty International in London. Previously, he was a Senior Lecturer at Lincoln Law School in the UK, where he researched and taught human rights and international and European law. He has also taught at universities in Germany and Hong Kong. Jan has published law journal articles on international human rights and criminal and humanitarian law, and is the editor of The EU as A ‘Global Player’ in Human Rights? (Routledge, 2011).

xviii

Capital Punishment: New Perspectives

Livio Zilli is a Senior Legal Adviser at the International Commission of Jurists in Geneva.  He co-wrote Chapter 4 when he was Acting Head of the Refugees’ and Migrants’ Rights Team at the International Secretariat of Amnesty International in London.  He practised asylum and immigration law at the English Bar and remains an honorary door tenant at Garden Court Chambers in London. He has been a contributor to Macdonald’s Immigration Law and Practice (LexisNexis Butterworth, 8th Edn, 2010) and the author of numerous human rights publications.

Introduction Peter Hodgkinson

Preamble I begin this Introduction with the contention that the abolition of capital punishment requires far more than the repeal of executions, important though this is. It is my view that the claims of abolitionists are premature and exaggerated, and any success is diminished if not underpinned by root and branch reform of the fundamental flaws that characterize the implementation of capital punishment. It is these principles that inform my approach and this collection. I have no clear recollection what my earlier views were about the death penalty, even though I grew up through the last two executions in Britain in 1964 and abolition in 1965, neither of which engaged me. The experience that triggered my decision to give serious thought to the issue of capital punishment, and subsequently its abolition, was the probation exchange visit I made to Texas in 1980, during which I visited several prisons including the ‘Walls’ unit in Huntsville, which houses the execution chamber. At the time, Texas was in the process of changing its mode of execution from the electric chair to lethal injection, and had still not staged an execution following the judgment in Gregg v. Georgia (1976), which restored the death penalty in states that satisfied the ‘guided discretion’ statutes in that judgment. Its first lethal injection execution was that of Charlie Brookes in 1982. I recall thinking at the time that those sentenced to death in Texas were indistinguishable from those life sentenced prisoners with whom I worked in the UK who, when deemed appropriate, were released under supervision to the community, where overwhelmingly they led productive lives. On a comparative note, I was also struck by the fact that in Dallas alone, in the first nine months of that year there had been 800 homicides among a population of approximately one million, compared to some 500–600 in the UK as a whole among a population of approximately 55 million – not a very effective deterrent, I thought. It was not until 1992 – when I founded two initiatives, Death Watch (an abolitionist group) and the Centre for Capital Punishment Studies (CCPS) – that my understanding of the death penalty began to mature, leading to my decision to allow the abolitionist initiative to wither on the vine as I was no longer persuaded that the rhetoric that typified abolitionist strategies was informative , accurate or effective. I recall thinking at the time what was it that they wanted to abolish? To talk simplistically in terms of abolition [of executions ] ignores such crucial issues as people’s fear of crime, the needs of victims and the raft of legal and criminal justice issues that need to be addressed in the transition to removing the death

2

Capital Punishment: New Perspectives

penalty and implementing its alternatives. It seems that if repeal of executions is not immediately achievable then interest falters, similarly when moratoria are in place when in fact this is the time for increased investment to convert de facto abolition into de jure abolition. It is for these reasons that I chose instead to focus on developing the CCPS into an applied research and humane advocacy project, one which trys to authoritatively inform the debate about capital punishment. Paradoxically, in some countries where executions have been repealed , there have been few marked improvements in the legal and social infrastructures, leaving those societies with a raft of imperfections in dire need of remedies. Urgent amongst these is the nature of the alternative penalties and the inhumane circumstances in which such sentences are served. The CCPS initiated projects and scholarship addressing this issue, and that of the marginalization and neglect of the families of the victims and those condemned for the paradigm capital offence of murder. Some of the strategies developed by the CCPS are in response to perceived weaknesses in the strategy of the abolitionist community and those engaged in capital litigation. By way of illustration, the London Panel of lawyers, founded nearly thirty years ago to support the litigation of capital cases in the Commonwealth, recognize that this concentration on individual litigation has led to a failure to build capacity and sustainability (this argument is developed in Chapter 1) – a view increasingly shared by many in the legal community who agree that there are negative consequences to a strategy that places such heavy reliance solely on litigation rather than an investment in legal education and training. The CCPS believes that dedicated lawyers should put their skills to use challenging the abuses not just of process, but of the conditions in which the condemned await their fate. I suspect, that capital litigation being high-profile, challenging work is more attractive to the detriment of very important human rights issues such as prison conditions, alternative sentences, education, leisure, visits and medical services, which are overlooked,thus consigning those deemed as successes, having been ‘saved’ from the death penalty, to serve living death penalties. Developing practical strategies to address the important issues of public opinion, victims and alternatives is a fundamental objective of the work of the CCPS. It has to be emphasized that the ‘scholarship’ of the CCPS is linked inextricably with the development of strategies and practical projects whose application informs and supports policies to replace the death penalty. I frequently ponder what it is about the death penalty that distinguishes it among the myriad abuses of human rights globally, especially when one considers the small numbers in any society that capital punishment affects compared, for example, to the millions who experience hunger, thirst, disease and are victims of religious, social, ethnic and gender violence. What particulars of a human rights violation does capital punishment satisfy that make it attractive to this pool of humanitarian compassion – accepting, of course, that this is not reduced to a choice of either this abuse or that.

Introduction

3

From my experience, it is not at all clear what criteria are used when deciding the targets for abolition intervention. Are selection criteria evidence-based or emotion-based? Is a cost-benefit analysis conducted before and after intervention? Why do individuals and international non-governmental organizations continue to expend scarce resources fighting the death penalty in the US, a country as rich as Croesus with more lawyers than bacteria that benefits from an extensive, richly resourced abolition industry? A partial explanation could be the myth that the key to global abolition is abolition in the US. Perhaps more problematic is why millions of pounds of external funding continue to be expended fighting the death penalty in the People’s Republic of China – another nation with the riches of Croesus – especially when the data shows that as a proportion of the population, executions are rare, and where national violations include, among many others, the genocide of the Tibetans, the slaughter and continued oppression of the Falun Gong, the near extinction of species for the purpose of traditional medicine and culinary indulgence? It is completely justifiable to level a charge of profligate use of resources in both countries. Support for Capital Punishment One of my criticisms of the abolition industry is its failure to engage with those who support capital punishment, and who appear to be entirely absent as presenters or participants in the multitude of events staged by the industry. Kerry Ann Akers and Peter Hodgkinson roundly criticize this omission in Chapter 1, and I undertook to address it in this Introduction. No explanation is given for this omission, but one is needed and observers could be forgiven for reaching the conclusion that this is a movement for abolitionists not abolition. An accurate conclusion given the statement at the end of the 2013 Madrid World Congress against the Death penalty when it was proudly announced that after 10 years and five congresses and tens of millions of Euros [author’s comment] they now felt ‘ready’ to take the argument to supporters of the death penalty and stage the next congress in a retentionist country-it beggars belief! Supporters of capital punishment greatly outnumber abolitionists, and have a near monopoly of the emotions which characterize the debate. Victims pull more heart strings than do offenders, but their power, based on this emotional pull, extends far beyond that. In fact, as a group, they can be ruthless, not only in their support of capital punishment, but in their condemnation of anyone or any argument that opposes it. One of the supporters’ tactics is to plunder the pain of the families of homicide victims by inveigling themselves into their lives in the guise of victim support. Victims’ issues are crucial to any debate about capital punishment, though paradoxically, the attention given to this topic and therefore to homicide victims and their families frequently exacerbates the anger, hurt and confusion felt by many who have been victimized. Where victim initiatives exist, they seem increasingly to manifest themselves by lobbying for procedural rights and harsher penalties at

4

Capital Punishment: New Perspectives

the expense of their more traditional needs-based origins. The most vociferous of these are to be found in the US, where such groups have made considerable inroads into shaping the agenda in legal and penal policy. In my experience, groups such as Justice for All1 and Parents of Murdered Children (POMC)2 characterize the pro-punishment victim movement in the US, and both enjoy considerable political support. Of the two, Houston-based Justice for All adopts a particularly virulent line on punishment, especially the death penalty. Its views represent a failure of the political system and of the abolitionist community to responsibly address the legitimate feelings of pain and anger many crime victims and their families experience. The failure to do so leaves uninterrupted opportunities for populist politicians to exploit such aggressive emotions, thus providing ammunition for their platform at the extremes of law and order policy. POMC and Justice for All owe their origins to the political right, and consider that an important need of victims is the right to procedural intervention in the criminal justice system, including the determination of sentence. Many such groups, which are allied with movements to impose the death penalty, benefit from their connections with politicians and prosecutors, and given the populist nature of American politics, are well placed to influence penal policy at the ballot box. This ‘power’ is significant given that many decision makers in the legal system are elected officials and many victim groups have representatives located in offices adjacent to attorneys general and district attorneys whose confidence and support they enjoy. They are very influential in shaping some aspects of penal policy, and their power rests not only in influencing particular pieces of legislation, but more insidiously, in dictating the agenda and the rhetoric about capital punishment, shamelessly exploiting their status as relatives of murder victims – a very strong emotional pull. The issue of victims – or more correctly ‘secondary victims’, namely the families of the victim and of the condemned – is addressed in three chapters in this collection, indicating the importance that I feel should be given to this subject and its link with those who support capital punishment. A note of caution: not all victim groups are concerned with the needs of victims’ families; most are concerned with punishing offenders, and their motto could be ‘pro victim, pro death penalty’or perhaps ‘pro victims who support the death penalty’. The point I make is illustrated by the following passage taken from his article where Nowell3 1   Justice for All announces on its website, www.jfa.net, that it is a criminal justice reform organization that ‘shall act as an advocate for change in a criminal justice system that is inadequate in protecting the lives and property of law-abiding citizens’. Other sites supported by Justice for All are www.prodeathpenalty.com (revised 2 January 2003) and www.murdervictims.com. 2   National Organization of Parents of Murdered Children, Inc., www.pomc.com. 3   S. Nowell, “Just who is a victim?” Houston Press 3 October 2002. Mr. Nowell provides an interesting insight into the development of the victims’ movement with

Introduction

5

describes an incident that took place at the 2002 National Organisation of Victim Assistance conference: The session was called “Healing the wounds of murder” and most of the audience seemed attentive. However workshop hosts noticed a middle-aged woman who took a back row seat in a far corner…. The woman was Diane Clements, president of the Houston-based victims’ rights group JFA. She soon began interrupting the speakers. According to some attendees, these exchanges followed: Cushing asked Clements to hold her questions until after the presentation. She refused, demanding answers. “I want you to tell us,” Clements angrily insisted, “what are you? Are you an abolitionist group or a victim support group?” “We’re both,” replied Bishop. That answer was unacceptable to Clements. She repeated her line of questioning, then stunned listeners when she told Cushing and Bishop. “You’re really a bunch of abolitionists who just happened to have family members killed.” Justice for All4 continues its poisonous interventions and promotes itself as a criminal justice reform organisation. Murder Victims’ Families for Reconciliation (MVFR),5 the Journey of Hope6 and Murder Victims’ Families for Human Rights7 are three groups that the generic abolition movement would be advised to engage with more than they currently do. In the analysis in Chapter 1, Akers and Hodgkinson consider the various types of abolitionists, reflecting that some oppose the death penalty for juveniles, the mentally ill, women and the elderly, but once these concerns have been resolved, they revert to supporting capital punishment. A parallel can be drawn for the reasons given by supporters of the death penalty. In concluding, I offer this illustration of the views of an academic lawyer who is a very influential supporter of the death penalty, Robert Blecker: I am a ‘retributivist’ supporter of the death penalty. That is, I believe that some people kill so viciously, with an attitude so callous or cruel, that they deserve to die – and society has an obligation to execute them. But the obligation extends only to the most wicked: We need fewer death sentences, more justly applied. I would argue that the vast majority of the 3,700 murderers on death row today particular scrutiny of Justice for All and the politics of the victims’ movement in Texas. 4   Justice for All. Jfa.net and its partner organisations prodeathpenalty.com and murdervictims.com. 5   Marie Deans, following the murder of her mother-in-law, founded Murder Victims’ Families for Reconciliation in Virginia. MFVR was founded to provide a national forum for murder victims’ family members, including family members of those executed by the state, who are opposed to the death penalty. Later, with the help of Marietta Jaeger, whose daughter was murdered, MFVR expanded its movement throughout the US states. In Indiana in 1993, the first Journey of Hope was staged, and this has been followed by marches throughout a variety of states every year since; see www.mvfr.org. 6   Journey of Hope: www.journeyofhope.org. 7   Murder Victims’ Families for Human Rights: www.mvfhr.org.

Capital Punishment: New Perspectives

6

should, instead, spend the rest of their lives in prison. Our responsibility is to figure out who should be included in that small minority – the very worst of the worst – who deserve to die.8

The Traditional Discourse – A Summary As neither the ‘usual suspects’ nor their authors are part of this collection, a summary of some of the topics in the traditional discourse follows. For this, I have drawn on the CCPS in-house briefing paper, which provides a comprehensive account of all the issues.9 Deterrence Deterrence claims for the death penalty make occasional appearances in the academic literature, often in the rhetoric of activists and politicians who favour it, prompting equally ill-informed rebuttals from those opposed to capital punishment. Most commentators have put the deterrence justification aside because it generally creates more heat than light and is essentially a politically motivated distraction deployed to reassure an electorate fearful of crime that are receptive to any solutions on offer. As Roger Hood notes: the issue is not whether the death penalty deters some – if only a few – people but whether, when all the circumstances surrounding the use of capital punishment are taken into account, it is associated with a marginally lower rate of the kind of murders for which it has been appointed.

The reliance on deterrence assumes that a person who is about to commit a crime, most likely murder, will take into account what the likely punishment will be once detected and convicted.10 Even so, the issue of deterrence continues to be relied on by governments to justify their support. The evidence most commonly relied on is based on Isaac Ehrlich’s econometric analysis,11 though usually without any reference to the 8   R. Blecker, ‘Among Killers, Searching for the Worst of the Worst’, Death Penalty Information Center, 3 December 2000, www.deathpenaltyinfo.org/node/585 (accessed 20 May 2013). 9   The full version of the briefing paper can be found at www.westminster.ac.uk/__ data/assets/pdf_file/0006/79134/CCPSBriefingPaper.2010.pdf (accessed 6 June 2013). 10   R. Hood (2002), The Death Penalty: A Worldwide Perspective, 3rd edn (Oxford: Oxford University Press), 208. 11   I. Ehrlich, ‘The Deterrent Effect of Capital Punishment: A Question of Life and Death’, American Economic Review, 65(3) (June 1975), 397–417.

Introduction

7

many authoritative refutations of his findings and methodology. Ehrlich himself set out to refute earlier studies by criminologist Thorsten Sellin,12 who had argued that the death penalty is no better a deterrent to murder than life imprisonment. Ehrlich used sophisticated economic statistical analysis when looking at the relation between the death penalty and murder, and came to the conclusion that from 1933 to 1965, ‘an additional execution per year … may have resulted on the average in seven or eight fewer murders’. However, he did concede that this alone was not necessarily sufficient justification to use the death penalty rather than other punishments. In the last decade, several studies have claimed that each execution reduces homicides by between three and 18. These include the work of Dezhbakhsh et al.,13 who claim that capital punishment has a strong deterrent effect, and that each execution contributes on average to 18 fewer murders. In fact, as recognized in the same study, an increase in any of three probabilities – arrest, sentencing or execution – also tends to reduce the murder rate. On the other hand, Sorenson et al.14 examined executions in Texas between 1984 and 1997 and speculated that if a deterrent effect were to exist, it would be found in Texas because of the high number of death sentences and executions. Using patterns of executions across the study period and the relatively steady rate of murders in Texas, the authors found no evidence of a deterrent effect. The study concluded that the number of executions was unrelated to murder rates in general, and that the number of executions was also unrelated to felony rates. However, any lingering doubts about deterrent effects should be dispelled when introduced to the evidence of the multiple inherent flaws in the administration of the death penalty revealed annually by the US research. A deeper appreciation of the issues and the research generated by the deterrence debate is provided by Bailey and Peterson,15 Hood16 and Bowers and Pierce,17 the latter used Ehrlich’s model and did not find any deterrent effect. A recent and very telling contribution to this debate was made by Jeffrey Fagan of Columbia Law School in his testimony to the hearings on the future of capital punishment in the State of New York. Fagan noted that there appears to have been 12   J.T. Sellin (1959), The Death Penalty (Philadelphia, PA: American Law Institute). 13   H. Dezhbakhsh, PH. Rubin and J.M. Shepherd, ‘Does Capital Punishment Have

a Deterrent Effect? New Evidence from Post-moratorium Panel Data’, American Law and Economics Review, 5(2) (2003), 344–76. 14   J. Sorenson et al., ‘Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas’, Crime and Delinquency, 45(4) (1999), 481–93. 15   W.C. Bailey and R.D. Peterson (1997), ‘Murder, Capital Punishment, and Deterrence: A Review of the Literature’, in H.A Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford: Oxford University Press). 16   R. Hood (2002), The Death Penalty: A Worldwide Perspective, 3rd edn (Oxford: Oxford University Press), 208. 17   W.J. Bowers and G.L. Pierce, ‘The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment’, Yale Law Journal, 85 (1975), 187–208.

8

Capital Punishment: New Perspectives

a resurgence in studies examining execution rates and linking them with reduced numbers of murders; the alleged deterrent effect is then used as a foundation of the argument for increasing the use of capital punishment. It is not unexpected that these studies should receive acclaim as they give a highly emotive and political issue a scientific twist. However, as Fagan points out: These new studies are fraught with technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider all the relevant factors that drive murder rates, missing data on key variables in key states, the tyranny of a few outlier states and years, and the absence of any direct test of deterrence.18

Assertions of ‘strong causal effects’ are not uncommon even in the legal sphere, as most such claims of ‘new deterrence’ disintegrate once examined in greater detail.19 A cause for some concern is to be found in a recent New York Times article, which surveyed the current spate of analyses and concluded from the research and the comments of several of its authors, many of whom are abolitionists, that the deterrent justification warrants re-visiting.20 Finally, it is worth noting that while there is no clear evidence that the death penalty is a more effective deterrent than the usual alternative of long-term imprisonment, it would be incorrect and misleading to characterize the death penalty as having no deterrent effect. Public Support for the Death Penalty Overwhelmingly, public opinion supports the death penalty, which is of importance because politicians, many mesmerized by such polls, are reluctant to challenge them or to undertake an authoritative evaluation. Abolitionists seem to be oblivious to the strength or importance of the public’s support for the death penalty. The public’s concern that in the absence of the death penalty security will be eroded and that there will be a resurgence of disorder is understandable given that they have been assured by governments that the only solution to serious violent crime is capital punishment. Compared to the number of people who are in fact executed each year worldwide,21 the death penalty has arguably attained an unhealthy prominence in politics as well as in the popular press; consequently,

18   J. Fagan, ‘Deterrence and the Death Penalty: A Critical Review of New Evidence’, testimony to New York hearings on the future of capital punishment in the State of New York, Columbia Law School, New York, 21 January 2005, 2. 19  Ibid. 20   A. Liptak, ‘Does Death Penalty Save Lives? A New Debate’, New York Times, 18 November 2007. 21   Amnesty International (AI) estimates that at least 1,591 people were executed in 25 countries in 2006.

Introduction

9

appeals to the populist support for capital punishment will in many countries be politically beneficial. Few countries would have abolished the death penalty if they had waited for public approval,22 though a number do claim to have removed capital punishment with the public’s support: for example, after the downfall of the totalitarian regime, the Parliament of the former Czechoslovakia voted in 1990 to abolish capital punishment in response to public opinion, and in the same year, as a result of the collapse of the communist dictatorship and in response to public opinion, Romania also abolished the death penalty by decree (the history of the process is covered in Chapter 16 by Radu Stancu). Nevertheless, the death penalty remains popular in most countries, so the argument goes that abolishing it without public support would be undemocratic. Naturally, legislators should consider public opinion ; however, it is imperative that governments lead and inform the debate, not hide behind the views of a largely ill-informed majority. Nobody suggests, for example, that fiscal policy should be led by popular opinion!23 It is not uncommon for decisions about capital punishment to be transferred from elected representatives to the judiciary, as it is not only politicians who rely on public opinion polls. Courts may also refer to them as an indication of public support.24 Rulings on the constitutionality of capital punishment may involve conceptual terms such as ‘cruel’, ‘inhuman’ or ‘degrading’ – all open to subjective interpretation that varies between different societies and evolves over time, with public opinion being taken into account in this process.25 However, it should not be relied upon too heavily, as the purpose of human rights is to protect the individual, regardless of the views of the majority. In The State v. Makwanyane,26 the Constitutional Court of South Africa, commenting on the significance of public opinion, held that the purpose of the system was to protect minorities and the marginalized in the democratic process, and that ‘if public opinion were to be decisive there would be no need for constitutional adjudication’.27 Regular polls have been undertaken on the death penalty in the US since the 1930s, with 1966 standing out as the only year when opposition to the death penalty was greater than support.28 Notably, this was just a few years before Furman v. 22   In the referendum in Ireland in 2001, 62% voted for an amendment abolishing the death penalty. 23   W.A. Schabas (2004), ‘Public Opinion and the Death Penalty’, in P. Hodgkinson, and W.A. Schabas (eds), Capital Punishment: Strategies for Abolition (Cambridge: Cambridge University Press). 24  Ibid. 25  Ibid. 26   State v. Makwanyane & Another (1995) 6 BCLR 665. 27   Ibid., para. 88. 28   F. Newport, ‘Sixty-nine Percent of Americans Support Death Penalty’, Gallup News Service, 12 October 2007, www.gallup.com/poll/101863/Sixtynine-PercentAmericans-Support-Death-Penalty.aspx, accessed 20 May 2013.

10

Capital Punishment: New Perspectives

Georgia,29 in which Supreme Court Justice Thurgood Marshall stated: ‘the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available’.30 This hypothesis has to some extent been tested. In studies undertaken in the US, respondents were presented with various issues in relation to the death penalty, such as the mental condition of the offender, disproportionate sentencing based on race or financial status, innocent people being sentenced to death, and the availability of life without parole. With each example, as awareness or knowledge of the issue increased, support for the death penalty dwindled.31 Public support for the death penalty fluctuates, and while exposure to academic research that dispels the myths surrounding capital punishment may not of itself be sufficient, some programmes of reassurance and information will help. Even though it may not change the views of many who support the death penalty, what it will do, if conducted responsibly, is to provide an authoritative basis on which governments can justify their reasons for moving towards abolition. Eliciting people’s ‘belief’ in the death penalty does little to inform the debate, as large percentages in support of the death penalty are by and large predictable. However, asking how important the death penalty is in the ‘fight’ against serious violent crime reveals altogether different responses, with the majority of respondents placing the death penalty low on the list of effective remedies to crime. Another approach to this issue of ‘beliefs’ and the death penalty is to establish what measures the public consider necessary in the battle against serious crime. An example of this is an analysis undertaken by Market and Opinion Research International (MORI) of four social surveys conducted in the UK in 1994, 1996, 2000 and 2001. Subjects were asked: ‘Which two or three of the following [measures] do you think would do most to reduce crime in Britain?’ In the first three surveys, the police were ranked as the most important (51%, 58%, 54%). In 2001, ‘better parenting’ was considered the most important measure with 55% support. Capital punishment for murder was rated third with 38% support in 1994, and third with 35% support in 1996. By 2000, capital punishment was tied for fourth place with tougher institutions for young offenders at 25%, and in 2001 it had fallen to seventh place with 20%.32 29   Furman v. Georgia, 408 US 238 (1972). 30   Ibid., para. 362. 31   S. Vollum, D.R. Longmire and J. Buffington-Vollum, ‘Confidence in the Death

Penalty and Support for its Use: Exploring the Value-expressive Dimension of Death Penalty Attitudes’, Justice Quarterly, 21(3) (September 2004), 521–46. 32   MORI Crime and Punishment Polls of 1994, 1996, 2000 and 2001. In the 2001 poll, the results were, in rank order: better parenting (55%), more police (53%), better discipline in schools (49%), more constructive activities for young people (40%), introduction of a national identity card (29%), and in sixth place, more effective programmes to change behaviour (21%).

Introduction

11

Disparity and Discrimination in the Administration of Capital Punishment There is a great deal of literature dedicated to the issue of racial disparity in the application of the death penalty in the US, but little or no data on this topic from death penalty jurisdictions elsewhere in the world. Chapter 13 by Margaret Dudgeon on Canada provides an important insight into gender and ethnic disparities in the application of capital punishment in colonial times. There is certainly no shortage of evidence, anecdotal and even scientific, showing the presence of racism in the administration of justice in many parts of the world such as South Africa, Australia and New Zealand, where there is evidence of the disproportionate numbers of indigenous peoples being subject to prosecution.33 Other countries where examples of ethnic and/or religious disparities may exist are Singapore, Malaysia, Indonesia, Trinidad and Tobago, and Ceylon. Here too, research in the US ‘laboratory’ is surely of considerable universal relevance. It is not sufficient to point out that members of ethnic or racial minorities are prosecuted and convicted in percentages that far exceed their proportion in the population. Research in the US comes to the really damning conclusion – and one that appears to be uncontested in the literature – that the justice system in the US is skewed by the race of the victim.34 In other words, the murderer of a white victim is far more likely to receive a death sentence than the murderer of an AfricanAmerican victim. The issue of racism in the US death penalty system has dominated the case law of the Supreme Court. In two cases over the past three decades, the Supreme Court has come within a hair’s breadth of judicial abolition. In 1972, in Furman, it invalidated virtually every death penalty statute in the country, holding that capital punishment was being applied in an arbitrary and capricious manner.35 A few years later, it outlawed the use of capital punishment for rape.36 Racial discrimination is one of the great human rights issues of our time. A legacy of colonialism and slavery, it continues to manifest itself in the often 33   See I. Potas and J. Walker (1987), Trends and Issues in Crime and Criminal Justice: No 3, Capital Punishment (Canberra: Australian Institute of Criminology), footnote 3, discussing the Sydney Morning Herald of 1 March 1985, which shows that in 1984, ‘of those executed in South Africa, 2 were white, 87 black, 24 coloured and 1 Indian’. This is confirmed by AI (1989), When the State Kills: The Death Penalty v. Human Rights (London: Amnesty International), 205, arguing that ‘one of the most notable aspects of the use of the death penalty in South Africa is its disproportionate imposition on the black population … by an almost entirely white judiciary’. By contrast, racial breakdowns of Australian execution statistics, including the number of executions of those from the Aboriginal and indigenous populations, do not appear to be available. 34   D.C. Baldus, G.G. Woodworth and C.A. Pulaski (1990), Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston, MA: Northeastern University Press). 35   Furman v. Georgia, 408 US 238 (1972). 36   Coker v. Georgia, 433 US 584 (1977).

12

Capital Punishment: New Perspectives

violent ethnic conflicts that have proliferated in Europe, Africa and elsewhere in recent years. The irony is that the mandatory nature of sentencing in several South East Asian countries37 limits the possibility of discrimination regarding the implementation of the death penalty, but I do not recommend this as a guard against discrimination! Religion and Capital Punishment38 In a 2001 Gallup poll, of the 67% of the American public who favoured the death penalty, 48% claimed that their justification for supporting it was ‘an eye for an eye/punishment fits crime’.39 Indeed, a number of passages in the Bible codify notions of justice and retribution: ‘Eye for eye, tooth for tooth’ (Leviticus 24:20 and Exodus 21:24), ‘He that smiteth a man, so that he die, shall be surely put to death’ (Exodus 21:12) and ‘Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image’ (Genesis 9:6). Even in the New Testament, while Jesus refrains from condoning violence, he acknowledges that the state has the authority to impose capital punishment. Jesus praises the thief on the cross next to him for accepting that he and his accomplice are receiving the due reward of their deeds (Luke 23:41).40 The focus of these teachings is based not on hatred, but rather on values of fairness, equity and righteousness, and on this premise Pope Innocent III supported the administration of the death penalty as long as it was carried out in the name of justice rather than hatred, and with prudence rather than precipitation. For some, bringing finality to the painful aftermath of homicide involves forgiving the perpetrator of the crime. Principles of forgiveness, compassion and mercy are addressed in a number of religions. In Christianity, Jesus teaches: ‘love your enemies, do good to those who hate you, bless those who curse you, pray for those who mistreat you. If someone strikes you on one cheek, turn to him the other also’ (Luke 6:27–9). Forgiveness is a fundamental part of Judaic doctrine referred to in the Scriptures, and to some extent in the Old Testament. Judaism, however, is not limited to biblical passages; it extends to the oral tradition of religious leaders 37   Murder and drug offences carry a mandatory death sentence in Malaysia, Singapore and Thailand. 38   This section is extracted from an unpublished paper, ‘Capital Punishment: Issues of Victims, Religion and Politics’, by Nicola Browne, Seema Kandelia, Rupa Reddy and Peter Hodgkinson. 39   Office of the Clark County Prosecuting Attorney (2001), ‘A Message from the Prosecuting Attorney’, www.clarkprosecutor.org/html/death/death.htm (accessed 20 May 2013). 40   Avery Cardinal Dulles SJ, ‘The Death Penalty: A Right to Life Issue’, Laurence J. McGinley Lecture, 17 October 2000, http://features.pewforum.org/death-penalty/ reader/17.html (accessed 20 May 2013).

Introduction

13

who are authorized to interpret the law. This has allowed rabbis to interpret the Scriptures and place stringent limitations on the biblical law governing capital punishment. Rabbinic opinions on the death penalty resulted in its removal from the statute books in 30 CE.41 It was thought that punishment as severe as taking someone’s life should not be carried out by fallible human beings, but only by divine agencies.42 The reasoning is outlined in the Mishna, compiled in the late second century CE: ‘He who destroys one life is as though he destroys a whole world.’43 From a Jewish viewpoint, it is important to forgive a person in the hope that no matter what a person has done, that person can change his or her life. Forgiveness is also encouraged in the Islamic faith, and although the Quran does not rule out the use of the death penalty, it is not applied automatically. For example, in cases of murder, the death penalty is one of three possible punishments to be decided by the family of the victim: (1) execution of the offender; (2) payment of compensation (‘blood money’) to the family of the victim, or (3) forgiving the offender. According to Islamic theology, forgiveness is superior to the other options. Any Muslim who has murdered is encouraged to ask forgiveness from the victim’s family. In fact, Islamic penal law is characterized by values of mercy and compassion rather than vengeance or punishment. Moreover, if there is any doubt about a person’s guilt, Islamic law states that clemency should be favoured. It is useful to note that while the Islamic view of the relationship between the victim and offender is, for the most part, focused on forgiveness and avoiding use of the death penalty where possible, there are other reasons why a number of states still use harsh punishments under Sharia law. For example, scholars with expertise in matters of Islamic law and human rights such as Abdullahi Ahmed An-Na’im point to the Islamic belief that: the next life is the true and ultimate reality, to which this life is merely a prelude. In the next eternal life, every human being will stand judgement and suffer the consequences of his or her actions in this life. A religiously sanctioned punishment, however, will absolve an offender from punishment in the next life because God does not punish twice for the same offence.44

Concepts of non-violence, compassion and human dignity are prevalent in many faiths. Hinduism, for example, teaches the principle of ahimsa, frequently asserted by Mahatma Ghandi, which refers to the belief that it is wrong to hurt 41   Soncino Talmud, Sanhedrin 161. 42   Sanhedrin 37B; Ketubot 30A and 30B. 43   Rabbi D. Polish, ‘Does Judaism Condone Capital Punishment?’, Reform Judaism

Magazine (Summer 2002). 44   A.A. An-Na’im (1992), ‘Towards a Cross-cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman or Degrading Treatment or Punishment’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia, PA: University of Pennsylvania Press), 35.

14

Capital Punishment: New Perspectives

any living being. While the civil and criminal law set out in the Dharmasasbras and Arthasastras allow for the death penalty, the teachings from the Mahabharata spell out the consequences of such actions: Prince Satyavan says to his father who is contemplating the execution of a number of men: ‘Sometimes virtue assumes the form of sin and sin assumes the form of virtue. It is not possible that the destruction of individuals can ever be virtuous.’ He goes on to say: ‘By killing the wrongdoer the King kills a large number of his innocent men. Behold by killing a single robber, his wife, mother, father and children, all are killed.’45 Many victims’ families have used this reasoning to call for an end to all executions. They assert that killing another person will only result in more victims, causing pain and loss to the families of the condemned. Principles of non-violence and compassion are also strongly emphasized in Buddhism. Buddhism does not focus on the concept of a God, but rather it teaches that all human beings are guided by their own moral and spiritual efforts. Depending on these efforts, they have the potential to either achieve enlightenment or be reborn into a life of suffering.46 Buddhist teachings outline the expected moral behaviour that human beings should follow in order to achieve enlightenment. It has five precepts, the first being the precept of not killing or harming. Capital punishment clearly contravenes this precept. With regard to the nature of punishment, the Buddhist scriptures, the Dhammapada texts of the Pali Canon, declare that ‘everybody fears punishment; everyone fears death, just as you do. Therefore, do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore do not kill or cause to kill.’ Buddhism also teaches that all human beings are fundamentally good, and that they possess a capacity to transform themselves no matter how corrupt an individual act is. Thus, if punishment is to be administered, it should be done in a spirit of compassion with a view to rehabilitation. Similar statements have been made in the Catholic Church: in 1999 Pope Jean Paul II, on a visit to Missouri, affirmed that the ‘dignity of human life must never be taken away, even in the case of someone who has done great evil. Modern society has the means of protecting itself, without denying criminals the chance to reform.’47 In light of these teachings, it is surprising that countries with predominantly Buddhist populations such as China, Thailand, Korea, Taiwan and Japan continue to apply the death penalty. As one author notes, even during the time of Buddha, both Buddhism and secular organizations did coexist and important military chiefs and public figures were devout followers of Buddhism. Although from a Buddhist point of view the destruction of life can never be condoned, a person can only practise his or her religion according to his or her ability, opportunity and duty. With regard to law enforcement officials, one should recognize that their occupation may involve killing in the line of duty, directly or indirectly. While killing would 45   The Mahabharata Santi Parva, ch. 257. 46   AI Austrian Section, ‘Religions and the Death Penalty’. 47   Papal Mass, St. Louis, Missouri, 27 January 1999.

Introduction

15

not be conducive to their spiritual well-being, it is possible to practise the Buddhist precepts in other areas of their life. The Role of Medicine in the Administration of Capital Punishment48 The role of doctors and other health professionals has been, paradoxically, both important and marginal in the development of the death penalty. It has been important to the extent that physicians have contributed to the development of execution techniques, to the acceptability of execution in the public eye, and to pressure for reform. But it has been marginal inasmuch as the state does not need the presence of a physician to bring about the death of the condemned. The oscillation between importance and marginality covers the territory of a very important human rights and ethical discussion. Information on the role of health professionals in the contemporary application of the death penalty in most retentionist countries is sketchy, and even in the country which is the most openly reported on, the US, there remain dark corners into which the light of scrutiny does not reach. Photographs of public executions in some countries show men in white coats, presumably doctors, examining corpses tied to stakes – doctors playing the traditional role of verifying death by execution. Apart from this, there has been virtually nothing to report for most of the world. The principal exceptions (outside the US) have been in China and Taiwan, where the issue of organ transplantation involving the organs of executed prisoners has focused attention on the medical role, and Guatemala and the Philippines, where introduction of lethal injection laws stimulated discussion among medical professionals. In the US, the medical role has been discussed intensively for around two decades since the introduction in 1977 of laws providing for execution by injection of lethal substances into the body of the condemned.49 This debate has contributed to a clearer understanding of the role of health professionals in various facets of capital punishment. From a historical perspective, one of the important influences on the relationship between physicians and the death penalty has been the development and refinement of codes of professional ethics. This in turn has been assisted by the establishment of international professional bodies. Physicians  While the issue of executions did not feature in any of the codes up to and including the nascent World Medical Association (WMA) Declaration of Geneva (1949), subsequent codes have been adopted which are of greater relevance 48   This is a revised version of a section from Robert Ferris and James Welsh (2004), ‘Doctors and the Death Penalty: Ethics and a Cruel Punishment’, in P. Hodgkinson and W.A. Schabas (eds), Capital Punishment: Strategies for Abolition (Cambridge: Cambridge University Press). 49   For background, see D. Denno, ‘Getting to Death: Are Executions Constitutional?’, Iowa Law Review, 82 (1997), 319–464; AI (1998), Lethal Injection: The Medical Technology of Execution, London: AI Index, ACT 50/01/98, January.

16

Capital Punishment: New Perspectives

to this issue. In 1975, the WMA adopted the Declaration of Tokyo against medical participation in torture. While this did not explicitly apply to the death penalty, it encompassed clear guidance against medical participation in abuses and set the scene for the unrelated but congruent WMA position against medical participation in executions adopted six years later. In September 1981, the WMA, fearing the imminent execution of a black prisoner in Oklahoma (which would have been the first execution by lethal injection), issued a press release expressing opposition to medical involvement and followed up with a declaration against medical participation in a lethal injection (or any other) execution other than certifying death.50 The WMA Declaration was preceded a year earlier by a position statement adopted by the American Medical Association (AMA) opposing medical participation in executions. Public health physicians in the US also adopted statements against capital punishment. (The AMA subsequently went on to develop a detailed statement against medical participation in which specific acts were ruled either as proscribed or acceptable. Psychiatrists  In 1969, the Board of Trustees of the American Psychiatric Association (APA) adopted an anti-death penalty resolution, and to the best of our knowledge this resolution has never been rescinded (though an attempt to ‘reaffirm’ the resolution in 1998 was unsuccessful).51 During the 1980s, both the APA and the World Psychiatric Association (WPA) adopted positions against direct involvement of psychiatrists in the death penalty. In 1980, the APA declared that: The physician’s serving the state as an executioner, either directly or indirectly, is a perversion of medical ethics and of his or her role as a healer and comforter. The APA strongly opposes any participation by psychiatrists in capital punishment … in activities leading directly or indirectly to the death of a condemned prisoner as a legitimate medical procedure.52

50   See, for example, M.G. Bloche, ‘Psychiatry, Capital Punishment, and the Purposes of Medicine’, International Journal of Law and Psychiatry, 16 (1993), 301–57; J.K. Boehnlein et al., ‘Medical Ethics, Cultural Values, and Physician Participation in Lethal Injection’, Bulletin of the American Academy of Psychiatry and Law, 23 (1995), 129–134; R.J. Bonnie, ‘Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics, and the Needs of the Legal System’, Journal of Law and Human Behaviour, 14 (1990), 67–90; R.G. Salguero, ‘Medical Ethics and Competency to be Executed’, Yale Law Journal, 96 (1986), 167–86; R.D. Truog and T.A. Brennan, ‘Participation of Physicians in Capital Punishment’, New England Journal of Medicine, 329 (1993), 1,346–9; J. Groner, ‘Lethal Injection and the Medicalization of Capital Punishment in the United States’, Health and Human Rights, 6(1) (2002), 65–79. 51   The resolution to have the APA affirm the 1969 position was discussed by the APA Assembly in November 1998; Dr A. Halpern, personal communication, November 1998. 52   American Psychiatric Association, ‘Position Statement on Medical Participation in Capital Punishment’, American Journal of Psychiatry, 137 (1980), 1,487.

Introduction

17

The WPA held that ‘the participation of psychiatrists in any … action [connected to] executions is a violation of professional ethics’.53 Both the APA and WPA were to return to these issues in the following decade. Nurses  In 1989, the International Council of Nurses (ICN) adopted a particularly strong statement against professional involvement of nurses in executions which ended with an appeal by the ICN for ‘national nurses’ associations to work for the abolishment of the death penalty in all countries still practising this form of punishment’. In a 1998 revised declaration, the ICN called on ‘member national nurses’ associations [to] lobby for abolition of the death penalty’.54 The organized medical profession has taken an increasingly abstentionist stand with regard to participation in the death penalty. This has been manifested in statements adopted by the AMA and by other national bodies55 with support from medical and human rights NGOs.56 The position adopted by the AMA in 1992 is a model of clarity, and to the extent that it is possible, lack of ambiguity (though it has persistently not addressed the question of the death penalty itself). Unless sheer lack of availability of psychiatric practitioners precludes it, psychiatrists can be and are involved in the process leading up to capital sentencing and execution in many retentionist countries. Much literature is available concerning this involvement in the US – almost none concerning nearly a hundred other retentionist countries. Mental health and the death penalty  Involvement of psychiatrists and other mental health professionals at some level in capital cases is inevitable because of the long-standing and universal prohibition against executing the insane,57 whether

53   World Psychiatric Association (1989), Declaration on the Participation of Psychiatrists in the Death Penalty. 54   International Council of Nurses (1998), Torture, Death Penalty and Participation by Nurses in Executions, Geneva: ICN; this statement replaces the earlier 1989 statement, Death Penalty and Participation by Nurses in Executions. 55   Both the Guatemalan Association of Doctors and Surgeons, and the Philippine Medical Association adopted statements in 1997 against direct participation by their members in lethal injection executions; AI, Lethal Injection. 56   For example, Physicians for Human Rights adopted a position against the death penalty in 1994 and subsequently joined other medical and human rights organizations in analysing aspects of the death penalty; Physicians for Human Rights (1994), Breach of Trust: Physician Participation in Executions in the United States (Boston, MA: PHR). Amnesty International has published numerous reports on the death penalty, and in 1981 adopted its Declaration on the Participation of Doctors in the Death Penalty (revised in 1988 to refer to ‘health professionals’). 57   G. Hazard and D. Louisell, ‘Death, the State, and the Insane: Stay of Execution’, UCLA Law Review, 9 (1962), 381.

18

Capital Punishment: New Perspectives

enshrined in customary international law,58 in common law dating back centuries, in specific statutory provisions or in evolving human rights standards.59 As the psychiatrist is a physician, committed to promoting the health and wellbeing of the patient, the ethical problems associated with ‘success’ in restoring the sanity of the mentally incompetent – and thereby facilitating the patient’s death at the hands of the state – are obviously considerable.60 Similar difficulties apply to the evaluation of mental competence to be executed, not to mention the problem of agreeing criteria that will be used in practice to facilitate a stark legal or administrative decision as to the competence or incompetence of a prisoner. Although debate has very much focused on the ethics of these two forms of involvement, all psychiatric involvement has come under scrutiny. Psychiatrists can come into contact with prisoners condemned or at risk of being condemned to death in many ways. The Collection New Perspectives is perhaps a presumptuous title given that some topics covered in this collection have already received some attention, but not with the emphasis they warrant. The approach, I hope, is one that offers new thinking about important issues, and the authors, many new to capital punishment scholarship, bring a fresh perspective. It was always my intention not to turn to the pool of scholars and practitioners whose excellent works we have come to rely on, and so expand the pool of expertise. This collection does not feature any career academics with most authors having a working knowledge of the topics they have written about. The volume includes several unique country analyses, not only adding to our pool of knowledge, but also offering some insight into the approaches to and effectiveness of abolition strategies in those countries. 58   W. Schabas, ‘International Norms on Execution of the Insane and Mentally Retarded’, Criminal Law Forum, 4 (1993), 95–117; W. Schabas (1993), The Abolition of the Death Penalty in International Law (Cambridge: Cambridge University Press). 59   International standards prohibit the use of the death penalty against ‘persons who have become insane’ (Safeguard 6, UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted 1984), and recommend that it not be used against people of ‘extremely limited mental competence, whether at the stage of sentence or execution’ (UN Economic and Social Council, Resolution 1989/64, adopted 24 May 1989). A key ruling in the USA was the decision of the US Supreme Court in Ford v. Wainwright (477 US 399, 1986) that it is unconstitutional to execute insane prisoners. However, no equivalent ruling has been made against executing the mentally retarded. 60   M.L. Radelet and G.W. Barnard, ‘Treating those Found Incompetent for Execution: Ethical Chaos with Only One Solution’, Bulletin of the American Academy of Psychiatry and Law, 16 (1988), 297–308; K. Heilbrun, M.L. Radelet and J. Dvoskin, ‘The Debate on Treating Individuals Incompetent for Execution’, American Journal of Psychiatry, 149 (1992), 596–605.

Introduction

19

The central thesis in this collection is to question the perceived wisdom of existing abolition strategies, which continue to rely on the usual suspects, including deterrence, morality, international law, poverty, geography, police bias, judicial bias, prosecutorial bias, inadequate legal representation, methods of executions, age, mental health and race. These are all very important issues, which help in understanding the problems inherent to the implementation of capital punishment, and all are rightly under scrutiny. I have written elsewhere of the dearth of global scholarship and the effect this has on a complete understanding of capital punishment. In my roles as Council of Europe ‘expert’ on capital punishment and as a founding member of the UK Foreign Secretary’s Death Penalty Advisory Panel, I have had the privilege of visiting and working with many countries, and have yet to find one that hasn’t relied on the US literature and experience. This is both a boon and a frustration – a boon because without access to the data and the authoritative scholarship there would be even less understanding about capital punishment; a frustration because invaluable though it is, the US literature does not and cannot provide the analysis essential for a local understanding. This frustration is compounded by ill-judged and occasionally counter-productive extrapolations from the US experience to a local situation at the expense of generating local research. Perhaps access to the US data has made us idle? Chapter 1 by Akers and Hodgkinson provides a rather unforgiving evaluation of the abolition movement, strategic litigation and the issue of alternatives to the death penalty. The approach the authors have taken is at odds with most analyses of the challenge to capital punishment, which on balance are very optimistic and positive in the language used to describe the successes of abolitionism. In essence, this chapter examines strategies employed to abolish the death penalty in light of their repercussions by looking at the approaches employed by civil society, lawyers and states informed by accounts of regional and country developments. The chapter looks in some detail at the litigation strategies deployed in Commonwealth Africa and the Caribbean, and considers the aftermath of the judgments in Uganda, Kenya and Malawi. The authors’ hope is that lessons will be learnt from this analysis, especially those concerning the sentencing confusion in the aftermath. They also call for a more comprehensive approach to abolition and the development of penal policy. The contentious relationship between Islam and capital punishment is examined in two chapters. In Chapter 2, Sanaz Alasti provides a comprehensive review of two iconic capital punishment issues – age and religion – providing a survey of Islamic countries where there is evidence of the continued execution of juveniles. Only two countries have yet to ratify the Convention on the Rights of the Child – the USA and Somalia – yet the evidence from this chapter is of countries which are full parties to this convention still carrying out executions, some, as Alasti contends, by states focusing on the assessment of mental, not chronological, age. The contention is that a juvenile offender may have known right from wrong sufficiently to be judged guilty of a crime which attracts the death penalty, and because many do not receive an individualized consideration of their maturity, they

20

Capital Punishment: New Perspectives

are transferred to adult court and receive the death sentence based on the severity of the crime, not the age of the offender, thus violating international law. Alasti argues that the only means of ensuring this protection is through vigorous Islamic dialogue over the proper interpretation and application of these laws in the Sharia. In Chapter 12, Art Cody and Dominique Day, both lawyers seconded to the US State Department’s Rule of Law initiative in Kabul, have contributed a unique analysis of capital punishment in Afghanistan. I am not aware of another English-language scholarly account. Their position is that while capital sentencing is relatively rare, it is important that fundamental questions are asked about meaningful rule of law and the nature of due process in this developing country. Historically, ‘Taliban justice’ included physical and corporal punishment remedies, including death by stoning and other means. While there has been a tremendous investment by the Afghans and by the international community in developing the justice sector in accordance with human rights and due process standards, the application of an irreversible and irremediable penalty – death – risks compromising what legitimacy the formal justice sector has achieved with Afghans and the international community. Executions further invite comparison to the fundamentally unfair and capricious use of the death penalty in prior iterations of the Afghan state. As has been the case in other suboptimal systems, rule of law concerns would best be met by commutation of current death sentences and the establishment of procedures complying with the International Covenant on Civil and Political Rights (ICCPR) prior to imposing additional capital sentences. Chapters 5, 6 and 7 discuss a number of issues related to another important yet frequently overlooked topic – secondary victims. In Chapter 5, Jeanne Bishop and Mark Osler argue that family members of murder victims should be at the heart of the death penalty debate as they have a unique stake in the sentencing of murderers because of the irrevocable loss of their loved ones. They contend that the voices of victims are crucial in any discussion about the death penalty, and argue that the complexity of those voices must be recognized and heard, rather than presumptively assumed to be a universal cry for retribution through blood. Of particular poignancy and authority in this chapter is the fact that one of the co-authors, Jeanne Bishop, is a ‘secondary victim’, in that her sister and brotherin-law and their unborn baby were murdered in their home in the Chicago suburbs in 1990. The violence of the murders and the loss of three precious lives brought clarity and force to Ms Bishop’s opposition to the death penalty, and brought her into conflict with the expectations of many death penalty supporters. In Chapter 6, Seema Kandelia and Peter Hodgkinson explore the experiences of a constituency that attracts little attention and even less sympathy – the families of the condemned. Little has been written about the variety of experiences of the condemned and their families globally, especially the issue of contact between them and the condemned family member. In the view of the authors, no acceptable explanation is given for the disproportionate restrictions placed on the family visit in many prisons globally, especially that forbidding contact visits. The default justification given by prison officials is that of security.

Introduction

21

In Chapter 7, Helen Kearney’s purpose is summed up in her words: ‘Little attention has been given to the children of those sentenced to death or executed.’ The scant existing evidence indicates that they suffer a uniquely traumatic, profoundly complicated and socially isolating loss. For children in many countries, the parental death sentence means the start of a life on the street. For others, it means a violent and isolating bereavement, with a subsequently unsupported grieving process and likely long-term repercussions. A wide range of access, methodological and ethical issues make research into this topic exceptionally difficult. However, existing studies are not simply lacking the appropriate scale and rigour – it seems that the impacts of the death sentence on the children of the accused have been almost entirely overlooked. In a system that is primarily concerned with identifying and punishing the individual offender, and secondarily with his or her welfare, the perspective of the child as rightsbearer and victim is routinely omitted. With regard to capital punishment, when this routine neglect is compounded by the complex mechanisms of shock, shame, stigma, repression and isolation, the innocent child becomes completely invisible. The chapter introduces us to a very important project, from which we could all learn. The paradox is that this enlightened response to the most vulnerable of ‘secondary victims’ the children of the condemned is an initiative of the People’s Republic of China, a nation that attracts more brickbats than bouquets for its capital punishment industry. The decision to provide for the children of the condemned who are orphaned by execution or life-long imprisonment is both inspirational and pragmatic. Chapter 3 by Bishop and Osler has some harsh words and constructive comments for the generic abolition movement’s strategy in the US, but also offers some positive suggestions for more effective challenges to the death penalty by marshalling Christians and the structures of their Church: If the abolition movement wants to actually abolish the death penalty, it must move people from supporting or being undecided about capital punishment. … The first step towards doing so is creating a dialogue with those individuals …. Sadly, too few of the resources available to abolition organizations go towards this effort. Instead, they often focus on their ‘base’ (those who already agree with their goals) by hosting rallies or conferences amongst themselves, sponsoring ‘debates’ in friendly territories, or publishing advocacy pieces in left-leaning newspapers and magazines.

This has resonance to the critique offered by Akers and Hodgkinson in Chapter 1. In Chapter 4, Yuval Ginbar, Jan Erik Wetzel and Livio Zilli examine the principle of non-refoulement, which is well established in international law, primarily but not exclusively in customary and conventional international refugee law, human rights law and humanitarian law. The issue links with that of extradition, which is one that many argue should be used as a tool in securing abolition of the death penalty by frustrating and

22

Capital Punishment: New Perspectives

obstructing countries with the death penalty gaining access to suspects overseas who face possible capital charges. Similar protections could be deployed to obstruct the extradition of suspects who could face life imprisonment or other disproportionately lengthy sentences. The chapter sets out the international legal obligations of abolitionist states, and those of retentionist states, when transfers giving rise to a real risk of the death penalty are being contemplated, then focuses on the law and practice of ‘diplomatic assurances’ in extradition/transfer cases where the death penalty arises, and which are often provided by the requesting state and can ultimately dispose of the risk lawfully. Finally, the chapter concludes with some general remarks about how non-refoulement obligations in the death penalty context are contributing to the worldwide abolitionist trend, in the form of ‘indirect abolition’. In Chapter 10, Nigel Li, Wei-Jen Chen and Jeffrey Li offer another legal analysis, that of Article 16 to the ICCPR, which reads: ‘Everyone shall have the right to recognition everywhere as a person before the law.’ The opportunity for this arose when Taiwan decided to adopt the ICCPR into domestic legislation in 2009 unfettered by the constraints and interpretations that membership of the UN has on its member states. Their analysis is encapsulated thus: This chapter will furthermore challenge the position that the ICCPR framers’ intention is the key in any effort to fathom the position of the ICCPR on the death penalty. Originalism is not applicable since the framers’ silence is not sufficient to dismiss a rational interpretation based on other interpretative methods. Taiwan adopted the ICCPR as domestic legislative material in 2009, and must take a fresh look at the international covenant without delving into originalism unnecessarily. After all, Taiwan stands alone in the application of the ICCPR; not being a signatory to the covenant, asking whether it should be less fettered by the framers’ intention when interpreting Article 16 may help others see the ageing document in a new light.

Chapters 9, 11, 13, 14, 15, 16 and 17 address a variety of issues drawn from country analyses. In Chapter 9, Sandra Babcock and Ellen Wight McLaughlin provide a detailed account of the Kafantayeni (2007) judgment repealing the mandatory death penalty in Malawi. They trace the legal process, question the litigation strategy and discuss the effects of the aftermath, which has still not conducted any resentencing hearing for the approximately two hundred prisoners benefiting from the decision to abolish the mandatory death sentence. In Babcock and McLaughlin’s words: five years [after the Kafantayeni decision], 23 of these individuals sentenced to the mandatory death penalty remain on Malawi’s death row in Zomba Prison. Meanwhile, the 169 prisoners whose death sentences were commuted to terms

Introduction

23

of natural life currently have little hope of release from prison before death, as their sentences provide no opportunity for parole.

I am all too familiar with Belarus and its position on the death penalty, having been an adviser to the Council of Europe (CoE) over many years and several visits. It remains the sole country on the European landscape to retain and implement the death penalty, proving to be an effective adversary resisting both criticism and entreaty offered by the CoE. In Chapter 11, Volha Charnysh provides a muchneeded authoritative and detailed account, not only of the status of the death penalty in Belarus, but also of its long-standing encounter with the CoE. Charnysh attempts to explain why the transnational network of actors which contributed to the abolition of the death penalty in all other post-Soviet states failed to induce a policy change in Belarus. Belarus stipulated the provisional character of the punishment in its 1994 Constitution, enjoys a moderate crime rate, is stable and ethnically homogeneous, and was promised Council of Europe (CoE) membership and rapprochement with the EU for abolishing the death penalty. However, to date the domestic and international NGOs supported by the EU, the CoE, the Organization for Security and Cooperation in Europe, and the United Nations have failed to convince Minsk to stop executions. In Chapter 13, Dudgeon explores Canada’s historical and current relationship with capital punishment. She managed to unearth data about when, why and to whom the death sentence was imposed, looking for evidence of the disparate, even discriminatory, sentencing in capital cases. Chapter 14 provides further evidence of the problems that strategic litigation can bring in its aftermath. Its author, Graeme Hall, was a legal intern in Uganda, where he established the Centre for Capital Punishment’s Uganda Capital Mitigation Project. His chapter undertakes a critique of the Kigula (2009) judgment that abolished the mandatory death penalty. Included in the issues he addresses are an outline of the legal landscape or backdrop in Uganda; the conditions on the ground, including prisons, the legal defence framework, sentencing and legal aid policies; the main legal decisions in relation to capital punishment and sentencing, and suggestions of ways lawyers and campaigners can capitalize on the current and projected policies to assist not only in the move towards abolition, but to ensure that many other issues fundamental to fair trial rights are not forgotten, with a particular focus on the African Commission and its decisions. Liberia provides a valuable lesson for abolitionists as it is an example of wishful thinking clouding the evidence, triumphal in the announcement of abolition rather too prematurely. In Chapter 15, Jessie Munton examines the apparent abolition of the death penalty when in 2005 Liberia acceded to the Second Optional Protocol to the ICCPR, but then in July 2008 passed legislation reintroducing the death penalty for murder committed during acts of armed robbery, terrorism and hijacking. While there have been no executions since 2000, death sentences are currently being handed down.

24

Capital Punishment: New Perspectives

In Chapter 16, Stancu argues that there are lessons to be learnt from the communist experience of capital punishment: My aim is to analyse the mechanisms that lie behind both ideology and practice, and see how propaganda used the death penalty. Why was capital punishment continuously used, and why couldn’t communism lead to an ideological abolition? Was there a specific debate on the ideological issues, or was the punishment used as in any other society, or in fact was it used as a political weapon?

Starting from these research questions, the structure of this chapter is dictated both by the evolution of the legal framework and the use of the death penalty, their essential influence comprising the politics of the period: Romania was an exception, not just for its excessive use of capital punishment, but because its application was uneven and dictated by political interests, thus making the Romanian case interesting: In the face of the deepening gap between the official discourse and rising criminality, Ceausescu reacted by granting large amnesties which aimed to improve his own image. Ultimately, Ceausescu himself was sentenced to death and executed during the upheaval of December 1989.

In Chapter 17, Giao Vu Cong examines the Socialist Republic of Vietnam, another enigmatic communist nation characterized by the numerous levels of decisionmaking impacting on any consideration to abolish the death penalty. The data is secret, which in my opinion unnecessarily harms the image of the country with respect to capital punishment debate, as if the ‘guesstimates’ of numbers executed are near correct, then executions as a proportion of the population could put the country in a fairly respectable position in the league table. Cong provides a much-needed account of the death penalty in Vietnam historically to modern times, demonstrating that in Vietnam in 2013, ‘more and more citizens, including government officials and members of the academic community, support abolition or reduction of capital punishment’. Finally, in Chapter 8, Steven Shatz demonstrates how valuable, challenging and necessary clinical legal education could be. He outlines the experiences of students from the San Francisco School of Law’s Death Penalty Project over a decade of supporting capital defence lawyers in the Southern states of the US. With the experience of the internship programme I have staged for the past twenty years, I fully understand how important the opportunities and accomplishments of these legal interns are. Concluding Thoughts and Acknowledgments I hope that this mix of approaches has brought a fuller appreciation of how essential it is to broaden our approach to understanding the complexities of capital

Introduction

25

punishment, and that such a holistic interpretation has helped convince you that repealing executions does not bring about the abolition of capital punishment. I have thoroughly enjoyed and appreciated this opportunity to share my approach to the fundamentally important and complex topic of capital punishment. This collection would not have been possible without the enthusiasm and commitment of a number of volunteer researchers from Westminster University law school, especially Kerry Ann Akers and Amelia Montgomery – thank you. The authors, most of whom are either in full-time study or non-academic employment, have produced excellent original contributions to this collection – thanks to them, too.

This page has been left blank intentionally

Part I New Perspectives and Challenging Questions

This page has been left blank intentionally

Chapter 1

A Critique of Litigation and Abolition Strategies: A Glass Half Empty Kerry Ann Akers and Peter Hodgkinson

Introduction In this chapter, we challenge the received wisdom of abolition strategies from the standpoint of two experienced and uncompromising foes of capital punishment who are struggling to reconcile claims of ‘success’ made by abolitionists and the experience of the countries in which we have worked in the aftermath of abolition. Many of the issues we discuss have thus far escaped the scrutiny of career academics. Strategies which conventionally target discreet aspects of capital punishment’s implementation fail as a consequence to appreciate or address the macro-context of capital punishment. In our view, the claims of abolitionists are somewhat exaggerated and the achievements [reducing its scope and repealing executions] are diminished if not accompanied by root and branch reform of the fundamental flaws that characterize its implementation. Regrettably, the view of too many in the abolitionist movement is that by the single measure of outlawing executions, abolition of capital punishment is accomplished – this is both short-sighted and obscures the implementation of essential infrastructure improvements. Questions need too to be asked about the profligate costs expended on the abolitionist industry, especially when the actions they stage, such as national and international conferences, are of questionable value. These are resources we believe could be more effectively spent developing and supporting the infrastructure changes essential to the transition to lasting abolition marked by fundamental improvements to the socio-legal and socio-political landscape. Abolitionists seem too ready to accept the inevitable, if unintended, negative consequences of their ‘victories’, exemplified in particular by litigation strategies and the issue of alternatives to the death sentence. Repeal of execution statutes in and of itself does not bring about the wholesale civilizing of and access to justice claimed by most abolitionists. Our experience is that very little, if any, attention is given to countries in the aftermath of abolition. For a host of reasons, from funding pressure to convenience to self-aggrandizement to vanity, many abolitionists are reducing abolition to its most rudimentary terms, ignoring country-specific nuances, disregarding negative repercussions and often entrenching bad law for the sake of expedience.

30

Capital Punishment: New Perspectives

The American experience has been the staple diet of capital punishment research and activism and continues to shape the debate even when it is frequently not appropriate to the analysis globally. Difficult though it might be to unearth country- and topic-specific research, we have, where possible, drawn on non-US experiences to inform our analysis. This chapter will analyse abolition in the light of its repercussions and the generic approaches employed by civil society, lawyers and states illustrated by accounts of regional developments and country-specific examples. We want to explore whether lessons have been learnt from flawed strategies. The analysis provided throughout this chapter posits that isolationism and competition within the abolition sector proves an obstacle to comprehensive development of penal policy. Whilst the focus of this chapter is to scrutinize abolitionism, questioning its received wisdom, we recognize the need to examine the position held by those who support the death penalty, especially as the abolition movement devotes few resources to including death penalty supporters in its strategies. With this in mind, a summary of the pro-death penalty movement is included in the Introduction to this book. Strategies for Abolition: Acts and Actors The actions of many ‘abolitionists’ focus on saving the life of an individual, a friend, a family member, and subscribe to anti-capital punishment beliefs to provide structure and support for their journey when in fact they only want to abolish the death penalty for their friend. The annals of activism are replete with examples of the fight for individual personalities,1 in the course of which all concerned become ‘famous’ or attract notoriety. Clearly, not all ‘personality’ activities fall under this heading as there are examples – too many – that exploit individuals to justify and give life to abolitionism. Campaigning is central to the strategy of abolition, but not all campaigns are motivated by abolition. Before embarking on the principal targets of this analysis – litigation strategies and alternatives to the death sentence and the links between them – we will review the variety of actions, actors and issues that characterize the confusion that is the abolition industry. Crucial, too, to this analysis is to identify the particulars of what it is we want to abolish and to what extent there are universally accepted criteria. On the one hand, there are those who oppose capital punishment based on the offence, and others based on the characteristics of the defendant or on the death penalty process itself. Some individuals and countries restrict their support for capital punishment to murder, others for crimes including rape, child sexual abuse, drug trafficking, kidnapping, bribery, corruption, adultery, apostasy and arson. There is neither clarity nor agreement nor consistency worldwide about 1   See, for example, ‘Gary Lee Graham a/k/a Shaka Sankofa’, www.clarkprosecutor. org/html/death/US/graham648.htm (accessed 20 May 2013).

A Critique of Litigation and Abolition Strategies

31

which crimes ‘deserve’ the death sentence, or what elements of a particular crime distinguish it as deserving of death. ‘Heinous’ as a descriptor is part of the lexicon of justification. ‘Abolitionists’ influenced by this approach usually remain so only until the ‘unacceptable’ crimes have been removed from the purview of capital punishment. Further opposition to capital punishment is based on specific characteristics of the defendant: for example, they oppose sentencing to death those under the age of 18 at the time of the offence, those with mental impairment or mental illness, women, pregnant women, or those over a certain age. Some oppose its mandatory imposition, the possibility of wrongful convictions, the mode of execution, or policies with their roots in religious beliefs (Hodgkinson, Kandelia and Gyllensten, 2008). Group activism is prevalent in the USA, with all states having at least one group opposed to capital punishment, even in those states which no longer retain the penalty, where campaigning seeks to resist reinstatement. Having been close to the activism in the USA for a couple of decades, Hodgkinson’s overall impression is that whilst ‘abolition of the death penalty’ is a shared objective amongst these disparate groups, that is where the commonality ends, with as many approaches, strategies, ‘beliefs’, targets and remedies as there are groups. To compound this rather haphazard approach, there is no tradition of evaluating the effectiveness of their activities or of learning from others or from the fruits of authoritative research. For some, like religion, it is a belief to be accepted without question. The failure to subject strategies and outcomes to rigorous evaluation is universal to the abolition industry. We mention this because we believe that abolition activities could improve immeasurably through a process of self- or external assessment coupled with a clearer vision of the full purpose of abolition. Abolition’s Multinationals Amnesty International (AI) is no longer considered to be the pre-eminent organization campaigning against capital punishment, with some believing that it has lost its edge, its reputation and therefore its authority. However, it remains the international non-governmental organization (INGO) of preference for the United Nations (UN) and governments globally, and the recognized source of data about implementation, whilst accepting that in many instances the data is either incomplete or inaccurate. AI’s abolition strategy is essentially to provide information about and to retentionist countries, coupled with its mantra about the futility of the death penalty and the damage it causes. Here again it is nigh impossible to judge the effect, as to our knowledge no systematic evaluation has ever been done, nor is there evidence that AI’s strategy has evolved over time. It remains worryingly silent on such important issues as alternatives, public sentiment and the families of homicide victims. Nonetheless , one cannot fault it for having been the catalyst for the exponential rise of a variety of multinationals, many of which are dedicated solely to abolition

32

Capital Punishment: New Perspectives

of the death penalty, and others like Human Rights Watch (HRW)2 and Penal Reform International (PRI)3 for which capital punishment is part of a broader focus on human rights violations. Others derive their origins from government initiatives on abolition largely within Europe, Italy taking an early lead with a near-zealous pursuit of abolition domestically and internationally with its roots in the Italian Radical Party and spawning two major non-governmental organizations (NGOs) – Hands Off Cain (founded in 1993),4 which combines information collection and distribution with extensive political activism whose principal target is the periodic UN General Assembly and the moratoria resolutions, whereas the Comunità di Sant’Egidio (founded in 1968) delivers its abolition message symbolically, characterized by the lighting up of the Coliseum and capital cities to mark abolition events. Both are driven by an emotional commitment to abolition. France, too, has a prominent position in pursuit of abolition, supporting a number of initiatives including Ensemble Contre la Peine de Mort (ECPM, founded in 2000) and the World Coalition against the Death Penalty (founded in 2002). The Fédération Internationale des Ligues des Droits de L’homme (FIDH, founded in 1901) has compiled several important country reviews which provide an important source of evidence-led information about the status of capital punishment globally. The Spanish government recently established two initiatives: the International Commission against the Death Penalty (ICDP, founded in 2010)5 and the International Academic Network Against the Death Penalty (founded in 2010).6 Whilst it is still early days, they too, have resorted to staging seminars, and elites’ meetings, which to date have addressed the usual tired and dated topics. Disappointing given the innovation and freshness shown at the founding meeting in Madrid. Space doesn’t allow us to reproduce individual statements of aims, though we would learn little that distinguishes one from the other. Whatever the claims of their mission statements, they all collect and disseminate information; even though the information they collect and the means of dissemination may differ, this is the common denominator. Also, given that they all stage seminars, publish data, lobby governments and compete for scarce resources, there is inevitably duplication and therefore waste. Another characteristic they all share is the ‘expertise’ promulgated by a core of the usual suspects to be found at capital punishment events worldwide, the substance of whose presentations is entirely predictable and rarely progress the debate. In our opinion, there are a number of weaknesses common to all such abolition activities, in particular (1) an absence of any systematic evaluation of the effectiveness of their strategies, and (2) a decision – and it must be a deliberate 2  www.hrw.org. 3  www.penalreform.org. 4  www.handsoffcain.org. 5  www.icomdp.org. 6  www.academicsforabolition.net.

A Critique of Litigation and Abolition Strategies

33

decision – to exclude supporters of capital punishment from their guest lists. Whose opinions are they trying to influence at such huge expense? It may not make headlines or court publicity characteristic of its European Union ‘competitors’, but the British government, too, is committed to global abolition of capital punishment. This commitment has its formal beginnings in 1997, when the then Foreign Secretary, the Rt Hon. Robin Cook MP, established the Human Rights Policy Department (HRPD), one branch of which was the Death Penalty Panel. Hodgkinson is a founding member of this group, the role of which is to advise the Foreign and Commonwealth Office (FCO) on a range of issues relating to capital punishment. In contrast to its neighbours, which focus on staging high-profile information and awareness-raising events, the thrust of the UK’s strategy is to fund scoping visits to retentionist states judged to be priorities, to fund the legal representation of British citizens facing capital charges abroad, to fund litigation strategies to repeal the mandatory death penalty, to reduce the scope of capital crimes, and to support a variety of abolition activities in ‘soft’ targets, namely states judged to be susceptible to abolition. Over the years, Hodgkinson has represented the FCO on numerous such country missions, frequently questioning their purpose, but not their commitment. Abolition of capital punishment is awash with opinions, so the British Government and Panel members also have their own ‘beliefs’ about what works and what the priorities should be. A paradox in their strategy is that whilst bounty hunting the repeal of the mandatory death penalty worldwide , it continues to impose legislation in England and Wales which increases the range of mandatory sentencing, building on the mandatory sentence of life imprisonment as the alternative to the death sentence in 1965.7 Here, too, we have evidence of a failure to evaluate and to commit to initiatives thus increasing the risk of leaving half-finished or abandoned projects. In a paper written at the invitation of the FCO’s Strategic Project Fund, Hodgkinson comments: A fresh approach to improving the delivery and quality of its effectiveness is overdue and could be achieved by focussing on improving the support offered by British Embassies and High Commissions for country actions and developing stronger collaborations with the EC, the EU, the UN and the London Missions of target countries and sympathetic countries. Significant savings can be made by strictly limiting overseas missions, which in my experience have led to only modest and fleeting benefits rarely meeting capacity building or sustainability targets. The potential for both soon dissipates due to embassy commitments and other demanding portfolios overtaking the capital punishment agenda. Furthermore, I wonder whether a permanent and accessible record of the actions and the actors exists– the last of my 4 visits to

7   This introduced a new mandatory life sentence for people convicted of a second very serious sexual or violent offence. The measures were introduced as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

34

Capital Punishment: New Perspectives S. Korea revisited many important issues and raised even more questions, which despite the genuine resolve of all involved to continue working on the issues activity soon evaporated – much better had we been able to build on the previous visits. Embassy staff should be given more support to ensure sustainability. Four visits over as many years addressing the same issues from the same starting point is not an efficient use of resources.8

‘Communities of nations’ – such as the United Nations (UN), the Council of Europe (CoE), the Organization for Security and Co-operation in Europe (OSCE) and the European Union (EU) – all oppose capital punishment, and because they collectively represent the views of all nations, the strategies they adopt are important, some would say crucial. All claim a mandate to abolish capital punishment, though none can claim to reflect or represent the citizens of their member states; none the less, they all adopt robust anti-death penalty positions. Other ‘communities of nations’, including the Arab League, the African Union, Caricom, the Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation (SAARC) are important too given that they represent the majority of retentionist states. In essence, the UN’s principal involvement with capital punishment is its quinquennial survey of the status of capital punishment amongst its member states, its Second Optional Protocol to the International Covenant on Political and Civil Rights (IPPCR),9 its periodic global seminars, its publications,10 and at the 8   Peter Hodgkinson, ‘Capital Punishment: Austerity Strategies for Abolition’, personal communication with the Foreign and Commonwealth’s Strategic Project Funding Department, 2012. 9   The Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted by the UN General Assembly in 1989, is of worldwide scope. It provides for the total abolition of the death penalty but allows states parties to retain the death penalty in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state which is a party to the International Covenant on Civil and Political Rights can become a party to the Protocol. The following 74 countries are states parties: Albania, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Kyrgyzstan, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Monaco, Mongolia, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Philippines, Portugal, Romania, Rwanda, San Marino, Serbia, Seychelles, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Turkey, Turkmenistan, Ukraine, United Kingdom, Uruguay, Uzbekistan and Venezuela. The following three countries have signed but not ratified the protocol: Guinea-Bissau, Poland, São Tomé and Principe. 10   UN Office of the High Commissioner for Human Rights, ‘Moving Away from the Death Penalty: Lessons from National Experiences’, www.ohchr.org/EN/newyork/Pages/

A Critique of Litigation and Abolition Strategies

35

General Assembly, tabling a draft resolution about capital punishment calling for member states to move towards a global moratorium on executions leading to full abolition (Bantekas and Hodgkinson, 2000).11The most recent of which was on 20 December 2012, when the resolution was adopted by 111 votes in favour, with only 41 votes against and 34 abstentions. It would be churlish to deny that this was a positive outcome but wouldn’t it be even more telling if it could be demonstrated that changes in voting were accompanied by improvements in the behaviour of signatory nations? The evidence, though, is that many states voting in favour of the resolution continue to have records of appalling human rights abuses, calling into question the motivation of these states. The Council of Europe, being the architect of European human rights activism since the Second World War, is by far the most proactive in this group, having lead the European assault on capital punishment with an impressive record, all but one of its 47 member states (the Russian Federation) ratifying the 6th Protocol of the European Convention of Human Rights (ECHR)12 and 43 having ratified the 13th Protocol of the ECHR,13 which abolishes the death penalty in all circumstances. globalpanelondeathpenalty.aspx (accessed 20 May 2013); this publication is based on the first of a series of proposed discussions held at the United Nations in New York on 3 July 2012.

11   ‘In 1994 a resolution for a moratorium was presented for the first time at the United Nations General Assembly (UNGA) by the Italian government. It lost by eight votes. Since 1997, through Italy’s initiative, and since 1999 through the EU’s endeavour, the United Nations Commission of Human Rights (UNCHR) has been approving a resolution calling for a moratorium on executions with a view to completely abolishing the death penalty, every year’; www.handsoffcain.info/chisiamo/index.php?idtema=20054 (accessed 20 May 2012). The 2007 vote at the Third Committee of the United Nations General Assembly saw intense diplomatic activity in favour of the moratorium by EU countries, and by the non violent Radical Party itself; the Catholic Community of Sant’Egidio joined forces by submitting to the UN an appeal and 5,000,000 signatures asking for the moratorium to be passed. 12   Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] Concerning the Abolition of the Death Penalty, adopted by the Council of Europe in 1982, provides for the abolition of the death penalty in peacetime; states parties may retain the death penalty for crimes ‘in time of war or of imminent threat of war’. Any state party to the European Convention on Human Rights can become a party to the Protocol. The 46 states parties are: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. 13   Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] Concerning the Abolition of the Death Penalty in All Circumstances, adopted by the Council of Europe in 2002, provides for the abolition of the death penalty in all circumstances, including time of

36

Capital Punishment: New Perspectives

Unique among ‘communities of nations’, the CoE does go some way to adopting a holistic approach to ensuring human rights compliant outcomes by staging Training and Training of Trainers across the piste of legal and criminal justice agencies. However, Hodgkinson, who has been CoE expert on the death penalty since the mid-1990s, believes that there would have been better outcomes if the actions had fully addressed, supported and required the implementation of essential interim and transition measures – measures including alternative sanctions to the death sentence, victim services, prison management and public reassurance. Another important contribution authored by the Council of Europe is the guidelines issued in 2003 (CoE, 2003) for the management of life-sentenced and long-term prisoners – a defining document that should be required reading for all prison managers and justice ministers. It is a shame that these guidelines were not available in advance of the slew of abolition activities as, if implemented, it could have altered the landscape of sentencing in the aftermath, currently characterized by incoherence, inconsistency and inhumanity. The OSCE comprises 57 states from Europe, Central Asia and North America,14 providing a forum for political negotiations and decision-making in the fields of post-conflict rehabilitation of human rights, a part of which is dedicated to the issue of the death penalty globally and among member states. It is not as widely known as the other bodies, but makes authoritative contributions through its Office for Democratic Institutions and Human Rights (ODIHR) to informing the death penalty discourse through its periodic publications and seminars (ODIHR, 2012). Unlike the CoE and the EU, it has amongst its members several retentionist countries, including the USA and Belarus. Finally, in this section, we turn to the European Union and its civil service, the European Commission – zealous foes of capital punishment that dedicate significant, some would say profligate, resources to abolition. By any measure, the sums of money dispersed by the European Instrument for Democracy and Human Rights (EIDHR), which came into force on 1 January 2007, are huge and their largesse diverse and extensive. The decisions about whom to fund and for what purpose attracts much criticism even amongst those sympathetic to abolition, especially funds dispersed to organizations in the USA or for abolition activities in the USA – some 3,643,951 euros (£2,962,532; US$4,760,640) in 2009 alone war or of imminent threat of war. Any state party to the European Convention on Human Rights can become a party to the Protocol. The 43 states parties are: Albania, Andorra, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; two countries have signed but not ratified the protocol: Armenia and Poland. 14   Organization for Security and Co-operation in Europe, www.osce.org/who/83 (accessed 20 May 2013).

A Critique of Litigation and Abolition Strategies

37

(Gardiner, 2011).15 We have never understood why a country so richly resourced and with more lawyers than bacteria continues to receive any external funding, which inevitably deprives poorly resourced projects worldwide. It is high time that the EU/EC stopped relying on the myth that the USA is the key to global abolition. Abolition Activities: A Cost-benefit Analysis We believe it to be crucial, in the interest of good governance and evaluating effectiveness, to assess value for money, especially when one considers the astronomical sums of money expended on a variety of initiatives – the EC has disbursed 23 million euros on 50 projects since 2000 (EIDHR, 2011). Should we be funding high-profile events such as the ECPM World Congresses staged in association with the World Coalition or the lighting up of the Coliseum and capital cities, the hallmark of Comunità di Sant’Egidio, or the World Days sponsored by the World Coalition to abolish the Death Penalty? What benefits flow from these activities that can be demonstrated to have contributed to the building of sustainable capacity sufficient to justify the costs? It is difficult to judge how such events progress abolition or how to estimate their lasting effects. Who are the target audiences for such occasions, and what proportion attend as believers and leave as abolitionists? We suspect very few. In addition to the funds dispersed to US projects in 2009 referred to above, the EIDHR awarded grants to 15 other projects amounting to 8,573,504 euros (£6,970,258; US$11,200,854).Funds were dispersed to support projects in Guatemala, the Democratic Republic of Congo, Uganda, China, Palestine, Arab countries and Palestine. The sums are so large and the purposes so diverse as to demand further scrutiny. What criteria were adopted when selecting these projects, and against what criteria was ‘success’ measured?16 Our reason for raising the issues of cost, participation and purpose is to establish whether more effective use could be made of the 15   Grants given in 2011 by the American Bar Association Fund for Justice and Education: Death Penalty Assessments Project, US$983,277, ‘Toward a Nationwide Moratorium on Executions’; Death Penalty Information Center, US$268,585, ‘Changing the Course of the Death Penalty Debate’, a proposal for public opinion research, message development and communications of capital punishment in the US; National Coalition to Abolish the Death Penalty, US$424,829, ‘National Coalition to Abolish the Death Penalty Intensive Assistance Program’; Reprieve LBG, US$731,591 (some of these funds also went to ‘European countries’), ‘Engaging Europe in the Fight for US Abolition’; Murder Victims’ Families for Human Rights Non-Profit Corporation, US$686,608, (some of these funds also went to other countries, including Japan and Taiwan), ‘Voices of Victims Against the Death Penalty’; Witness to Innocence Protection, US$548,538, ‘American DREAM Campaign’. 16   Reports about the outcomes of the above projects are available by formal request to the General Secretariat via http://ec.europa.eu/transparency/access_documents/index_ en.htm (accessed 20 May 2013).

38

Capital Punishment: New Perspectives

funds. Both authors have extensive experience of grassroots practical advocacy which builds sustainable capacity, including the work of the Centre for Capital Punishment Studies, the Uganda Law Society, the Uganda Christian Lawyers Fraternity, the Malawi Centre for Human Rights Education, Advice and Assistance (CHREAA), the Caribbean Centre for Human Rights and the Independent Jamaica Council for Human Rights – all projects with demonstrable benefits delivered at a fraction of the cost. The Moratorium: An Opportunity to Delay? A strategy of the abolitionist industry in recent years has been the pursuit of a moratorium on executions. The idea of a moratorium as a campaign demand dates to early activity in the United Nations in the late 1960s. Treaty bodies like the Human Rights Committee have frequently recommended that states still using the death penalty consider a moratorium in an attempt to further the goal of abolition set out in Article 6(6) of the International Covenant of Civil and Political Rights (ICCPR). The moratorium demand was revived in 1994, in the doomed United Nations General Assembly resolution, and again in 1999. In December 2012, a resolution calling for a global moratorium on executions with a view to total abolition was passed by the UN General Assembly – a call which builds on those of 2007, 2008 and 2010. The resolution asking member states to progressively restrict the use of the death penalty and ensure that international standards on the death penalty are met was adopted with 111 votes in favour, with only 41 votes against and 34 abstentions. Even though the resolution has been passed by the full Assembly, its impact is difficult to judge as the General Assembly is only empowered to make non-binding recommendations, so although adoption of the moratorium resolution conveys a strong political message to retentionists, there is no legal obligation preventing states handing down death sentences or carrying out executions. The ‘usual suspect’ nations reiterated the fact that capital punishment is not against international law and that they retained the right to set their own criminal and penal policies. Retentionists, on the other hand, use the opportunity of a moratorium period to ‘fix’ capital punishment’s flaws. In the USA, religious fundamentalist supporters of the death penalty, like Pat Robertson, Jerry Falwell and members of the Christian Coalition, were aligned to the Moratorium 2000 movement solely for the purpose of tidying up capital punishment’s worst excesses, to make it more palatable for both domestic and international audiences. That the two sides found some common ground presents those who seek the replacement of the death penalty with both opportunity and danger (Hodgkinson, 2004b, 5–8). Examples of periods without executions followed by the resumption of hangings highlight the importance of special scrutiny on de facto abolition countries, as their status is entirely quixotic and vulnerable to swift changes in personnel. This observation highlights a shortcoming in the reliance on the

A Critique of Litigation and Abolition Strategies

39

moratorium as a tool for abolition And highlights that the important lesson to be learned is that the moratorium should never become a goal in itself, and that it should be continually presented, by abolitionists at any rate, as a step towards total and permanent replacement of capital punishment. Even more desirable would be to obtain a complete suspension of the death penalty process (no prosecutions, no sentences and no executions) whilst the raft of essential changes to legislation and infrastructure to prepare society for a life without capital punishment are put in place. The period of this suspension is one that should be agreed at the outset with a timetable for action. Abolition in Post-conflict States Development strategies encompassing the abolition of the death penalty often occur in the transitional phase in the aftermath of conflict or significant upheaval. In Western Europe in the decades after the Second World War there was a move towards abolition fuelled by the transition to democracy and the horrors experienced by all combatants. In Eastern Europe abolition has been achieved at a much slower pace, and then not until the disintegration of the Soviet Union, leaving only Belarus retaining the penalty and carrying out executions, and the Russian Federation, which has an official moratorium on executions and capital trials but has yet to confirm de jure abolition. The experience throughout much of Africa and Asia as countries gained independence from their colonial masters is less optimistic, as the newly formed democracies remain fragile and many are simply dictatorships flying under a democratic flag of convenience with the death penalty a political tool of suppression. Abolition in these states is patchy and under constant assault. On a more optimistic note, post-conflict transition did lead to abolition in Cambodia in 1989 (LICAHDO, 2007), Romania in 1989 and South Africa in 1997, but it is still difficult to identify any improvement in the administration of justice beyond the welcome cessation of executions. Disappointingly, the latter observation is one that can be directed at the majority of countries which arrived at abolition post-conflict. It would be difficult to identify countries where the hopes of thoughtful abolitionists had been achieved beyond the outlawing of judicial executions. Is this the price to be paid for meeting the imperatives of powerful international donors and human rights bodies such as the United Nations and the Council of Europe whose only ‘demands’ are the abolition of executions or a moratorium on executions, which they assume will transfer, as if by magic, into de jure abolition, consigning such crucial developments as improved legislation, access to justice, police and prison services, and social services, including victim services, to a list of optional requirements. It is the failure to support the building of sustainable capacity that leaves such states vulnerable as their sceptical citizens see little or no evidence of the benefits promised in the aftermath of abolition.

40

Capital Punishment: New Perspectives

Strategic Capital Litigation in Commonwealth Countries: Collateral Benefit or Collateral Damage? Shortly after the case of Roodal v. The State (Trinidad & Tobago),17 a piece of strategic litigation which was overturned almost immediately in Matthew v. The State (Trinidad & Tobago),18 which reinstated the mandatory death penalty, local lawyers in association with British lawyers set about replicating the same strategic litigation challenge in Uganda. The litigation strategy in Kigula replicated those employed in the Caribbean, challenging the mandatory nature of the death penalty and delays in execution. With regard to the issue of delay, the decision differed from Caribbean jurisprudence and rendered the utility of the challenge effectively futile. The fallout from the decision was predictably damaging and reflected the lack of consideration for country-specific nuance. Similar to Pratt’s ripple effect cross the Caribbean, Kigula prompted a number of similar challenges across the region, with perhaps more to come. In Malawi, the case of Kafantayeni (2007) MWHC I mimicked Kigula in terms of its challenge to the mandatory death penalty, but did not raise the issue of the death penalty’s constitutionality per se, nor did it raise the question of delay. Further to this, an even more fragmented challenge in Kenya followed. The case of Godfrey Ngotho Mutiso v. Republic (2010) eKLR was once again led locally in association with British lawyers in the same vein as the Kafantayeni challenge, neglecting issues of delay and the constitutionality of the death penalty per se. However, the challenge was further fragmented, only addressing the mandatory death penalty in cases of murder, leading to the mandatory death penalty for murder being abolished, but leaving intact the mandatory death penalty for armed robbery. A common risk attached to strategic litigation is the risk of inadvertently validating the death penalty by way of invalidating an element of it – for example, in Uganda, in the case of Kigula, the death penalty itself was pronounced constitutional, but the mandatory nature of it was not. Such a challenge renders any future legal challenge to the death penalty per se increasingly unlikely to succeed, further cementing the constitutionality of the death penalty. Every legal challenge to an aspect of death penalty litigation presents a possibility of the reiteration of the death penalty in itself being constitutional, hence the importance of scrutinizing the possibility of any unintended consequences before embarking on a particular strategy. In Jamaica, the death penalty itself was ruled constitutional in the case of Pratt and Morgan, but the delay in administering it was not. This argument stemmed from the dysfunctional administration of the judicial system, which failed to deal with cases expeditiously, leaving people to languish on death row. This inefficiency was capitalized upon by the Privy Council, which ruled that a delay of more than five years on death row invalidated the application of the death penalty. This meant 17   Roodal v. The State (Trinidad & Tobago) (2004) 2 WLR 652. 18   Matthew v. The State (Trinidad & Tobago) [2004] 64 WLR 412.

A Critique of Litigation and Abolition Strategies

41

that in the event that the judicial system corrected its administrative shortcomings, executions could resume, paradoxically putting the condemned more at risk of execution in a fairer system. This challenge had the effect of stifling progress in Jamaica’s justice system, eventually leading to a restriction of rights beyond that prior to Pratt and Morgan. The justice sector remained undeveloped, as rights proponents were unlikely to want to streamline the appeals system lest they jeopardize the condemned. The Jamaican government resisted the Privy Council decision at the first opportunity, not only voiding Pratt and Morgan, but actually prohibiting the courts from questioning the constitutionality of any pre-existing punishment and restricting the right to appeal (Jamaicans for Justice, 2010). Defence counsel’s responsibility is to effectively represent their client, leading occasionally to the dilemma where their client’s life will be saved at the cost of wider detriment. It is important to distinguish between cases where lawyers are obliged to defend their client and in doing so attempt to challenge the death penalty, and those cases initiated by lawyers in order to attempt to abolish the death penalty or elements of it, using the client as a vehicle for the challenge. In these instances, there is often a conflict of interest. Lawyers engaged in such challenges repeatedly demonstrate a win at all costs approach, which has consistently rendered both their clients’ interests and the wider penal policy interests impaired. Similarly, litigation strategies have largely lacked inter-agency communication and have resulted in a glaring lack of nuance. It is this absence of nuance which renders such challenges so unhelpful to the development of humane alternatives to replace the death penalty. Uganda The mandatory death penalty in Uganda was recently abolished following litigation in the Supreme Court in the case of Kigula (2009). The approach adopted had widespread effects indicative of a strategy concerned more with abolition than the benefit of prisoners. This analysis applauds the single benefit Kigula achieved, namely judicial discretion enabling defendants an opportunity to mitigate and avoid death. Attractive as such a significant judgment may appear, the strategy lacked forethought by failing to bring benefits to many of the prisoners named in the petition in a timely fashion. We hope to demonstrate the importance of learning from the shortcomings of the judgment and the strategy in order to avoid the unintended though entirely predictable consequences characterized by the aftermath of the Kigula (2009) judgment. Prior to Kigula In pre-colonial Uganda there was no mandatory death sentence, compensation and reconciliation being favoured over execution, and the death penalty could only be applied if the suspect was caught in the act of committing a capital offence

42

Capital Punishment: New Perspectives

(Chenwi, 2007). Following independence in 1962 and in the aftermath of British colonial institutionalization of the death penalty and numerous suspensions and adaptations of constitutions, the current constitution was drafted in 1995 (Ssenyonjo, 2002). This constitution was drafted following public consultation, and in common with most of the world, Ugandans opted for retention of the death penalty – a position reiterated on numerous occasions since, as it was in 2001 when a committee tasked with assessing whether the death penalty should be abolished relied upon public opinion to make its decision (Fernandez, 2008). The reliance on public opinion to justify retention of the death penalty was also referred to in the Supreme Court’s decision in Kigula. Despite the high number of capital crimes on the statute book, the death penalty was rarely imposed for crimes other than those which attracted the mandatory death penalty, and rarer still were executions (Amnesty International, 2011). For the most part, the death penalty was effectively a life sentence, and capital crimes were far more likely to attract a determinate prison sentence of no longer than twenty years, the maximum prison sentence in Uganda prior to Kigula. By virtue of the rarity of executions, paired with the unbearable prison conditions, natural death caused by the dire conditions in Uganda’s prisons was a more immediate and real threat than execution (Amnesty International, 2000). Free legal representation was provided for those charged with capital offences, with those charged with murder, treason or armed robbery being entitled to automatic appeals and free legal representation throughout the appeal process. Kigula – the Litigation Process In 2003 a petition was raised by death row prisoners challenging the constitutionality of the death penalty in Uganda. Those prisoners were represented by a Ugandan firm of lawyers in partnership with lawyers from London who specialize in litigation focusing on the repeal of the mandatory death penalty.19 The thrust of the challenge in Kigula focused on the constitutionality of the death penalty per se, positing that the death penalty is a cruel, inhuman and degrading punishment. In the alternative to this argument, should it fail, the mandatory nature of the death penalty was challenged on the grounds that it breached the right to a fair trial, equality and the principle of separation of powers. Alongside this alternative, it was argued that an inordinate delay between sentence and execution amounted to cruel, inhuman and degrading punishment. The method of execution, hanging, was challenged on the same premise. The Supreme Court predictably dismissed the challenge to the death penalty per se, arguing that because the death penalty was provided for in the constitution, the principle of harmonious interpretation was invoked, which forbids a provision in the constitution (prohibition of inhuman punishment) to be used to destroy 19   Death Penalty Project Ltd, www.deathpenaltyproject.org; Katende, Ssempebwa & Co., Attorneys, www.kats.co.uk.

A Critique of Litigation and Abolition Strategies

43

another part of the constitution (the death penalty as a limitation on the right to life). Equally, the challenge to the method of execution was dismissed by the court, due to pain and suffering being an inherent part of the death penalty, which they had ruled to be constitutional. However, the court did resile from accepting sole responsibility for upholding hanging as a method of execution, stating that it was for the legislature to conduct a comparative study in order to find a method of execution in line with evolving standards of decency. The Supreme Court accepted the alternate challenge against the mandatory nature of the death penalty, pronouncing it unconstitutional on the grounds that it denied the right to appeal against sentence and breached the right of equality before the law and the right to a fair hearing as provided in the constitution. Furthermore, the court emphasized that the mandatory death penalty violated the principle of separation of powers, as it deprived the judiciary of discretion. By legislating for the mandatory death penalty, the legislature encroaches on the judiciary’s jurisdiction, which encompasses the function of sentencing. As part of the proclamation against the mandatory death penalty, those who had not yet completed the appeal system were granted the opportunity to be remitted to the High Court for re-sentencing, so as to attempt to mitigate their sentences. The topic of undue delay was also raised, and the court accepted the challenge. Typical of previous Commonwealth jurisprudence on the topic, the court ruled that an undue delay in execution and subsequent extended periods on death row constituted inhuman and degrading treatment, in violation of the constitution. The effect on death row prisoners, such as the anguish and mental torment of living under a sentence of death, commonly referred to as Death Row Syndrome, was also considered by the court, but in contrast to previous Commonwealth jurisprudence on this matter, it determined that such a claim was only justifiable once a death sentence had been confirmed by the highest appellate court, after which point the prisoner’s fate was in the hands of the President via the clemency process. We have heard fulsome praise about the three-year delay voiced, we suspect by commentators who had only read the headline announcement. The details of the judgment are less optimistic, the court’s decision impacted not on the judicial or legal system, which is routinely responsible for inordinate delays, corruption and negligent representation, but on the executive process of clemency, rendering the judgment particularly disappointing. Whereas Caribbean jurisprudence prescribed a delay of five years on death row as undue delay, in Uganda the court decided that three years following exhaustion of all appeal routes constituted undue delay. In real terms, this means an average of 12 years on death row constitutes unreasonable delay in Uganda, as according to Supreme Court records, the average capital case takes nine years to complete the appeals system. It also means that there is no rectitude for prisoners whose cases take an inordinate amount of time to get through the appeals system, if ever. At the time of the judgment some petitioners had already spent over twenty years on death row without having completed the appeals system.

44

Capital Punishment: New Perspectives

Those who had already completed the appeals system and had subsequently spent over three years on death row would have their sentences commuted to life imprisonment, without remission or opportunity to mitigate their sentence. However, following clarification by the court, Kigula petitioners who had exceeded three years on death row following confirmation of sentence by the highest appellate court would benefit from remission to an extent; their time on death row following confirmation of sentence by the highest appellate court would be counted towards their life sentence, although time served prior to that, including on remand, would not be considered. Many Kigula petitioners who had exceeded three years on death row following confirmation of sentence were frustrated by the ban on mitigating their sentences, as many could have benefited and received a sentence shorter than twenty years. Those on the petition who had completed the appeals routes and had not subsequently been on death row for more than three years, despite having been sentenced to the mandatory death penalty, would not benefit from the decision at all. The decision by the Supreme Court to reject the challenge to capital punishment itself came as no surprise to the legal team, who, having foreseen this outcome, were still confident that the mandatory death penalty would be repealed, and with this in mind had given an undertaking to Susan Kigula and the 417 others named in the petition that they would be represented pro bono at their mitigation hearings – so confident were they of the outcome that they began preparing pleas in mitigation. prior to the final judgment. Since when the concerned death row prisoners have been left to find their own representation. Many other pro bono lawyers did not take on Kigula beneficiaries’ cases believing that they are represented under the initial agreement as do the state briefs. Kigula: Proud Legacy or Squandered Opportunity? Has this judgment improved access to legally aided representation? No. Prior to Kigula, those found guilty of terrorism directly resulting in death, aggravated robbery, murder or treason were automatically obliged to complete the entire appeals system before their sentence could be confirmed. For this, legal aid was provided by way of state briefs. As a consequence of Kigula automatic appeals and legal aid have now been transformed, and there are neither automatic appeals nor legal aid for all persons found guilty of what are understood to be the most serious crimes in Uganda. Legal aid for appeals is still granted if someone is sentenced to death, but someone guilty of treason who receives whole of life imprisonment will now be unable to appeal automatically or receive legal aid for any such appeal. As such, legal aid provision has been diminished as a result of Kigula. Reducing legal aid for appeals will undoubtedly lead to fewer appeals, higher conviction rates, and consequently more prisoners. The inevitable increase in conviction rates will be compounded by virtue of the newly awarded judicial discretion, as judges are more likely to convict when they have options other than the death penalty to consider (Hood et al., 2009).

A Critique of Litigation and Abolition Strategies

45

The removal of the right to automatic appeal and legal aid for such appeals in capital cases, alongside the likelihood of increased guilty verdicts in capital trials, makes the representation received by capital defendants in the High Court that much more important. At the initial High Court trial, all capital defendants are granted legal aid by way of state brief lawyers. Should the defendant be sentenced to death, they will also be provided legal aid on appeal, but if sentenced to whole of life or any other lengthy prison term, there is no automatic appeal and no legal aid is provided for appeals, as a result of Kigula. The legal aid sector in Uganda is poorly resourced and representation provided by state briefs is thus weakened, with most meeting their clients for the first time on the day of the trial. State briefs dealing with capital cases prior to Kigula were confident that if their client was convicted of a capital offence which attracted a discretionary death sentence, even without any assistance from them their client would not receive more than twenty years. When dealing with a capital offence which attracted the mandatory death penalty, state briefs were assured that they did not have to enter any mitigating circumstances. Never before had state briefs dealt with capital mitigation to the extent they would now be obliged to. Following the repeal of the mandatory death penalty, state briefs are now required to undertake an entirely new task in addition to their usual functions. For a system which struggled to provide reasonable assistance in cases which did not require mitigation pleas, this additional duty will be incredibly difficult to deliver. There is, however, some room for cautious optimism since the advent of the Centre for Capital Punishment Studies’ Uganda Capital Mitigation Project, an aspect of which addresses the shortfall in capacity within the state brief system. Since 2011 CCPS interns have worked with several cohorts of final year law students of Makerere University law school training them in capital mitigation procedures and supervising their collection of information for pleas in mitigation, which are drafted for the benefit of those state briefs representing Kigula beneficiaries at re-sentencing hearings. The Memorandum of Understanding with the Uganda Prison Service facilitates access by the CCPS team and the Makerere students to the condemned with whom weekly legal clinics are held. Perhaps the most disturbing effect of Kigula has been on sentencing policy. At the time of the judgment, life imprisonment was a maximum of twenty years, and even though the issue of alternative sanctions was not raised by counsel, the Supreme Court had already ruled that commuted sentences should be commuted to life imprisonment, without remission. However, the courts later clarified that in light of the abolition of the mandatory death penalty, life now meant whole of life, without remission.20 In 2012, Uganda still had 27 capital crimes post-Kigula and retained the methods of execution: hanging in civilian cases and shooting in military cases. Prior to Kigula, the mandatory death penalty could be imposed for three of these 20   Tigo Stephen v. Uganda (Criminal Appeal no. 08 of 2009) [2011] UGSC 7 (10 May 2011).

46

Capital Punishment: New Perspectives

27 crimes: murder, armed robbery and treason. As such, for the vast majority of capital offences, not including those which attracted the mandatory death sentence such as defilement or robbery, the most serious sentence applicable would be twenty years in prison. However, following the Kigula case, the definition of ‘life’ has been reinterpreted to mean life in prison without parole (LWOP). As a result of the abolition of the mandatory death penalty, defendants found guilty of crimes for which they would usually have been sentenced to a maximum of twenty years are now receiving considerably longer sentences. The most recent version [April 2013] the sentencing guidelines advocate the use of LWOP and other disproportionate sentences, such as a minimum sentence of 30 years for defilement, an offence which usually attracted a sentence of less than twenty years prior to Kigula. The imposition of alternative sentences is a topic which warranted comprehensive consultation, inter-agency communication and co-ordination on the topic of abolition and alternatives, which could have enabled research and development of appropriate policy on the topic and mitigated the reactionary changes which transpired. Whole of life imprisonment and draconian determinate sentences pose a particular problem for the Ugandan prison system. Conditions in Uganda’s prisons were untenable even when the maximum prison sentence was twenty years, exemplified by the maximum security prison operating at over 366 per cent of its official capacity (Human Rights Watch, 2011). The post-Kigula sentencing landscape is aggravating the conditions in prison and having a negative impact on both prisoners and staff, compounded by the influx of prisoners serving very long sentences and those serving sentences where remission does not apply. Remission is a tool that Uganda’s prison staff and prison management throughout the world utilize for dynamic security purposes. Being able to reduce a prisoner’s sentence for good behaviour is one of the inducements available for maintaining good order and discipline, and encouragement of good behaviour is key to humane prison management. This is the landscape against which the Uganda Prison Service toils without any specialist training in the management of life and long-term prisoners. Despite the best efforts of CCPS interns who have all benefited from the cooperation of the judicial and prison authorities, it has still not been possible to identify correctly the current status of the 418 Kigula beneficiaries. What data we have indicates that 62 beneficiaries have thus far been re-sentenced, of which three received sentences of less than five years, 17 sentences of 20 years, four were re-sentenced to death, three to whole life imprisonment, seven to sentences over 25 years and four to sentences over 40 years. Twelve others were released having completed the fresh sentence or for time already served, and the remainder after a range of sentence lengths. Prior to the issuance of the recent sentencing guidelines the CCPS was invited by the UNOHOCR and the Embassy of the Netherlands to submit a paper to assist them in formulating the terms of reference of the proposed Kigula task force. What

A Critique of Litigation and Abolition Strategies

47

follows is extracted from a paper prepared by CCPS intern Trisha Randhawa, criminal law attorney: But many petitioners in the Kigula case have now spent over a decade on death row with delays in case proceeding at the appellate level in Uganda bordering on chronic. Despite Article 28(1) of the Ugandan Constitution requiring ‘speedy’ hearing of matters, of the at least 187 Kigula beneficiaries being held in the Condemned section of Luzira Prison who are entitled to go back for resentencing before the High Court of Uganda, 112 are still waiting for their appeal to be heard in the Court of Appeal with some having waited since convictions in the late 1990s to be brought before any subsequent Court, not only for mitigation but even for appeal so as to review the safety of their convictions in the first place. The right to have one’s conviction and sentence reviewed by a higher tribunal according to law is of-course an important fair trial right enshrined in Article 14 of the International Covenant of Civil and Political Rights (‘ICCPR’), but paragraph 6 of the Safeguards Guaranteeing of the Protection of the Rights of those facing the Death Penalty21 also provides for an automatic right of appeal in death penalty cases, which is reflected in Ugandan law.22 The following recommendations summarize what must be the priorities for that Task Force: 1. Diligent efforts are required throughout the Ugandan judicature to trace and locate the files of all Kigula beneficiaries, with relevant justice system stakeholders called to account where files have been lost 2. Judgements must be handed down forthwith in relation to the appeals of the at least 7 Kigula beneficiaries whose hearings were in held in the Court of Appeal, in some cases 5 years ago now 3. Resourcing required to publish judgments as a matter of course must be secured and the judgments for all Kigula beneficiaries released forthwith and reviewed so as to allow for competent legal advice as to the strength of any potential appeal against their conviction at an early stage in order to ensure matters are not inadvertently raised in mitigation which may be prejudice rights of appeal against the convictions. 4. Lawyers and Judges must be trained in principles of mitigation and relevant law and practice, in accordance with the imminent Sentencing Guidelines, which must be drafted carefully with experienced external input so as to ensure consistency and fairness in the handling of these matters.

21   Resolution 1984/50 of 25 May 1984 of the United Nations Economic and Social Council. 22   See Rule 59(1)(a) of the Judicature (Court of Appeal) Rules and Rule 56(1)(a) of the Supreme Court Rules.

48

Capital Punishment: New Perspectives 5. Original sentencing judges of Kigula beneficiaries still sitting on the bench of the High Court of Uganda to hold a special session to re-sentence those Kigula beneficiaries whom they presided over. 6. Kigula beneficiaries whose judges are no longer part of the High Court of Uganda should be allocated to another High Court judge and their matters dealt with expeditiously in a special session. 7. Sufficient notice of scheduled re-sentencings and capital matters generally, as well as adequate financial resources must be provided to defence representatives so as to enable them to properly prepare matters and ensure the presentation of full pleas in mitigation in Court.23

What lessons should be learnt from the litigation strategy adopted in Kigula? Whilst repeal of the mandatory death penalty – indeed any mandatory disposition – is clearly a laudable outcome, too little attention has been given to examining the detail and the effect of the judgment. With every challenge to an element of the death penalty comes the reiteration (unintended) of the constitutionality of the death penalty itself, the idea that the death penalty itself is constitutional provided it is done in a certain way or within a certain period or to a certain type of person. In Uganda, repeal of the mandatory death penalty seems to have put an end to even the modest discourse on the merits of the death penalty which preceded the Kigula ruling, which represents a disappointing legacy for a judgment that should have delivered more. In addition to the issues raised above, there is the failure to ensure that the assurances given to the ‘beneficiaries’ of timely re-sentencing are fulfilled, leaving them all, even those who have been re-sentenced, in a quagmire of despair and disappointment. This is further compounded by a failure, of will or through resources, to address the humanitarian deficit exacerbated in the aftermath of Kigula – including re-sentencing, adequate representation, prisoner and family counselling, prison management, and support for families of homicide victims and the condemned – evidence surely that there is more to abolition than the repeal of executions and the mandatory sentence of death? Malawi and Kenya: More Collateral Damage? Malawi’s mandatory death penalty was challenged in the case of Kafantayeni, as was Kenya’s in the pending case of Mutiso. In both Kenya and Malawi, de facto moratoriums existed, as executions had not been carried out for years (Novak, 2009). In Kafantayeni, the constitutionality of the death penalty per se was not challenged, only the constitutionality of the mandatory death penalty. In Mutiso, only the mandatory death penalty for murder was challenged, resulting in an 23   Personal correspondence between Trisha Randhawa of the CCPS Project and the Chairman of the Kigula Task Force.

A Critique of Litigation and Abolition Strategies

49

incongruous situation where the mandatory death penalty is left intact for the lesser offences of robbery and treason. In Mutiso’s submissions, the court was advised to follow the ruling in Kigula with regard to the issue of undue delay; the court followed this guidance and replicated the unsatisfactory decision in Kigula which pronounced a delay of more than three years following confirmation of sentence from the highest appellate court unconstitutional; it did not matter how long the delay in appeals might have been, delay was only counted following the highest appellate court’s confirmation of sentence. In Kafantayeni, no such challenge regarding undue delay was even included in the submissions. The confused decisions in Kafantayeni and Mutiso have created much legal and practical uncertainty. Like Kigula, the challenges were characterized by a lack of inter-agency co-ordination. In Kenya, the decision in Mutiso was pre-empted by President Kibaki in what was lauded as a victory for human rights and the largest commutation of death sentences ever recorded, where 4,000 prisoners had their death sentences commuted to life without parole (Penal Reform International, 2011). Considering that executions had not been carried out since 1987, the human rights victory could be more aptly comprehended as a token political gesture. The decision to commute remains clouded in mystery, though we do know that the UN Committee on Human Rights was instrumental in the negotiations that led to Kibaki’s decision, but still unknown is the detail of the ‘deal’. The UN got 4,000 condemned removed from their death penalty statistics, leaving us wondering why with this apparent level of influence the UN didn’t negotiate further concessions, including the issue of re-sentencing. Why didn’t they insist that whole of life imprisonment was not to be the default sentence? What was the tangible benefit to Kibaki or to Kenya? Of most concern: what was the benefit to the commuted? Such a large number of commutations has meant that there has been no physical change in the squalid conditions endured by those prisoners who have benefited from them; they are still detained in the same foetid cells as before, separated from other prisoners serving lesser sentences. The only practical difference between a death sentence and life without parole is the ability to work; condemned prisoners are prohibited from working in prison, but those serving life without parole or any other sentence are permitted to do so. As a result of the commutations, the Kenyan Prison Service has acquired 4,000 new ‘workers’ who will endure hard labour, unremunerated, benefiting prison industries and private enterprises, until they die. This is yet another missed opportunity in the interests of expediency. In addition, by commuting all death row inmates’ sentences to life without parole before the court ruling in Mutiso, President Kibaki denied all prisoners serving a mandatory death sentence for murder the opportunity to mitigate their sentences. As pronounced in the Mutiso judgment, at para. 37, the discretion endowed upon judges in murder trials allows them to sentence prisoners to penalties other than life or death, according to their level of culpability to be established through mitigation pleas. As such, the commutations have served to deny thousands of prisoners the opportunity to receive sentences far less severe than life without parole.

50

Capital Punishment: New Perspectives

Malawi’s criminal justice system is fraught with defects, from exorbitant HIV rates amongst prisoners that compounds incessant overcrowding to legal aid lawyers’ lack of experience to judges demanding higher payment to sit on murder trials. Yet the issue which generates the most concern, the most research and documentation is the issue of delay; remedying the backlog of homicide trials has been at the centre of donor-driven initiatives for many years (Dudgeon and Gopalan, 2010). The litigation strategy failed to take account of the multi-agency co-ordination on the topic of delay in homicide trials, into which Kafantayeni should have been incorporated. Yet again, a lack of communication paired with a confused and fragmented application of the Kigula judgment meant that the issue of delay was not even raised in Kafantayeni. Kafantayeni’s legacy is one of incomplete litigation, a default sentence for all ‘beneficiaries’ by presidential decree of whole of life imprisonment (judged to be unconstitutional) and a failure to conduct a single re-sentencing hearing five years after the judgment. Alternatives to the Death Sentence In 2005 the US Supreme Court in Roper v. Simmons outlawed the death penalty for persons who committed their crimes as juveniles. Since that ruling, more juveniles have been sentenced to death in America, and more than 2,000 juveniles currently live under a sentence of death.24 How is this possible? It is possible because we have two death penalties in America: death by execution and life without parole, more accurately described as death by incarceration (Johnson and McGunigall-Smith, 2008). We cannot execute juveniles, thanks to the Supreme Court, but we can lock them up and throw away the key, holding them captive until they die in prison after decades of empty and often debilitating confinement. They are dead kids walking, until they grow up and die as old convicts (Johnson and Tabriz, 2011).

This is the stark reality of the decision to entomb our citizens, be they child or adult, despite the overwhelming evidence that offenders, however grotesque their offending, are capable of changing and consequently making future contributions to society. We turn again to Johnson and Tabriz for confirmation of this: We contend that the presumed moral depravity of murderers, juvenile or otherwise, is belied by what we know about people who kill. In fact, murderers typically are anything but incorrigible, even if their crimes are uniquely devastating in the harm they inflict. Murderers adapt in a largely law-abiding way in prison, displaying little or no violence (Johnson & McGunigall-Smith, 2008; Sorensen & Wrinkle, 1998). Those murderers who are released from prison after long

24   A. Nellis, personal communication, 23 August 2010.

A Critique of Litigation and Abolition Strategies

51

years of confinement are, for the most part, law-abiding citizens; they exhibit the lowest recidivism rates of all offenders (Langan & Levin, 2002). Moreover, capital murderers who have their convictions overturned and are released from death row into the general prison population, presumably among the worst of the worst murderers, also live law-abiding lives behind bars (Cunningham, Reidy, & Sorensen, 2008; Cunningham & Sorensen, 2006). Remarkably, those capital murderers who are ultimately released from prison – and there have been hundreds of such releases as a result of capital litigation, especially in the wake of Furman v. Georgia (1972) – exhibit low recidivism rates, significantly below that of other felons (Marquart & Sorensen, 2006; see generally, Cheever, 2006).

Was the issue of effective, proportionate and humane alternative sentences any part of the deliberations of the UN, the presidential advisers in Malawi and Kenya, the lawyers, the funders and the constitutional courts? It would appear not, though this is unsurprising as it mirrors the failure to give serious thought to alternatives characteristic of the abolition industry. Amnesty International’s anti-death penalty campaign remains silent on the issue of life without parole as an alternative to capital punishment, despite the inherent human rights considerations (Stoate, 2011; Appleton and Grover, 2007). Conjecture about Amnesty International’s motivations to stay silent on the subject is rife, and the issue of reluctance based on funding interests has been raised repeatedly (Boyle and Bernstein, 2002). It is reassuring to note that in the past few years the issue has become part of the agenda of a number of NGOs, including Penal Reform International, Human Rights Watch and the Office for Security and Co-operation in Europe, even the defining text on capital punishment, The Death Penalty: A Worldwide Perspective (Hood and Hoyle, 2008), now includes a chapter on alternatives and one on another Cinderella topic, victims. Most member states of the Council of Europe have adopted a form of life imprisonment as the alternative sanction, though few anticipate that those sentenced to life will in fact remain in prison for the rest of their natural lives. However, the process of selecting the alternative penalty appears not to have been the subject of much discussion and lacks consistency. Life sentences vary considerably in terms of their length (Hodgkinson, 2004a, 160) and their use across Europe. The UK makes the greatest use of life sentences, followed by Luxembourg. The countries that tend to use it the least include Bulgaria, Estonia, Latvia, Lithuania, Moldova, the Netherlands, Romania, Slovakia and the Former Yugoslav Republic of Macedonia (Newcomen, 2005). Currently, only a handful of countries in the Council of Europe have provisions for whole life imprisonment, including Armenia, Bulgaria, Sweden, Ukraine, the Netherlands, Estonia and Turkey.25 Although normally a whole life tariff will 25   Article 38.a. (New, SG 50/95) (1) of the 1968 Penal Code of Bulgaria, amended 13 September 2002; Chapter 3, Section 1 of the 1962 Swedish Penal Code, Ds 1999:36, published 1999; see Articles 51, 64 and 115 of the Criminal Code of Ukraine, entered

52

Capital Punishment: New Perspectives

only be imposed under special circumstances, such as multiple murders or prior convictions, in some cases it is possible to petition the president for a pardon (for example, Bulgaria26 and Estonia27) or the court for a determinate tariff (for example, Sweden28) after a certain period has elapsed. England and Wales recently joined the list of those countries with whole life tariffs. Stricter penalties brought in under the 2003 Criminal Justice Act mean that for the first time in generations courts have the powers to hand down a whole life sentence, to be distinguished from the power of the executive to ‘impose’ whole life tariffs.29 After abolition of the death penalty in 1965, the tariff introduced for all murders was a mandatory life sentence, and at the time this was never intended to be whole of life. Under the new guidelines, persons convicted of murder after December 2003 are sentenced in accordance with the four starting points set out in the 2003 Criminal Justice Act. The starting points depend on the seriousness of the crime and the age of the offender. For offenders under the age of 18, the starting point is 12 years’ imprisonment. For adult offenders, the entry points are 15 years, 30 years, or in the case of offenders over the age of 21, whole of life imprisonment. Mitigating and aggravating factors then come into consideration, which could increase or decrease the tariff. The new provisions have placed a huge burden on prison populations in England and Wales, as they are doing in Uganda’s prisons. These data should be a consideration for other countries when constructing penal strategies as they represent a wholly unnecessary and disproportionate response to the crimes and the offenders for which they are reserved – a humanitarian cost and a financial drain. The Rationale for Life Meaning Life30 The advantages of a life sentence without the possibility of parole are attractive to governments which require a punishment that achieves the same ‘benefits’ as the death penalty. In particular, a life term without the possibility of release is believed into force 1 September 2001; Article 31 of the Dutch Penal Code, adopted 3 March 1881, updated by amendments up to 1994; Article 45 of the Penal Code of Estonia, RT I 2001, 61, 364; consolidated text RT I 2002, 86, 504, passed 6 June 2001, entered into force 1 September 2002; Articles 47(1) and 48(1) of the Criminal Code of Turkey, Law no. 5237, passed 26 September 2004. Whilst every effort has been made to ensure that the correct articles and dates have been cited in this note, due to translation issues, some errors might remain undetected. 26   Article 74 of the 1968 Penal Code of Bulgaria, amended 13 September 2002. 27   Article 77 of the Penal Code of Estonia, RT I 2001, 61, 364; consolidated text RT I 2002, 86, 504, passed 6 June 2001, entered into force 1 September 2002. 28   See Kriminalvården (2007). 29   Section 269 (4) and Schedule 21. 30   This section draws on Abei (2010), based on 2008 survey results.

A Critique of Litigation and Abolition Strategies

53

to fully protect the public as it incapacitates offenders for the rest of their lives. It also appeals to those members of the public who have become increasingly frustrated at offenders being sentenced to ‘life’ being released early on parole, whilst at the same time giving the anti-death penalty movement more credibility by showing that it is not soft on crime. Yet if we consider the public protection element, lifers eligible for parole tend to have very low rates of recidivism after release (Mauer, King and Young, 2004). Data on reconviction rates in England and Wales reveal that of the 1,719 lifers released between 1 April 2000 and 31 March 2007, 73 (4.2 per cent) were reconvicted of an offence, of which 30 (0.5 per cent) were convicted of a serious offence such as offences against the person or sexual offences.31 A life sentence with or without the possibility of parole also eliminates the danger of executing innocent people. The irreversibility of the death penalty is a factor that has greatly reduced its support in recent years. A recent survey conducted by the Death Penalty Information Center highlighted that 87 per cent of Americans believe that an innocent person has been executed in recent years, with 55 per cent saying that this fact has either made them more sceptical of capital punishment or more opposed to it. However, 31 per cent said that knowing an innocent person may have been executed has had no effect on their death penalty views (Dieter, 2007). Life without parole is also attractive because of its strong retributive element. Keeping someone locked up for the rest of their life is as harsh a punishment as the death penalty, if not harsher. In fact, Hugo Bedau, arguably the most influential thinker and activist in the abolitionist debate in America, has questioned abolitionists who favour this alternative, stating that it also is an ‘unreasonably severe’ punishment: ‘The dilemma of the opponent of the death penalty, if current research survey is a reliable guide, is that at present the public is prepared to accept the abolition of capital punishment only if the alternative to it is itself a morally unacceptable deprivation of liberty.’ In Trinidad and Tobago, as a result of several Privy Council decisions,32 a number of death row inmates have had their death sentences commuted to a prison term of 75 years or natural life with hard labour.33 It has frequently been 31   Home Office (2007), ‘Analysis of True Life Reconviction, 1 April 2000–31 March 2007’, obtained via personal communication between the CCPS and the Home Office, Pre-release Section. 32   For example, Earl Pratt and Evan Morgan v. The Attorney General for Jamaica and The Superintendent of Prisons, Saint Catherine’s Jamaica [1993] UKPC 10; Balkissoon Roodal v. The State of Trinidad & Tobago [2003] UKPC 18; Charles Mathews v. The State of Trinidad & Tobago [2004] UKPC 12. 33   The actual meaning of a life sentence in Trinidad and Tobago however remains largely undefined in the statute books. Although it is a discretionary sentence, 75 years or natural life with hard labour has emerged as the norm, particularly for those whose death sentence has been commuted to life. A constitutional motion was scheduled to be heard in 2008 on the meaning of a life sentence, following the Matthews decision; see Hodgkinson, Kandelia and Gyllensten (2008).

54

Capital Punishment: New Perspectives

reported that many inmates would, however, prefer the death penalty given that the alternative is spending the rest of their life in prison, often in harsh conditions (Ní Ghrálaigh, 2005; Black, 2005; Choudhury, 2005; West, 2006). Some have argued that the severity of a natural life sentence and the quality of life in prison has as strong a deterrent effect as the death penalty, if not stronger (Katz, Levitt and Shustorovich, 2003). The severity of life without parole is perhaps recognized in the decisions of some states not to extradite offenders to countries where they might be subjected to a whole life tariff, such as Uruguay (US Department of State, 2004) and Mexico (BBC News, 2005). Constitutional courts in Germany (1977), France (1994), Italy (1987) and Namibia (1996) recognize that life-sentenced offenders have a ‘fundamental right to be considered for release’.34 This issue came before the European Court of Human Rights in 2008 in the case of Kafkaris v. Cyprus35 when the Grand Chamber held that a whole life tariff would not violate Article 3 as long as there was some possibility that a life sentence was de jure or de facto reducible. It is against this background that the European Court of Human Rights considered a challenge to the irreducible sentence in a handful of English cases and delivered a cautiously optimistic ruling in July 2013 when despite the reluctance of even the most powerful human rights NGOs to touch the subject, it ruled that life without parole (LWOP) sentences breach the Article 3 prohibition against inhuman and degrading treatment or punishment. However, the court still afforded the UK a margin of appreciation with regards to how the decision in Vinter v. UK (66069/09, 130/10 and 3896/10, 9 July 2013) is to be implemented. The Court recommended that the UK follow international trends which guarantee reviews after 25 years in prison, but the only enforceable stipulation the court made was for the review system to be predictable in its application and reasonable in its assessment of the penological grounds for continued detention or release, meaning that the prisoner must know at the beginning of her sentence when that sentenced can be reviewed and what conditions are set for her release. It is yet to be seen how the UK will interpret this decision. As progressive as the decision sounds, by allowing such a margin of appreciation, the UK could still reform LWOP policy in line with the decision, but retain harsh sentencing mechanisms, such as by guaranteeing a review after 50 years in prison. Although defying the spirit of the ruling, such a change may still be feasible under Vinter. However, the spirit of the ruling is indeed progressive, effectively legitimising a right to hope, as well as a right to rehabilitation and atonement, which may have far wider-reaching ramifications. As Judge Power-Forde stated:

34  Van Zyl Smit, D. (2002). Taking Life Imprisonment Seriously in National and International Law. The Hague: Kluwer Law International. 35   Kafkaris v. Cyprus, ECHR Application no. 21906/04, 12 February 2008.

A Critique of Litigation and Abolition Strategies

55

…hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

It is important to note that neither the Council of Europe recommendations on the management of long-term prisoners36 nor the UN recommendations on life imprisonment (United Nations, 1996) concede the possibility of whole life sentences, although both acknowledge that following regular and rigorous review, some life-sentenced prisoners may never be deemed safe for release. Very important principles are embraced in these recommendations and those of the Council of Europe guidelines on the management of life sentence and long-term prisoners. They are that not only is it important to give careful thought to the nature of the alternative penalty, but it must be justified in each and every case, and furthermore the management of this population in prison speaks volumes about our humanity. Our experience is that few nations satisfy these criteria. It is important also to recognize that locking more people up for life will have an enormous impact on the management of the prison service. Not only will whole life imprisonment result in an increased and ageing prison population, but in most jurisdictions, keeping someone in prison for the rest of their life clearly costs more. It also creates a dangerous environment for those managing lifers. With no prospect of release, what incentives are available to ensure the co-operation and compliance of prisoners who have neither hope nor anything to lose? There has to be light at the end of the tunnel (Hodgkinson, 2004a). A Harvard Law Journal article notes: While a death sentence and a life-without-parole sentence are surely not equivalent, declining to compare their costs is unjust. To refuse to look at the effect of life-without-parole statutes on non-capital defendants is to sanction or encourage a law that holds twenty five men in prison until their natural deaths in order to spare one man the death penalty. That has been the position of many death penalty abolitionists, and it is a troubling one. … The purpose of this Note is not to argue that life-without-parole statutes should be abolished. Rather, it is to argue that such statutes are neither a necessary nor a particularly useful step toward eliminating the death penalty, and that death

36   Recommendation Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners, adopted by the Committee of Ministers on 9 October 2003 at the 855th meeting of the Ministers’ Deputies.

Capital Punishment: New Perspectives

56

penalty abolitionists have a responsibility to consider carefully the effects of such laws on non-capital defendants before they engineer or encourage their passage. (Steiker, 2006)

While some death penalty opponents may regard the acceptance of whole life sentences as the only way of getting the death penalty off the statute books, they should consider the fact that they may be trading one severe punishment for another. Conclusion The overarching objective of this chapter’s critical appraisal is to pose difficult questions to the generic abolition movement. As uncompromising abolitionists, we want to improve the quality and efficacy of strategies in order to remove all traces of capital punishment, including the infrastructure which is its lifeblood. Without this, there will not be complete abolition. Our assessment is rather unforgiving, but we believe that abolitionists are too easy to please, too quick to compromise, some would say capitulate. In a frantic search for even a glimpse of abolition, they see success in everything they do. World Congresses, World Days, UNGA draft resolutions and whole of life sentences are all in their own way trumpeted as ‘victories’ by their proponents – all this with not a believer in sight. Isn’t it time to re-calibrate their measures of success, and in so doing raise the bar? We believe that we have set out a strong case that too little benefit has flowed from the funds expended by some national governments, the European Commission and the United Nations. In the absence of compelling evidence to the contrary, such funding should be reduced drastically, or better still distributed to grassroots projects, which have demonstrated the ability to build capacity absent from the generality of the vanity of multinational activities and actors. In essence, better governance is what is needed. We believe that very important work can be carried out in retentionist countries in preparation for repeal of executions and de jure abolition. All touched by the death penalty are in some respects ‘victims’ and efforts should be made to improve their lot including, for example, that of the families of the victims of capital crimes and that of the condemned. Hodgkinson has been working with the Council of Europe establishing a victim support project in Belarus for the families of homicide victims, even though there is no likelihood of abolition in the foreseeable future. In chapter six we review the visiting arrangements for the families of the condemned and chapter seven examines the plight of the children of the condemned and the executed. Not only do we believe that such services are important in themselves but strategically such an approach could help highlight shared concerns about capital punishment helping soften the antagonism characterisitic of the current debate. As to the role of the law and lawyers’ contributions to the abolition of capital punishment, we are of the opinion that with few exceptions this should be

A Critique of Litigation and Abolition Strategies

57

restricted to representing capital defendants and appellants where the ‘win at any cost’ principle can cause least damage. Law is too blunt an instrument, and wholly unsuited to the nuances of the many issues at the core of capital punishment. From the earlier analysis of the judgments in Commonwealth jurisdictions of the Caribbean, Uganda, Malawi and Kenya it is evident that the litigation strategy deployed has brought with it a host of entirely foreseeable, if unintended, negative consequences, confirming our long-held position that lawyers continue to be part of the problem. This begs the question: how often do consequences need to occur before they can no longer be considered to be unintended? Also characteristic of this approach, whether implemented in the Commonwealth Caribbean or in Commonwealth Africa, is the comprehensive failure to build sustainable capacity. Nearly thirty years after the founding of the London Panel of Lawyers and its work in the Caribbean there is little or no substantial evidence of local capacity in either legal education or legal practice or of a human rights culture. The continuation of the British engagement in the Caribbean and reliance on it underscores this. A view increasingly shared by many in the legal community is that there are negative consequences to a strategy that places such heavy reliance solely on litigation – to be distinguished from an investment in legal education and training. However, in Jamaica the engagement over the past decade of UK-based initiatives has complemented an already vibrant civil society. The CCPS, the Bar Human Rights Committee of England and Wales (BHRC) and the Death Penalty Project (DPP) have engaged the Jamaican legal education and practice communities via the Independent Jamaica Council for Human Rights – the CCPS by offering its internship scholarships and Training of Trainers seminars for lawyers and psychiatrists, the BHRC through its rotating senior advocate project providing litigation support to young advocates engaged in capital litigation, and the DPP’s litigation support and judicial training. In the context of the wider Caribbean, it is quite remarkable that there have been no executions in Jamaica since 1981 despite an unremitting rise in serious violent crime, with homicide numbers rising annually with little relief. The public pressure to resume executions has been unrelenting, yet despite this, governments have steadfastly maintained the status quo with the occasional concession, consisting mostly of rhetoric. Perhaps the highly developed and diverse civil society acts as a buffer? Is there a lesson here for abolitionists? Plainly, the activities of abolitionists in their many guises have helped shine a light on a perfectly pointless penalty, which we applaud, but less focus on rhetoric and more on practical, less expensive grassroots activities should be on the agenda for the rest of this decade, as should a concerted effort to engage with those who support capital punishment, who do so for as diverse reasons as do those who oppose it. One could be forgiven for concluding that the activities of those who oppose capital punishment are for the benefit of abolitionists not abolition.

58

Capital Punishment: New Perspectives

References Abei, M.F. (2010), Council of Europe Annual Penal Statistics, Strasbourg: CoE. Akers, K.A. (2007), Retention and Ratification: The ICC Paradox, Internship Report, London: Centre for Capital Punishment Studies. Alston, P. (2010), Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mission to Ecuador, A/HRC/17/28/Add.2, 8 May. Amnesty International (2000), A Human Rights Manifesto for Uganda: What Needs to be Done, AI Index: AFR 59/12/00. Amnesty International (2007), Uganda – Amnesty International Report 2007, www.amnesty.org/en/region/uganda/report-2007 (accessed 5 June 2013). Amnesty International (2011), Death Sentences and Executions in 2010, ACT 50/001/2011, 28 March. Anon. (2006), ‘A Matter of Life and Death: The Effect of Life-without-parole Statutes on Capital Punishment’, Harvard Law Review, 119, 1,838–54. Appleton, C. and Grover, B. (2007), ‘The Pros and Cons of Life Without Parole’, British Journal of Criminology, 47, 597–615. Ariko, C. and Kagolo, F. (2009), ‘Museveni Pardons Rwakasisi’, New Vision, 20 January. Avocats Sans Frontières (2009), Case Study: The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo, Brussels: Avocats Sans Frontières. Bantekas, I. and Hodgkinson, P. (2000), ‘Capital Punishment at the United Nations: Recent Developments’, Criminal Law Forum, 11, 23–34. BBC News (2005), ‘Mexico Alters Extradition Rules’, 30 November, http://news. bbc.co.uk/1/hi/world/Americas/4483746.stm (accessed 20 May 2013). Black, K. (2005), in CCPS Internship Reports 2005, London: Centre for Capital Punishment Studies, www.westminster.ac.uk/__data/assets/pdf_ file/0003/82362/ccps_internship-report-2005.pdf (accessed 20 May 2013). Boyle, F. and Bernstein, D. (2002), ‘Interview with Francis Boyle: Amnesty on Jenin’, Covert Action Quarterly (Summer). Cambodian League for the Promotion and Defence of Human Rights (LICADHO) (2007), Abolition of the Death Penalty: Ratification of the 2nd Optional Protocol to the IPCCR and Cambodia, a LICAHDO Briefing Paper, Phnom Penh: LICADHO. Cheever, J.M. (2006), Back from the Dead: One Woman’s Search for the Men Who Walked Off America’s Death Row, New York: Wiley. Chenwi, L. (2007), Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective, Pretoria: Pretoria University Law Press. Choudhury, N. (2005), in CCPS Internship Reports 2005, London: Centre for Capital Punishment Studies, www.westminster.ac.uk/__data/assets/pdf_ file/0003/82362/ccps_internship-report-2005.pdf (accessed 20 May 2013). Council of Europe (CoE) (2003), Recommendation Rec (2003) of the Committee of Ministers to Member States on the Management by Prison Administrations of

A Critique of Litigation and Abolition Strategies

59

Life-sentence and Other Long-term Prisoners, www.coe.int/t/dghl/standardsetting/ prisons/ (accessed 20 May 2013). Cunningham, M.D. and Sorensen, J.R. (2006), ‘Nothing to Lose? A Comparative Examination of Prison Misconduct Rates among Life-without-parole and Other Long-term High-security Inmates’, Criminal Justice and Behaviour, 33, 683–705. Cunningham, M.D., Reidy, T.J. and Sorensen, J.R. (2008), ‘Assertions of “Future Dangerousness” at Federal Capital Sentencing: Rates and Correlates of Subsequent Prison Misconduct and Violence’, Law and Human Behaviour, 32, 46–63. Dieter, R. (2007), A Crisis of Confidence: Americans’ Doubts about the Death Penalty, Washington, DC: Death Penalty Information Center. Dudgeon, M. and Gopalan, P. (2010), The Homicide Case Backlog 2009/10 in Malawi: Trial Issues and Recommendations for Improvement, Internship Report, London: Centre for Capital Punishment Studies. European Instrument for Democracy and Human Rights (EIDHR) (2011), Compendium 2007–2010: Abolition of the Death Penalty Worldwide, http://ec.europa.eu/ europeaid/what/human-rights/index_en.htm (accessed 20 May 2013). Fernandez,. O. (2008), Towards Abolition of the Death Penalty in Uganda, Kampala: Fountain Publishers. Fishkin, J. (1995), The Voice of the People: Public Opinion and Democracy, New Haven, CT: Yale University Press. Gardiner, N. (2011), ‘The European Union Gives Millions in Taxpayers’ Money to Anti-death Penalty Groups in America’, Daily Telegraph, 2 March, http:// blogs.telegraph.co.uk/news/nilegardiner/100078360/the-european-uniongives-millions-in-taxpayers%E2%80%99-money-to-anti-death-penaltygroups-in-america/ (accessed 20 May 2013). Hodgkinson, P. (2004a), ‘Alternatives to the Death Penalty: The United Kingdom Experience’, in Death Penalty: Beyond Abolition, Strasbourg: Council of Europe Publishing. Hodgkinson, P. (2004b), ‘Capital Punishment: Improve It or Remove It?’, in P. Hodgkinson and W.A. Schabas (eds), Capital Punishment: Strategies for Abolition, Cambridge: Cambridge University Press. Hodgkinson, P. (2005), ‘The Unintended, Entirely Foreseeable though Perhaps Unavoidable Consequences of Litigating the Abolition of Capital Punishment’, Amicus Journal, 13. Hodgkinson, P., Kandelia, S. and Gyllensten, L. (2008), ‘Capital Punishment: A Review and Critique of Abolition Strategies’, in Jon Yorke (ed.), Against the Death Penalty, Aldershot: Ashgate, 249–79. Hood, R. and Hoyle, C. (2008), The Death Penalty: A Worldwide Perspective, Oxford: Oxford University Press, 4th edn, 180, n. 111. Hood, R. and Hoyle, C. (2009), ‘Abolishing the Death Penalty Worldwide: The Impact of a New Dynamic’, Crime and Justice, 38(1), 1–36.

60

Capital Punishment: New Perspectives

Hood, R., Seemungal, F., Mendes, D. and Fagan, J. (2009), ‘A Penalty without Legitimacy: The Mandatory Death Penalty in Trinidad and Tobago’, papers prepared for a conference held in Port of Spain on 7 March 2009. Human Rights Watch (2011), ‘Even Dead Bodies Must Work’: Health, Hard Labor, and Abuse in Ugandan Prisons, New York: Human Rights Watch. Jamaicans for Justice (JFJ) (2010), State of Jamaica NGO Report on the Implementation of the ICCPR (Prior to the Adoption of the List of Issues), United Nations Human Rights Committee, 100th UNCHR Session, Geneva, Switzerland, October 2010, www2.ohchr.org/english/bodies/hrc/docs/ngos/ JFJ_Jamaica100.pdf (accessed 5 June 2013). Johnson, R. and McGunigall-Smith, S. (2008), ‘Life without Parole, America’s Other Death Penalty: Notes on Life under Sentence of Death by Incarceration’, The Prison Journal, 88, 328–46. Johnson, R. and Tabriz, S. (2011), ‘Sentencing Children to Death by Incarceration: A Deadly Denial of Social Responsibility’, The Prison Journal, 91, 198, http:// tpj.sagepub.com/content/91/2/198 (accessed 20 May 2013). Katz, L., Levitt, S.D. and Shustorovich, E. (2003), ‘Prison Conditions, Capital Punishment, and Deterrence’, American Law and Economics Review, 5(2),318–43. Kontorovich, E. (2009), ‘Introductory Note to Exchange of Letters between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy’, International Legal Materials, 48(4), 747–50. Kriminalvården (2007), Basic Facts: The Swedish Prison and Probation Service 2007, Swedish Prison and Probation Service, Norrköping, Sweden, September, www.kriminalvarden.se/upload/Informationsmaterial/Basic%20Facts%2007. pdf (accessed 5 June 2013). Langan, P.A. and Levin, D.J. (2002), Recidivism of Prisoners Released in 1994, Washington, DC: Bureau of Justice Statistics, NCJ 193427, www.bjs.gov/ index.cfm?ty=pbdetail&iid=1134 (accessed 20 May 2013). Lay, T. (2010), Capital Punishment in Uganda: The Risk of Liberal Complacency, Internship Report, London: Centre for Capital Punishment Studies . McGann, A. and Sandholtz, W. (2012), ‘Patterns of Death Penalty Abolition, 1960–2005: Domestic and International Factors’, International Studies Quarterly, 56(2), 275–89. Marquart, J.W. and Sorensen, J.R. (2006), ‘Institutional and Post Release Behaviour of Furman-commuted Inmates in Texas’, Criminology, 2, 677–94. Mauer, M., King, R.S. and Young, M.C. (2004), The Meaning of ‘Life’: Long Prison Sentences in Context, Washington, DC: The Sentencing Project. Mogire, E. and Agade, K.M. (2011), ‘Counter-terrorism in Kenya’, Journal of Contemporary African Studies, 29(4), 473–91. Mutiya, S. (2007), ‘Museveni Supports the Death Penalty’, The Daily Monitor, 24 February.

A Critique of Litigation and Abolition Strategies

61

Newcomen, N. (2005), ‘Managing the Penal Consequences of Replacing the Death Penalty in Europe’, in N. Browne and S. Kandelia (eds), Managing Effective Alternatives to Capital Punishment, Conference Papers, Occasional Paper Series – Special Edition, vol. 3, London: Centre for Capital Punishment Studies. Ní Ghrálaigh, B. (2005), in CCPS Internship Reports 2005, London: Centre for Capital Punishment Studies, www.westminster.ac.uk/__data/assets/pdf_ file/0003/82362/ccps_internship-report-2005.pdf (accessed 20 May 2013). Novak, A. (2009), ‘The Decline of the Mandatory Death Penalty in Common Law Africa: Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda’, Loyola Journal of Public Interest Law, 11, 19. OSCE Office for Democratic Institutions and Human Rights (ODIHR) (2012), The Death Penalty in the OSCE Area: Background Paper 2012, www.osce. org/odihr/94272 (accessed 20 May 2013). Penal Reform International (2011), The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, London: Penal Reform International. Schabas, W. (2004), ‘International Law and the Death Penalty: Reflecting or Promoting Change?’, in P. Hodgkinson and W. Schabas (eds), Capital Punishment: Strategies for Abolition, Cambridge: Cambridge University Press, 36–62. Sorensen, J. and Wrinkle, R. (1998), ‘Patterns of Rule-violating Behaviours and Adjustment to Incarceration among Murderers’, The Prison Journal, 78, 222–31. Ssenyonjo, M. (2002), ‘Domestic Protection and Promotion of Human Rights under the 1995 Ugandan Constitution’, Netherlands Quarterly of Human Rights, 20, 445. Steiker, J. (2006), ‘A Matter of Life and Death: The Effect of Life-without-parole Statutes on Capital Punishment, Harvard Law Review, 119(6), 1,838–54. Stoate, T. (2011), ‘Falling Execution Rates Don’t Always Mean a Victory for Human Rights’, The Guardian, 21 April. Tertsakian, C. (2008), Le Château: The Lives of Prisoners in Rwanda, London: Arves Books. UN ICCPR Human Rights Committee (1997), Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, UN Doc. CCPR/C/74/ Add.3, 29 September, 14. UN Office of the High Commissioner for Human Rights, ‘Moving Away from the Death Penalty: Lessons from National Experiences’, www.ohchr.org/EN/ newyork/Pages/globalpanelondeathpenalty.aspx (accessed 20 May 2013). UNAIDS (2007), HIV and Prisons in Sub-Saharan Africa, Geneva: UN. United Nations (1996), The Life Sentence: Report of the Criminal Justice Branch of UNOV, Geneva: UN. United Nations Human Rights Committee (2010), 100th UNCHR Session, Geneva, Switzerland, October 2010, Geneva: UN.

62

Capital Punishment: New Perspectives

US Department of State (2004), Patterns of Global Terrorism – 2003, Office of the Coordinator for Counterterrorism, 29 April, www.globalsecurity.org/security/ library/report/2004/pgt_2003/pgt_2003_31640pf.htm (accessed 20 May 2013). Van Zyl Smit, D. (2002), Taking Life Imprisonment Seriously in National and International Law, The Hague: Kluwer Law International. Walmsley, R. (2008), World Pre-trial/remand Imprisonment List, London: International Centre for Prison Studies. West, F. (2006), in CCPS Internship Reports 2006, London: Centre for Capital Punishment Studies, www.westminster.ac.uk/_data/assets/pdf_file/0010/43579/ internship-report-06.pdf (accessed 20 May 2013).

Chapter 2

Juvenile Death Penalty in Islamic Countries: The Road to Abolition is Paved with Paradox Sanaz Alasti

Avoid [sentences of] death and flogging involving Muslims to the extent possible.1 Ibn Abi Shayba2

Maturity is an important factor in evaluating whether a sentence of death is an appropriate response to juvenile crime.3 The juvenile justice system itself was formed on the principle that the relative immaturity of children warrants separate treatment from adults. Whether juvenile offender sentences are appropriate depends in part on whether the juvenile is sufficiently responsible to deserve it. In the case of the death penalty, maturity is central to whether a punishment is consistent with societal norms, and whether it is proportionate to the harm caused. A juvenile offender may have known right from wrong enough to be considered guilty of the crime, but such a determination does not mean that the juvenile offender is sufficiently culpable and incorrigible to warrant the death penalty. Unfortunately, many juvenile offenders do not receive an individualized consideration of their maturity, only their guilt. The transfer to adult court that makes the death penalty available is often based on the severity of the crime, not the mental state of the offender. Treating a juvenile like an adult simply based on the type of offence may be regarded as illogical because juvenile offenders have troubled childhoods, and capital punishment for juvenile offenders is a solution that fails to adhere to international law. The aim of this chapter is to provide the background of the evolution of the juvenile death penalty policy and an empirical profile of executing children in the political and Islamic criminal justice systems. It develops an analysis of the factors that may influence the future of capital punishment as a criminal sanction for children in Islamic nations. 1  Ibn Abi Shayba, Musannaf (al-Riyad: Maktabat al-Rushd Nashirun, 2004), 9:360, no. 28,968. 2  Ibn Abi Shayba, (d. 235/849 H.) was one of the peers of Ahmad ibn Hanbal, Ishaq ibn Rahuyah, and Ali ibn al-Madini in age, place of birth, and hadith memorization. 3  As used in this chapter, ‘juveniles’ refers to individuals who were under the age of 18 when the crime at issue was committed.

64

Capital Punishment: New Perspectives

Figure 2.1 Status of the death penalty in 47 Islamic jurisdictions as of March 2010 Source: Amnesty International. Notes: Abolition for all crimes: Albania (2007), Azerbaijan (1998), Djibouti (1995), Kyrgyzstan (2007), Senegal (2004), Turkey (2004), Turkmenistan (1999), Uzbekistan (2008). De Facto abolition: Kazakhstan (2007). Abolition in practice: Algeria, Brunei, Burkina Faso, Gambia, Maldives, Mali, Mauritania, Morocco, Niger, Tajikistan, Tunisia. Retention: Afghanistan, Bahrain, Bangladesh, Chad, Comoros, Egypt, Guinea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Sierra Leone, Somalia, Sudan, Syria, United Arab Emirates, Yemen.

Eighteen years is the internationally accepted minimum age for the imposition of capital punishment. According to Amnesty International, since 1990 only nine countries in the world are known to have executed juvenile offenders: China, Nigeria, Congo, Pakistan, Iran, Saudi Arabia, Yemen, Sudan and the United States. Of those nine countries, five are Muslim.4 More than two-thirds of the countries in the world have now abolished the death penalty in law or practice. Of 58 retentionist countries, 26 of them are Islamic countries. In 11 Islamic countries, abolition is in practice.5 In eight countries, Islamic laws do not provide for the death penalty for any crime (abolitionists for 4  There are 47 Islamic countries, in which Islam is the majority religion of the people. In a geopolitical sense, these countries are often considered to form the Muslim world. We will consider only countries which are predominantly Muslim, meaning that the Muslim population constitutes at least 50 per cent of the total population. 5  These countries retain the death penalty for ordinary crimes such as murder, but can be considered abolitionist in practice in that they have not executed anyone during the past ten years and are believed to have a policy or established practice of not carrying out executions.

Juvenile Death Penalty in Islamic Countries

65

all crimes), and in one Islamic country, laws provide for the death penalty only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances (de facto abolition) (see Figure 2.1). Over the last decade, the issue of the juvenile death penalty has received significant public attention. Almost all nations, even those with a death penalty, believe it is inherently cruel, and they have agreed to put aside the death penalty for juvenile offenders. In the United States, although American public opinion favours retaining the death penalty in general, it opposes executing offenders under the age of 18. In addition, a long list of international agreements and protocols has prohibited the juvenile death penalty. Between 1990 and 2009, at least 82 executions of juvenile offenders have been carried out around in the world: China (2), Democratic Republic of Congo (1), Iran (46), Nigeria (1), Pakistan (4), Saudi Arabia (5) Yemen (2), Sudan (2) and the USA (19) (see Figure 2.2).

Figure 2.2

Juvenile executions in the world since 1990

Source: Amnesty International, Executions of Juveniles since 1990, http://amnesty.org/en/ death-penalty/executions-of-child-offenders-since-1990 (accessed 30 May 2013).

Although the number of juvenile offenders affected by the death penalty is small, it is in direct conflict with international law, violates the right to life and is the ultimate cruel, inhuman and degrading punishment. The execution of juvenile offenders continues in two Islamic countries: Iran and Saudi Arabia. Juvenile offenders remain on death row in several other Islamic countries around the world.

66

Capital Punishment: New Perspectives

Pakistan,6 China7 and Congo8 have abolished the juvenile death penalty. The USA has recently abolished the juvenile death penalty, and in Iran a bill to raise the minimum age to 18 is under consideration. Ayatollah Mahmoud HashemiShahrudi, the head of Iran’s judiciary, sent a directive to judges instructing them to stop issuing death verdicts for juveniles. The Story of the Juvenile Death Penalty in Islamic Countries Why do a handful of states still execute juvenile offenders when the rest of the world has moved towards abolition of the juvenile death penalty? After the adoption of the Convention on the Rights of the Child, there were about 11 states in the world, most of them Arab or Islamic, that retained the death penalty for juvenile offenders. One by one, they eliminated the practice. Some of them claimed this might conflict with Sharia law, but they did it anyway in order to conform with their international obligations.9 We know of only two countries with a broadly threatened and applied juvenile death penalty since 2009 – Iran and Saudi Arabia – but between 1990 and 2009 at least 60 executions against juvenile offenders have been carried out in Islamic countries. As noted earlier, these include Iran (46), Nigeria (1), Pakistan (4), Saudi Arabia (5) Yemen (2) and Sudan (2). Saudi Arabia Saudi Arabia10 has one of the highest rates of execution in the world. Since 1990, Saudi Arabia has executed five persons under 18, and juvenile execution is problematic in this country. Saudi Arabia has neither a codified penal law establishing the acts that constitute criminal offences nor a published official 6  The juvenile justice system Ordinance 2000 has abolished the death penalty for people under 18 at the time of the offence in most of the country. However, the Ordinance was not extended to the provincially and federally administered tribal areas in the north and west. 7  In China, although by law no one should be executed for a crime committed when they were under 18, children have continued to be executed because the courts apparently do not take sufficient care to determine their age. 8  A 14-year-old child soldier was executed in January 2000 within half an hour of his trial by a special military court. The special military courts were abolished in April 2003. 9  Human Rights Watch, The Last Holdouts Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen (September 2008). 10  The Saudi government has no published penal code, therefore the age of criminal responsibility is based on Islamic law. In Saudi Arabia, the legal system follows the fundamentalist Hanbali school (the Sunnah version of Islamic law has four major schools: Hanafi, Hanbali, Maleki and Shafii), named after the great theologian and jurist Ahmad Ibn Hanbal.

Juvenile Death Penalty in Islamic Countries

67

interpretation of Sharia law, which constitutes the basis for all laws in the Kingdom. Instead, judges have broad discretion to interpret and apply Sharia precepts in criminal cases.11 Saudi Arabia became a party to the Convention on the Rights of the Child in 1996. In its initial report to the UN Committee on the Rights of the Child on the measures taken to give effect to the rights recognized in the Convention, the Saudi Arabian government stated that ‘capital punishment cannot be imposed on children who have not attained the age of majority in accordance with Islamic law’.12 In Saudi Arabia, children who have reached puberty may face the death penalty for a variety of crimes, including adultery, apostasy, corruption on earth,13 drug trafficking, sabotage,14 political rebellion and murder during armed robbery, as well as for actions within the broad category allowing courts’ discretionary punishment.15 On 24 November 2008, the Shura Council16 passed a measure to raise the general age of majority from 15 to 18, despite the opposition of the Council’s Islamic Affairs, Judiciary and Human Rights Committee. On 4 October 2010, the Council again debated the age of majority in the context of a draft law on protecting children from violence and neglect. The Saudi Cabinet has passed neither measure into law, and their applicability to capital punishment remains unclear.17 Saudi Arabia has set but does not effectively enforce 12 years as the minimum age of criminal responsibility for boys. Majority is attained when any one of four conditions are met: reaching 15 years of age, the occurrence of nocturnal emissions (‘wet dreams’), the appearance of pubic hair and, in the case of girls, upon menstruation.18

11  Human Rights Watch, Precarious Justice: Arbitrary Detention and Unfair Trials in the Deficient Criminal Justice System of Saudi Arabia, vol. 20, no. 3(E) (New York: Human Rights Watch, March 2008). 12  UN Document CRC/C/61/Add.2, 29 March 2000, para. 253. 13  The use of the term ‘corruption on earth’, in the absence of any clear definition, leaves the door open for the death penalty to be invoked even when offences do not result in lethal consequences. 14  For the full text of the fatwa regarding the death penalty for sabotage and corruption on earth, see the Arabic daily Al Jazeera of 30 August 1988. 15  Arab Penal Reform Organization (APRO), The Death Penalty in the Arab World 2008 (2008), www.achrs.org/english/images/stories/news/pdf/Death_Penalty_ Report_2008.pdf (accessed 20 May 2013). 16  The Shura Council is an appointed advisory body with some of the functions of a parliament. 17  Human Rights Watch, Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice system (New York: Human Rights Watch, 2008). 18  Ibid.

68

Capital Punishment: New Perspectives

Trial judges make decisions on whether a defendant is a child based on physical signs of puberty at the time of trial, and not at the time of the crime. Children have been tried as adults and sentenced to death for crimes committed at age 13.19 Saudi Arabia is a state party to both the International Covenant on Political and Civil Rights and the Convention of the Rights of the Child. Nevertheless, it is among the few countries to have executed juvenile offenders in recent years. According to Amnesty International, 126 juvenile offenders have been sentenced to death in Saudi Arabia. Sudan A range of Islamic laws was promulgated in the 1980s and early 1990s for all of Sudan, and the Islamic Penal Code of 22 March 1991 replaced the 1983 Code. Article 8 of the Sudan Criminal Act (1991) provides: ‘There shall be no responsibility except upon a mature person of free will.’20 Also, Article 9 states: ‘A child who has not attained puberty shall not be deemed to have committed an offense; provided that care and reform measures set out in this Act may be applied to a child who has completed seven years of age, as the court may deem fit.’21 Finally, Sudan amended its laws in January 2010 to set 18 years as the firm age of majority nationwide. Also, a January 2010 amendment to the Child Act set 18 years as the firm age of majority. Previously, Sudan’s legal system contained ambiguous provisions allowing an individual to reach the age of majority as young as 15. In December 2008, a Sudan Supreme Court decision confirmed the death sentence for Abdulrahaman Zakaria Mohammed, a juvenile offender executed in 2009. This decision was based in part on a conclusion that the prohibition of capital punishment for juveniles did not extend to hudud 22 offences. It is not clear whether the new 2010 law would affect the court’s ruling regarding future hudud cases. Also, under certain circumstances, Article 27(2)23 of the Criminal Code allows capital punishment for children aged 7–18 sentenced to hadd offences or murder (qisas).24 19  Human Rights Watch, Iran, Saudi Arabia, Sudan: End Juvenile Death Penalty (New York: Human Rights Watch, 8 October 2010). 20  Sudan Criminal Act, Art. 8 (1991). 21  Ibid., Art. 9. 22  Under hadd or hudud (prescribed crimes), important crimes deemed to threaten the existence of Islam are punishable by penalties set by the Quran, or by the Sunna or Sunnah. Islamic jurists consider that these sanctions immutable. They conclude that the judge is left with no discretion. 23  Art. 27(2) of Sudan’s Criminal Code provides: ‘With the exception of hudud and retribution (qisas) offences, death sentences shall not be passed against any person, who has not attained the age of 18, or who exceeds 70 years of age.’ 24  Qisas (retaliation) concerns intentional crimes against the person. Its fundamental premise is the lex talionis, ‘eye for eye, tooth for tooth’. Lex talionis is set out in the Quran, verse 5.32 (further developed by verse 17.33).

Juvenile Death Penalty in Islamic Countries

69

The Supreme Court in Khartoum confirmed the death sentence in December 2008 based on two arguments. First, it found that the prohibition of the death penalty for children did not extend to hudud offences. Second, the court found that the definition of a child should be drawn from the definition of ‘adult’ provided in the Criminal Act, which was that ‘adult means any person whose puberty has been established by definite natural features and who has completed 15 years of age, and whoever attains 18 years of age shall be deemed an adult even if the features of puberty do not appear’.25 Although the new Criminal Code of Sudan states that the death penalty shall not be imposed on a person under the age of 18 or a person who has attained the age of 70 except in cases of hudud and qisas, it is the case, as in some other Muslim countries, that a minor accused of murder, rape or adultery can be sentenced to death. Yemen In Yemen, since the 1991–94 unification, the government appears to be moving towards consolidating the Sharia with inherited common law, with some basic laws amended, but eventually the People’s Republic’s criminal, criminal procedure and evidence laws have been replaced by Sharia-inspired unified legislation. In 1994, the minimum age for the use of the death penalty in Yemen was raised to 18 years at the time of the offence in the Penal Code (Article 31 of Law 12). In the 1990s, Yemen was one of the few countries to execute juvenile offenders.26 Nevertheless, in 1991 Yemen signed the UN Convention on the Rights of the Child. In 1994, Yemen amended its Penal Code to raise to the legal age to incur a death sentence to 18. However, because of the lack of official birth certificates, the calculation of the age is often made according to physical characteristics. Numerous minors are thus sentenced to death.27 Pakistan The Pakistan Penal Code of 1860, the Code of Criminal Procedure of 1898 and other statues awarding punishments for crimes apply in all four provinces of Pakistan, except in the designated tribal areas. The Pakistan Penal Code provides that ‘nothing is an offence which is done by a child under seven years of age’28 and ‘nothing is an offence which is done by a child above seven years of age and under 25  Human Rights Watch, Adults Before Their Time. 26  The capital crimes in Yemen are as follows: Murder (qisas), prostitution,

highway robbery, adultery, and apostasy (hudud), discretionary crimes (ta’zir) such as drug trafficking in specified amounts and Arts 121, 125–9 and 306 of the Yemen Penal Code. 27  World Coalition Against the Death Penalty, Explaining Juvenile Death Penalty Throughout the World (Montreuil, France: World Coalition Against the Death Penalty, 25 September 2009). 28  Pakistan Penal Code, §82 (1860).

70

Capital Punishment: New Perspectives

twelve who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion’.29 However, no guidelines are provided for a judge to establish maturity; a child’s right to be treated as a child depends on the subjective leniency of a judge. The Pakistan Penal Code and Code of Criminal Procedure do not establish an age limit below which the death penalty may not be imposed. However, under the qisas and diyat law30 (which prescribes restitution or compensation for the victim), the sentence for murder may not be imposed on anyone below the age of 18 at the time of the offence. The hudud laws of 1979, which replace corresponding sections of the Pakistan Penal Code, apply to all parts of Pakistan and override all other legislation. The hadd punishment may not be imposed on children, but the definition of a child in the hudud laws differs from that of other laws in Pakistan. Based on hudud laws, a child is a person who has not attained puberty. Therefore, a girl of 12 years old who has attained puberty is legally adult and could be sentenced to the hadd punishment.31 Since promulgation of the hudud laws in Pakistan, the percentage of girls accused of adultery has increased greatly. UNICEF has cited some cases of even 12- and 13-year-old girls being punished for adultery.32 Amnesty International recorded four executions of child offenders in Pakistan in the 1990s. The Sindh Children’s Act (1955), which only came into force in 1974, states in Section 68 that a youthful offender, defined as a person below 16 years of age at the time of initiation of proceedings, may not be sentenced to death, transportation or imprisonment. The Punjab Youthful Offenders Ordinance (1983), which was brought into operation only in the district of Sahiwal in 1993 but not in other parts of Punjab, bans the death penalty and life imprisonment for any offender below the age of 15 at the time of the offence; there are no special laws protecting juveniles in Balochistan and the North West Frontiers Province, nor in the tribal areas. The Juvenile Justice System Ordinance (2000), abolishing the death penalty for people under 18 at the time of the offence in most parts of the country, entered into force on 1 July 2000. However, the Ordinance was not extended to the provincially and federally administered tribal areas in the north and west. Also, the Ordinance neither made reference to some fifty people then under sentence of

29  Ibid., § 83. 30  The qisas and diyat law redefines the offences of injury, murder and homicide in

accordance with an interpretation of Islamic law, replacing relevant sections of the Pakistan Penal Code. 31  The hudud laws relating to fornication differentiate between the genders of the offenders: a male is adult at the age of 18, whilst a female is considered adult for the purpose of the law at the age of 16 or at attainment of puberty. 32  Amnesty International, Pakistan: Denial of Basic Rights for Child Prisoners (London: Amnesty International, 2003).

Juvenile Death Penalty in Islamic Countries

71

death who were below the age of 18 at the time of the offence, nor did it provide for a review of such cases. On 3 November 2001, Sher Ali was hanged in Timergarah; he had been sentenced to death for a murder committed in 1993 when he was 13 years old. The Supreme Court had earlier rejected an appeal which argued that in 1993 the death penalty could not be imposed in the provincially administered tribal areas where he had lived.33 Some juveniles were tried and sentenced to death by special military courts in Pakistan. Special military courts were established in Sindh Province to ensure speedy trials of civilians charged with serious criminal offences.34 Although most of the outstanding death sentences imposed on child offenders before July 2000 have now been commuted, an unknown number of sentences are still outstanding while the courts determine the age of the convicted prisoners. Child offenders continue to be sentenced to death, mainly because their age has not been determined. The issue of age is generally not raised by the family’s legal counsel until a child has been sentenced to death. Often judges do not raise the issue of age unless the child looks like a minor.

Figure 2.3

Juvenile execution rates in six Islamic countries since 1990

Source: Amnesty International.

33  Amnesty International, Execution of Child offenders: Updated Summary of Cases (London: Amnesty International, 16 February 2004). 34  Amnesty International, Pakistan Juveniles Sentenced to Death (London: Amnesty International, May 1999).

Capital Punishment: New Perspectives

72

Nigeria Among many conflicting statements, Nigeria defines the age of adulthood nationally as 17,35 and 12 states in northern Nigeria operate under Sharia laws, some of which define the age of legal responsibility as younger than 17 and assign criminal responsibility upon puberty, without regard to age per se, for hudud capital crimes such as adultery, rape, sodomy and incest. Article 18 of Criminal Code Act of Nigeria provides: Whenever a male person who in the opinion of the court has not attained 17 years of age has been found guilty of any offense the court may, in its discretion, order him to be caned in addition to or in substitution for any other punishments to which he is liable.

Under Nigerian law, there are three stages for childhood: (1) a person under the age of seven years is not criminally responsible for any act or omission; (2) a person under the age of 12 years is not criminally responsible for an act or omission, unless it is proved that at the time of committing the act or making the omission the person had the capacity to know that they ought not to do the act or make the omission; (3) a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. In Nigeria, over thirty juvenile offenders were on death row as of March 2010, even though Nigeria is not known to have executed a juvenile offender since 1997.36 Iran The criminal responsibility age was 18 under the former Penal Code of Iran. Juvenile execution is a product of the Islamic Revolution of 1979. The establishment of the Iranian juvenile court dates back to 1959. In 1982, following the ratification of Islamic Penal Code, the modern Penal Code of Iran was regulated in accordance with novel concepts of crime, and punishment was abolished. The present criminal justice system in Iran is based on the Twelve Imami Shii version of Sharia law. This system of law was formed in the early 1980s during the tenure of Ayatollah Ruhullah Musavi Khomeini. Islamic law replaced the secular system that two Pahlavi monarchs established in Iran during their consecutive reigns. The Iranian Civil Code states: ‘In Iranian law childhood is attributed to a person who has not reached puberty age.’ Under Article 1210-1: ‘A girl achieves puberty after nine lunar ages and a boy after completing fifteen lunar years.’37

35  See Nigeria Criminal Code Act (1990). 36  Human Rights Watch, Iran, Saudi Arabia, Sudan. 37  Iran Civil Code [C.CIV] Art. 1210-1 (1991).

Juvenile Death Penalty in Islamic Countries

73

Iranian penal law applies to those who have reached puberty (age 9 years for girls and 15 years for boys).38 For example, under Iranian law if a 10-year-old girl commits murder, she will be tried and punished in the same way as a 40-year-old woman. Thus, under the Islamic Penal Code of Iran it is permissible to issue a death sentence for a female juvenile who has reached 9 years of age. In practice, no child has been sentenced to death under the age of 13, but the law remains on the statute book and can be imposed. Despite this statute, according to the directive issued by Ayatollah Mahmoud Hashemi-Shahrudi, the head of Iran’s judiciary, judges cannot issue death sentences for juveniles. A bill to raise the minimum age to 18 is now under consideration in Iran. If trial court judges consider the current statute, it will be reversed in the Supreme Court. All death sentences must be upheld by the Iranian Supreme Court before they can be implemented. Articles 33 and 35 of the draft law39 specify the different punishments that can be imposed on juveniles. They both state that in cases of juveniles aged 15–18, crimes punishable by death or life imprisonment for adults will be replaced by two to eight years of detention at a correctional centre. The patterns in most Islamic nations over the last two decades are consistent with the longer-term declines in the prevalence of juvenile executions (see Table 2.1), and many countries now have a zero execution rate, including Nigeria, Pakistan and Sudan. In 2010, Sudan amended its laws to set 18 years as the firm age of majority, and in Nigeria a thirteen-year period without juvenile execution is widely viewed as a stage in the transition towards abolition. One exception is Iran; from 2004 to 2010 the rate of juvenile executions was 11 times higher than in previous years. Another exception is Saudi Arabia, where there have been four executions since 2003. The Islamic penal codes do not constrain the death penalty as a punishment reserved for only a few crimes. The death penalty in Islamic countries is applicable to an overly broad range of crimes in addition to murder (retaliation): incest, rape, adultery, sodomy (hudud crimes), and discretionary crimes (ta’zir) such as drug trafficking in specified amounts are punishable by death. Since 1990, 60 children have been executed in Islamic countries: 28 (46.7 per cent) for qisas crimes, 9 (15 per cent) for hudud crimes, and only a small proportion of them for ta’zir crimes. This indicates that despite the abolition of the juvenile death penalty in the majority of Islamic countries, this punishment is still widely applied for hudud and qisas crimes in the major regions of the Muslim community where Islamic law has been elaborated.

38  Ibid. [C. PEN] Art. 49-2 (1997). 39  The Juvenile Crimes Procedure Act, which would reportedly prohibit the use of

the death penalty for offences committed by people under the age of 18, was put before the Majles (parliament) around 2001. It was believed that the Council of Guardians was unlikely to approve the legislation.

Capital Punishment: New Perspectives

74

Table 2.1

Capital crimes leading to the execution of child offenders in Islamic countries since 1990 Crime

No.

%

Murder Crimes against chastity (fourth conviction) Aggravated sodomy Rape Armed robbery Blasphemy Corruption on earth Destruction of motor vehicles resulting in death Unknown

28 1 2 3 1 1 2

46.7 1.7 3.3 5.0 1.7 1.7 3.3

1

1.7

21

35.0

Totals

60

100

Source: Amnesty International, Death Sentences and Executions 2010, www.amnesty.org/ en/death-penalty/death-sentences-and-executions-in-2010 (accessed 30 May 2013).

Killing Kids: The Widening Divide between the United States and Iran The United States and Iran have been leaders in this practice, as each imposes many more juvenile death penalties than any other country. Between 1990 and 2004, at least 29 executions of juvenile offenders have been carried out in the United States and Iran (see Figure 2.4). As previously mentioned, Iranian criminal law applies to those who have reached puberty. After the Islamic revolution in 1979, a modern legal system was replaced by an Islamic legal system based on a Shiite version of Sharia law. Shiism has been particularly influenced by the opinions of the sixth Imam, Abu Abdullah Jafar bin Mohammad Sadegh, hence its legal school is known as the Jafari school of jurisprudence. According to the Jafari school, the only sources of Islamic law are the Holy Book, tradition (Hadith), the consensus of the jurist (Ijma), and reason (Aql).40 The application of the death penalty to juvenile offenders is a concept older than the constitution of the United States. Thirty-eight states and the federal government have statutes authorizing the death penalty for certain forms of murder. In total, 31 states (along with the federal government and the District of Colombia) prohibit juvenile executions. Of the 19 states that permit juvenile executions,41 14 states set 40  Nader Entessar, ‘Criminal Law and the Legal System in Revolutionary Iran’, Boston College Third World Law Journal (Winter 1988), 91–102. 41  Before Roper v. Simmons, 19 US states allowed for the execution of people aged 16 or 17 at the time of the crime. In the following states, the minimum age has been

Juvenile Death Penalty in Islamic Countries

Figure 2.4

75

Juvenile executions in the United States and Iran since 1990

Source: Amnesty International, Executions of Juveniles since 1990, http://amnesty.org/en/ death-penalty/executions-of-child-offenders-since-1990 (accessed 30 May 2013).

the minimum age (at the time of the offence) for execution at 16, and five states set the minimum age at 17. While the juvenile death penalty has been rare in the United States and Iran, it does exist. The juvenile death penalty is relatively new in Iran, but the American people had been executing their children in the pursuit of justice for more than three and a half centuries. The United States has been one of very few countries to execute people for crimes committed when they were under 18 years old. Although the United States Supreme Court has devoted considerable attention to constitutional issues in death penalty cases generally, the court did not consider the constitutionality of imposing the death penalty on juveniles until recently. In various cases throughout the 1980s, the Supreme Court considered the minimum age for imposing capital punishment. The issue in these cases was whether applying the death penalty to children constituted cruel and unusual punishment in violation of the 8th Amendment.42

expressed in statute: Alabama, Code § 12-15-34(a); Georgia, Code Ann. § 16-3-; Kentucky, Rev. Stat. Ann. § 635.020; Nevada, Code § 5-194-010; New Hampshire, Criminal Code § 628.1; North Carolina, Gen. State § 7A.608; Texas, Penal Code § 2-8-07. In following states, a minimum age of 16 is required by the US Constitution, per the Supreme Court in Thompson v. Oklahoma, 487 US 815 (1988): Arizona, Arkansas, Delaware, Idaho, Louisiana, Mississippi, Oklahoma, Pennsylvania, South Carolina, Utah and Virginia. In Florida, minimum age of 17 was specified by the Florida Constitution per Florida Supreme Court in Brennan v. State, 754 So.2d 1(Fla. 1999). 42  Sanaz Alasti, Cruel and Unusual Punishment: Comparative Perspective in International Conventions, the United States and Iran (Lake Mary, FL: Vandeplas Publishing, 2008), 175.

76

Capital Punishment: New Perspectives

Finally in the Roper v. Simmons case, the Supreme Court identified three major differences between juveniles and adults that demonstrate diminished culpability in juvenile offenders. The first major difference noted was a lack of maturity and sense of responsibility in juveniles. The second major difference discussed was a vulnerability to negative influences predicated on a lack of financial and legal freedom to escape from negative environments. Third, the Supreme Court noted that juveniles still have a transitory personality and undefined character. Thus, the court reasoned that the social purposes of the death penalty – retribution and deterrence – are without merit when applied to juveniles.43 Based on these differences, the Supreme Court dismissed the idea that juveniles could be among the worst offenders in society. While youth is considered a mitigating factor in sentencing guidelines, the instant court stated that juries are too likely swayed by evidence of the brutal nature of murder to adequately consider mitigating arguments. Thus, the Supreme Court’s own judgment confirmed its findings of a national consensus against the execution of juvenile offenders.44 Under Iranian law there are three stages for childhood: (1) birth to six years of age, when a child should not be punished on criminal grounds with disciplinary or reformatory measures; (2) six years to puberty, when some disciplinary actions can be applied, and (3) puberty, when a child is criminally accountable for offences.45 Based on the Shiite school, the criminal responsibility age starts at puberty.46 As the sign of puberty is considered to be nocturnal emissions, an adolescent boy’s coming of age is signified by potency to impregnate. Similarly, a girl’s puberty is signified by menstruation, nocturnal emissions and pregnancy.47 Since signs of puberty vary and may appear in advance or be delayed, it has been deemed necessary to fix the age limits. There is no special age for puberty based on the Holy Book, and there are different views about the age of puberty in tradition.48 Islamic jurists are not united in their opinion. The majority of jurists in the Shiite tradition believe that the age of puberty is nine years for girls and 15 years for boys.49

43  Roper v. Simmons, 125 S. Ct. at 1195. 44  Steven J. Wernick, ‘Constitutional Law: Elimination of the Juvenile Death

Penalty: Substituting Moral Judgment for a True National Consensus’, Florida Law Review (April 2006). 45  Iraj Goldouzian, General Criminal Law (Tehran, Iran: Mizan Publications, 1999), 273–4 (in Farsi). 46  Ali Ashraf Delfani, Foundation of Criminal Liability in the Islamic and French Law (Qom, Iran: Centre of Publication of the Office of Islamic Propagation of the Islamic Seminary of Qom, 2003), 27 (in Farsi). 47  Muhammad ibn Hasan Tusi, Al-mabsut (Qom, Iran: Muassasat Nashr Islami, 2006), 282 (in Arabic). 48  See Table 2.2 below. 49  Please see Muhammad ibn Babuya, Man la yahduruhu al-Faqih (Qom, Iran: Muassasat Nashr Islam, 1984) , vol. 4, 221 (in Arabic); Muhammad ibn Ya’qub Kulayni, Kitab al-Kafi (Tehran, Iran: Dar’al-Ketabe Eslami, 1984), vol. 6, 124 (in Arabic);

Juvenile Death Penalty in Islamic Countries

77

The contradictions inherent in the laws which assume that juveniles do not have sufficient responsibility, maturity or judgement to make these many decisions, while at the same time assuming that they are fully in control of their judgements when they engage in criminal behaviour are for many horrific and illogical. This is particularly the case in homicides, where much evidence indicates that (1) children have an undeveloped and unsophisticated concept of death, and (2) children are often impulsive and reckless in their actions.50 Some Islamic jurists argue that the age of puberty applies to praying obligations, not penal obligations.51 Therefore, Iran specifies the age of puberty plus the age of maturity for purposes of criminal responsibility. Maturity can be set at different ages according to conditions of the time. It is based on criminal perception.52 Even some jurists build on Imam Jafar, saying that childhood can be divided into three seven-year periods and concluding that childhood ends at the age of 21.53 In Iran, marriage age is equivalent to puberty. There are several instances where the end of childhood is not puberty in Iranian law. For example, the jurisdictional age under juvenile courts is 18, but the problem is that establishing a juvenile court is not mandatory in each jurisdiction, and judges can apply mitigation factors for ta’zir punishments. The Islamic Penal Code has divided crimes in to the four categories of hudud,54 qisas,55 diyat,56 and ta’zir 57 based on the type of punishment for each category of offence. In most circumstances, capital crimes fall under hudud and qisas punishments. In election law, 18 is the age of responsibility; in labour law, majority is reached at 15; 18 years is regarded as adulthood for financial transactions, though a person who has not reached the age of 18 can perform financial transaction after receiving a verdict from the court. The court must determine whether a girl aged over nine or a boy aged over 15 has achieved the age of maturity. Islamic law does not prohibit Muhammad ibn Hasan Tusi, al-Nahaye (Qom, Iran: Ghodse Mohammadi Publications, 1987), 611 (in Arabic). 50  Victor Streib, ‘The Juvenile Death Penalty in the United States and Worldwide’, Loyola Poverty Law Journal, 4 (Spring 1998), 173. 51  Mohammad Sadegh Rohani, Judicial Question and Answer Series (Tehran, Iran: Sepehr Publications, 1999), 42–6 (in Farsi). 52  Abdoreza Asghari, ‘Age of Criminal Responsibility in Islam’, Razavi University Law Review (2000), 80 (in Farsi). 53  Children Rights Convention and Child’s Rights in Iran, www.netiran.net (accessed 20 May 2013). 54  Hudud crimes are acts prohibited by God and punishable by mandatory penalties, such as adultery, sodomy and rape. 55  Qisas crimes include murder and manslaughter. These offences are acts against the victim and the victim’s family. They allow for inflicting an injury exactly equal to the injury inflicted. 56  Diyat is blood money, which is to be paid to the victim or his family as reparation for an injury or murder. 57  Ta’zir offences are those for which no specific penalties are mentioned in the Quran or tradition.

78

Capital Punishment: New Perspectives

the increasing of the lawful maturity age. Considering the social conditions in Iran and the need to address the failure of the juvenile death penalty to adhere to international law, there are hopes that the bill to raise the age of criminal responsibility to 18 will be passed in the near future. In December 2004, the Iranian Parliament approved a bill raising the minimum age to 18 for imposition of the death penalty. The bill is awaiting approval by the Guardian Council, Iran’s highest legislative body. If this bill is approved by the Guardian Council, offenders under the age of 18 will no longer be executed except for qisas and hudud crimes. There is a distinction between qisas (‘retaliation’ – the sentence issued in cases where defendants are found guilty of murder), hudud (such as adultery, sodomy or rape) and other crimes carrying the death penalty because qisas are a private, not a state, matter and hudud crimes are prohibited by God and punishable by mandatory penalties. Attempts are being made to address the failure of qisas and hudud to adhere to international law in Iran. The bill currently under consideration falls is the reform measures needed in Iran if the country is to meet international obligations under the International Covenant of Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). The majority of executions of juvenile offenders in Iran are cases of qisas where the individual has been found guilty of murder. It is unacceptable for the Iranian authorities to separate cases of murder from other crimes carrying the death penalty. Legislation is urgently required to ensure that no person in Iran is sentenced to death for any crime, including murder, when the crime was committed when the offender was under the age of 18. Finally, on 17 October 2008 a high-ranking Iranian judiciary official announced the issuance of a new directive to judges that execution sentences for juvenile offenders must be replaced by life imprisonment with the possibility of parole. According to this directive, punishments for offenders under the age of 18 in capital crimes will be reduced to life in prison in the first stage, and in the second stage of parole will be reduced to 15 years in prison. In addition, in cases of good behaviour and signs of rehabilitation, juvenile offenders may qualify for conditional release. Iranian officials have previously made a distinction between execution for capital offences and executions for qisas and hudud (retaliation versus prescribed punishment), claiming that qisas and hudud sentences cannot be reduced by judges. While this directive did not explicitly address this issue, Iranian judiciary officials announced that ‘offenders under the age of 18, no matter what their offence is, will not be subject to executions but will receive other punishments according to the law’. The next and urgently needed step is for the Iranian parliament to act on this issue and abolish the death penalty for children through legislation.

Juvenile Death Penalty in Islamic Countries

79

Criminal Liability Age in Islam Muslim scholars maintain that the criminal capacity of a child, and consequently criminal responsibility, increases in accordance with age.58 Human growth, from birth to the age of completing maturity, can be divided into three stages. During the first stage, a child has no conscience and is indiscriminative. In this stage, a child is not responsible for actions committed in violation of the law; therefore, the child is neither criminally liable nor responsible from a disciplinary point of view. Jurists have fixed the age of seven as the upper limit for this stage. The second stage begins at seven years of age and extends to the age of puberty. Throughout this stage, children are not criminally liable for their acts, but they can meet with disciplinary action. The third stage begins, for both boys and girls, when they reach the age of puberty. Throughout this stage, people are considered completely responsible for their actions.59 The basis for jurists stipulating the age of puberty in criminal liability is a tradition of the Prophet Mohamad which said: ‘No liability in three cases: a child till it reaches puberty, a sleeping person till he awakes, and a demented person till he regains his mental health.’ Puberty in Islam is determined either by age (some scholars say it occurs at 11 years old and some say at 12, others differentiate between males and females), or by the signs of puberty, or by both. Islamic jurists60 are not agreed in fixing the age of puberty. Some Hanafi and Maliki say it is 19 years for men and 17 years for women, but for most jurists it is 15 years of age.61 In almost all Islamic schools, girls – due to the earlier onset of puberty – potentially bear criminal responsibility several years before their male cohorts for hudud crimes.62 Among the 47 Islamic nations that are part of the Islamic world, only ten clearly base their minimum age of criminal responsibility provisions to some extent upon Islamic law. 58  Nagaty Sanad, The Theory of Crime and Criminal Responsibility in Islamic Law: Sharia (Chicago, IL: Office of International Criminal Justice, University of Illinois, 1991), 89–90. 59  Ahmed Elashhab, The Criminal Liability in Law and Islamic Law (Benghazi, Libya: National Publishing House, 1994), 127–32. 60  See Mohammad ibn Edris Shafi’i, Ketab al-Omm (Beirut, Lebanon: Dar alFekr, 1980), vol. 3, 220 (in Arabic); Muhammad ibn Ahmad Sarakhsi, al-Mabsut (Beirut, Lebanon: Dar al-Marefa, 19–) (in Arabic); Muhammad ibn Ahmad ibn Arafah Dasuqi, Hashiyat al-Dasuqi alá al-Sharh al-Kabir (Cairo, Egypt: al-Maktabah al-Tijariyah, 19–), vol. 3, 203 (in Arabic); Abd Allah ibn Ibn Qudamah, al-Mughni (Beirut, Lebanon: Dar alKetab Arabi, 19–), vol. 10, 541 (in Arabic). 61  Elashhab, The Criminal Liability in Law and Islamic Law. 62  Don Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (Farnham: Ashgate Publishing, 2009), 82–3.

80

Capital Punishment: New Perspectives

The Quran does not provide explicit guidelines regarding the age of puberty, therefore Islamic jurists interpret relevant ages as objective criteria for it. Several Islamic jurists relied on the standard version that criminal liability is determined by puberty,63 but the practice of the juvenile death penalty is not mentioned in any authoritative hadith. Also, even after the onset of puberty, juveniles should not be automatically held criminally responsible for their illegal acts. For such responsibility to follow, children must have reached puberty and be of sound mind.64 Indeed, in the case of the minimum criminal responsibility age, one may even argue that classic Islamic criminal law doctrine lies closer to international standards than to some countries’ contradictory provisions.65 Practical Challenges: From Diminished Responsibility to Hudud-avoidance in Cases of Doubt Diminished capacity or diminished responsibility is an impaired mental condition that is caused by intoxication, immaturity, trauma or disease and that prevents a person from having the mental state necessary to be held responsible for a crime. In some jurisdictions, a defendant’s diminished capacity can be used to determine the degree of the offence or the severity of the punishment.66 Recent medical studies on adolescent brain development contradict previously held notions that a person’s brain is fully developed by age 14. According to research conducted by Harvard Medical School, the frontal and prefrontal lobes, which regulate impulse control and judgement, are the last to develop. Thus, ‘the very brain system necessary for inhibition and goal-directed behavior comes “on board” last and is not fully operational until early adulthood (about 18–22 years)’.67 Despite the universal acceptance of immaturity in doctrines of infancy and the widespread acceptance of reduced levels of responsibility in the early teen years, there has been little analysis of the aspects of immaturity that are relevant to mitigation of punishment. The lesser maximum punishment of serious crimes in juvenile courts can be seen as testimony to the belief in youthful diminished culpability, but when this concept of proportionality is expressed only in the institutional output of one 63  See al-Sayyid Sabiq, Fiqh al-sunnah (Beirut, Lebanon: Dar al-Ketab Arabi, 19–), vol. 2, 534 (in Arabic); Muhammad ibn Hasan Tusi, al-Mabsut (Tehran, Iran: al-Maktabah al-Murtadawiyah, 19–), vol, 7, 15 (in Arabic); Shahabeddin Bahaie Ameli, al-Jame al-Abbasi (Tehran, Iran: Farahani Publications, 19–),426 (in Farsi). 64  Ahmad Fathi Bahnassi, ‘Criminal Responsibility in Islamic Law’, in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (London: Oceana Publications, 1982). 65  Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility. 66  Alasti, Cruel and Unusual Punishment, 177. 67  Phyllis Bookspan, ‘Too Young to Die: Evolving Standard of Decency and the Juvenile Death Penalty in America’, Delaware Lawyer, 21 (Winter 2003–2004), 19.

Juvenile Death Penalty in Islamic Countries

81

court system, the transfer of offenders from the juvenile to criminal court would risk changing the applicable penal principles without justification.68 The question is how we can integrate the minimum age of criminal responsibility in traditional Islamic principles with international children’s rights. Libya probably offers the best example of juvenile justice legislation in the Muslim world. Article 81 of the Libyan Penal Code provides that: A minor who has completed 14 years of age at the time of committing the act, shall be criminally liable, if he held the power of conscience and violation; provided that the penalty thereof is reduced by two thirds. If the minor commits a crime punishable by death or a life sentence, these two penalties shall be replaced by imprisonment for at least five years.

After the enactment of the new Juvenile Code in Afghanistan, the age of penal majority is set at 18 years. In effect, the law pegs criminal responsibility within the classic Hanafi age ranges for boys and girls, but sets it at the same level for both without consideration of puberty.69 Finally, it is important to mention that diminished responsibility is not merely a doctrine of the juvenile justice system, but a principle of penal proportionality. Therefore, immaturity raises the same issues we know confront juvenile justice even if all young offenders were tried in criminal court. This means that changes in the jurisdictional boundaries of juvenile and criminal courts do not remove the necessity of determining variations in moral desert.70 Since the juvenile death penalty does not exist in Islamic textual references, and since almost all Islamic countries have abolished the juvenile death penalty except for hudud crimes, it is possible to consider various evidentiary and procedural barriers to the juvenile death penalty. These include the lack of a just and ideal religious criminal justice system for prosecution of hudud crimes.71 Moreover, avoidance of hudud crimes in case of doubt,72 more stringent evidentiary requirements, and pressures for twenty-first-century norms of jurisprudence make imposition of the juvenile death penalty increasingly rare. In Islamic criminal law there is a principle that punishments are to be avoided whenever there is ambiguity or doubt as to the textual basis, evidence or criminal 68  Franklin E. Zimring, ‘Penal Proportionality for the Young Offender: Notes on Immaturity, Capacity, and Diminished Responsibility’, in Thomas Grisso and Robert G. Schwartz (eds), Youth on Trial: A Development Perspective on Juvenile Justice (Chicago, IL: University of Chicago Press, 2000), 278. 69  Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility. 70  Zimring, ‘Penal Proportionality for the Young Offender’, 282–3. 71  Mirza Ghomi, Jama al-Shetat (Tehran, Iran: Keyhan Publications, 1992), vol. 1, 395 (in Farsi). 72  This Islamic legal maxim says that judges are to avoid imposing hudud punishments when beset by doubts as to the scope of the law or the sufficiency of the evidence.

82

Capital Punishment: New Perspectives

culpability of the accused. In Islam, ‘hudud punishments are to be prevented in case of doubt’. This is based on the prophetic tradition: ‘Prevent the application of hadd punishment as much as you can whenever any doubt exists.’ Shaykh Mufid73 (a Shiite jurist) notes that defective contracts give rise to hudud-avoidance if entered into in the presence of doubt or ambiguity.74 Also, Allameh Hilli75 notes several types of hadd-averting doubt in one of his treatises.76 The standard of proof in hudud punishment is very high and difficult to attain. It is even recommended by the Sharia that a judge suggest the possibility of withdrawal of confession to an accused who has confessed to the commission of crime.77 The Future of the Juvenile Death Penalty in Islamic Countries Despite the abolition of or moratorium on capital punishment for juveniles in Islamic countries, children are still being executed. This demonstrates that simple attempts to outlaw the juvenile death penalty will not solve the problem because the moratorium was not proclaimed in a genuine attempt to humanize society, but rather to please the international community. More execution of juveniles is possible, especially in the case of a change of political power. The question of whether to leave the juvenile death penalty on the statutes of Islamic countries, to prolong the moratorium on it or to abolish it is one which I think embodies the larger realities of political, legal and social developments in Islamic countries. Must abolition of the juvenile death penalty await the decline of Islamic authoritarian governments, or will hard-line regimes abolish the execution of juveniles to co-ordinate with the contemporary standards of Islamic societies? Several Muslim nations with large Islamic populations have recently gone through long periods without juvenile executions. Most of the Islamic countries that are low-execution nations have governments with secular rather than religious orientations. But the tiny nation of Brunei Darussalam has combined an Islamic theocratic regime with no execution for the past half-century.78 73  Abu ‘Abd Allah Muhammad ibn Muhammad ibn al-Nu’man al-’Ukbari alBaghdadi, known as Shaykh Mufid for his expertise in philosophical theology (c. 948–1022 CE) was an eminent Twelver Shia theologian. 74  Mufid, Muqni’ah (Qom, Iran: Mu’assasat Nashr Islami, 1990), 789 (in Arabic). 75  Hassan bin Sadid-Aldin (Allameh Hilli) was born on 29th Ramadan of 648 A.H. He learned knowledge and philosophy from a famous seventh-century Iranian scientist Khajeh Nasireddin-e Tousi. He was an eminent Twelver theologian who flourished under the Mongols in Iraq. 76  Allameh Hilli, Qawa’id al-ahkam (Qom, Iran: Mu’assasat Nashr Islami, 1992– 99), vol. 3, 521–3 (in Arabic). 77  Sanaz Alasti, ‘Comparative Study of Stoning in the Religious of Islam and Judaism’, Justice Policy Journal, 4(1) (Spring 2007). 78  Franklin Zimring and David Johnson; The Next Frontier: National Development, Political Change, and the Death Penalty in Asia (Oxford: Oxford University Press, 2009), 20.

Juvenile Death Penalty in Islamic Countries

83

Although the abolition of the juvenile death penalty for non-hudud and qisas crimes seems to be a very positive aspect of the law, the majority of executions of juvenile offenders in Islamic countries are cases of qisas where the individual has been found guilty of murder and hudud (prescribed crimes). It is unacceptable for the authorities to separate cases of murder or hudud crimes from other crimes carrying the death penalty. Legislations in Islamic countries are urgently required to ensure that no person is sentenced to death for any crime, including murder and hudud crimes, when the crimes were committed when the offender was under the age of 18. And even though retentionist Islamic countries appear to be moving further down the road to abolition, the political and paradoxical ramifications involved in such a venture erect barriers for challenges to the minimum age of capital punishment in Muslim nations. Muslim jurists have differed in their approach to the hudud. The disagreements are numerous, deep and recurring. The first approach to be noted demands the immediate and strict application of hudud, assessing this as essential prerequisite to truly defining a ‘Muslim majority society’ as ‘Islamic’.79 A number of prominent Islamic scholars,80 while accepting the fact that the hudud is found in the textual references (the Quran and the tradition), consider that the application of hudud by society must be just and, for some, has to be ‘ideal’ before these injunctions can be applied. Thus, the priority is the promotion of social justice, fighting against poverty and illiteracy and so on. Finally, there are others, also a minority, who consider the texts relating to hudud as obsolete and argue that these references have no place in contemporary Muslim societies.81 The majority of Muslim jurists, historically and today, recognize the existence of scriptural sources that refer to such punishments, but some Islamic scholars believe that the conditions under which they should be imposed are nearly impossible to re-establish.82 Also, there are many examples from Islamic history of how these punishments have been suspended in practice.83 The hudud would therefore serve 79  Hossien Ali Montazeri, Tozihol al-Masayel (Tehran, Iran: Fekr Publications, 1998), 572 (in Farsi). 80  See Ghomi, Jama al-Shetat, vol. 1, 395; see also Mohammad Ali Abtahi, Tozihol al-Masayel (Qom, Iran: Abneh al-seyyede Mohammad, 1998), 505 (in Farsi). 81  Tariq Ramadan, ‘A Call for a Moratorium on Corporal Punishment: The Debate in Review’, in Kari Vogt, Lena Larsen and Christian Moe (eds), New Directions in Islamic Thought: Exploring Reform and Muslim Tradition (London: I.B. Tauris, 2009), 163–74. 82  Ibid.; Mirza Ghomi, the author of Jama al-Shetat, and Mohammad Ali Abtahi, the author of Tozihol al-Masayel, believe that before the reappearance of al-Mahdi (an ultimate saviour of humankind and the final Imam of the Twelve Shia Muslims who would, in accordance with God’s command, bring justice and peace to the world), these penalties are almost never applicable. 83  For example, Umar ibn al-Khatab (the second Khalifa of Sunni Muslims after Muhammad’s death) suspended the hadd punishment in a time of war because the required conditions for its application were impossible to meet. See Ibn Abi Shayba, Musannaf, 9:360, no. 28,963.

84

Capital Punishment: New Perspectives

as a ‘deterrent’, the objective of which would be to stir the conscience of the believer to the gravity of an action warranting such a punishment. The penalties are Islamic, but conditions are not appropriate for their implementation.84 As enacted, the provisions regarding the minimum age of criminal responsibility in some Muslim nations meet international children’s rights standards in all respects, and importantly, are compatible with Islamic law. It is doubtful that the juvenile death penalty (even for hudud crimes) existed in the early period of Islam. As a survey of early traditions and jurists reveals, we have no contemporaneous reports of it in the Islamic legal texts. This demonstrates that the juvenile death penalty is not a question of religion, but of political dynamics and political will. The more the situation of the Muslim community has changed, the more interpretations of the law have altered to match the community’s needs, and to co-ordinate with the contemporary standards of Islamic societies.85 Thus, personal dignity and humanity are highly valued in current societies. Muslim jurists should continue adapting the tools to prohibit punishments that violate these values and which would be deemed problematic and in contrast to the idealism embodied in the ban on cruel and unusual punishment.

84  Ramadan, ‘A Call for a Moratorium on Corporal Punishment’. 85  Reza Aslan, ‘The Problem of Stoning in the Islamic Penal Code: An Argument for

Reform’, UCLA Journal of Islamic and Near Eastern Law, 91 (Fall/Winter 2003–2004).

Chapter 3

Talking to Each Other in the Dark: The American Abolition Movement and the Christian Opportunity Jeanne Bishop and Mark Osler

Introduction Within the United States, the organized movement to abolish the death penalty has many advantages: it is relatively well-funded, is co-ordinated, faces no similarly unified group of opponents, and has a strong core of articulate and committed activists. It has also won a string of victories, as five states (Connecticut in 2012, Illinois in 2011, New Jersey in 2007, New Mexico in 2009, and New York in 2007) have gone from embracing to rejecting the death penalty in just the last six years (Death Penalty Information Center [DPIC], 2012). These recent successes will continue if abolitionists can appeal to those (in and out of government) who currently are not on their side. To continue their winning streak, abolitionists will have to broaden their appeal to those who are not now on their side – fiscal conservatives, those who distrust government, and Christian churchgoers. Given that the death penalty is brutally expensive, reflects a near complete trust in government and runs contrary to the central narrative of the Christian faith, abolitionists should welcome this task enthusiastically. In this chapter, we argue that faith appeals to Christians must be part of any effective death penalty advocacy. The authors are both Christians who have taken this message to bastions of the death penalty such as Texas, Oklahoma and Virginia and found receptive audiences. It can and should be done, but doing so will require that we adopt new tactics and language that have not been embraced widely thus far in the abolitionist effort. We will begin by describing the significant continuing challenges for death penalty abolitionists. If the abolition movement wants to actually abolish the death penalty, it must move people from supporting or being undecided about capital punishment. That means that the message of the movement cannot be aimed merely at the progressive sensibilities of those within the movement, but rather must appeal to the more conservative views of those who are either for the death penalty or undecided. The first step towards doing so is creating a dialogue with those individuals, either directly or through the media. Sadly, too few of the resources available to

86

Capital Punishment: New Perspectives

abolition organizations go towards this effort. Instead, they too often focus on their ‘base’ (those who already agree with their goals) by hosting rallies or conferences amongst themselves, sponsoring ‘debates’ in friendly territories, or publishing advocacy pieces in left-leaning newspapers and magazines. Both authors admit their own faults in this regard. Professor Osler has, for example, written against the death penalty in the left-leaning Huffington Post, a forum whose readership is unlikely to disagree with him. Ms Bishop and the murder victims’ organization with which she is affiliated have spent resources sending speakers like Bishop to places like South Korea and Mongolia – meaning that they almost literally flew over active death penalty states such as Texas and Oklahoma to get to places on the other side of the world which have gone years without carrying out a single execution. In the subsequent section, we will describe the dynamic that makes Christian churches the next key battleground for the American death penalty. Among churchgoers, those who engage their faith with this issue tend to come out against the death penalty. Seizing this opportunity, however, may be awkward for a movement which has been largely secular and based in areas which are culturally and religiously distinct from the heartland of the death penalty. Finally, before drawing some conclusions, the authors will describe their own efforts to reach out to death penalty supporters within their faith communities. Starting from the premise that for many in states like Texas, Oklahoma, and Tennessee the source of their principles is the Christian faith, we conclude that it is necessary to reach them in churches and other religious institutions and within the context of that faith. As trial lawyers, one a prosecutor and the other a defence attorney, we are well-suited to recreate an unjust capital trial – that of Christ himself – and we are doing exactly that in churches and conservative religious colleges in death penalty states. This project puts in juxtaposition the support many Christians have for the death penalty and the narrative about the death penalty that is at the heart of Christian faith. Focusing on this real, relevant audience will force some changes on the death penalty abolition movement. It will have to become better at listening, more open to faith issues, and (most importantly) willing to strive for a tone of confident humility rather than moral and educational superiority. The abolition movement has the talent, the resources and the support to reach new audiences; it now must find the will to do so. The Problem of Closed Circles It is much easier, and affirming, to meet with our friends than our enemies or strangers. Sadly, what is easy and affirming is rarely effective in the field of advocacy. Yet, consistently, death penalty abolition activists and groups in the United States have spent substantial resources on meetings with friends and giving rousing speeches to one another.

The American Abolition Movement and the Christian Opportunity

87

For example, for the past several years a coalition of anti-death penalty groups has held a series of large rallies in Austin, Texas titled ‘The March to Abolish the Death Penalty’.1 The marches are held on a Saturday on the grounds of the State Capitol, prominent opponents of capital punishment are asked to speak, and local news outlets cover the event on television and in print.2 The event is sponsored by 16 organizations, including most of the major death penalty abolition groups in Texas.3 Hundreds of people attend each year. While ‘The March to Abolish the Death Penalty’ is certainly a rousing and well-intended event, it is nearly useless as advocacy against the death penalty. It would be hard to construct a less effective vehicle for changing minds. First, the march (at least in recent years) is held in virtually the only part of Texas where there is already strong opposition to the death penalty. The city of Austin, despite being the State Capitol, is an anomaly within that state in nearly every way.4 This is particularly true in politics; National Geographic has described Austin as ‘the lone blue outpost in an overwhelmingly red state’ (Chambers, 2010). This culture is fed by the presence (very close to the Capitol Building where the March is held) of the University of Texas. While the Capitol has symbolic importance, that symbolism is lost if it is never conveyed to the audience that really matters – those who might change their minds. The media coverage described on the event’s website is almost exclusively local, sending images to other Austin residents within a few miles of the event.5 While the media coverage is largely sympathetic, in terms of advocacy it is irrelevant unless it reaches those outside the circle of agreement. Thus, the effects of the march and its media coverage are effectively limited to Texas residents who already agree with the goals of the marchers. One suspects that one reason for holding the march there is for the convenience of death penalty opponents themselves, many of whom live close by. Moreover, holding the march on a Saturday at a place that doesn’t do business on weekends nearly guarantees that few other than the marchers themselves will be present. Some people, of course, might wander over from the nearby University of Texas, but those students likely already support the cause. The passionate chants and speeches are met with cheers and broad acceptance because of self-selection – the audience already agrees. That’s why they came, after all. Austin is a strikingly illogical choice for the rally. Texas offers three other metropolitan areas much larger than Austin (Dallas/Fort Worth, Houston and San

1  2  3  4 

See http://marchforabolition.org. See http://marchforabolition.org/?page_id=298. See http://marchforabolition.org/?page_id=3. The unofficial city slogan, found on bumper stickers throughout the town, is ‘Keep Austin Weird’; see www.keepaustinweird.com/home.html. 5  See http://marchforabolition.org/?page_id=298.

88

Capital Punishment: New Perspectives

Antonio),6 and all of them are more target-rich environments for death penalty activists, as a Texan might say. In other words, ‘The March to Abolish the Death Penalty’ is held in a doughnut hole inside of a doughnut hole – right in the most liberal part of the most liberal city in the state. Despite being organized by activists working in a very conservative jurisdiction which leads the Western world in executions, the march is unlikely to affect the views of more than a handful of the millions of Texans these abolitionists need to reach. It is effectively held within a closed circle, and that is stunningly ineffective as advocacy. The authors empathize with the planners of ‘The March to Abolish the Death Penalty’, as too much of our own advocacy has followed a similar path. For example, when Professor Osler’s book against the death penalty was released (Osler, 2009), the largest event was a signing at his favourite bookstore in Austin, Texas. The reasons were probably very similar to the reasons for hosting the march about eight blocks away from the Bookpeople shop on 6th Street. That location guaranteed a sympathetic audience, and one that would actually show up. It sold a lot of books – but probably they all went to people who were against the death penalty in the first place. Likewise, Ms Bishop’s work against the death penalty has involved a good deal of ‘preaching to the choir’. Giving speeches at universities and to human rights groups whose audiences already oppose the death penalty may energize people to work for abolition, but it does little to change the hearts and minds of death penalty supporters. Similarly, Ms Bishop has spoken against the death penalty in places like Mongolia, a country with a small death row and a moratorium on executions firmly in place, at the same time as US jurisdictions such as Virginia were regularly executing prisoners and the death row in California stood at more than 700 people. Not surprisingly, those within a closed circle often use little care to convey a message intended to appeal to those outside of the group. For example, ‘The March to Abolish the Death Penalty’ has made available online several videos of the events, which show marchers chanting slogans like ‘State of Texas, you can’t hide! We charge you with homicide!’7 While this represents, we suppose, an honest expression of frustration, it is hardly the kind of nuanced, thoughtful advocacy that is going to change minds. There is a time for the expression of frustration and anger, but if the goal is to win others over to your side, it is a poor choice – it usually will drive people the other way. We, as humans, do not react positively to broad accusations against us.

6  Austin has a population of about 1.7 million, while Dallas/Fort Worth and the Houston area are both over three times as large, and San Antonio has a population of over two million, according to the 2010 census. Moreover, Texas boasts five other metropolitan areas with populations over 400,000; TSHA (2012). 7  See http://marchforabolition.org/?page_id=47.

The American Abolition Movement and the Christian Opportunity

89

Thus, the challenge to the death penalty activists is really twofold: first, to reach out to those who may be (but are not yet) converted, and second, to do so in a language that appeals to their principles. Finding and Talking to the Right Audience Talking to progressives, in or out of government, will do little to change the landscape on capital punishment. The challenge, then, is to reach beyond that closed circle. There is an inherent challenge in that task – we have to enter an unfamiliar sphere and talk to people who are often vastly different to us (and sometimes hostile). How can progressive social activists reach conservative and moderate citizens who support or are ambivalent about the death penalty? Where do they go? The answer is simple: church. According to the Pew Research Center, the strongest support for the death penalty is among white Protestants (Pew, 2010). Interestingly, though, that same research reveals that among those who say that their religion influences their view, the numbers flip – 32 per cent of those who oppose the death penalty say that Christianity influences that view, while only 13 per cent of death penalty supporters assert that religion drives them to that opinion (Pew, 2010). Overall, the majority (55 per cent) of those churchgoers who let their religion inform their view on capital punishment are against the death penalty (Pew, 2010). What that tells us is that if death penalty opponents can make the death penalty a religious issue, it may bode well for their cause. The death penalty is apparently an issue not often addressed by American churches: according to Pew, less than a quarter of those regular churchgoers interviewed said that their clergy had discussed capital punishment. It shouldn’t be surprising that when Christians engage their faith with the issues of capital punishment, opinions tend to turn against the death penalty. Almost uniquely among the galaxy of contemporary social issues, Jesus spoke directly about the death penalty. In the Gospel of John, Chapter 8, the scribes and Pharisees brought before Jesus a woman caught in adultery who was to be the subject of a legal execution.8 In a direct challenge to the moral authority of the executioners, Jesus famously instructs them that ‘he who is without sin’ should cast the first stone, saving her. Moreover, the story at the centre of the faith is an unjust sentence of death driven by an over-zealous prosecutor9 and given only cursory review by officials

8  John 8:5 notes (through the Pharisees) that the Law of Moses called for the stoning of women caught in adultery. 9  That prosecutor got so passionate in his closing argument that he ‘tore his clothes’; Matt. 26:65.

90

Capital Punishment: New Perspectives

motivated by political expediency.10 If one takes the New Testament seriously, it is hard to maintain a firm belief in modern capital punishment. Intriguingly, the Pew research reveals that American Catholics both hear more about the death penalty in church and have stronger reservations about that institution than do white Protestants in either Evangelical or mainstream churches (Pew, 2010). This faith effect rings true not only in broad public advocacy, but in the more focused lobbying necessary to affect the thinking of public officials. For example, the historically significant move by the State of Illinois to finally ban the death penalty after years of struggle with the issue came down to the religious beliefs of a single man, Governor Pat Quinn. On 9 March 2011, Governor Quinn signed into law a bill abolishing the death penalty in Illinois. At the press conference afterwards, Quinn brought with him four books which he said helped inform his decision; those books included Sister Helen Prejean’s Dead Man Walking and Cardinal Joseph Bernardin’s The Gift of Peace. Quinn quoted scripture. He spoke of days and nights of reflection, and said that ultimately, his act abolishing the death penalty was one of conscience. It was a stunning public acknowledgment of faith driving action. Unfortunately for their cause, death penalty opponents often struggle with engagement on faith issues. Certainly, there are a few groups, such as People of Faith against the Death Penalty,11 which seek to mobilize faith communities, but they remain largely on the edges of the death penalty movement in terms of funding and exposure. The larger, better-funded groups are often institutionally averse to pushing the debate into churches and faith communities. In large part, this is because of the heterogeneous nature of these groups – they are composed of individuals of widely differing beliefs, making them unsuited to speaking as a voice of faith within faith communities. Atheists, Jews, Catholics, agnostics, Protestants, Muslims, Buddhists and others are deeply involved in this cause. This diversity, while beneficial in some ways, robs the larger groups not only of the will to take the debate into churches, but the very language needed to do so. Like many other discrete groups, Christians, particularly in the southern United States, have distinctive narrative touch points which must be understood. Those touch points include important faith moments such as conversion (deciding to become a follower of Jesus) and baptism (publicly affirming Christian faith with a sacrament). Heterogeneous groups such as the major death penalty organizations are structurally unable to speak this language or to build credibility by affirming those touch points. To say that those groups cannot talk the talk in church is certainly true, but that does not mean that some, even many, of the individuals within that group are not well suited to make religious arguments. To continue their winning run, large death penalty groups need to unleash the priests and nuns, passionate laypeople 10  Matt. 27:24. 11  See www.pfadp.org/.

The American Abolition Movement and the Christian Opportunity

91

and ministers who already are within their ranks, and push forward into the new frontier of faith. Instead of determining our message by our own consensus, we need to frame it in terms of the audience. To realize the power of this tactic, advocates need only to consider the example of Sister Helen Prejean, who is perhaps the most influential opponent of the death penalty in American history. Sister Helen Prejean is a Roman Catholic nun from Louisiana who transformed the death penalty debate in the US by telling the story of her faith-based work on the issue in almost every imaginable form of popular culture. She both acts as a spiritual adviser to prisoners on death row and reaches out to family members of their victims. Her best-selling book Dead Man Walking powerfully depicts her faith at work in the belly of the death penalty beast. The book became the basis for an Oscar-winning film, an opera and a widely performed play. The power of Sister Helen’s advocacy is well-known: she held highly influential meetings with lawmakers in all the US states that have recently abolished the death penalty. Her long private meeting with Illinois Governor Quinn is widely credited with helping sway his decision not only to abolish the death penalty in Illinois going forward, but also at the same time to commute the death sentences of every death row prisoner in the state. In those meetings and publicly, Sister Helen’s arguments against the death penalty have been unabashedly ones based on faith. Execution, she argues, is the opposite of baptism. In baptism, we declare a person to be a beloved child of God. In execution, we declare him to be human garbage. The Pew Research Center polling, the experience in Illinois and the singular successes of Sister Helen Prejean point to a clear way forward. To fundamentally change the dynamic of support for the death penalty in America, advocates must address faith issues. The authors have engaged in one effort to do exactly that. The Trial of Jesus as a Death Penalty Argument The Pew Research Center polling suggests that the majority of those who engage their faith with their views on the death penalty come to oppose it. That same polling establishes that relatively few churches seek out that engagement internally. What that means is that death penalty opponents do not necessarily have to push their way into churches and convince people to oppose the death penalty; rather, they simply have to convince the congregants to engage their faith with the issue. Overt argument is not necessary. Over the past two years, we have sought to do exactly that. The vehicle has been a trial – the trial of Jesus.12 We do not perform the entire trial; for purposes of focus and brevity, we limit ourselves to the second phase of the capital trial, 12  A full description of the trial is available at the University of St. Thomas Law School website, www.stthomas.edu/law/missionvision/mediaandpublicrelations/trialofchrist/

92

Capital Punishment: New Perspectives

which determines sentencing. This is realistic, as every American jurisdiction now divides capital trials into two parts, and the crucial part of the preceding is most often the sentencing phase, in which the jury decides whether or not to exact the punishment of death.13 The realism is not limited, either, to the bare outlines of the process. In each state where we perform the trial, we use the death penalty procedural rules of that state. Moreover, it is not a scripted drama – we are both trial lawyers (professor Osler is a former federal prosecutor, and Ms Bishop is currently a public defender), and treat the trial of Jesus as we would other criminal trials. Because the law and the witnesses differ from place to place, each performance is unique. The trial reshapes itself to the contours of each host. The performance itself treats the audience as jury. The first moment of the trial, in fact, has the judge directing the audience members to stand, raise their right hands, and be sworn in.14 Opposing counsel make opening statements, then call witnesses who are subjected to direct and cross-examination. The key witness is usually Jesus’ disciple Peter. The pattern of the trial rests largely on Peter’s testimony, which varies greatly from one trial to the next. For example, in one of our first efforts the role of Peter was played by Phil Steger, then a law student. He arrived for the trial dressed as the simple fisherman that Peter was, wearing jeans and a hoodie sweatshirt. He played the role with a wonderful, authentic enthusiasm (‘Yes! The Master did say that!’), which made cross-examination difficult – and realistic. After the witnesses testify, the lawyers make their closing arguments, and within about an hour, the trial portion concludes. The judge gives out verdict forms and instructions. The audience then breaks into groups of 12 and deliberates to a verdict. Not surprisingly, it is this portion of the event that is most useful in engaging the faith of our audience with their ideas on and around the death penalty. At no point in the trial is any kind of explicit anti-death penalty argument made (except as applied to the defendant in the defence attorney’s closing argument). Yet, according to the feedback we have received formally and informally, we succeed in nudging the audience’s faith into contact with their policy ideas regarding capital punishment. Thus far, the trial has been performed in eight states, with a focus on areas where the death penalty has been used, including California, Oklahoma, Tennessee, Texas and Virginia. Moreover, we have sought out areas where we would expect (accessed 20 May 2013). In addition, video of an early version of the trial can be seen at www.youtube.com/watch?v=_aknml0KwKQ (accessed 20 May 2013). 13  This unique type of jury sentencing is required under the United States Supreme Court’s decision in Ring v. Arizona, 536 US 584 (2002). 14  This dramatic moment was not our invention. The judge at one of our early performances, former Virginia Attorney General William G. Broaddus, came up with this innovation after informing the group in deep tones that ‘Tonight it is your duty to determine the proper punishment’; Marripodi (2011).

The American Abolition Movement and the Christian Opportunity

93

to find groups of death penalty supporters, including evangelical institutions such as Carson-Newman College in Tennessee and Regent University in Virginia and churches in conservative strongholds such as Oklahoma City and Richmond, Virginia. In each place, we were welcomed warmly as fellow believers. Like other activists, we seek to use media and the press as a ‘multiplier’ in getting our core message out. For example, in Oklahoma City the trial was televised to an audience of over 35,000 people. The trial of Christ has been favourably profiled both in mainstream outlets such as CNN (Marripodi, 2011) and some unexpected places such as the leading celebrity gossip website maintained by Perez Hilton, who concluded his description by asking: ‘What do U think about this mock trial? Does it make U think twice about capital punishment?’ (Hilton, 2011). The spelling may be unorthodox, but the question was exactly one we hope will be raised by what we are doing. By going into conservative churches and schools, we are able to have a conversation with people not often reached so directly by those who oppose the death penalty. The key to this, of course, is to centre the presentation in the overlapping common ground we have with those in that church – a reverence for the story of Christ. That is the Venn diagram shaded area of overlap between the circles of our lives and the lives of the people in that church. We are not faking it, either; our own faith genuinely is centred on that same gospel that is read from their pulpit, the same gospel which provides the very dialogue we rely on in the trial. On occasion, even, we have become involved with Sunday worship itself, giving the sermon and singing in the choir at the church where the trial is presented. A faith message must be rooted in a real, shared faith; phoneys are quickly detected. Part of the power of Sister Helen Prejean’s message is that no one can deny the sincerity of her belief. Conclusions A chant like ‘State of Texas, you can’t hide! We charge you with homicide!’ has no chance of taking abolition advocacy to the next level. To succeed, abolitionists must learn and respect the competencies and concerns of conservative Americans who either support or are ambivalent about the death penalty. This is true whether the communication is direct or through the media, to the masses or to elected officials. What that means is simple: abolitionists must bring forward those in their midst who can speak with authority on budgets and austerity to conservatives who are deeply concerned about government spending. They must genuinely express concerns about the limitations of government. And (as discussed here), they will have to rely heavily on those who can speak with conviction about the need to engage the Christian faith with the question of capital punishment to those for whom Christianity frames the key questions in their lives. The shift to this more evolved form of engagement requires, above all else, a trait too rarely found in public advocacy: the gift of humility. After all, these

94

Capital Punishment: New Perspectives

strategies only work if they are sincere, and are sincere only if those who carry them forward see death penalty supporters as intelligent, principled people. No longer will oppositional politics be sufficient. We will have to leave our homes in Austin and Minneapolis and Boston and go to those places where our opponents work and live and worship. We must walk to where they are. Only then, with humility and respect for those distinct worlds, for their concerns with faith and reserve and austerity, will we move towards becoming a nation which no longer chooses to execute those least among us. References Chambers, D. (2010), ‘Austin, No Limits: A Local’s Guide to the Best Music Festival in the Country’, http://adventure.nationalgeographic.com/weekendgetaways/texas/austin-travel-2 (accessed 12 June 2012). Death Penalty Information Center (DPIC) (2012), ‘States With and Without the Death Penalty’, Washington, DC: Death Penalty Information Center, www. deathpenaltyinfo.org/states-and-without-death-penalty (accessed 12 June 2012). Hilton, P. (2011), ‘Jesus on (Mock) Trial in Virginia’, PerezHilton.com, http:// perezhilton.com/2011-04-23-virginia-church-holds-mock-jesus-trial (accessed 12 June 2012). Marripodi, E. (2011), ‘Jesus on Trial: What Would a Modern Jury Do?’, CNN Belief Blog, http://religion.blogs.cnn.com/2011/04/22/jesus-on-trial-wouldhe-be-sentenced-to-death-today/ (accessed 12 June 2012). Osler, M. (2009), Jesus on Death Row, Nashville, TN: Abingdon Press. Pew (2010), ‘Few Say Religion Shapes Immigration, Environment Views’, Pew Forum on Religion and Public Life, www.pewforum.org/Politics-andElections/Few-Say-Religion-Shapes-Immigration-Environment-Views.aspx (accessed 12 June 2012). Texas State Historical Association (TSHA) (2012), ‘Texas Almanac’, www. texasalmanac.com/topics/population (accessed 12 June 2012).

Chapter 4

Non-refoulement Obligations Under International Law in the Context of the Death Penalty Yuval Ginbar, Jan Erik Wetzel and Livio Zilli1

The obligation not to forcibly remove, or “refouler”, people in circumstances where they would face a real risk of the death penalty is a well-established rule in international human rights law. This obligation has been developed over the past two decades, and is now expressed in international treaties, standards and jurisprudence. What started with the Soering decision of the European Court of Human Rights (ECtHR) in 1989, and was stated most clearly in Judge v. Canada by the Human Rights Committee in 2003, was recently confirmed again in the Tsebe decision of 27 July 2012 of the South African Constitutional Court.2 For present purposes, the non-refoulement principle is invoked most frequently when a retentionist state requests the extradition on capital charges of a person from an abolitionist state. In those circumstances, most governments and courts now routinely expect enforceable assurances from the requesting state that the death penalty would either not be imposed or carried out (so-called diplomatic assurances). This is relevant against the background of two trends. First, more and more states are becoming abolitionist. Second, concerns over international terrorism, drugtrafficking and transnational crime in general are growing, increasing the need for international legal co-operation (Burleson, 2005; Beltrán de Felipe and Nieto Martín, 2012). Greater recognition of the applicability of the non-refoulement principle in the context of the death penalty has resulted in a diminished ability on the part of retentionist states to secure extraditions and to implement the death penalty. Consequently, these states increasingly find themselves having to forgo 1  Amnesty International, International Secretariat, London. The views expressed in this chapter are those of the authors, and do not necessarily reflect the views of the organization. 2  See Minister of Home Affairs and Others v. Tsebe and Others, Minister of Justice and Constitutional Development and Another v. Tsebe and Others, Constitutional Court of South Africa [2012] ZACC 16. Amnesty International was granted permission to submit written and oral arguments as amicus curiae. The organization was represented by the University of the Witwatersrand Law Clinic, Advocates of the High Court of South Africa David Simonsz and Mushahida Adhikari, and Paul Kennedy SC.

96

Capital Punishment: New Perspectives

the death penalty in exchange for successfully obtaining custody of suspects. This phenomenon at its most extreme may amount to ‘indirect abolition’ (Schabas, 2003) through a ‘strategy of non-cooperation’ (Hood and Hoyle, 2008, 28). This chapter charters the legal bases, applicability and scope of the nonrefoulement obligation in cases of a real risk of the death penalty. First, it describes how this rule is found in related but distinct normative regimes, chiefly refugee and human rights law; second, it emphasizes that the non-refoulement principle enjoins the transfer of persons when there is a real risk of the death penalty not only in the context of extradition, but also in any other scenario of enforced removal. Third, it outlines the distinct and specific non-refoulement obligations of abolitionist and retentionist states. Fourth, it considers the lawful use of assurances to remove the risk of the death penalty, especially in contrast with their use in cases where there is a real risk of torture or other ill-treatment. Finally, the chapter assesses the rationale for compliance with the non-refoulement obligation in the context of the death penalty, most common counter-arguments, and implications for the future administration of justice consistent with international human rights. Brief Remarks on Non-refoulement in Human Rights Law The principle of non-refoulement is well established in international human rights law. It is explicitly codified in some human rights treaties and standards.3 Further, domestic and international courts and human rights bodies and experts have consistently found that certain fundamental human rights entail, implicitly, an obligation not to transfer (“refouler”) people when there are substantial grounds for believing that they would face a real risk of violations of those rights in the event of their deportation, expulsion, extradition, handover, return, surrender, transfer or other removal from the state’s jurisdiction.4 In those circumstances, human rights law enjoins the removal of the individuals concerned from the relevant state’s jurisdiction (Droege, 2008).5 The prohibition of refoulement 3  See, inter alia, Art. 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Art. 16 of the International Convention for the Protection of All Persons from Enforced Disappearance; Art. 19 of the Charter of Fundamental Rights of the European Union; Principle 5 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions; see also Art. 33 of the 1951 Convention Relating to the Status of Refugees. 4  The ECtHR first recognized that Art. 3 of the European Convention on Human Rights prohibiting torture or other ill-treatment enjoined contracting parties from removing individuals when substantial grounds for believing that they would face a real risk of prohibited ill-treatment had been shown to exist in the Soering v. UK case, Application no. 14038/88, 7 July 1989, para. 88. See also, inter alia, the Human Rights Committee, General Comment no. 31, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 12. 5  The non-refoulement principle extends and applies extraterritorially in circumstances where states exercise jurisdiction. See, for example, the case law of the ECtHR, inter alia,

Non-refoulement Obligations Under International Law

97

dictates that, irrespective of all other considerations, states are not absolved of responsibility ‘for all and any foreseeable consequences’ suffered by an individual following removal from their jurisdiction.6 States have also been found liable in cases of indirect refoulement – also known as chain refoulement – as well as in cases involving constructive refoulement.7 The legal basis of – and the rationale for – the non-refoulement obligation in human rights law stem from two core states’ obligations: the duty to recognize, secure, protect and promote the human rights of all individuals within their jurisdiction, and the duty to ensure that human rights safeguards be interpreted and applied so as to make them practical and effective. Therefore, the purpose of the non-refoulement principle is preventative: it seeks to protect individuals from a real risk of serious harm. In addition, international human rights law has made a substantial contribution to establishing this principle as a fundamental component of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment (United Nations High Commissioner for Refugees [UNHCR], 2001, para. 16). The purpose of the non-refoulement obligation is to forestall the perpetration of practices that are absolutely prohibited. Thus, unlike its equivalent in international refugee law, the prohibition of refoulement in human rights law is absolute.8 Even those who may reasonably be regarded as ‘a danger to the security of the country or … who constitute[s] a danger to the community of that country’,9 and who consequently may not benefit from the protective scope of the non-refoulement principle in international refugee law,10 are entitled to enjoy the protection of its counterpart in human rights law given its absolute nature. Further, as an obligation directed at securing rights in ways that are both practical and effective, the non-refoulement principle is thus a fundamental component implicit in other human rights beyond provisions prohibiting torture or other illtreatment.11 For example, the Human Rights Committee, the body monitoring the Hirsi Jaama and Others v. Italy, [GC], Application no. 27765/09, 23 February 2012, paras 70–82; Al-Saadoon and Mufdhi v. UK, Application no. 61498/08, 2 March 2010. 6  See, inter alia, ECtHR: Soering, paras 85–6; Hirsi, para. 115; Saadi v. Italy [GC], Application no. 37201/06, 28 February 2008, para. 126. 7  For the prohibition of chain refoulement, see, for example, ECtHR, M.S.S. v. Belgium and Greece [GC], Application no. 30696/09, 21 January 2011; for constructive refoulement, see M.S. v. Belgium, Application no. 50012/08, 31 January 2012, where the ECtHR found that the applicant could not be regarded as having validly waived his right to the protection against refoulement guaranteed by Art. 3 of the ECHR. 8  See, for example, ECtHR, Soering, para. 88; Ireland v. UK, Application no. 5310/71, 18 January 1978, para. 163; Chahal v. UK, Application no. 22414/93, 15 November 1996, para. 79. 9  Art. 33(2) of the UN Convention Relating to the Status of Refugees 1951. 10  But see Art. 2(3) of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which contains no such exceptions. 11  See, inter alia, ECtHR, Z and T v. UK, Application no. 27034/05, admissibility decision, 28 February 2006. See also Human Rights Committee, General Comment 31

98

Capital Punishment: New Perspectives

implementation of the International Covenant on Civil and Political Rights 1966 (ICCPR), has recognized that the principle of non-refoulement is also a fundamental component of the right to liberty and security of person under Article 9 of the ICCPR, as has the UN Working Group on Arbitrary Detention.12 In Othman v. UK, the ECtHR confirmed that a state is in violation of the non-refoulement obligation implicit in Article 5 of the ECHR, enshrining the right to liberty and security of person, if it ‘removes an applicant to a State where she or he was at real risk of a flagrant breach of that article’; it also found that Othman’s deportation to Jordan would be in violation of the non-refoulement obligation entailed in Article 6 of the ECHR, enshrining the right to a fair trial, as a result of the real risk of a flagrant denial of justice at his trial in Jordan.13 Human rights law entails non-refoulement obligations enjoining states from acting, or omitting to act, in ways that would result in the removal of any individual from their jurisdiction when states know or ought to know that their removal would expose them to a real risk of serious human rights violations or abuses. Those non-refoulement obligations also apply in respect of states’ failure to take steps to prevent any prohibited transfers, and states are responsible under human rights law for any reasonably foreseeable posttransfer violations (Droege, 2008). The Absolute Non-refoulement Obligation of Abolitionist States In the context of the death penalty, non-refoulement obligations under human rights law differ between abolitionist and retentionist states. Neither group may remove persons to a requesting state where there is the real risk of a violation of the minimum safeguards on the use of the death penalty under international standards, including but not limited to articles 6(2), 7 and 14 of the ICCPR (Droege, 2008; Harrington, 2006; Nowak, 2005, MN 51–2).14 However, going beyond this (2004), para. 12, referring as an example to the real risk of harm contemplated by Arts 6 and 7 of the ICCPR as a trigger for non-refoulement obligations, thus recognizing that a real risk of different types of harm may give rise to non-refoulement obligations. 12  Human Rights Committee, G.T. v. Australia, CCPR/C/61/D/706/1996, 4 November 1997, para. 8.7; Working Group on Arbitrary Detention, A/HRC/4/40, 9 January 2007, para. 49, emphasizing the need for states to ‘include the risk of arbitrary detention in the receiving State per se among the elements to be taken into consideration when asked to extradite, deport, expel or otherwise hand a person over to the authorities of another State, particularly in the context of efforts to counter terrorism’. 13  Othman (Abu Qatada) v. UK, Application no. 8139/09, 17 January 2012. 14  See also UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (2012), para. 77. Arguably, this is what Committee Members Klein and Kletzmer meant when they dissented in the case of G.T. v. Australia before the Human Rights Committee (CCPR/C/61 /D/706/1996, 4 November 1997), as in that case extradition was requested for drugs offences, crimes that are not ‘most serious’ within the meaning of Art. 6(2) of the ICCPR, but nevertheless capital crimes in the requesting state, Malaysia;

Non-refoulement Obligations Under International Law

99

common obligation, abolitionist15 states are absolutely prohibited from extraditing or otherwise forcibly removing persons to the jurisdiction of a prosecuting state if there is a real risk of imposition or implementation of the death penalty as such (Burleson, 2005). Following the prohibition of chain refoulement (see above), this also means that removal to the jurisdiction of a first country is prohibited if a real risk of subsequent onward transfer to a second, prosecuting, state exists. For abolitionist states, the obligation of non-refoulement thus applies even where the minimum standards would be complied with by the requesting state. This is clear from, inter alia, the case law of the Human Rights Committee with regard to Article 6 of the ICCPR (the right to life), as well as judgments from national and regional courts, including, but not limited to, decisions of the European Court of Human Rights. The Human Rights Committee observed in 2003 in Roger Judge v. Canada16 that abolitionist states cannot avail themselves of the death penalty exceptions in Article 6(2) of the ICCPR, as this only applied to retentionist states. It thereby reversed its earlier case law of Kindler v. Canada 17 and Ng v. Canada.18 While in 1993 the Committee had held that the requested state was not violating Article 6(1) as long as the requesting state observed the limitations of Article 6(2), it now stated: For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out. (Judge, para. 10.4)

The Committee found that a differentiated treatment between abolitionist and retentionist states was required by, inter alia, the ‘broadening international Schabas (2003), 594. See also Principle 5 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, ECOSOC Resolution 1989/65 of 24 May 1989; Human Rights Committee, General Comment 31 (2004), para 12. 15  For present purposes, ‘abolitionist’ means states that have abolished the death penalty de jure for all crimes. However, arguably these obligations could also apply to states which are abolitionist in practice, for example if an official moratorium on executions exists, or if a state has ratified ICCPR-OP2, but has not yet abolished the death penalty in law. 16  CCPR/C/78/D/829/1998 (5 August 2003). 17  CCPR/C/48/D/470/1991 (30 July 1993). 18  CCPR/C/49/D/469/1991 (5 November 1993). But see the dissenting opinions of Aguilar Urbina, Chanet, Llallah, Wennergren and Pocar in Kindler, who stated that abolitionist states may not ‘indirectly’ apply the death penalty. In Ng, the Human Rights Committee did find a violation of Art. 7 of the ICCPR due to the extradition to the risk of execution by gas asphyxiation. The Human Rights Committee has welcomed the refusal to extradite to the risk of the death penalty in the context of country reports; Concluding Observations: Portugal (Macau), CCPR/C/79/Add.77, 5 May 1997; Concluding observations on the initial report of Macao, China, CCPR/C/CHN-MAC/CO/1, 27 March 2013, para. 11.

100

Capital Punishment: New Perspectives

consensus in favour of abolition of the death penalty’, newly supporting case law of the Supreme Court of Canada in United States v. Burns (2001, see below), and that extraditing in these circumstances would go against the object and purpose of Article 6 of the ICCPR (Judge, paras 10.3–6).19 In effect, this means that the obligation to protect the right to life under Article 6(1) is, in this respect, without any limitation for abolitionist states, including where they have received a request for extradition (Nowak, 2005, MN 55). Furthermore, the Committee observed that this prohibition applied irrespective of whether the state had ratified the Second Optional Protocol to the ICCPR of 1989, aiming at the abolition of the death penalty (ICCPR-OP2). Canada did not accede to ICCPR-OP2 until 2005. But by deporting Roger Judge in 1993 to the USA, where he was under sentence of death, Canada had established ‘the crucial link in the causal chain that would make possible the execution of the author’, and this alone was sufficient to find a violation by Canada of Article 6(1) of the ICCPR (Judge, para. 10.6). This obligation can apply a fortiori if the requested state has ratified a treaty abolishing the death penalty (UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 2012, para. 75) like ICCPR-OP2, or regional treaties such as the Protocol to the American Convention on Human Rights to abolish the death penalty of 1990 and Protocols 6 and 13 to the ECHR.20 For example, state parties to ICCPR-OP2 are under the duties not to execute and to ‘take all necessary measures to abolish the death penalty within its jurisdiction’ (Article 1(2)). Facilitating the death penalty elsewhere is not a ‘measure to abolish’, as the application of the death penalty is furthered rather than reduced. In these circumstances, removal to a retentionist state without assurances would therefore violate the non-refoulement obligation implicit in ICCPR-OP2 (Nowak, 2005, MN 55). In the authors’ view, the prohibition for abolitionist states of refoulement to a real risk of the death penalty has evolved from a preferable consideration (Dugard and Van den Wyngaert, 1998; Nanda, 1999, speaks of ‘comity’) to a binding rule under customary international law. On the global level, the general principle is recognized by UN Commission on Human Rights resolution 2005/59,21 which requests: States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that the death penalty will not

19  This perspective was mirrored by the South Guateng High Court when it clarified that any death penalty-related limitation of the right to life still accepted in international law could not apply to a fully abolitionist country such as South Africa; Tsebe and Pitsoe (Phale), see below, para. 120. 20  ECtHR: Al-Shari and Others v. Italy, Application no. 57/03, 5 July 2005; Bader and Kanbor v. Sweden, 2005, see below, Concurring Opinion Cabral Baretto; Al-Sadoon and Mufdhi v. UK, 2010, see below; Rrapo v. Albania, Application no. 58555/10, 25 September 2012. 21  E/CN.4/RES/2005/59, 20 April 2005.

Non-refoulement Obligations Under International Law

101

be carried out, and calls upon States to provide such effective assurances if requested to do so, and to respect them. (OP 10)

The more recent 2012 ILC Draft Articles on Expulsion of Aliens (A/CN.4/L.797) in Article 23(2) expressly prohibit this type of forced removal unless assurances against the death penalty are obtained. Some international treaties include language that ‘extradition may be refused’.22 Similarly, Article 21(3) of the Council of Europe Convention on the Prevention of Terrorism (2005) contains a provision allowing the refusal of extradition ‘if the person who is the subject of the extradition request risks being exposed to the death penalty’. Article 9 of the Inter-American Convention on Extradition (1981) declares that states ‘shall not’ remove persons in these circumstances. Article 17 of the ECOWAS Convention on Extradition (1994) states that ‘extradition may not be granted’ if the offence is punishable by death in the requesting state but not provided for by the law of the requested state. The Charter of Fundamental Rights of the European Union (2000) (revised version, OJ C 83/389 of 30 March 2010) – legally binding since the Treaty of Lisbon entered into force in 2009 – states expressly in Article 19(2): ‘No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.’ The latter means that, for example, Article 13 of the Agreement on Extradition between the European Union and the United States (OJ L 181/27 of 19 July 2003, in force since 2010), which provides that if certain conditions – that is, assurances not to apply the death penalty – are not met by the requesting state, the wording ‘the request for extradition may be denied’ needs to be read as ‘must be denied’. The prohibition has found its most extensive acceptance and development in the case law of regional and national courts. In particular, the jurisprudence of the European Court of Human Rights has contributed to the development of this rule. In 1989, in the well-known case Soering v. The United Kingdom,23 the ECtHR found a prohibition on extraditing the applicant not in Article 2 of the ECHR (the right to life), but in Article 3 of the ECHR (the prohibition of torture and other illtreatment). The court held that extradition to the risk of the so-called ‘death row phenomenon’ would be against the ‘spirit and intendment’ of Article 3, and that an ‘obligation not to extradite’ would have to be seen as ‘inherent’ to that provision (para. 88). In Bader and Kanbor v. Sweden,24 the ECtHR held that the deportation of rejected asylum seekers to Syria without any assurances that the death penalty would not be sought or imposed would directly give rise to a violation of Article 2 of the ECHR; one of the applicants had been sentenced to death in absentia, and Syria’s practice put him at a real risk of being executed. Finally, Al-Sadoon and 22  Art. 4 of the UN Model Treaty on Extradition (1990); Art. 11 of the European Convention on Extradition (1957). 23  Application no. 14038/88, 7 July 1989. 24  Application no. 13284/04, 18 November 2005.

Capital Punishment: New Perspectives

102

Mufdhi v. UK 25 did not concern a request for extradition, but a transfer of custody from British to Iraqi authorities within Iraq in 2004. The ECtHR considered that in the light of the abolition of the death penalty in all member states of the Council of Europe, and the near universal ratification of Protocols 6 and 13 to the ECHR, the death penalty as such was now prohibited by Article 2 of the ECHR. It therefore found that the UK had violated its international obligations by transferring the prisoners without obtaining binding assurances, as they faced a real risk of being sentenced to death and executed (Al-Sadoon and Mufdhi, para. 143). Soering and subsequent case law of the European Court was soon followed by domestic courts in, for example, France, Italy, the Netherlands and Switzerland in either allowing extradition or any other transfer only after assurances that the death penalty would not be sought, or not allowing transfer at all, even if guarantees were provided (Nanda, 1999; Schabas, 2003). However, this jurisprudence is not limited to Europe. In 2001, the highest courts in Canada and South Africa adopted the approach to prohibit extradition without assurances. Specifically, the Supreme Court of Canada unanimously held in US v. Burns26 that ‘in the absence of exceptional circumstances, which we refrain from trying to anticipate, assurances in death penalty cases are always constitutionally required’ (para. 65), and that ‘other abolitionist countries do not, in general, extradite without assurances (para. 130; see also Mohamed, see below, para. 45). The court based its finding on, inter alia, Canada’s fully abolitionist position, the international trend against the death penalty, and concerns over wrongful convictions in the USA (para. 131). It also referred to the decisions of the ECtHR in Soering and of the Constitutional Court of South Africa in Makwanyane,27 in which that court declared the death penalty as such unconstitutional. In the same year as Burns, the latter court also provided authority for the present proposition in Mohamed v. President of the Republic of South Africa.28 Following on from its own decision in Makwanyane, the Constitutional Court now held in addition that the handing over for removal of a Tanzanian terror suspect sought for capital charges to US authorities without securing assurances on the non-application of the death penalty equally violated the right to life, dignity, as well as the prohibition of cruel, inhuman and degrading treatment or punishment under the South African Constitution (Mohamed, para. 49). The government was forbidden ‘knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition’ of constitutionally prohibited punishments, and was ‘under a duty to secure an undertaking’ that such punishment would not be imposed (Mohamed, para. 37). This absolute non-refoulement obligation was upheld and again extended on 27 July 2012 in Minister of Home Affairs and Others v. Emmanuel Tsebe and 25  26  27  28 

Application no. 61498/08, 2 March 2010. (15 February 2001) 1 SCR 283, 2001 SCC 7. 1995 (3) SA 391. 2001 (3) SA 895 CC.

Non-refoulement Obligations Under International Law

103

Others,29 in which the Constitutional Court disallowed the extradition or otherwise removal of two individuals wanted in Botswana for murder because if transferred to Botswana they would face the death penalty, and the authorities there had refused to provide assurances that they would not. The Constitutional Court confirmed that ‘the government is under an obligation not to deport or extradite … or in any way transfer’ a suspect where there is ‘a real risk of the imposition of the death penalty … in the absence of requisite assurances’ (Tsebe, paras 72–5). While saying little on the applicable international law principles, the Constitutional Court reaffirmed its own jurisprudence in Mohamed and upheld the decision of the South Gauteng High Court.30 With regard to international law, the Constitutional Court in Mohamed and the High Court in Tsebe had both found that the failure to obtain an assurance constituted an absolute bar to extradition to a retentionist country, based in part on Burns, Soering and other European precedents, but also Article 3 of the UN Convention against Torture. Writing for the Constitutional Court, Acting Justice Raymond Zondo now held that when South Africa adopted its constitution, it affirmed its commitment to upholding the human rights of every person in everything that it did, and could not extradite, deport or surrender anyone where doing so would expose him or her to the real risk of the imposition and execution of the death penalty; its constitutional framework disallowed any way of being a party to killing imposed as a punishment (Tsebe, paras 65–7). These judgments also confirm that the prohibition of any kind of forced removal to a real risk of the death penalty without assurances that capital punishment will not be applied is now obligatory for abolitionist states (Harrington, 2006, 122). Their authorities have no discretion anymore, as still indicated in some older documents (Article 4 of the UN Model Treaty on Extradition; Article 11 of the European Convention on Extradition). With regard to the ICCPR, the Human Rights Committee has found an obligation not to expose a person to a real risk of the death penalty (Judge, 2003, para. 10.4; General Comment 31, 2004, para. 12). More recent international treaties and standards, such as the EU Charter of Fundamental Rights, have explicitly enshrined a non-refoulement obligation when there is a real – or ‘serious’ – risk of the death penalty. Similarly, relevant national constitutional and statutory provisions (see below) use prescriptive language, which does not permit the requested state to proceed without assurances in an individual case. The preponderance of authorities therefore indicate that the non-refoulement principle presently discussed is binding, and not discretionary. This increasing application of mandatory rules in capital extradition cases also reflects the worldwide trend towards total abolition (Amnesty International, 2001). The legal observations above are complemented by state practice. First, according to the Eighth Quinquennial Report of the UN Secretary-General on capital punishment in 2009, all fully abolitionist states responding to the survey 29  (2012) ZACC 16. 30  Emmanuel Tsebe and Another v. Minister of Home Affairs and Others, and Pitsoe

(Phale) v. Minister of Home Affairs and Others, 2012 (1) BCLR 77 (GSJ), 22 September 2011.

104

Capital Punishment: New Perspectives

declared a general policy of denying extradition to states where the death penalty might be imposed, unless respective assurances were given (E/2010/10, para. 9). Detailed observations on the network of bilateral extradition treaties, or on all national instruments legally enshrining the non-refoulement obligation in respect of a real risk of the death penalty upon removal, are beyond the scope of this chapter (but see Schabas, 2003).31 But it is noteworthy that not only do abolitionist countries adopt this position in statutory law (see, for example, Section 22(3) of the Australian Extradition Act 1988; Section 94 of the UK Extradition Act 2003; Section 31(1) of the Danish Aliens (Consolidation) Act 2006; Article 8 of the Rwandan Organic Law no. 31/2007 relating to the abolition of the death penalty), but that a number of abolitionist countries in Europe, Africa and Asia have even entrenched this obligation in their constitutions.32 Furthermore, most states that still maintain the death penalty when requesting, for example, extradition from an abolitionist state willingly offer assurances (Schabas, 2003; Izumo, 2010). While in the late 1990s some authorities in the USA, for example in Texas and California, still refused to give assurances in death penalty cases (Amnesty International, 2001), now they are standard practice, and have in fact not been breached.33 Countries like China, Morocco and Trinidad and Tobago have either provided relevant guarantees or signed extradition treaties including such a clause (Hood and Hoyle, 2008, 31). The Quinquennial Report of the UN Secretary-General (supra) mentions only Japan as expressly objecting to this practice. Israel (legally only abolitionist for ordinary crimes) and South Korea (abolitionist in practice) have both acceded to the European Convention on Extradition.34 India even enshrined this principle in its own legislation, which in Section 34(c) of the Indian Extradition Act (1962) generally rules out application of the death penalty for persons it receives from an abolitionist state.35 From the

above, it is clear that it is generally accepted that states are under limitations

when requesting the transfer of persons in the context of the death penalty, or when 31  In any event, bilateral extradition treaties or other agreements, such as on mutual assistance in criminal matters, have to be read in the light of international obligations such as the ICCPR (Human Rights Committee, Kindler, para. 13.1), or the applicable constitutional framework of the abolitionist state (South African Constitutional Court, Tsebe, para. 64). 32  Angola, Art. 70(2); Cape Verde, Art. 37; Finland, Art. 9; Mozambique, Art. 67; Portugal, Art. 33(6); São Tome and Principe, Art. 41(2); Seychelles, Art. 25(4); Timor Leste, Section 35(3). 33  See, for example, ECtHR, Einhorn v. France, Application no. 71555/01, 16 October 2001; Harkins and Edwards, Application nos 9146/07 and 32650/07, 17 January 2012. 34  The Convention is open to states outside Europe; Art. 30. 35  In 2012, this became relevant in the case of Abu Salem, who had been extradited in 2005 by Portugal to India under assurances that he would not be eligible for the death penalty. However, after the Indian prosecuting authorities introduced new capital charges, the Portuguese courts terminated the extradition order, and the Indian Supreme Court had to stay proceedings; ‘CBI May Move to Supreme Court to Drop Organized Crime Charges against Abu Salem’, Times of India, 3 December 2012.

Non-refoulement Obligations Under International Law

105

responding to such requests. Where the requested state breaches these constraints, international legal responsibility may be incurred (UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 2012, para. 68). Assurances in Cases where there is a Real Risk of the Death Penalty When suspected criminals flee the country where they are sought, or are otherwise found across borders, removing them to face prosecution is a key means of ensuring justice, including to victims, and the prevalence of the rule of law. However, this often means co-operation between states whose legal systems vary widely, including as to the legitimacy of resorting to the death penalty. One modality developed to accommodate such differences and facilitate removals was the provision by the receiving state of assurances (so-called diplomatic assurances). The UN High Commissioner for Refugees has defined diplomatic assurances as follows: The term ‘diplomatic assurances’, as used in the context of the transfer of a person from one State to another, refers to an undertaking by the receiving State to the effect that the person concerned will be treated in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law. (UNHCR 2006, para. 1)

Diplomatic assurances take several forms, ranging from verbal promises through an exchange of letters, to contract-like memoranda of understanding,36 and their legal status is a matter of contention (Worster, 2012). In the present context, quite often assurances are also given by prosecuting authorities. While the focus of this chapter is on assurances that if extradition were to take place, the requesting state will not seek the death penalty during prosecution or any death sentence imposed would not be carried out, much of the debate elsewhere has centred on assurances that the receiving state would not torture or otherwise ill-treat the people concerned.37 This has been true of academic discussions (for instance, Deeks, 2008; De Wolf and James, 2009), considerations by UN

36  For instance, in the wake of the 9/11 attacks, it has been the policy of the UK to sign memoranda of understanding (MOUs) with Middle Eastern and African states with a poor record on torture and other ill-treatment to ensure that it can transfer suspected terrorists to these states. For example, MOUs were signed with Ethiopia, Jordan, Libya and Lebanon. In addition, assurances agreed with Algeria took the form of an exchange of letters. The MOU with Libya was struck out as unsafe by the UK courts. For a favourable analysis by an official of the UK’s Foreign and Commonwealth Office, see Jones (2008); for criticism, see, for example, Human Rights Watch (2008) and Amnesty International (2010), 28–31. 37  The context was also often wider than extraditions, including forms of removal that are unlawful per se, such as ‘extraordinary renditions’.

106

Capital Punishment: New Perspectives

human rights monitoring bodies in state reports38 and individual cases,39 regional courts (in particular in Europe)40 and reports by human rights non-governmental organizations (NGOs) (Human Rights Watch, 2004; Human Rights Watch, 2005; Human Rights Watch, 2008; Amnesty International, 2010). Of note is the fact that while human rights NGOs (and others) have opposed in principle the seeking or accepting of diplomatic assurances against torture and other ill-treatment, they have shown little, if any, principled opposition to diplomatic assurances that the death penalty will not be sought. The UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism explained the distinction between the two types of diplomatic assurances from a practical point of view as follows: ‘unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel’ (E/CN.4/2006/94, 16 February 2006, para. 56). A principled distinction between the two types was encapsulated by the Canadian Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration): ‘A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process)’ ([2002] 1 SCR 3, para. 124). The same criticism has been made vividly in the oft-used phrase explaining why human rights NGOs oppose assurances against torture in principle, namely that ‘[a]sking for the creation of such an island of protection comes dangerously close to accepting the ocean of abuse that surrounds it’ (Human Rights Watch, 2005, 23). This would clearly not apply to accepting assurances against the death penalty: as that penalty is not (yet) universally unlawful, no ‘ocean of (legal) abuse’ is thereby accepted. Similarly, a sharply divided picture emerges from the jurisprudence of international and regional human rights monitoring bodies: although such bodies are seldom opposed in principle to the practice of assurances against torture they have invariably treated – and urged states to treat – such assurances with great caution, indeed suspicion.41 In contrast, these bodies are much less hesitant about 38  See, for example, Concluding Observations of the Human Rights Committee: United States of America, CCPR/C/USA/CO/3, 15 September 2006; United Kingdom of Great Britain and Northern Ireland, CCPR/C/GBR/CO/6, 30 July 2008; Kazakhstan, CCPR/C/KAZ/CO/1, 21 July 2011; Conclusions and Recommendations of the Committee against Torture: United States of America, CAT/C/USA/CO/2, 18 May 2006. 39  See Human Rights Committee, Alzery v. Sweden, CCPR/C/88/D/1416/2005, 10 November 2006; Committee against Torture, Attia v. Sweden, CAT/C/31/D/199/2002, 17 November 2003; Agiza v. Sweden, CAT/C/34/D/233/2003, 20 May 2005; Pelit v. Azerbaijan, CAT/C/38/D/281/2005, 29 May 2007. 40  ECtHR; see, for example, Mamatkulov and Askarov v. Turkey, 4 February 2005; Saadi v. Italy, 28 February 2008; Ismoilov and Others v. Russia, 24 April 2008. 41  See Arbour (2005), the UN High Commissioner for Human Rights at the time, who argued, inter alia, that resort to diplomatic assurances against torture ‘threatens to

Non-refoulement Obligations Under International Law

107

assurances against the death penalty, and actually see it as abolitionist sending states’ duty to seek such assurances from retentionist states, and a violation of the applicable treaty where such assurances are not sought (supra). Ensuring, through assurances, that the death penalty will not be sought also removes the real risk of the suspect concerned being exposed to the ‘death row phenomenon’ (recognized, for example, by the ECtHR in Soering, but also by the Human Rights Committee in Francis v. Jamaica 42 ), thus avoiding the prospect of cruel, inhuman or degrading treatment often associated with this mode of incarceration, which in turn has been a key reason for human rights monitoring bodies rejecting extradition to face this penalty. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has clarified: ‘For transferring States that have abolished the death penalty, assurances must be obtained that remove completely the possibility that the person would face the death penalty in the receiving State’ (para. 78). To ensure such complete removal, assurances must not only be sought, but also obtained by the transferring state before a transfer can take place.43 Furthermore, a general assurance setting out the legal framework only would be insufficient – assurances need to be specific to the individual case, country, crimes alleged, bases of prosecution, and factual situation (rule of speciality). Any history of violations of international human rights law by the requesting state, especially when imposing or carrying out the death penalty, would weigh most heavily against the acceptance of an assurance, as it may indicate that the assurance is not given in good faith (Izumo, 2010). Assurances must be reliable, and applicable to all branches of power in the requesting state, all jurisdictions in a federal system, and any transfers to third countries. If necessary, multiple, complementary statements must be provided by all relevant authorities. They must also be comprehensive, by meaningfully addressing all possible ways in which the death penalty could be imposed. Assurances must be legally binding (Nowak, 2005, MN 52) and enforceable – that is, open to judicial review in the transferring state (Izumo, 2010). They must be transparent and objectively verifiable. The pre-transfer duty of the requested state to assess whether there is a real risk of the death penalty must be complemented by an independent and effective post-transfer monitoring mechanism (Droege, 2008). In the authors’ view, monitoring by officials of the requesting state would be insufficient. In sum, as international law now stands, there is no principled opposition to requesting states offering assurances against the use of the death penalty and to requested states accepting them. Nor has any practical bar to their acceptance been found in the death penalty context, though the potential for unreliable assurances empty international human rights law of its content’ and that they ‘basically create a twoclass system among detainees’. 42  CCPR/C/54/D/606/1994, 25 July 1995. 43  Art. 9 of the Inter-American Convention on Extradition; Art. 11 of the European Convention on Extradition; Art. 4 of the UN Model Treaty on Extradition; see also Tsebe, para. 74.

108

Capital Punishment: New Perspectives

obviously exists.44 In fact, abolitionist states are duty bound to seek such assurances if they are to lawfully remove persons to states that maintain the death penalty, in cases where a real risk of this penalty exists. Concluding Observations Justice Zondo in Tsebe dealt extensively with many arguments advanced against an absolute non-refoulement obligation in the context of the death penalty. Addressing South Africa’s ‘legitimate concern’ that it could be perceived ‘as a safe haven for illegal foreigners and fugitives from justice’, he replied that the situation would not arise ‘if countries seeking an extradition of someone in Mr Phale’s position would be prepared to give the requisite assurance’, and added that impunity in the requested state is not an issue if its legal system provides for prosecution also of criminal acts which occurred outside the territory of that state (Tsebe, paras 61–3). It is worthwhile recalling that the ‘safe haven’ argument had already been advanced in Soering (Burleson, 2005). However, in the more than two decades since, it does not appear that Europe teems with unextraditable fugitives from justice from overseas. Single cases posing problems are rare and can be addressed by assurances if the death penalty is the only obstacle. This argument also neglects the fact that when criminals seek refuge in another country, ‘geographical proximity’ (Burns) will likely be the determining factor (Schabas, 2003). Justice Zondo also pointed out that suspects wanted for a crime in another country still enjoy the presumption of innocence, and that they therefore do not pose a greater danger to society than the same group facing trials within the country (Tsebe, para. 55). To this could be added that the right to life is non-derogable, and therefore the obligation of non-refoulement is not open to a balancing exercise with, for example, the heinous nature of the alleged crime (Al-Sadoon and Mufdhi, para. 138; Droege, 2008, 678; Nowak, 2005, MN 1). The obligation of nonrefoulement in connection with a real risk of the death penalty is also not the only bar to prosecution in the requesting state by a long shot. Other exceptions, such as the political offences doctrine, or other human rights concerns over fair trials, including the principles of double criminality and non bis in idem, and the

44  On 24 May 2011, the Constitutional Court of Peru prohibited an extradition to China as the offered assurances not to apply the death penalty were deemed insufficient. See also Wong Ho Wing v. Peru, currently pending before the Inter-American Commission on Human Rights, Case 12.794, http://hrbrief.org/2012/04/case-12-794-%E2%80%93wong-ho-wing-peru/ (accessed 30 November 2012); the Inter-American Court of Human Rights has stated in orders for provisional measures that an international obligation derives from Arts 4 and 1(1) of the American Convention on Human Rights not to subject anyone to the risk of the application of the death penalty by way of extradition; Matter of Wong Ho Wing, Order of the Court of 28 May 2010.

Non-refoulement Obligations Under International Law

109

prohibition of torture and other ill-treatment, have long been accepted (Dugard and Van den Wyngaert, 1998; Schabas, 2003). Other counter-arguments commonly include that by complying with this obligation, abolitionist states hinder effective co-operation in criminal matters, and impose their legal and moral principles on the domestic jurisdiction of other states. However, the transnational nature of international crime and extraditions alone internationalize the issue of the death penalty in the present context (Burleson, 2005). More importantly, adhering to the demands of the abolitionists can actually make international legal co-operation more effective, including in prosecuting terrorist suspects. Ensuring international co-operation by enabling abolitionist countries to extradite was one reason for the exclusion of the death penalty from the Rome Statute of the International Criminal Court, and its abolition in Rwanda (Hood and Hoyle, 2008, 31). The impact of the obligation on non-refoulement on retentionist states is considerable. Where it used to be mostly Europe that was ‘exporting abolitionism’ (Beltrán de Felipe and Nieto Martín, 2012), the obligation now has global reach and application. Retentionist states will only get the person sought if they adhere to limits set by abolitionists. The existence of the death penalty is a barrier, sometimes insurmountable, to effective international co-operation in the fight against crime. The simplest solution is therefore total abolition in those countries that still maintain it. Until then, authorities in abolitionist countries are barred, under a customary international legal rule, from forcible removals without assurances, and prosecuting authorities in retentionist countries have no choice but to respect this and waive the death penalty in individual cases (Amnesty International, 2001). References Amnesty International (2001), United States of America: No Return to Execution – the US Death Penalty as a Barrier to Extradition, AI Index AMR 51/171/2001, www.amnesty.org/en/library/info/AMR51/171/2001 (accessed 11 December 2012). Amnesty International (2010), Dangerous Deals: Europe’s Reliance on ‘Diplomatic Assurances’ against Torture, AI Index EUR 01/012/2010, www.amnesty.org. uk/uploads/documents/doc_20299.pdf (accessed 11 October 2012). Arbour, L. (2005), ‘Human Rights Day: Statement by UN High Commissioner for Human Rights Louise Arbour’, 7 December, www.unhchr.ch/huricane/ huricane.nsf/view01/3B9B202D5A6DCDBCC12570D00034CF83?opendocu ment (accessed 4 October 2012). Beltrán de Felipe, M. and Nieto Martín, A. (2012), ‘Post 9/11 Trends in International Judicial Cooperation’, Journal of International Criminal Justice, 10, 581–604. Burleson, E. (2005), ‘Juvenile Execution, Terrorist Extradition, and Supreme Court Discretion to Consider International Death Penalty Jurisprudence’, Albany Law Review, 68(4), 909–47.

110

Capital Punishment: New Perspectives

De Wolf, A. and Watson, J. (2009), ‘Navigating the Boundaries of Prevention: The Role of OPCAT in Deportations with Diplomatic Assurances’, Netherlands Quarterly of Human Rights, 27(4), 525–66. Deeks, A. (2008), Promises Not to Torture: Diplomatic Assurances in U.S. Courts, Washington, DC: American Society of International Law. Droege, C. (2008), ‘Transfer of Detainees: Legal Framework, Non-refoulement and Contemporary Challenges’, International Review of the Red Cross, 90, 669–701. Dugard, J. and Van den Wyngaert, C. (1998), ‘Reconciling Extradition with Human Rights’, American Journal of International Law, 92, 187–212. Harrington, J. (2006), ‘The Absent Dialogue: Extradition and the International Covenant on Civil and Political Rights’, Queen’s Law Journal, 32(1), 82–134. Hood, R. and Hoyle, C. (2008), The Death Penalty: A Worldwide Perspective, 4th edn, Oxford: Oxford University Press. Human Rights Watch (2004), ‘Empty Promises’: Diplomatic Assurances No Safeguard against Torture, www.hrw.org/reports/2004/04/14/empty-promises (accessed 6 October 2012). Human Rights Watch (2005), Still at Risk: Diplomatic Assurances No Safeguard against Torture, www.hrw.org/en/reports/2005/04/14/still-risk (accessed 5 October 2012). Human Rights Watch (2008), Not the Way Forward: The UK’s Dangerous Reliance on Diplomatic Assurances, www.hrw.org/reports/2008/uk1008/1. htm (accessed 13 October 2012). Izumo, A. (2010), ‘Diplomatic Assurances against Torture and Ill Treatment: European Court of Human Rights Jurisprudence’, Columbia Human Rights Law Review, 42(1), 233–77. Jones, K. (2008), ‘Deportations with Assurances: Addressing Key Criticisms’, International and Comparative Law Quarterly, 57(1), 183–94. Nanda, V.P. (1999), ‘Bases for Refusing International Extradition Requests: Capital Punishment and Torture’, Fordham International Law Journal, 23(5), 1,369–95. Nowak, M. (2005), ‘Article 6: Right to Life’, in U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn, Kehl: N.P. Engel. Schabas, W. (2003), ‘Indirect Abolition: Capital Punishment’s Role in Extradition Law and Practice’, Loyola of Los Angeles International and Comparative Law Review, 25(3), 581–604. United Nations High Commissioner for Refugees (2001), Note on International Protection, A/AC.96/951 of 13 September, New York: United Nations. United Nations High Commissioner for Refugees (2006), Note on Diplomatic Assurances and International Refugee Protection, United Nations High Commissioner for Refugees, www.unhcr.org/refworld/pdfid/44dc81164.pdf (accessed 30 August 2012).

Non-refoulement Obligations Under International Law

111

United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (2012), Report, A/67/265 of 9 August 2012, New York: United Nations. Worster, W.T. (2012), ‘Between a Treaty and Not: A Case Study of the Legal Value of Diplomatic Assurances in Expulsion Cases’, Minnesota Journal of International Law, 21(2), 253–346.

This page has been left blank intentionally

Chapter 5

Victims: Transforming the Death Penalty Debate Jeanne Bishop and Mark Osler1

Introduction The family members of murder victims should be at the heart of the death penalty debate. They have a unique stake in the sentencing of murderers, because of the irrevocable loss of their loved ones. A mother whose child was abducted and killed, who loses forever the joy and companionship of that child, is invested in the process of justice. A child whose father is murdered, who loses the protection and guidance of a parent, is due nothing less than a voice within the often-discordant chorus which surrounds punishment. If we have capital punishment in part because of this victimization, it is wrong to shut out those voices. Still, despite this deep investment in the legal process, victims’ real needs and wishes have often been ignored or misunderstood by lawmakers, prosecutors and the public. In an act of gross over-simplification, too often it is assumed that victims’ families want the harshest possible punishment for the offender. In the United States, there is a general belief that those close to murder victims want revenge and need the killer to be killed to achieve ‘closure’ for their grief. That is only sometimes the case. Much as each defendant warrants individualized consideration at trial, so each victim’s family is going to have a unique and often complex set of beliefs related to justice, punishment, faith, redemption and death. This chapter contends that the voices of victims are crucial in any discussion about the death penalty, and argues that the complexity of these voices must be recognized and heard, rather than presumptively assumed to be a universal cry for retribution through blood. The first section of this chapter establishes the moral basis for treating the surviving loved ones of a murder victim as voices worth hearing. It tells the story of the killing of family members of Jeanne Bishop, one of the co-authors: Nancy Bishop Langert, her husband, Richard Langert, and their unborn child. The young couple and their baby were murdered in their home in the Chicago suburbs in 1990. The violence of the murders and the loss of three precious lives brought 1  The authors wish to thank Deborah K. Hackerson of the University of St. Thomas School of Law for her invaluable assistance in the preparation of their chapters.

114

Capital Punishment: New Perspectives

clarity and force to Ms Bishop’s opposition to the death penalty, and confounded the expectations of many death penalty supporters. The second section examines the over-broad use of victims’ families by prosecutors and death penalty proponents to ensure support for death sentences. The diversity of views held by victims’ family members may not always be convenient to an advocate’s cause (on either side), but need to be seen honestly as part of the broad truth about the death penalty. The third section sets forth some of the ways the involvement of victims’ families in the debate over whether to abolish the death penalty has transformed that discussion. In the past, prosecutors, defence lawyers and legislators focused almost solely on the crime, the offender and public safety when crafting death penalty laws. Increasingly, as victims against the death penalty have spoken out, that focus is shifting to include other issues: the cost of spending money on the execution of a small number of offenders rather than on helping a large number of victims, or on crime prevention; the length of time between sentence and punishment because of post-trial motions and appeals, and the re-infliction of trauma on victims every time they have to relive their nightmare as court proceedings surrounding the sentence drag on. Lost in the use of victims’ families as tools of the prosecution is the bare fact that many victims need a variety of services for which government assistance does not exist. Some victims wish to shift the resources spent on the death penalty to victims’ services and law enforcement. Victims’ arguments in favour of this approach were central to the recent abolition of the death penalty in the US States of New Jersey, New York, New Mexico, Illinois, Connecticut and Maryland. Murder results in one death too many. The value of the voices of victims’ families, in all their diversity, lies close to the core issue of capital punishment: after a murder, is it worthwhile, for any of us, to create more death in the name of justice? Why the Survivors Matter The surviving loved ones of a murder victim matter for the same reason that religions and heroes matter: because they carry the emotional weight of a society, the burden of tragedy for which in some way we are all responsible. Like the person killed, they have been dealt an unspeakable injustice, but unlike the deceased, they are left to live with a harm that society can never fully heal. They are symbols and vulnerable people all at once. Only stories can begin to describe the role they are unwillingly given, and the hole that is left in the story of their lives. This is one of many such stories. On a tree-lined American street, there was a loud, happy house with three girls: Jennifer, Jeanne and Nancy. Of them, Nancy was the fun one, the girl who loved to shop and sing and tease. She was adored by her parents and her community; as a senior in high school, she played the role of Maria in West Side Story, and it was

Victims: Transforming the Death Penalty Debate

115

wholly within her personality when she sang ‘I feel charming! I feel charming! It’s alarming how charming I feel!’ She was right, after all: she was charming, and funny, and loving, and sometimes even wise. One of the people she charmed was a Catholic boy from the South Side of Chicago, Richard, and he married her. He knew things that she didn’t – baseball and barbecue – and soon she was pregnant with a child who could know all of these things. Nearly as soon as she found out she was pregnant, she rushed out to buy baby bottles, and arranged them in a neat row on a shelf. She was 25 years old. To celebrate the pregnancy, the family gathered the night before Palm Sunday, 1990, at a cosy Italian restaurant in Chicago. It was the kind of place perfect for a celebration – a big table for the family, laughter and light. It was a memorable evening. As they hugged their goodbyes, Jeanne told Nancy, ‘See you tomorrow.’ It is a phrase she has never used again, because you never know if it will be true. Nancy and Richard returned to their home in one of the most affluent and safe towns in Illinois, the North Shore enclave of Winnetka. At that same moment, a 16-year-old named David Biro was using a glass-cutter to break into their home, and re-checking the loaded gun he had stolen. Though they both were from well-off Winnetka families, David Biro was the opposite of Nancy in many ways. She was full of light, and he was dark and violent. He had tried, and failed, to kill others before, including members of his own family. One attempt involved lighting another child on fire. He had tried to poison his own family by tainting their milk; he was sent briefly to a psychiatric institution after that incident, and was diagnosed a sociopath. When Nancy and Richard returned to the house, Biro lay in waiting. He led them to the basement. He put the gun to the back of Richard’s head and fired once, killing him instantly. Nancy, horrified, saw her husband’s body slump to the floor. Biro turned on her. He fired twice, striking her in her side and abdomen, tearing into her pregnant belly. Then he fled, leaving her to die along with the child she carried. The coroner estimated that Nancy lived for about 15 minutes after that. Marks on her body and the trail of her blood on the basement floor show what she did in the brief moments she had left on Earth. She dragged herself by her elbows over to a metal shelf and banged on it with a heavy tool, again and again, trying to call for help. She must have realized that no help would come, that she was dying, and so she dragged herself over to where her husband’s body lay. Next to him, in her own blood, she wrote a message: the shape of a heart and the letter ‘u’. Love you. It was how she had signed her letters to him over the years. She died there beside him and her last words, a last message of love. Biro took nothing; he came only to kill. How could anything be the same after that? It was Jeanne who packed up the baby bottles that Nancy had bought. It took a succession of failures to lead to those deaths. Most obviously, it took an almost unimaginable moral failing on the part of David Biro. It took an egregious failure of the legal system in not protecting citizens from the predator

116

Capital Punishment: New Perspectives

that David Biro had already proven himself to be. It took a careless gun owner who left his unlocked weapon where David Biro could find it, and a broad acceptance of loaded guns everywhere. Those who did not fail were Jeanne Bishop, Jennifer Bishop, their father who found the bodies, or their mother who taught Nancy to sing whenever there was a chance. They were not to blame. Yet, despite the many failures of people and systems, it is they who must live without these beloved people; who sometimes hold the phone in their hand and stop, knowing they cannot call; who now imagine the firstborn grandchild who would have graduated from college and returned to Chicago to join the embrace of that family. There is emptiness, unearned. That – that is why the surviving loved ones must matter when we talk about the death penalty. The Past: Using Murder Victims’ Family Members to Support the Death Penalty Proponents of the death penalty have long used victims as a basis for their support of executions. Their arguments have fallen largely into two categories. The Lives of Murder Victims Can Only be Vindicated by the Ultimate Punishment: Death A federal judge in the United States, Alex Kozinski, wrote that he always voted for the death penalty in cases before him because he heard ‘the tortured voices of the victims crying out for vindication’ (Kozinski, 1997). Newspaper columnist Mike Royko expressed it more bluntly: It’s because I have so much regard for human life that I favor capital punishment. Murder is the most terrible crime there is and anything less than the death penalty is an insult to the victim and society. It says, in effect, that we don’t value the victim’s life enough to punish the killer fully.2

That notion – that the death penalty is necessary to give meaning to the lost life of the victim – has been used widely by death penalty supporters to justify the punishment. The idea is that if something heinous has been done to the victim, something equally heinous must be done to the perpetrator. Thus, when Illinois Governor Patrick Quinn was considering whether to sign a bill abolishing capital punishment in the state, Illinois Attorney General Lisa Madigan wrote Quinn a letter on 27 January 2011 setting forth in detail the horrors that murder victims had suffered in some Illinois death penalty cases. Madigan 2  Mike Royko, ‘Why Fret Over Killers?’, Chicago Sun-Times, 7 September 1983, quoted in Moore (1995), 98–9.

Victims: Transforming the Death Penalty Debate

117

argued that ‘when the facts and the law establish that a defendant has committed a heinous murder or murders, we must seek a just punishment that fits the despicable nature of the crimes’.3 The underlying principle of such thinking – that the life of a murderer must be taken in order to avenge a victim’s death – is rooted in an ancient and wrong idea. There is no punishment that ‘fits’ a crime like the one that took Nancy Bishop Langert’s life. Once we disjoin this bizarre equivalence between the life of a murderer and the life of the victim, we can return to rationality. The best we can do is to incapacitate the killers and honour the memories of those who were lost in a living, breathing, meaningful way by doing our utmost to prevent such tragedies in the future. In other words, the money that could be used to execute David Biro would be more wisely spent to ensure that the next sociopath is correctly identified and incapacitated before he commits such a crime. Murder Victims’ Family Members Need the Killer of their Loved One to be Executed to Achieve ‘Closure’ for their Grief Understandably, the surviving loved ones of a murder victim do often want finality at sentencing. That is, they have no desire to revisit the crime again and again in parole hearings, describing their loss repeatedly so that a sentence will ‘stick’. Such finality, of course, is equally achieved through a sentence of life in prison without the possibility of parole as it is through a death sentence. Sadly, this genuine and understandable interest in finality is too often read by others to mean something different: ‘closure’. It is nearly a mantra in death penalty cases that an execution is required to bring ‘closure’ to the survivors – as if what those survivors need is to close out the life of the loved one rather than to have the matter be settled. The issue of ‘closure’ played out to its logical extreme in the proceedings that followed one of the worst mass murders in the USA: the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma by Timothy McVeigh. The attack killed 168 people, including 19 small children in a day care centre in the building. McVeigh was tried in federal court and sentenced to death. US Attorney General John Ashcroft decided that family members of the bombing victims could witness the execution on closed-circuit television, stating it would ‘meet their need for closure’. Yet the victims who didn’t want to see McVeigh executed were not allowed to give victim impact statements. Bruce Shapiro opined that the buzzword ‘closure’ after the McVeigh trial meant that ‘any victim or relative who wanted to play a part in the sentencing phase of the trial first had to pass a death-penalty loyalty test’ (Shapiro, 1997).

3  Letter dated 27 January 2011 from Illinois Attorney General Lisa Madigan to Illinois Governor Patrick Quinn, http://blogs.chicagotribune.com/news_columnistsezorn/2011/02/lmad.html (accessed 20 May 2013).

118

Capital Punishment: New Perspectives

Vicki Scheiber, mother of Shannon Scheiber, a Wharton Business School student raped and murdered in 1998, testified before a US Senate subcommittee that the word: closure is invoked so frequently in discussions of victims and the death penalty that victims’ family members jokingly refer to it as the ‘c’ word. But I can tell you with all seriousness that there is no such thing as closure when a violent crime rips away the life of someone dear to you. (Lithwick, 2006)

The notion of ‘closure’ is that an execution of a loved one’s killer will bring peace and healing to the survivors. It offers an execution as the single solution to the complex needs of victims: to honour their loved ones, to cope with their loss and to move on with their lives. As the mother of one murder victim experienced: Prosecutors often stoke a family’s rage by telling them that only the death penalty can assuage their sorrow. ‘When you have lost a child, you go into a state of insanity, and you think whatever they want you to think,’ says Aba Gayle, 64, of Santa Rosa, Calif., whose 19-year-old daughter was murdered in 1980. ‘They told me, “We are going to catch this man. We’re going to convict him, and when we have an execution, you will be healed.” The DA told me this, and the sheriff’s department, also the media. And I believed them.’ Gayle now regrets that and is fighting to keep her daughter’s killer from being executed. (Brownlee, 1997)

The idea of ‘closure’ is contrary to nearly everyone’s ideas of death and love – few would want to ‘close out’ their memories of a loved one. This misuse and manipulation of victim’s emotions is largely the work of prosecutors, not the surviving loved ones themselves. Were the true voices of the survivors to be heard, the legitimate interest in finality would resound more often, and find comfort in a sentence of life without the possibility of parole. Some surviving loved ones, of course, do express an interest in vengeance, but this is far from a universal view. What does unite virtually all survivors is a desire to in some way continue their relationship with their loved one, through memory, thought and prayer. The Present and Future: Murder Victims’ Family Members Taking the Lead in Opposing Executions Victims are transforming the death penalty debate from one primarily focused on the offender (he had a horrible childhood, he had a bad defence attorney, and so on) to one focused instead on the real needs of victims. The results have been breathtaking: six US states have abolished the death penalty in the past six years.

Victims: Transforming the Death Penalty Debate

119

Some may be surprised to find victims’ family members on both sides of the debate over the death penalty, and playing such an important role in the changes we are now seeing. Jeanne Bishop’s story illustrates how one such family member became an advocate. After the sentencing of David Biro, reporters covering the murder trial asked members of the Bishop family if they were disappointed that Biro had not received the death penalty. That was the first opportunity that Nancy’s sisters, Jeanne and Jennifer Bishop, had to say publicly what they have been saying ever since: the death penalty is the last thing we want. Why would family members of murder victims, who might be expected to seek the vengeance of an execution, oppose death sentences? Jeanne Bishop had opposed the death penalty before her sister’s murder, on the usual rational grounds: the death penalty fails to deter crime; it is more expensive than locking someone up for life; it is illogical – killing to teach that killing is wrong; it risks the execution of an innocent person; it can be racist in its application, resulting in death sentences more often when the victim is white rather than black. After the murders, however, her opposition to executions came from a completely different perspective, one centred on her lost loved ones. As Bishop emerged as an outspoken death penalty opponent, her message was this: executing the murderer would not bring Nancy and Richard back; it would not heal her grief over losing them. More killing would merely widen the pool of blood, dig another grave, and create another grieving family. The death penalty would betray her own values, taking her a step away from who Nancy and Richard were, good and gentle people, and closer to who the killer is, a remorseless taker of human life. She did not want that in common with him. The death penalty would squander precious resources which could be devoted instead to violence prevention, something which could spare other families the grief and loss her family has experienced. A ritual execution of the murderer would contradict the core beliefs of her Christian faith to forgive, not to kill. It runs counter to the teachings and example of Jesus Christ, a man himself killed by Rome’s own brutal form of execution. One such example appears in the Gospel of John. A mob brings to Jesus a woman caught in the act of adultery and tells him that the law provided that she should be stoned to death. Jesus stopped the execution with this: ‘Let him who is without sin among you be the first to throw a stone at her’ (John 8:7). Lastly, the death penalty would dishonour the memory of Nancy and Richard, life-loving people who never would have wanted their memorial to be an execution. Jeanne was determined that instead, the living legacy of her loved ones would be her work to prevent violence and bloodshed. She joined an organization of murder victims’ family members who oppose the death penalty, and began working for abolition. That work took her to schools and churches, human rights groups and media outlets. It took her to the halls of State Capitols in the United States, to legislative

Capital Punishment: New Perspectives

120

committees and clemency review boards. It took her to foreign countries with the death penalty, such as Japan. The anti-death penalty work of Bishop and other victims’ family members seemed to confound death penalty proponents. Murder victims’ family members traditionally had been held up by death penalty supporters as reasons why the death penalty was necessary. Victims’ families need the killer to be executed to vindicate their murdered family member and to achieve closure for their grief, the argument went. That argument had largely succeeded in derailing efforts to abolish the death penalty in the United States through the late 1970s, 1980s and 1990s. Jeanne Bishop and other victims’ family members who opposed the death penalty joined forces and spoke with a collective voice. They rejected the contention that the lives of their loved ones could be vindicated by a ritual killing of another human being. They debunked the notion of ‘closure’ by arguing forcefully that nothing could close their sense of loss over their loved ones, least of all a replication of the very act which took those loved ones from their midst. This was something new, and transformative. Kate Lowenstein, the daughter of murdered US Congressman Al Lowenstein and a staff member of Murder Victims’ Families for Human Rights, notes that in the past, the abolition movement saw victims as a threat because the abolitionists wanted to avoid any mention of the murder or the victim: ‘By forcing the movement to acknowledge the murder and victims’ families, we were able to actually engage people outside the movement who were for the death penalty, hearing something revelatory to their ears that could only come from victim family members’ mouths.’4 To trace the evolution of the abolition movement in the United States, and the role of victims in it, some history is necessary. In 1972, in the case of Furman v. Georgia, the US Supreme Court struck down death sentences in the United States, holding that the arbitrary and inconsistent imposition of the death penalty violated the 8th and 14th Amendments to the US Constitution and constituted cruel and unusual punishment.5 After Furman, many states rewrote their death penalty laws to comport with the standards set forth in the opinion. In 1976, in Gregg v. Georgia, the High Court reinstated the death penalty.6 Since 2007, six US states which had the death penalty have abolished it: New Jersey, New Mexico, New York, Illinois, Connecticut and Maryland. In each place, victims were at the forefront of the abolition effort. New Jersey New Jersey legislatively abolished its death penalty in 2007. After Gregg, New Jersey reinstated its death penalty in 1982. However, in the 25 years which 4  Email to Jeanne Bishop dated 27 April 2012. 5  Furman v. Georgia, 408 US 238 (1972). 6  Gregg v. Georgia, 428 US 153 (1976).

Victims: Transforming the Death Penalty Debate

121

followed, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases, frustrating victims’ family members who wanted their ordeal to be over. Even victims who were pro-death penalty in principle began to call for abolition of a sentence which prolonged their ordeal indefinitely. Sixty-three family members of murder victims stated in a letter to the New Jersey legislature: We are family members and loved ones of murder victims. We desperately miss the parents, children, siblings and spouses we have lost. We live with the pain and heartbreak of their absence every day and would do anything to have them back. We have been touched by the criminal justice system in ways we never imagined and would never wish on anyone. Our experience compels us to speak out for change. (Lesniak, 2008)

As Aaron Scherzer noted: the state’s protracted death penalty process re-victimized victims’ families and imposed high financial burdens on the state. After weighing the costs and benefits, the New Jersey Death Penalty Study Commission [which included several victims’ family members], along with some prosecutors, victims’ families, and state senators who had previously sponsored death penalty enactment bills, concluded that the state was actually better off having life without parole as its most severe penalty. (Scherzer, 2009)

The Study Commission recommended that any cost savings from abolition of the death penalty be used for benefits and services for survivors of murder victims in the state (New Jersey Death Penalty Study Commission, 2007). New York New York’s retreat from the death penalty happened in stages. After the US Supreme Court invalidated death penalty statutes in 1972, New York rewrote its death penalty law, providing for a mandatory death sentence for murdering a police or correctional officer or any murderer by a person in prison while serving a life sentence. The provisions of that statute were struck down by New York’s High Court in subsequent decisions, effectively abolishing the death penalty. In 1995, Governor Pataki signed a law reinstating the death penalty in New York, by lethal injection; the New York Court of Appeals held that law unconstitutional in 2004. In 2007, the last remaining death sentence was reduced to a life sentence, leaving death row vacant and no viable death penalty law. Murder victims’ family members were among the driving forces behind the effective abolition of the death penalty in New York. Marie Verzulli of New

Capital Punishment: New Perspectives

122

Yorkers for Alternatives to the Death Penalty, and founder of Family and Friends of Homicide Victims in the state, is one of them. She has said: In 1998, when the District Attorney asked me how I felt about him seeking the death penalty for my sister’s and seven other women’s killer, I told him I had never thought much about the death penalty. At that time I couldn’t imagine what, if anything could bring me comfort or lessen my pain and despair, but I knew it wasn’t that. I have come to realize that the justice system is centered around the offender, and in death penalty cases, results in handcuffing the victim’s family to that same system which promises us ‘justice and closure.’ The death penalty creates more victims. (New Yorkers for Alternatives to the Death Penalty, 2010)

New Mexico New Mexico legislatively abolished its death penalty in 2009. New Mexico replaced the death penalty with life without parole, and restitution to victims’ families. ‘Murder victims’ families were among the strongest advocates of the repeal bill,’ according to the Death Penalty Information Center. Reacting to passage of the law, Cathy Ansheles, a New Mexico resident and member of an organization of murder victims’ family members which had lobbied for abolition, stated: “It’s a great relief to know that families will no longer be put through the turmoil of the death penalty. Finally, resources can be directed to where they will really do the most good’ (Death Penalty Information Center [DPIC], 2009). After abolition, the New Mexico Coalition to Repeal the Death Penalty turned its resources to aiding victims, including supporting bills which would protect employees when they had to take time off work to attend court hearings or trials, support the education of children who have had a parent murdered, and increase funding to New Mexico’s Crime Victims Reparation Commission for services to families of murder victims (New Mexico Coalition to Repeal the Death Penalty, 2012). Illinois Illinois legislatively abolished its death penalty in 2011. Victims’ family members and people who had been exonerated from death row were leaders in lobbying efforts in support of the legislation. In the debates in the Illinois House and Senate, several legislators cited as reasons for their vote hearing from victims’ family members such as Gail Rice, whose police officer brother was shot and killed in the line of duty, and Cathy Crino, whose sister was murdered in a domestic violence crime. Both women oppose the death penalty, and testified at committee hearings leading up to the abolition vote. A group of 35 Illinois murder victims’ family members wrote to the Illinois General Assembly asking that the millions of dollars spent on the state’s death penalty be devoted instead to law enforcement and help for victims:

Victims: Transforming the Death Penalty Debate

123

These resources could be spent in better ways. Illinois could put more police on our streets and provide them with the best equipment available. Law enforcement programmes that work might have prevented the tragedies we suffered at only a fraction of the cost of pursuing capital cases. Dollars saved could be put toward counseling for victims of crime or other services we desperately need as we attempt to get on with our lives. Only a handful of arbitrarily selected murderers are sentenced to death. In 2008 there were 790 murders in Illinois and 3 death sentences. Instead of investing our resources in a punishment that affects very few offenders, we should focus on programmes that can help many survivors. (ICADP, 2012)

After the General Assembly voted to end executions and the bill went to the desk of Governor Pat Quinn for his signature, the Governor’s General Counsel and his entire legal staff met with murder victims’ family members and this chapter’s coauthor, Mark Osler. Governor Quinn signed the bill a short time later, and murder victims’ family members, including Jeanne Bishop, were among the small group of invited guests to the signing. Connecticut Connecticut legislatively abolished its death penalty in 2012. In Connecticut, according to the Death Penalty Information Center, murder victims’ families and friends were ‘among the strongest supporters of the repeal’ (DPIC, 2012). A group of 179 Connecticut murder victims’ family members sent a letter to Connecticut legislators urging them to end executions in the state. Victims’ survivors held speaking events and press conferences for months before the vote calling for repeal. Connecticut murder victims’ family members set up their own website,7 replete with photos, stories and letters, all with the goal of abolition of the death penalty. Writing in a Connecticut newspaper, Mary Healy and Jane Caron, who experienced murder in their families, stated: The problem with the death penalty is that it maintains a focus on the murderer when the focus rightly belongs with the people the murderer has harmed. This misplaced emphasis is evidenced by the fact that, while crucial victims’ services and crime prevention programs are not funded to their optimal level, the state spends between $4 million to $7 million on a death penalty system where the focus is on the murderer. (Healy, 2012)

Significantly, murder victims’ family members were able to help convince the legislature to repeal the death penalty even though Connecticut had only recently 7  Connecticut Murder Victims’ Families: www.ctvictimvoices.org.

124

Capital Punishment: New Perspectives

experienced an exceptionally brutal, sensational triple murder of a mother and her two daughters in their home. The woman’s husband, who survived, was a leading voice for keeping the death penalty. Conclusion The trend in the United States is away from the use of the death penalty – during the period when these states have rejected capital punishment, no states have gone the other way, from rejecting to embracing it. The debate over its use will continue, and victims’ loved ones will, and should be, active voices in that debate, on both sides. In that broader debate, and within individual cases, a true respect for the voices of these survivors will require that they be heard on their own terms, rather than being used as pawns by prosecutors or others. Too often in the past, the interests have this diverse group has been reduced to a simple conclusion (wanting the death penalty) for a made-up reason (‘closure’). In truth, these survivors are not a choir singing in harmony, but a much more unsettling and discordant set of anguished cries. Perhaps it is understandable that the broader American public may not want to hear that: it is too sad. That, however, is not a good reason to stifle these voices. Their role is not chosen; no one would choose the death of a sister, a brother, a parent, a child. Instead, the burden of grief was placed on them unwillingly; it is they who must carry the weight of our society’s most tragic failures. For bearing that sad burden, we owe them, at the least, the earned honour of being heard in their own true voice. References Brownlee, S. (1997), ‘The Place for Vengeance: Many Grieving Families Seek Comfort and Closure in the Execution of the Murderer – Do They Find It?’, US News & World Report, 16 June, 24. Death Penalty Information Center (DPIC) (2009), ‘Death Penalty Abolished in New Mexico – Governor Says Repeal Will Make the State Safer’, www. deathpenaltyinfo.org/death-penalty-abolished-new-mexico-governor-saysrepeal-will-make-state-safer (accessed 13 June 2012). Death Penalty Information Center (2012), ‘Governor’s Signature Makes Connecticut Fifth State in Five Years to End Death Penalty’, www.deathpenaltyinfo.org/ recent-legislation-governors-signature-makes-connecticut-fifth-state-fiveyears-end-death-penalty (accessed 13 June 2012). Healy, M. (2012), ‘Guest Editorial: Time to Eliminate the Death Penalty?’, Litchfield News, 23 February, www.foothillsmediagroup.com/articles/2012/02/23/opinion/ doc4f46abf042c8b652995951.txt?viewmode=fullstory (accessed 13 June 2012).

Victims: Transforming the Death Penalty Debate

125

Illinois Coalition to Abolish the Death Penalty (ICADP) (2012), ‘Murder Victims Families Petition’, www.icadp.org/content/murder-victims-families-petition (accessed 13 June 2012). Kozinski, A. (1997), ‘Tinkering with Death’, The New Yorker, 10 February, 48. Lesniak, R. (2008), ‘Why Abolition of the Death Penalty Was Important’ (speech of New Jersey Senator Raymond Lesniak at Rutgers University School of Criminal Justice, 15 October 2008), NJ.com, http://blog.nj.com/njv_raymond_ lesniak/2008/10/why_abolition_of_the_death_pen.html (accessed 13 June 2012). Lithwick, D. (2006), ‘Does Killing Really Give Closure?’, The Washington Post, 26 March, www.washingtonpost.com/wp-dyn/content/article/2006/03/24/ AR2006032402340.html (accessed 13 June 2012). Moore, Michael (1995), ‘The Moral Worth of Retributivism’, in Jeffrie G. Murphy (ed.), Punishment and Rehabilitation, 3rd edn, Stamford, CT: Wadsworth Publishing. New Jersey Death Penalty Study Commission (2007), New Jersey Death Penalty Study Commission Report, www.njleg.state.nj.us/committees/dpsc_final.pdf (accessed 13 June 2012). New Mexico Coalition to Repeal the Death Penalty (2012), ‘The Mission of the NM Murder Victim Family Advocacy Project’, www.nmrepeal.org/about_us/ our_mission (accessed 13 June 2012). New Yorkers for Alternatives to the Death Penalty (2010), ‘Statements by Family Members of Homicide Victims: Statement of Marie Verzulli’, www.nyadp.org/ content/victims-survivors (accessed 13 June 2012). Scherzer, A. (2009), ‘The Abolition of the Death Penalty in New Jersey and its Impact on Our Nation’s Evolving Standards of Decency’, Michigan Journal of Race and Law (Fall), 227–8. Shapiro, B. (1997), ‘Victims’ Rights – and Wrongs in the McVeigh Trial’, Salon Magazine, 13 June, www.salon.com/1997/06/13/news_328/ (accessed 13 June 2012).

This page has been left blank intentionally

Chapter 6

The Greater Stigma? Family Visits to the Condemned Seema Kandelia and Peter Hodgkinson

In Texas, at the instance of being sentenced to death, the condemned’s family become the untouchables – literally – and by implication, the entire constituency of the families of the condemned are marginalized and stigmatized. In a world where there are so many examples of cruel, inhuman and degrading treatment and punishment, Texas’s treatment of the mothers, fathers, husbands, wives, children and grandchildren of its condemned must rank high. How does the Texas Department of Criminal Justice (TGCJ) justify treating citizens with such gratuitous insensitivity? The death penalty is an emotive topic sparking strong feelings amongst those who support or oppose it. Arguments in favour of the death penalty are often based on its perceived deterrent effect, its retributive value, and its importance in providing some sort of justice for victims and/or their families. On the other hand, opponents of capital punishment tend to argue that there is no convincing evidence to show that the death penalty is an effective deterrent to serious violent crime, that there have been miscarriages of justice resulting in the death of innocent people, and that there are human rights or moral reasons for opposing the death penalty. Lost in this debate, however, is any detailed consideration of the families of the condemned and the effect it has on them. When a person is sentenced to death, many people are affected, not just the condemned – parents, siblings, children, grandparents, aunts, uncles, cousins and significant others. However, those who have a loved one on death row are frequently marginalized, stigmatized and misunderstood due to their association with the offender. There is also very little support – emotional and practical – for the condemned’s family. Perceived as culpable as the offender, most are left to their own devices to survive the entire process, including the execution and its aftermath. While some attention has been given to the family members who have a loved one on death row, this is in the main from independent researchers and abolitionist groups, not from government bodies (King, 2005; Sharp, 2005; Beck, Britto and Andrews, 2007; Sheffer and Cushing, 2006). Families of the condemned are sometimes recognized in the research literature, along with the families of the victims, as ‘survivors’ or as ‘secondary victims (Hodgkinson, 2004; Hodgkinson, Kandelia and Reddy, 2009). Eschholz et al. (2003) conducted research of a sample

128

Capital Punishment: New Perspectives

of family members of the condemned and applied a restorative justice analysis to their respective experiences of contact. The researchers recognized that the usual participants in restorative justice were absent, in that one party (the victim) was dead, and the other (the condemned) was sentenced to death; in fact, three of the sample of 19 had already been executed. However, they were buoyed by the findings that this sample had accessed and enjoyed support from ‘the restorative justice healing circle. First, family members of offenders experience intense suffering, which is in many ways exacerbated by the criminal justice system and by their treatment within their communities [particularly by the media]. These families are in need of healing.’ This chapter seeks to highlight some of the effects the death penalty can have on the families of the condemned, adding to the limited research that exists on this issue. There are many aspects worthy of evaluation – from the court process which successfully isolates the defendants’ family, to the execution, where the focus is on the process and providing, albeit inadequate, support for the victims’ family witnesses (justified by the completely illusory claim of ‘closure’, itself a fanciful outcome). In particular, though, this chapter will focus on the day-to-day contact the condemned’s families have with their loved ones on death row. Most of the existing literature on the death penalty focuses on its operation in the USA; however, where possible, the procedures in other countries will be highlighted as well.1 There is and has been a paradoxical alliance between the families of the victim and those of the condemned, which lends itself to restorative justice interventions, which continues to be fostered by Murder Victims’ Families for Reconciliation,2 whose founder, Marie Deans, set out some very important principles: After a murder, victims’ families face two things: a death and a crime. At these times, families need help to cope with their grief and loss, and support to heal their hearts and rebuild their lives. From experience, we know that revenge is not the answer. The answer lies in reducing violence, not causing more death. The answer lies in supporting those who grieve for their lost loved ones, not creating more grieving families. It is time we break the cycle of violence. To those who say society must take a life for a life, we say: ‘not in our name’.

International Standards and the Worldwide Trend on the Death Penalty The death penalty is permissible under international and regional human rights law as an exception to the right to life, although most of these instruments impose

1  This overview is not intended to be a systematic review of all death row visiting procedures. The inclusion of specific country examples is based on information received by the authors from personal contacts. 2  Murder Victims’ Families for Reconciliation: www.mvfr.org.

The Greater Stigma? Family Visits to the Condemned

129

limitations on its operation.3 There are also a number of international and regional instruments explicitly aimed at abolishing the death penalty in times of peace and war; however, many of these are optional, which means that states must voluntarily sign up to these provisions to show their willingness not to implement the death penalty.4 In addition to these binding instruments, a number of international standards on the use of the death penalty have been adopted in an attempt to further limit its operation and to ensure that the penalty is applied in as fair a manner as possible.5 While the death penalty is permissible under international and regional human rights law, there is a worldwide trend towards abolition, with the number of states retaining and using the penalty decreasing year by year. Figures from Amnesty International in 2012 reveal that 97 countries have abolished the death penalty for all crimes, 8 countries have abolished it for ordinary crimes and 35 countries are abolitionist in practice; 58 countries still retain and use the death penalty (Amnesty International, 2012). It is important to note, though, that while a state may be classed as abolitionist because it has not executed anyone for 10 years in most of these countries, the death penalty machinery continues to exist, which means that people can still be sentenced to death and kept on death row in restricted conditions, which in turn affects their families adversely.

3  Art. 6 of the International Covenant on Civil and Political Rights (1976), 999 UNTS 171; Art. 2 of the European Convention on Human Rights (1955), 213 UNTS 221; Art. 4 of the American Convention on Human Rights (1978), 1144 UNTS 123, and Arts 6 and 7 of the Arab Charter of Human Rights, revised 22 May 2004, League of Arab States, reprinted in International Human Rights Reports, 12 (2005), 893; Art. 4 of the African Charter of Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 Rev. 5, recognizes the right to life, but is silent on the subject of the death penalty, although the African Commission passed a resolution in 1999 urging states to consider a moratorium, which indicates that the death penalty is permissible under the Charter. 4  Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, General Assembly Resolution 44/128 of 15 December 1989; Protocol no. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, ETS no. 114; Protocol no. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, CETS no. 187; Protocol to the American Convention on Human Rights to Abolish the Death Penalty, Adopted by the General Assembly of the Organization of American States in 1990, OASTS 73. 5  UN Economic and Social Council Resolution 1984/50, Safeguards Protecting the Rights of those Facing the Death Penalty, 25 May 1984; UN Economic and Social Council Resolution 1996/15, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, 23 July 1996; UN Commission on Human Rights Resolution 2004/67, Question of the Death Penalty, 21 April 2004.

130

Capital Punishment: New Perspectives

Secrecy and the Death Penalty In a number of retentionist countries, the operation of the death penalty is shrouded in secrecy, going against international standards which require that information about capital punishment be made public.6 In Belarus, China, Mongolia and Vietnam, for example, official figures on its administration are not disclosed to the public. Some countries also refuse to provide basic information about the death sentence to family members of the condemned. States such as Belarus, Vietnam, Taiwan and Japan only notify the prisoners of their impending execution a few hours before, and do not inform family members or legal representatives until after the execution (Amnesty International, n.d.; Johnson, 2006, 70–76; OSCE ODHIR, 2012, 9). When the death penalty was in operation in Uzbekistan, relatives of the condemned were not informed of the date when their loved one was executed, nor was the place of internment revealed as this was considered a state secret. To this day, some family members still cannot visit the graves of their loved ones as the details have not been released (Mothers against the Death Penalty and Torture and the Office for Human Rights and the Rule of Law, 2008). Practices such as these deny family members the opportunity to say goodbye to their loved ones, adding to the pain of having their relative executed. This shows a total absence of compassion for the feelings of the families of the condemned. ‘They’ overlook the fact that the relatives of the condemned are innocent and should not be condemned by association. The UN Special Rapporteur Extra-judicial, Summary and Arbitrary Executions has stated that: Refusing to provide convicted persons and family members advance notice of the date and time of execution is a clear human rights violation. In the most extreme instances, prisoners have learned of their impending executions only moments before dying, and families have been informed only later, sometimes by coincidence rather than design. These practices are inhuman and degrading and undermine the procedural safeguards surrounding the right to life.7

The Human Rights Committee has also condemned the practice of withholding information about the execution from the condemned’s family, stating that this has the effect of ‘intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress’, which amounts to inhuman treatment in violation of Article 7 of the International Covenant on Civil and Political Rights.8 6  Art. 5(c), UN Commission on Human Rights Resolution 2004/67. 7  ‘Transparency and the Imposition of the Death Penalty’, report of the Special

Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/2006/53/ Add.3, 24 March 2006, para. 32. 8  Human Rights Committee, Communication no. 886/1999: Belarus, 77th Session, 28 April 2003, UN Doc. CCPR/C/77/D/886/1999, para. 10.2. See also Human Rights

The Greater Stigma? Family Visits to the Condemned

131

While many states claim that such secrecy is necessary, it is not clear for what purpose nor how such measures contribute to crime control or meet the traditional purposes of punishment. In Taiwan, the justification for secrecy is to prevent any likelihood of demonstrations outside the prison. What is clear, though, is that the pain suffered by the family of the executed person is exacerbated by the lack of information about their final moments. Death Row: Contact with Family Members The length of time spent on death row varies from country to country. In the Commonwealth Caribbean, the condemned have their sentences commuted if they spend more than five years on death row after sentence,9 whereas in China, executions frequently occur within months of their sentence. In the USA, the lengthy appeals process can lead to decades of awaiting execution (Death Penalty Information Center, n.d.), with family members of both the victim and the condemned enduring years of anguish. Moreover, in many countries, prisoners on death row are separated from the general prison population and are subjected to more stringent conditions, particularly regarding their movement within the prison and contact with the outside world. This not only impacts on the prisoner’s well-being, but their family members are also adversely affected. Those who oppose the civilizing of the process argue that murder victims’ family members lose any contact with their loved one, therefore the condemned should not be able to see his or her family either – a gratuitous and uncharitable sentiment. In the USA, death row conditions vary considerably from state to state, but there are some commonalities. Most death row inmates are housed in maximum security units, although where there are only a few people on death row, they may be integrated with other inmates in the general prison population. Most death row prisoners are kept in single cells with little or no contact with other inmates. Many spend up to 23 hours a day in their cells with few facilities. In Arizona, for example, all condemned prisoners are held in single cells which are equipped with a toilet, sink, bed and mattress. They are not allowed contact with any other inmates, and out-of- cell time is limited to outdoor exercise in a secured area (two hours a day, three times a week) and a shower (three times a week). Inmates are not permitted to have meals with other people – their food is served to them in their cells (Arizona Department of Corrections, n.d.). Similar arrangements are in place in other death penalty states. Most death row prisoners do have access to television and other entertainment (books, magazines). Committee, Communication no. 887/1999: Belarus, 77th Session, UN Doc. CCPR/ C/77/D/887/1999, 24 April 2003, para. 9.2. 9  As a result of Pratt & Morgan v Attorney General for Jamaica, Privy Council, Appeal no. 10 of 1993.

132

Capital Punishment: New Perspectives

When permitted out of their cells, death row inmates may be subjected to considerable security measures regardless of whether they are deemed dangerous or not. In Delaware, for example, condemned prisoners are kept in restraints except when they are in their cells, the exercise area or the shower (Delaware Department of Corrections, n.d.). Similarly, in Colorado, when moving around the prison, death row inmates are in full restraints, accompanied by a minimum of two correctional officers (Colorado Department of Corrections, n.d.). It is clear from such measures that death row inmates have acquired a special status whereby they are all considered dangerous individuals. While this may be true of some offenders, it does not necessarily apply to all individuals on death row. In a recent doctoral thesis Mark Pettigrew argues that with fewer executions in the USA incarceration on death row has become the punishment and it is for this reason that death row conditions have become increasingly harsh and restrictive.10 Being on death row also means being subjected to more restricted visiting arrangements than those in the general prison population. In the USA, visits with family members and friends are considered a privilege and not a right, with visiting policies varying from state to state and prison to prison. Although the importance of maintaining family ties is recognized in the goals and objectives of most prison policies, not all prison environments are conducive to this. Less than half of death penalty states allow contact visits (Death Penalty Information Center, 2011; Babcock, 2008), the prisoners’ families being separated by glass or another dividing mechanism with no possibility of physical contact with them. In some states, they may only talk to their loved one via a telephone link. In North Carolina, for example, male death row inmates receive one visit a week with a maximum of two people. These are non-contact visits where inmates may see and talk with their visitors, but no physical contact is permissible. Women prisoners’ visits take place in the communal dayroom in the unit under the supervision of correctional staff, although it is not clear whether contact is permitted for condemned females (North Carolina Department of Public Safety, 2012). In California, prisoners in the general prison population are eligible for ‘family visits’, which take place in private, apartment-like facilities on prison grounds for approximately 30 to 40 hours – a privilege denied prisoners on death row (California Department of Corrections and Rehabilitation, n.d., 2). Restrictions on the context and culture of visits adversely affect both the prisoner and the family. Research on the experience of death row families shows that they suffer a great deal of hardship having a loved one on death row. There is no guarantee that their relative will be housed in a prison close to home, resulting in considerable time and costs travelling to see their loved one on death row, which most can ill afford. Some family members have also complained about the extortionate costs of telephone calls, which may limit the contact they have with their relative (Sharp, 2005, 173). 10  Mark Pettigrew, Incarceration on death row: a microcosm of communication? PhD thesis, University of Manchester, May 2013.

The Greater Stigma? Family Visits to the Condemned

133

Furthermore, the prison environment and visiting regime often serve as another forum to label and shame capital offenders’ families. Participants in one study remarked that the glass partition separating them from their loved ones caused them emotional and physical pain. One mother spoke of her frustration at not being able to hold her son when she had to tell him that his father had committed suicide. Other participants spoke of the physical pain of bending down so that they could hear their loved one through the small waist-high opening, as the glass partition restricted their conversation (Beck, Britto and Andrews, 2007, 71). In another study, one family member described Oklahoma’s death row as: this building is built half underground. Solid concrete. And the waiting area is about as wide as this room here is. Maybe not quite so wide. There are four stations, two feet square with windows. Quarter-inch glass with steel wire reinforcing it -in that glass. On [the prisoner’s] side of this glass, there are six one-inch bars in this window, with two cross pieces of steel, this wide and that thick, that these bars go down through. Anyway, and then you talk to him on the phone – he’s in a little cubicle over there about three and a half feet wide and eight feet long. No air, no ventilation comes into this room at all. And it’s blocked off, and so, in the hot part of summer, his shirt will be wringing wet. So we’ve cut our visits short sometimes just so he can get out of there and get some fresh air. (Sharp, 2005, 173–4)

To compound the indignity, the restraints used in some states to move offenders around the prison add to the emotional heartache of death row families. A father in another study reported: They treat them like dogs. I mean, you do not treat human beings like you do in prison. They were bound, everything feet and leg, walking in to see us. [When] they closed the visits, a lot of parents would stand there and look at the[m,] I did not. I left immediately. I could not stand to look at him in chains. (Beck et al., 2002–2003, 401)

Similarly, a mother stated: ‘They chain and shackle him when they bring him out. It is hard to sit there and look at your child’ (Beck et al., 2002–2003, 402). Upon receiving a death warrant, offenders in certain states may be granted special visiting privileges at the discretion of the warden. In Idaho, for example, non-contact visits are the norm, but once a death warrant is served, then in the seven days prior to execution, approved family members and a spiritual adviser may be granted a contact visit with the prisoner (Idaho Department of Corrections, 2012, 20). Not all states allow contact at the end. As one relative explains: A mother of a Texas DR [death row] inmate will never touch their son again. There is no human contact allowed. I can’t even imagine how that must feel. …

134

Capital Punishment: New Perspectives There was a special mother that begged to hold her son one last time before his execution and she was denied. They then let her hold her son’s still warm but lifeless body. Don’t they see that they are sentencing the family as well? (Sharp, 2005, 173)

It is hard to understand why family members are not able to have physical contact with their loved one, particularly in the final moments of life. In some cases, it seems that the punishment is not just meted out to the prisoner, but to his or her family members, too. Family members not only have to live with having their loved ones incarcerated on death row and executed, they must also live with the aftermath of the execution. Some states do not even allow family members of the condemned to attend the execution, which can only add to their pain and suffering. Moreover, support for offenders’ family members after the execution is also limited (Eschholz et al., 2003). Most states offer an assistance scheme for victims which provides financial and emotional support for victims’ families, though such schemes do not exist for offenders’ families. Financial support is nonexistent, and emotional support is normally provided by sympathetic members of the community, religious groups or abolitionist groups. Furthermore, the fact that some states allow contact visits and others do not exacerbates an already difficult situation – humanity reduced to being an accident of geography. Nebraska, for example, permits contact visits for death row inmates unless custody or security reasons dictate otherwise (Nebraska Department of Correctional Services, 2012, 8). In Florida’s Union Correctional Institution, death row visits take place in a building with 26 tables referred to as the Park, with visitors allowed six hours of contact visiting a week. Food is available from the vending machines or a canteen inside the room. Inmates and their visitors (including children) can walk around the building, hold hands if they wish, and play board or card games. On occasion, they may even be permitted to socialize with others in the room.11 Conditions on death row and visiting procedures for death row inmates in other countries are also restricted. In Vietnam, death row inmates are also separated from the other inmates. Prison rules stipulate that cells should be solidly built with adequate lighting and facilities to monitor and supervise those on death row. Most activities take place in the prison cells. Death row inmates have a right to see their family members, with a maximum of five relatives permitted to visit the inmate at one time. The number of visits is dependent on the facilities at the detention centre and the decision of the supervisor, but should not exceed once a month for a duration of one hour each time. Moreover, the visits are non-contact, with barriers between the death row inmate and their relatives. During the visit, death row inmates are not permitted to receive any items from their visitors, nor are they able to eat, drink or smoke in the visiting room. The inmates are shackled 11  Personal correspondence with Jojo Farr, Director of Florida Death Row Advocacy Group (FDRAG), 13 December 2012, on file with the authors.

The Greater Stigma? Family Visits to the Condemned

135

at the legs and are closely monitored by the staff at the detention centre during the meeting. Outside the monthly visits, death row inmates can receive objects or supplies from their relatives and are allowed to send and receive mail.12 In Taipei Detention House, one of the detention centres in Taiwan where death row inmates are housed and executed, the visiting policy permits the condemned visits with their family members. Meetings take place in a special visiting room and last for only 30 minutes, although this may be extended for special reasons. Up to three relatives can register for one visit in the morning, and another in the afternoon. Visits are face-to-face, although it is not clear whether contact is permitted. In any case, all visits are monitored, recorded and transcribed by the duty officer, who stands in close proximity to supervise the visit.13 In China, a death row inmate’s right to see their family members before execution has been debated for many years. Lawyers have argued that such a requirement should be formally recognized in the law, while the courts have stated that such a meeting may interfere with the execution process. The Supreme People’s Court recently announced that family members of the condemned will be given a chance to see their loved one before execution. Prior to the amended Criminal Procedure Law, saying goodbye to a prisoner on death row was only an option rather than a right, as a final meeting had to be applied for, the courts sometimes turning down the request with no explanation. As Yi Shenghua, a Beijing-based criminal lawyer, states: ‘It is made clear, for the first time in a national legal interpretation, that death row inmates have the right to meet their family before the execution, which was not fully implemented at local levels.’ Some cities have started allowing death row inmates a meeting with their family, but the problem of not knowing when the execution will take place still exists, which may mean that some family members lose the opportunity to say goodbye (Shuang, 2012). In Uganda’s Luzira Prison, the condemned ‘enjoy’ a positive regime that encourages a degree of self-determination, with access to education and lawyers, but set against this, family visiting arrangements for the condemned are restrictive and impoverished, allowing 20 minutes twice a week, non-contact and divided by a net.14

12  Circular Provisions of the Management and Custodial of Prisoners Sentenced to Death, in force August 2012, provided and translated by Giao Vucong, Lecturer, School of Law, Vietnam National University, Hanoi, 12 December 2012, on file with the authors. 13  Visitation Rules for Inmates at Taipei Detention House, received via personal correspondence with Nigel N.T. Li at Lee and Li, Attorneys-at-Law, Taipei, Taiwan, on file with the authors. 14  Personal communication with the Commissioner General of the Uganda Prison Service.

136

Capital Punishment: New Perspectives

International Standards on Imprisonment International standards on the detention of prisoners recognize the importance of prisoners maintaining contact with their relatives. Article 37 of the UN Standard Minimum Rules for the Treatment of Prisoners (1955) states that: ‘Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.’ Similarly, Principle 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment (1988) states that: ‘A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.’ These standards apply to all prisoners, regardless of their sentence. Even in the case of life-sentenced prisoners, it is recognized that there should be ‘opportunities for communication and social interaction with the outside community and in particular, to allow fixed regular visits with their relatives and other persons that would promote the best interests of the prisoners and their families’.15 These principles, although not binding, set a standard of acceptable practice. Visits are seen as an important right, not a privilege. Similar standards exist in the European context as well. Europe, with the exception of Belarus, is a death penalty-free zone (OSCE, 2012).16 Most member states that have abolished the death penalty have adopted a form of life imprisonment as the alternative sanction, though few anticipate that those sentenced to life will in fact remain in prison for the rest of their natural lives. The Council of Europe’s Recommendation on the management of life-sentence and other long-term prisoners emphasizes the need to adopt special measures to prevent the breakdown of family ties. To this end, it is recommended that prisoners ‘should be allocated, to the greatest extent possible, to prisons situated in proximity to their families or close relatives’ and that ‘letters, telephone calls and visits should be allowed with the maximum possible frequency and privacy’.17 The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has also recognized the need for prisoners to maintain contact with their family and close friends, with such contact limited only for reasonable resources or security considerations. However,

15  Recommendation 11 of the UN Recommendations on Life Imprisonment 1996. 16  In some states such as Kazakhstan, the Russian Federation and Tajikistan, the

death penalty still exists in law, but there is a moratorium in place with a view to abolition; see OSCE ODHIR (2012). 17  Recommendation 22 of Rec(2003)23 of the Committee of Ministers to Member States on the Management by Prison Administrations of Life Sentence and Other Longterm Prisoners Adopted by the Committee of Ministers on 9 October 2003.

The Greater Stigma? Family Visits to the Condemned

137

specifically regarding life-sentenced and other long-term prisoners, the Committee has observed that during some its visits: the situation of such prisoners left much to be desired in terms of material conditions, activities and possibilities for human contact. Further, many such prisoners were subject to special restrictions likely to exacerbate the deleterious effects inherent in long-term imprisonment; examples of such restrictions are permanent separation from the rest of the prison population, handcuffing whenever the prisoner is taken out of his cell, prohibition of communication with other prisoners, and limited visit entitlements. The CPT can see no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence, without giving due consideration to the individual risk they may (or may not) present. (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 2011, 28)

After the Death Penalty: Practice in European States It is encouraging to see that some states in Europe have put in place visiting policies that take into account the needs of both prisoners and their family members. In Iceland, the maximum sentence for persons convicted of murder is life imprisonment of no less than five years or for life, although in practice, the maximum prison sentence is on average 16 years and no one has served a whole life sentence.18 Prisoners are permitted to receive visits, not less often than once a week, although the prison director may permit more than the basic allowance. These are normally contact visits without supervision unless circumstances justify that restrictions should be put in place between the prisoner and the visitor.19 In Denmark, life-sentenced prisoners have a right to at least one weekly visit for at least one hour, and as far as possible, for two hours. The visits are unsupervised, and should take place in a room which creates a natural and friendly atmosphere. Where possible, inmates should be able to receive visitors in their own rooms or in a communal room of the institution.20 In Serbia, following the abolition of the death penalty in 2002, the maximum sentence available is 40 years’ imprisonment, although this is not a mandatory sentence and release on parole is possible. All prisoners are treated the same, including those whose who were under a sentence of death and still remain in prison after having their sentence commuted. For those inmates housed in closed 18  Personal correspondence with Hafdís Guðmundsdóttir, Prison and Probation Administration, Iceland, 12 December 2012, on file with the authors. 19  Arts 33–5, Icelandic Execution of Sentences Act no. 49/2005. 20  Executive Order on the Right to Visits of Inmates Serving a Sentence of Imprisonment or Safe Custody in the Institutions of the Prison and Probation Service (Visits Order), in force July 2001.

138

Capital Punishment: New Perspectives

institutions, visits are permitted once a month for a minimum duration of one hour. In comparison to some of the prison facilities in the USA, the visiting room should be ‘spacious, clean, well lit, heated as needed, aired, equipped with adequate sanitary facilities and a sufficient number of tables and chairs. Visits may also take place in appropriate open areas within the institution.’ Conjugal visits or visits in special rooms are granted to all prisoners, including death-sentenced prisoners prior to abolition, once every three months for a duration of three hours.21 In fact, in most Eastern European and Central Asian countries, prisoners are entitled to family visits three or four times a year to help maintain the family bond. These visits normally take place in a small apartment located near the entrance to the prison. Each apartment will typically have one or two bedrooms, a communal living room, a kitchen and a bathroom where prisoners can spend up to 72 hours with members of their immediate family. By comparison, prisons in northern Europe do not have similar arrangements, although some prisons in Scandinavia permit conjugal visits of up to two hours. In England and Wales, though, visits are limited to two one-hour visits every four weeks. These visits normally take place in a communal area furnished with fixed tables and chairs. Closed visits, where the visitor and prisoner are separated by a glass partition, may be enforced for disciplinary reasons or for high-risk offenders (Coyle, 2005, 47). Final Meetings, Final Words Ironically, the closest, physically, that families come to one another is when they say their final goodbyes – the execution chamber – when the state of Texas comes into its own, having hosted more of these events than any other state of the USA or in the world. That, though, is the limit of its hospitality, as even on this final day, families are not permitted physical contact – no hugs and kisses, nothing. In fact, the isolation continues, with family witnesses being separated en route to the chamber and in the chamber. Both authors have been in this very small room with its hidden passageway to the warden’s office, allowing the execution team to maintain its anonymity. The viewing chamber, though small and separated from the execution area by a Plexiglas screen and curtain, was divided by masonry to provide a separate space for the families of the victim when they were finally permitted in 1995 to witness executions. There is an ‘upstairs, downstairs’ feel to the proceedings, with the family of the victim mingling with the official witnesses, and the family of the condemned being left to their own devices, separated. 21  Arts 78–83 of the Law on the Execution of Criminal Sanctions, Official Gazette of the Republic of Serbia, nos 85/2005 and 72/2009; Arts 51–5 of the Regulation on House Rules in Penal-correctional Institutions and District Prisons; Official Gazette of the Republic of Serbia, nos 72/2010 and 6/2012, translated by Ivan Jankovic, Serbia Against Capital Punishment (www.deathpenalty.rs), personal communication, 22 December 2012, on file with the authors.

The Greater Stigma? Family Visits to the Condemned

139

The victim’s family are appointed a Texas Department of Criminal Justice (TDCJ) victim support assistant in the lead-up to the execution, at the execution and in the aftermath. Hodgkinson, who has been an occasional visitor to Huntsville, Texas over the past thirty years, lobbied the TDCJ when arrangements were being made to accommodate victim family members into the execution protocol as he was very concerned that no provisions were to be made to support the family through an experience that can only be described as witnessing a premeditated killing. He advised that any support protocol should meet the needs of the families of the victim and the condemned – that did not happen, thus compounding the stigmatization and marginalization of the families of the condemned: At 6:00 p.m. sharp, the prisoner is taken from the holding cell outside the execution chamber. He is walked into the chamber and strapped to the execution table, face up, his arms extended on supports. When the prisoner is in place, guards escort the two witness parties into their respective rooms. IV’s are then inserted into both arms and a saline solution is started. After the saline has flowed for a few minutes, everyone leaves the chamber except the prisoner, the warden, and the chaplain. The warden usually stands behind the prisoner. The chaplain stands at his feet, with his hand on the prisoner’s ankle. This is when the prisoner is allowed to make a last statement. He speaks into a microphone suspended just above his head. (Texas Execution Information Center, n.d.)

This forms the background to the final soliloquy, which is the last opportunity for the condemned to speak to their loved ones. The narratives of these ‘last words’ were explored by Millward (2012) in his analysis of the last words of 478 executed inmates in Texas,22 which found that ‘love’, ‘family’ and ‘thanks’ were the most frequently used words, and the most commonly used three- or four-word phrases were ‘I love you’, ‘I would like to …’, ‘I am sorry’ and ‘thank you for …’. Concluding Thoughts Our work with the Centre for Capital Punishment Studies23 (CCPS, 1992) has provided numerous opportunities to visit and learn about the death penalty, its implementation, its penal policy implications and the alternative. In our work with retentionist countries and their management of prisons holding death- and life-sentenced prisoners, we come across a phenomenon common to all states in transition, which is the conviction that both populations of prisoners, deathand life-sentenced, need draconian security measures, and furthermore, that both 22  See ‘Executed Offenders’ on the Texas Department of Criminal Justice website, which cites each offender’s last statement: www.tdcj.state.tx.us/death_row/dr_executed_ offenders.html (accessed 20 May 2013). 23  Centre for Capital Punishment Studies: www.westminster.ac.uk/CCPS.

140

Capital Punishment: New Perspectives

categories of prisoner need to be segregated from the general population. Such an arrangement could benefit family visiting arrangements if the opportunity was taken at the design stage to incorporate bespoke visiting facilities, but if the prisons Hodgkinson visited in Eastern Europe and the former USSR were typical, then they were without exception in a very poor state of physical repair, furnished with very primitive perimeter security devoid of the electronic surveillance characteristic of American and European secure prisons. The paradox is that some of these regimes made provision for conjugal visits for those serving the alternate sentences in the aftermath of abolition, and they had been available for the condemned and their families. Security is the default justification for such measures globally, which, given the nature of the population, is understandable; however, sufficient security can be maintained without excessive intrusion into the lives of the inmates and their families. Prison management strategies should serve and reflect a number of objectives, for example, secure and humane custody of the condemned; ensuring positive contact with their families; reflecting the norms of wider society; embracing the findings of social and penal policy research, which if neglected can actively damage the community in which the prison is located. Finally, the premise on which these restrictive and damaging regimes are based is not supported by the research or the experience of prisons where ‘positive’ custody is implemented. For evidence of this, we turn to Johnson and Tabriz (2011), who write: We contend that the presumed moral depravity of murderers, juvenile or otherwise, is belied by what we know about people who kill. In fact, murderers typically are anything but incorrigible, even if their crimes are uniquely devastating in the harm they inflict. Murderers adapt in a largely law-abiding way in prison, displaying little or no violence (Johnson & McGunigall-Smith, 2008; Sorensen & Wrinkle, 1998). Those murderers who are released from prison after long years of confinement are, for the most part, law-abiding citizens; they exhibit the lowest recidivism rates of all offenders (Langan & Levin, 2002). Moreover, capital murderers who have their convictions overturned and are released from death row into the general prison population, presumably among the worst of the worst murderers, also live law-abiding lives behind bars (Cunningham, Reidy, & Sorensen, 2008; Cunningham & Sorensen, 2006). Remarkably, those capital murderers who are ultimately released from prison – and there have been hundreds of such releases as a result of capital litigation, especially in the wake of Furman v. Georgia (1972) – exhibit low recidivism rates, significantly below that of other felons (Marquart & Sorensen, 2006; see generally, Cheever, 2006).

The Greater Stigma? Family Visits to the Condemned

141

Further, if we consider the public protection element, lifers eligible for parole tend to have very low rates of recidivism after release.24 Data on reconviction rates in England and Wales reveals that of the 1,719 lifers released between 1 April 2000 and 31 March 2007, 73 (4.2%) were reconvicted of an offence, of which 30 (0.5%) were convicted of a serious offence such as offences against the person or sexual offences.25 This compares with a reconviction rate in the generality of released prisons of between 50% and 70%. Prison managers should understand that as it is in the interest of such prisoners to stay out of trouble more thought should be given to lifting disproportionate restrictions and increasing opportunities for prisoners including improving the regime for family visits. References Amnesty International (n.d.), ‘Why are They Hiding?’, www.amnesty.org/en/ death-penalty/why-are-they-hiding (accessed 2 January 2013). Amnesty International (2012), ‘Abolitionist and Retentionist Countries’, www. amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries (accessed 2 January 2013). Arizona Department of Corrections (n.d.), ‘Death Row Information and Frequently Asked Questions’, www.azcorrections.gov/dr_faq.aspx (accessed 2 January 2013). Babcock, S. (2008), ‘Death Row Conditions’, www.deathpenaltyinfo.org/deathrow (accessed 2 January 2013). Beck, E., Britto, S. and Andrews, A. (2007), In the Shadow of Death: Restorative Justice and Death Row Families, Oxford: Oxford University Press. Beck, E., Sims Blackwell, B., Blume Leonard, P. and Mears, M. (2002–2003), ‘Seeking Sanctuary: Interviews with Family Members of Capital Defendants’, Cornell Law Review, 88, 382. California Department of Corrections and Rehabilitation (n.d.), ‘Visiting a Friend or Loved One in Prison’, www.cdcr.ca.gov/Visitors/docs/InmateVisitingGuidelines. pdf (accessed 2 January 2013). Cheever, J.M. (2006), Back from the Dead: One Woman’s Search for the Men Who Walked Off America’s Death Row, New York: Wiley. Colorado Department of Corrections (n.d.), ‘Death Row Daily Routine’, www. doc.state.co.us/death-row (accessed 2 January 2013).

24  Mauer, King and Young (2004). 25  Home Office. (2007), Analysis of True Life Reconviction. 1 April 2000–31 March

2007, obtained via personal communication between the CCPS and the Home Office, Pre-release Section.

142

Capital Punishment: New Perspectives

Coyle, A. (2005), ‘Management of Long-term and Life-sentenced Prisoners Internationally in the Context of a Human Rights Strategy’, in N. Browne and S. Kandelia (eds), Managing Effective Alternatives to Capital Punishment: 24th June 2005 – Conference Papers, Occasional Paper Series – Special Edition, vol. 3, London: Centre for Capital Punishment Studies, University of Westminster. Cunningham, M.D. and Sorensen, J.R. (2006), ‘Nothing to Lose? A Comparative Examination of Prison Misconduct Rates Among Life-without-parole and Other Long-term High-security Inmates’, Criminal Justice and Behaviour, 33, 683–705. Cunningham, M.D., Reidy, T.J. and Sorensen, J.R. (2008), ‘Assertions of “Future Dangerousness” at Federal Capital Sentencing: Rates and Correlates of Subsequent Prison Misconduct and Violence’, Law and Human Behaviour, 32, 46–63. Death Penalty Information Center (n.d.), ‘Time on Death Row’, www. deathpenaltyinfo.org/time-death-row (accessed 2 January 2013). Death Penalty Information Center (2011), ‘Death Row’, On the Issues podcast series, Episode 16, 7 October, www.deathpenaltyinfo.org/podcasts#dea (accessed 2 January 2013). Delaware Department of Corrections (n.d.), ‘Death Row Factsheet’, www.doc. delaware.gov/information/deathrow_factsheet.shtml#General Facts (accessed 2 January 2013). Eschholz, S., Reed, M.D., Beck, E. and Leonard, P.B. (2003), ‘Offenders’ Family Members’ Responses to Capital Crimes: The Need for Restorative Justice Initiatives’, Homicide Studies, 7, 154. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2011), CPT Standards, CPT/Inf/E (2002) 1 – Rev. 2011 English, www.cpt.coe.int/en/documents/eng-standards.pdf (accessed 20 May 2013). Hodgkinson, P. (2004), ‘Capital Punishment: Meeting the Needs of the Families of the Homicide Victim and the Condemned’, in P. Hodgkinson and W. Schabas (eds), Capital Punishment: Strategies for Abolition, Cambridge: Cambridge University Press. Hodgkinson, P., Kandelia, S. and Reddy, R. (2009), ‘Capital Punishment: Creating More Victims?’, in N. Loucks, S. Holt and J.R. Adler (eds), Why We Kill: Understanding Violence Across Cultures and Disciplines, Abingdon: Willan Publishing. Idaho Department of Corrections (2012), ‘Execution Procedures’, adopted 18 May 1998, reviewed 6 January 2012, www.idoc.idaho.gov/content/policy/708 (accessed 2 January 2013). Johnson, D.T. (2006), ‘Japan’s Secretive Death Penalty Policy: Contours, Origins, Justifications, and Meanings’, Asian-Pacific Law & Policy Journal, 7(2), 62. Johnson, R, and McGunigall-Smith, S. (2008), ‘Life without Parole, America’s Other Death Penalty: Notes on Life Under Sentence of Death by Incarceration’, The Prison Journal, 88, 328–46.

The Greater Stigma? Family Visits to the Condemned

143

Johnson, R. and Tabriz, S. (2011), ‘Sentencing Children to Death by Incarceration: A Deadly Denial of Social Responsibility’, The Prison Journal, 91, 198. King, R. (2005), Capital Consequences: Families of the Condemned Tell Their Stories, New Brunswick, NJ: Rutgers University Press. Langan, P.A. and Levin, D.J. (2002), Recidivism of Prisoners Released in 1994, NCJ 193427, Washington, DC: Bureau of Justice Statistics, http://bjs.ojp. usdoj.gov/index.cfm?ty=pbdetail&;iid=1134 (accessed 2 January 2013). Marquart, J.W. and Sorensen, J.R. (2006), ‘Institutional and Post Release Behaviour of Furman-commuted Inmates in Texas’, Criminology, 2, 677–94. Mauer, M., King, R.S. and Young, M.C. (2004), The Meaning of ‘Life’: Long Prison Sentences in Context, Washington, DC: The Sentencing Project. Millward, J. (2012), ‘Death in Texas: Analysing the Last Words of 478 Death Row Prisoners’, http://jonmillward.com/blog/psychological-subtleties/deathin-texas-analyzing-the-last-words-of-478-death-row-prisoners/ (accessed 2 January 2013). Mothers Against the Death Penalty and Torture (Uzbekistan) and the Office for Human Rights and the Rule of Law (Uzbekistan) (2008), Problems Related to the Death Penalty and the Use of Torture in Uzbekistan, report presented at the UN Human Rights Council’s Universal Periodic Review, 3rd Session, 1–15 December 2008. Nebraska Department of Correctional Services (2012), ‘Visiting Procedures’, effective 2 February 2001, revised August 2012, www.corrections.nebraska. gov/pdf/ar/mail/205%20TSCI%20Visiting.pdf (accessed 2 January 2013). North Carolina Department of Public Safety (2012), ‘Death Row and Death Watch’, https://www.ncdps.gov/index2.cfm?a=000003,002240,002327 (accessed 2 January 2013). OSCE Office for Democratic Institutions and Human Rights (ODIHR) (2012), The Death Penalty in the OSCE Area: Background Paper 2012, Warsaw: ODIHR, www.osce.org/odihr/94219 (accessed 20 May 2013). Sharp, S. (2005), Hidden Victims: The Effect of the Death Penalty on Families of the Accused, New Brunswick, NJ: Rutgers University Press. Sheffer, S. and Cushing, R. (2006), Creating More Victims: How Executions Hurt the Families Left Behind, Cambridge, MA: Murder Victims’ Families for Human Rights, www.mvfhr.org/sites/default/files/pdf/MVFHReport.pdf (accessed 20 May 2013). Shuang, Y. (2012), ‘Condemned Inmates Better Off’, Global Times, 26 December, www.globaltimes.cn/content/752274.shtml (accessed 2 January 2013). Sorensen, J. and Wrinkle, R. (1998), ‘Patterns of Rule-violating Behaviours and Adjustment to Incarceration among Murderers’, The Prison Journal, 78, 222–31. Texas Execution Information Center (n.d.), ‘Texas Execution Primer’, www. txexecutions.org/primer.asp (accessed 20 May 2013).

This page has been left blank intentionally

Chapter 7

Children of Parents Sentenced to Death1 Helen Kearney

No one has studied how the execution of an immediate family member impacts children. We don’t even know how many children have an immediate family member on death row in the US. Worse, we don’t know the effect that having a parent executed will have on their impressionable lives and the cost society may pay for that impact. (Meeropol, 2005) Robert Meeropol’s parents, Ethel and Julius Rosenberg, were executed by the USA government in 1953, under the Unconstitutional Espionage Act. He was six years old. (Meeropol, 2003)

Little attention has been given to the children of those sentenced to death or executed. Globally, a small but growing body of evidence indicates that such children suffer a uniquely traumatic, profoundly complicated and socially isolating loss. In some countries, especially where the death penalty is routinely used in cases of domestic violence, the parental death sentence often means the start of a life on the street. As social workers from Uganda and China report,2 these children may lose both their parents. For children in other countries, the parental death sentence means a violent and isolating bereavement, with a subsequently unsupported grieving process and likely long-term repercussions. Recent studies document the serious emotional and psychological distress experienced by the children and families of death row inmates, characterized by symptoms corresponding with post-traumatic stress disorder, ambiguous loss, and complicated and disenfranchised grief (Beck, Britto and Andrews, 2007; Jones and Beck, 2006; King, 2005; King, 2006; King, 2007; Long, 2011; Sharp, 2005). In 2011, the UN Committee for the Convention on the Rights of the Child devoted its Day of General Discussion to ‘Children of Incarcerated Parents’. 1  This chapter is partly based on research carried out while working at the Quaker United Nations Office (QUNO). However, any views expressed are solely those of the author, and do not necessarily represent the position of QUNO. 2  Morning Tears, China and Wells of Hope, Uganda, spoke at the UN Committee for the Rights of the Child’s Day of General Discussion in 2011 about their work with the children of parents on death row, providing basic needs and psychosocial support; see www2.ohchr.org/english/bodies/crc/discussion2011.htm (accessed 20 May 2012).

146

Capital Punishment: New Perspectives

Amnesty International prepared a written submission raising awareness of the impact of a parent’s death sentence on children (Amnesty International, 2011). It focused on situations that occur in violation of existing international standards on the use of capital punishment, namely secrecy surrounding detention on death row and execution. Over the course of the day, this topic generated considerable interest. It became apparent that the perspective of the children of those sentenced to death or executed had been neglected, by retentionists and abolitionists alike. In early 2012, UN Human Rights Council Resolution A/HRC/RES/19/37 was adopted without a vote (19 April 2012). It calls upon States: To ensure that children whose parents or parental caregivers are on death row, the inmates themselves, their families and their legal representatives are provided, in advance, with adequate information about a pending execution, its date, time and location, to allow a last visit or communication with the convicted person, the return of the body to the family for burial or to inform on where the body is located, unless this is not in the best interests of the child.

Furthermore, mindful of the fact that States do not regularly collect data on children of incarcerated parents, including the children of parents incarcerated on death row, paragraph 5 of the Resolution ‘encourage[s] States to develop and strengthen the collection, analysis and dissemination of data for national statistics, including … children of incarcerated parents’. In the absence of statistics on this forgotten group of children, it is none the less clear that the damage inflicted by the capital justice system is significant. Over 60 per cent of the world’s population currently live in countries where the death penalty is used. At the end of 2011, at least 18,780 people remained under sentence of death (Amnesty International, 2012). This figure does not include the many thousands of executions carried out in China, where exact numbers remain a state secret.3 Nor does the figure account for the probable extent of the death penalty in the Islamic Republic of Iran (Amnesty International, 2012). Moreover, the effects of this unusual punishment reach far beyond the head count of a single year, both in terms of the quantity and the quality of the harm inflicted. In the light of these recent developments, it is clear that there is an urgent need to examine the effects of the capital punishment system in its entirety. This includes the social, economic and psychological impacts on lives that were never intended to be the target of death penalty laws. This chapter begins to explore the diverse and multifaceted impacts of the death sentence on the children of the accused. A wide range of access, methodological and ethical issues make research into this topic exceptionally difficult. However, existing studies are not simply lacking the appropriate scale and rigour. The impacts on the children of the accused seem to have been almost entirely overlooked. In criminal justice systems that are 3  In 2009, it was estimated that China executed 5,000 people – more than all other nations combined.

Children of Parents Sentenced to Death

147

primarily concerned with identifying and punishing the individual offender, and secondarily with his or her welfare, the perspective of the offender’s child as rights bearer and victim is routinely omitted. With regards to capital punishment, when this routine neglect is compounded by the complex mechanisms of shock, shame, stigma, repression and isolation, the innocent child becomes completely invisible. In the absence of any study with representative samples, well-validated measures and appropriate comparison data, the hypothesis that parental death penalty causes psychosocial difficulties for children seems reasonable. This chapter will raise awareness of some of the issues facing the child. It will consider and elaborate on each of these issues in as much detail as the current literature permits, highlighting directions for future study. Primarily, the aim is to raise awareness among civil society, and to encourage and enable States to take responsibility for the full impacts of their criminal justice systems. Understanding the repercussions that the death penalty has on the children of the accused is essential to identifying what interventions, assistance or policy changes could prevent and/or mitigate their suffering. While the focus of this chapter remains the impacts of the death sentence on the children of the accused, it is important to consider how far the repercussions extend out into communities, over generations and beyond the children immediately impacted by the loss of a parent. Capital punishment has a huge symbolic significance. Studies have repeatedly shown that children’s exposure to violence can predict attitudes justifying their own use of violence (Spaccarelli, Coatsworth and Bowden, 1995; Carlson, 1991; Jaffe, Wilson and Wolfe, 1986). What attitudes do children living in societies using the death penalty develop regarding conflict and the use of violence? Existing Research on the Impacts of the Death Sentence on the Children of the Accused Like the vast majority of death penalty scholarship, the few studies that do exist are based on experience in the USA. This author has not located any formal study of the impacts of the death penalty on children and/or families from any other country in the world. In order to supplement existing research, this chapter draws on limited anecdotal evidence: the opinions of people working with the children of long-term prisoners or those sentenced to death, short videos taken with hand-held cameras and posted online, newspaper articles and reports. All existing studies are descriptive accounts, based on availability (convenience) samples, where no comparison groups were used and no baseline data was collected (Beck, Britto and Andrews, 2007; Jones and Beck, 2006; King, 2005; King, 2006; King, 2007; Long, 2011; Sharp, 2005; King and Norgard, 1999; Vallejo, 1995; Smykla, 1987; Radelet, Vandiver and Berardo, 1982). All consider the effects of death sentences and executions on the families of condemned prisoners. To the best of our knowledge, this chapter is the first publication to specifically raise

148

Capital Punishment: New Perspectives

awareness of the child as rights bearer and victim. It draws on evidence of the impacts on families in order to explore the impacts on children. A child’s well-being is undoubtedly enmeshed in the well-being of the families, households and communities in which he or she lives. When a mother, uncle or sibling suffers a violent bereavement, it is unlikely that the child will not suffer too. However, this chapter focuses on the child, and aims to raise awareness of his or her need for special care and protection, especially when a parent’s death sentence means the start of a life on the street. Children experience grief and emotional and psychological trauma differently from adults, and are likely to need special assistance (see Dyregrov, 2008; Cohen, Mannarino and Deblinger, 2006). Studies to date have all used qualitative research methods and in-depth interviewing techniques. This is appropriate to such an emotionally charged and sensitive topic, but there are limits to an exclusively qualitative approach. Because of the sample size and lack of random sampling methods, generalizations cannot be made. In-depth interviewing is also more prone to interviewer bias, perhaps especially around such a controversial issue as the death penalty, so interviewers must be aware of their own preconceived ideas about how children experience the capital justice process, and attention must be given to designing data collection instruments and conduct interviews in order to minimize bias. This chapter suggests that some quantitative research is also required in order to seriously address the needs of this neglected population. A balance should be struck between allowing the ‘forgotten victims’ to tell their stories, expressing their own unique experiences, and the more quantitative counting, measuring and evaluating of impacts. Issues to Consider The Scale of the Impacts How many children are directly affected by a parent’s death sentence and/or execution? How many people are sentenced to death and/or executed, and how many children do they have? Beyond the immediate children and family, how wide does the circle of affected people extend? Are the effects limited to those living at the time, or do the impacts reach into future generations? Impacts on Children Detailed research into impacts of the parent’s death sentence on children is needed. How does it affect the child emotionally and behaviourally? How does this vary according to age and developmental stage? How is the child’s development affected (emotional, behavioural, cognitive)? How does the death penalty affect families more generally (caregivers and family systems), with indirect implications for the child’s well-being?

Children of Parents Sentenced to Death

149

Grief How do children grieve and process their loss? How long does this grieving process last? What assistance or interventions might best support their grieving processes? It will be necessary to track such processes over time, interviewing subjects on more than one occasion.4 The Nature of the Crime How does the child’s experience vary according to the nature of the (alleged) crime? Is the parent a political prisoner? Does the child believe his or her parent to have been wrongly convicted? When parents are convicted of the same crime in different cultural contexts, how do children’s experiences vary? Comparison Groups No existing study has used comparison groups, so there is a need for research with the methodological sophistication to distinguish the effects of parental death sentence from the effects of other factors in these children’s lives. It is likely that there are pre-existing differences between the children of parents on death row and their peers, which may contribute to their difference in outcome; indeed, the few studies on the backgrounds of condemned prisoners in the USA indicate that they frequently suffered childhoods fraught with poverty and high levels of violence, neglect, drug and alcohol abuse, mental illness and other dysfunctions (Haney, 1997; Lewis et al., 1998). Evidence repeatedly suggests that other condemned prisoners from around the world have at least their extreme poverty in common with these North American prisoners.5 Their children presumably share this underprivileged position. How do the experiences of these children compare with: 1. the experiences of children whose parent has been given a long term prison sentence; 2. the experiences of children whose parent has been murdered; or 3. the experiences of children whose parents have died of natural causes?

4  Susan Sharp is the only researcher to have attempted this to date. She re-interviewed 14 of her 68 participants, five both before and after execution; Sharp (2005). 5  ‘In almost every one of the 58 countries still retaining the death penalty, poverty has the same parameters …. Rich people pay good lawyers and get good representation. Poor people end up with lawyers not even specialized in the death penalty’; Athanasiou, in Lowe (2011).

150

Capital Punishment: New Perspectives

Representative Samples In order to speak authoritatively about how the death penalty affects children and to work more effectively to recognize, support and consider their needs, a study that is representative of all those accused of a capital offence within a country is needed. Studies thus far have been unrepresentative, for two main reasons (besides the fact that they have all been based in the USA). First, all have been limited to children and family members who maintain contact with the parent on death row. What about children whose families break contact? Indeed, how frequently do children stay in contact with a parent on death row? Second, participation in studies has been limited to family members who choose to participate and be identified as related to someone either convicted or accused of a capital crime. It has been observed that those who volunteer are often those who are actively involved in campaigning or advocacy. Commenting on the unrepresentative nature of her own study, Susan Sharp notes that most participants who came forward were white, despite the fact that nearly half the individuals on death row in the USA are African-American (Sharp, 2005, 21). She suggests that African-Americans are less likely to become activists for economic reasons (proportionately more African-Americans are from lower socioeconomic groups, where more time must be spent meeting basic needs, and fewer people have access to a computer and so on), and that families from such groups are less likely to remain in close contact with the prisoner due to transportation difficulties (Sharp, 2005, 21–2). In addition to the economic and practical reasons highlighted by Sharp, there may also be cultural factors meaning that family members from some ethnic, racial, religious and socio-economic groups are more likely to become involved in activism. Moreover, there is an element of interviewer effect. The majority of researchers have been white and based at universities, which could influence who feels sufficiently comfortable to come forward and speak about such a sensitive and personal issue. Finally, it may be that the belief in the family member’s innocence and determination to fight, rather than accept, the sentence makes participants more likely to come forward. Children of Parents Sentenced to Death or Executed Compared with the Children of Long-term Prisoners An expanding body of research suggests that parental incarceration is associated with a range of significant negative outcomes for many children (see Murray, 2005). It is likely that children with a parent accused and/or convicted of a capital crime also experience many of these negative effects, possibly to a greater degree. Part of the reason for some States’ increased interest in the children of prisoners is the recent attention to the connection between the maintenance of incarcerated parents’ ties to their children and a number of positive outcomes, for both the prisoners and the wider criminal justice system. Established outcomes

Children of Parents Sentenced to Death

151

include reduced disciplinary problems when in custody, reduced mental health problems both during imprisonment and after release, greater likelihood of family reunification, and reduced recidivism (Social Exclusion Unit, 2002). However, children are not merely ‘ties’ to be maintained in order to facilitate offender management and reintegration. The case of children whose parents are sentenced to death highlights the inadequacy of this purely instrumental approach. Since there will be no release or reintegration, these parent–child relations may be seen as a ‘lost cause’. These children have their own rights and needs, which should be recognized and fulfilled. The literature on the children of the incarcerated around the world makes frequent mention of the stigma, discrimination and shame that these children suffer. In the light of historically high global incarceration rates, it could be argued that this is likely to be attenuated as parental incarceration becomes more ‘normal’, even ‘cool’ and ‘tough’ in some cultural contexts (Schwartz and Weintraub, 1974). Conversely, it could be suggested that stigma may increase because those communities with the highest incarceration rates are often also those which suffer from the highest crime rates (Braman, 2004). However, the stigma of the death penalty is particularly strong. It is the ultimate punishment that a society can inflict. In the People’s Republic of China, a social worker remarked: ‘children of convicts are considered themselves to be criminals. These children bring bad luck. No one wants to take care of them and they end up on the street’ (Morning Tears, 2011). Media Attention In many countries, execution attracts disproportionate media attention, which can add to the child’s and family’s feelings of exposure and humiliation. In the People’s Republic of China, Interviews Before Execution was a hugely successful prime-time reality television show on the Henan Legal Channel for the past five years (it was cancelled in March 2012). With a following of 40 million viewers every Saturday night, it followed a familiar chat show format, showing glamorous presenter Ding Hu interviewing prisoners. She encouraged them to review the violent details of their crimes and they often begged for forgiveness before being led away for execution. In one episode, a convict in his twenties fell to his knees before his parents (who, unusually, had been allowed a final visit). He pled, ‘Dad, I was wrong. I’m sorry,’ and his distraught mother apologized for beating him once as a child. Then the guards pushed her aside and dragged him away to be executed. In the USA, the sister of a man who was executed said ‘there were blurbs on the television for the entire ten years. I can’t tell you the hell it put my mother through and is still putting her through’ (Sharp, 2005, 36). The death penalty remains a relatively unusual punishment with an enormous symbolic significance. In many countries, its comparative rarity coupled with its heightened media attention compound the stigma.

152

Capital Punishment: New Perspectives

In States parties to the UN Convention on the Rights of the Child, the child has the right to be free from all forms of discrimination based on the status of his or her parent(s) (Article 2). Given the strong stigma attached to capital punishment, this right may be violated when a parent is executed or incarcerated on death row. Children of Parents Sentenced to Death Compared with Children of Parents Who Died of Natural or Accidental Causes While the death of a parent or relative is often a painful loss, the knowledge that the death was caused by the deliberate actions of another human being(s) is distinctly traumatic and difficult to deal with, especially for a child. In a short video taken with a hand-held camera and posted on the Internet, Iman Shirali says: ‘it’s been 27 years. Me and my family have lost someone not due to a driving accident but due to a bullet shot by this regime’ (Shirali, 2009). His father was executed in 1982, when Iman was just nine months old, for opposing the Islamic Republic of Iran. Addressing the United Nations Commission on Crime Prevention and Criminal Justice, Marlene Young, President of the World Society of Victimology, quoted statistics on victimizations around the world and then observed: ‘these numbers do not take into account the families and friends who will also suffer loss, pain and trauma as the result of the violation of a loved one’ (Young, 2006). Young is referring specifically to the impact of a loved one’s murder as compared to dying of natural causes. Lu Redmond, homicide grief expert in the USA, has estimated that there are seven to ten close relatives – not including significant others, friends, neighbours and co-workers – for each victim (Redmond, 1989). Redmond refers to those left behind as ‘homicide survivors’, suggesting that their relationship with the primary victim will cause them to suffer for the rest of their lives (Redmond, 1989). This chapter suggests that research should be done to estimate the numbers of children, relatives and people in general who are affected by a death sentence or execution. Victims in Need of Recognition and Support ‘Jason’, the brother of an executed man in the USA, observed: ‘there are two sets of victims – the victim’s family and the family of the person on death row’ (Sharp, 2005, 39). Kon Wei, a social worker at Morning Tears Children’s Village in the People’s Republic of China,6 which caters for children whose parents have been executed or given life sentences, remarked: ‘once the parent got caught, really nobody want [sic] them – even the families, the relatives, the neighbours’ (Morning Tears, 2011). 6  www.morningtears.org.

Children of Parents Sentenced to Death

153

In some countries, death certificates of the executed list ‘homicide’ as the cause of death.7 The shock and violence of the deliberate killing of a parent is exceptionally traumatic. There are important similarities between the experiences of the children of murder victims and the children of the executed. Evidence suggests that executions harm surviving children and families, and that therefore these children are indeed victims. However, as a group, the children of the executed are often not perceived as such by the wider society. They do not receive the recognition, support and assistance that the advocacy organizations and service professionals of the victims’ rights movement work to provide for the family members of murder victims. Because they are not legally considered to be victims in any of the 58 countries that use the death penalty, any support that might be available for medical expenses, counselling or funeral expenses is not available to the children and family of the person who receives the death penalty (King, 2005, 10). In countries where a parent’s death sentence often means homelessness for the child, governments have been officially blind to their needs and neglected to provide alternative care. States parties to the United Nations Convention on the Rights of the Child are required to provide care when a state action (the parent’s execution or incarceration on death row) causes the child to be deprived of his or her family environment (Article 20). In the People’s Republic of China, the government has recently begun to acknowledge this responsibility by supporting the construction of Sun Village homes for children of parents on death row or executed. Because they are neither orphans nor experiencing physical disabilities, these children are usually ineligible for government subsidies. In 2005, the Long’an County children’s village was established with the financial assistance of the county government. In 2007, the children’s village of Jiangxi Province was established with the support of the government of Duchang, and in 2008, the children’s village of Qinghai Province was established with the support of the Civil Affairs Bureau of Datong (Sun Village, 2011). The Chinese government has also signed a contract with Morning Tears to build more homes for children (Morning Tears, 2011). Murder Victims’ Families for Human Rights (MVFHR) is a group of family members of murder victims who maintain that ‘the death penalty does not help us heal and is not the way to pursue justice for victims’.8 An MVFHR report argues that the families of the executed can also be viewed as victims under the UN Declaration of Universal Principles of Justice for Victims of Crime and Abuse of State Power (Sheffer and Cushing, 2006). In order that they achieve this recognition, the popular narrative of victimization will need to be reoriented. 7  House Bill 93 (taking effect 1 September 2005) requires the death certificates of inmates executed by the Texas Department of Criminal Justice to be classified as death caused by ‘judicially ordered execution’. Before HB 93, cause of death was listed as ‘homicide’; Texas Legislature, Texas Senate Committee Report: Bill Analysis 79(R) HB 93 (2005), www.capitol.state.tx.us/Home.aspx (accessed 11 June 2012). 8  www.mvfhr.org (accessed 20 May 2013).

154

Capital Punishment: New Perspectives

Conventionally, it begins with the crime and ends with the ‘closure’ or ‘justice’ of the execution. For the children of the executed, the killing of their parent is anything but ‘closure’. They need support in the aftermath of the execution if they are to cope with the effects of violence and trauma. The Philippine Department of Social Welfare and Development (DSWD) has acknowledged this, announcing in a recent press release: The children of one of three Filipino drug mules executed in China last week are showing positive signs of adjusting to their mother’s death (.) the counselling sessions conducted by our social workers have helped Sally Villanueva’s family members cope with and recover from the traumatic effects of Sally’s execution. (DSWD, 2011)

Children of the Murdered Compared with Children of the Executed As noted above, there are similarities between the experiences of children of murder victims and children of the executed, and it can be argued that both groups are victims in need of recognition and support. In the USA, one of the few studies of the children and family members of those on death row found: the cumulative effect of the harms [caused by a death sentence] produces trauma responses within families of capital offenders that are similar to the experiences of murder victims’ families (Beck et al., 2003).

Researchers found strong similarities in the physical and psychological responses of the two groups (Beck et al., 2003). However, there are also important differences between the violent bereavements that these two groups suffer. When a parent has been murdered, the child must come to terms with the fact that an individual (or a group of people) has taken his or her parent’s life. When the parent is executed, the state itself is the perpetrator, as opposed to an individual murderer. How are children affected, psychologically and emotionally, by the knowledge that their parent was or will be killed by ‘the state’? In most countries, bureaucratic arrangements and elaborate execution protocols distribute the responsibility for imposing the death penalty across a range of actors (prosecutors, judges, jurors, appeal courts, officials able to grant clemency, prison guards, soldiers, doctors, nurses and so on). ‘Karen’, a nurse who has participated in 14 executions at a prison in Georgia, USA, said: ‘I don’t know that I consider

Children of Parents Sentenced to Death

155

anybody an executioner, even the people that I know who push the drugs …. I look at it as the State as the executioner.’9 A mother described her ten-year-old daughter trying to understand that her father’s death was caused by ‘the State of Texas’, noting: ‘she sometimes felt as though that encompassed everyone she encountered. She told me one day when she went to school she felt like everyone was guilty, like she was walking around murderers because the people of Texas had killed her father’ (Sheffer and Cushing, 2006, 15). These children see one protector/provider figure (the parent) killed by another potential protector/provider (the state). This is likely to cause considerable internal conflict, depending to some extent on the cultural context and the child’s previous relationship with the state. The children and families of the executed speak of feelings of profound alienation and a betrayal of trust. At the time of his schizophrenic brother’s execution, Bobby Fitzsimmons was serving in the US Navy. He told reporters: ‘the country I fight for just murdered my brother’ (Ruiz, 2003). Ida Reid’s brother was executed in 2004. She continues to protest his innocence. Ida said: ‘I’d always believed in the system. I participated, did my part. But now I don’t believe in it, and that’s really sad’ (Sheffer and Cushing, 2006, 16). Researchers in the USA suggest that the differences between the experiences of the families of capital offenders and those of the families of murder victims arise from the additional layers of trauma laid upon the capital offender family from: the underlying offence, notification that the State is seeking the death penalty, institutional failures [to help their loved one], their community, the media, the court, defence attorneys, visitation with their incarcerated family member, notice of execution, and the execution itself. One could call the effect murder victim trauma plus. (Beck et al., 2003)

Grief: Unsanctioned, Unresolved and Disenfranchised We all experience grief and loss in a social context, and social support is a crucial factor in the resolution of grief. The bereaved need support – for the reality of their loss, but also because ‘loss entails a loss of self validation, [so] the starting point for recovery is the validation of the loss itself’ (Fowlkes, 1991, 532). Social support serves to validate loss, grief, and the bereaved themselves as legitimate grievers. ‘Disenfranchised grief’, according to a leading expert on grief counselling and psychotherapy, refers to losses that people have that aren’t always acknowledged

9  This view is not uncontroversial. The American Medical Association (AMA), for example, States in a resolution passed in 1980 that it opposes doctors helping the government to carry out executions because a physician is ‘dedicated to preserving life’. The Hippocratic Oath states: ‘I will give no deadly medicine to anyone if asked.’

156

Capital Punishment: New Perspectives

or validated or recognized by others. You can’t publicly mourn, receive social support or openly acknowledge those losses (Doka, 2010). The concepts of disenfranchised grief and non-finite loss have been applied to the situation of the children and families of death row inmates (Jones and Beck, 2006). Research has highlighted the ways in which ‘the circumstances surrounding an execution leave the family members of those condemned to death outside the ‘grieving rules’ that exist …. Family members are also “disenfranchised” from their grief, as society does not socially validate their pain’ (Jones and Beck, 2006). Interviews with 26 family members of death row inmates indicate the following common responses: isolation due to stigma and their own feelings of criminalization; intensified conflict between family members with different grieving styles; diminished self-esteem; shame; diffused and specific feelings of guilt, and a chronic state of despair (Jones and Beck, 2006). William Hocker explores this form of grief, referring to it as ‘unsanctioned’ and ‘unrecognized’, identifying the following characteristics: social stigma, embarrassment and secrecy on the part of the bereaved;absence of mourning rituals, communal celebration, recognition and funeral rituals, which normally provide a means to express cultural beliefs and values;delayed grief and the restraining, stifling and frustration of emotional responses;economic and legal problems;emotional problems, where the disenfranchised nature of the loss can lead to emotions being exaggerated (Hocker, 1990).

Ambiguous loss is often associated with unresolved grief, where uncertainty surrounding a loss can effectively ‘freeze’ the grieving process (Boss, 1999). The status of the loved one is somehow unclear: dead or alive, dying or recovering, absent or present, or indeed on his or her way to be executed or about to be exonerated. In cases of ambiguous loss, incomplete recovery will be more common, often leading to lifelong mental health problems (Boss, 1999). Secrecy surrounding detention on death row and execution in some countries can certainly lead to ambiguous loss and unresolved and disenfranchised grief in the children and families of the sentenced. Boss writes of ambiguous loss more generally: not only is there a lack of information regarding the person’s whereabouts, there is no official or community verification that anything is lost – no death certificate, no wake or sitting Shiva, no funeral, no body, nothing to bury. The uncertainty makes ambiguous loss the most distressing of all losses. (Boss, 1999, 6)

One might suggest that this combination of uncertainty and disenfranchisement (where grievers are unsupported and society does not ‘validate’ their pain) potentially makes the loss of a loved one to the death penalty uniquely devastating.

Children of Parents Sentenced to Death

157

Different Crimes, Different Contexts, Different Responses The impacts on children and families are likely to differ according to the crime for which the parent or relative received the death penalty, and how this is perceived in the particular cultural context. It may also vary according to whether the child and family believe their loved one to be wrongly convicted. The grief of the children and families of executed political prisoners, for example, may be less ‘disenfranchised’. This is an area for further study, but one might suggest that the children of executed political prisoners potentially experience less conflict and confusion because the killing of their parents can, in some contexts, be rationalized and understood to fit a world view – the aggressor (a regime or system) can be known and confronted. Their grieving processes may, to some extent, be sanctioned and recognized by those around them. Iman Shirali, for example, is articulate in his rage and keen to challenge perceived injustice. He describes his childhood in Iran without his father: I have never voted and I never will, because I didn’t want to have the Islamic Republic’s stamp on my birth certificate right next to my father’s name, where it says ‘Iman Shirali, son of Iraj …. I never went out to shout ‘Give me back my vote!’ You know why? Because I always thought if I am going to go out and shout, I will have to shout ‘Give me back my father! Give me back my childhood! Give me back my adolescence! (Shirali, 2009)

In other cultural contexts, this may not be possible. The impulse to reject or confront authority may be there, but its expression may not be overtly political, or even conscious. Robert Meeropol’s parents were executed in the USA for conspiracy to commit espionage during the Cold War. He writes: My earliest distinct memories are of visiting my parents on death row …. I had a sense that ‘they’ were out there, ‘they’ were powerful and that ‘they’ were attacking ‘us’. I grew up with a generalized sense of anxiety … frightened and with a suppressed need to attack those who had attacked my family. (Sheffer and Cushing, 2006, 6)

Perception of Victimization and Disparities in the Administration of the Death Penalty A considerable body of evidence supports the argument that the death penalty around the world is discriminatory, and is used disproportionately against the poor and members of certain minorities and racial, ethnic and religious communities (see, among others, Schabas, 1996; Baldus et al., 1998). It is not within the scope of this chapter to explore debates around the inequitable application of the death penalty. However, we can note that for

158

Capital Punishment: New Perspectives

the affected children, the belief that their poverty, race, ethnicity, religion and/ or minority identities contributed to the death sentence of their parent is likely to increase their perception of victimization. This may be turned outwards and expressed as anger and hatred of the state, regime or wider society; or it may be turned inwards, against themselves and their families (Why are we poor? Why am I black?), potentially increasing any shame and isolation they may experience. Emotional and Behavioural Responses: Shame, Guilt and Anger Maybe the parent did something wrong, or they choose [sic] the wrong way to solve the problem, but a kid they really feel hard [sic] to understand those things and they don’t know why the parent just abandoned them. (Kon Wei, Social Worker at Morning Tears, People’s Republic of China, in Morning Tears, 2011)

The idea of shame is often linked to physical vulnerability.10 Witnessing or imagining your parent’s execution demonstrates his or her vulnerability in the most vivid way imaginable. For the child, seeing his or her parent so belittled and powerless may cause confusion, anger and guilt. A possible direction for future study might be a comparison of children who see or are aware of their parent’s capital punishment with those who witness violence, especially domestic violence. Children who see one parent beaten or abused by another can witness that caregiver as belittled and powerless, like the child who sees or is aware of his or her parent’s execution. Research into child witnesses’ understanding of domestic violence shows that school-aged and adolescent children may wonder what they could have done to prevent or stop it, often feeling guilt that they could not protect the parent who suffered the violence (Pynoos et al., 1997; Drell, Siegel and Gaensbauer, 1993). Moreover, it is likely that a significant proportion of these children have suffered both a parent’s capital punishment and domestic violence (witnessed or experienced). For more than half of the children living in the Morning Tears children’s villages in the People’s Republic of China, one parent was murdered by the other. Koen Sevenants, Director of Morning Tears, said: when one parent murders the other one, you can be sure that this is usually preceded by domestic violence, which is traumatizing for the child …. A little

10  This is so at least in Western culture. For the Ancient Greeks, shame was etymologically linked to the body – see, for example, the treatment of nakedness and sexuality in Homer’s tales. In the Bible, Genesis tells of Adam and Eve, who ‘were both naked … and were not ashamed’. Having eaten the apple, they knew of their nakedness and shame came into existence.

Children of Parents Sentenced to Death

159

girl that watches her mother being abused by her father considers this far worse than if she was beaten up herself.11

Studies from around the world consistently indicate that child witnesses of violence in their homes and communities exhibit a range of behavioural and emotional problems, as well as cognitive development problems and longer-term mental health impacts (for example, depression, trauma-related symptoms, low self-esteem) (Kolbo, 1996). A considerable body of evidence suggests that these children are at greater risk of becoming both perpetrators and victims of violence (Bell, 1995). In terms of the child’s cognitive development, we should examine the attitudes that the children of those sentenced to death assume regarding the use of violence and conflict resolution. Research should be undertaken to compare children whose grief is more or less disenfranchised (children of political prisoners, those who protest their parent’s innocence, those whose parent is unquestionably guilty of a crime that carries a heavy stigma, such as rape, paedophilia or terrorism, depending to some extent on the context, and those in different cultural contexts, who may direct anger outwards or inwards). As mentioned above, studies have shown that children’s exposure to violence can predict attitudes justifying their own use of violence (Spaccarelli, Coatsworth and Bowden, 1995; Carlson, 1991; Jaffe, Wilson and Wolfe, 1986). Adolescent boys incarcerated for violent crimes who had been exposed to family violence were shown to believe more than their peers that ‘acting aggressively enhances one’s reputation or self image’ (Spaccarelli, Coatsworth and Bowden, 1995, 173). By extension, such findings invite us to ask what children learn from the capital punishment system. It could be suggested that the death penalty is the ultimate collective affirmation that violence, in the form of state-authorized killing, resolves conflict. What do children learn from this? Moreover, how widely into our communities do these impacts extend? The evidence suggests that children of the accused are indirect or secondary victims of their parent’s execution or incarceration on death row. It could be suggested that all children living in retentionist societies suffer the repercussions of the capital punishment system. Inter-generational Trauma Acknowledging the uniquely traumatic nature of the death penalty and its symbolic significance, its impacts are likely to be felt beyond the immediate parent–child relationship, both out into wider society and over time. Over how many generations do these impacts extend? 11  Personal communication, 2011.

160

Capital Punishment: New Perspectives

Research has been carried out into the mechanisms by which violent trauma and related psychopathology involving parents and children are transmitted or communicated across generations (see Schechter and Serpa, 2011; Schechter, 2003). Other researchers have located individual experience in a wider social and political context, demonstrating parallels between apparently ‘private’ traumas that take place within the family and more ‘public’ traumas, such as war and terrorism (Herman, 1997). A possible direction for future research could be the application of these ideas to the children and families of those on death row or executed. As children or adolescents develop a sense of their own identity and their place in their community, it can be very difficult to know that a relative or ancestor – a part of them – was deemed ‘evil’ or ‘wrong’ and therefore unworthy of a human life by that same community. Barbara Allen’s uncle was executed in Texas in 1999. Her teenage son never knew his great-uncle, but she speaks of his ‘acting out’ behaviour and heavy drug use as a teenager. Aged 16, her son got a tattoo with his great uncle’s initials encircled in flames (Sheffer and Cushing, 2006, 9). It is also reasonable to suggest that traumatized parents bearing unresolved grief (such as the adult child of an executed parent) are rarely available, responsive and consistent parents, especially when they have not been able to access counselling or psychotherapy. A Cruel, Inhuman and Degrading Treatment or Punishment? In a petition to then President Botha, parents of those on death row in South Africa in 1988 wrote: ‘to be a mother or father and watch your child going through this living hell is a torment more painful than anyone can imagine’ (Amnesty International, 2011). In the context of enforced disappearances, both the UN Human Rights Committee and the European Court of Human Rights have acknowledged that family members of persons deprived of their liberty can also be victims of violations committed against their loved one, in particular cruel, inhuman or degrading treatment or punishment.12 Secrecy surrounding detention on death row and execution, and the failure to return the bodies to the family, are clear violations of both international standards on the use of the death penalty13 and the human rights of the children and family of the executed. In some countries, death row inmates are not informed of their upcoming executions, nor are their children and families or lawyers.14 The Human Rights 12  Quinteros v. Uruguay [1983] UN Doc. CCPR/C/19D/107/1981, para. 14, Kurt v. Turkey, ECHR, Case no. 15/1997/799/1002, judgment of May 1998, paras 133–4. 13  Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the UN Social and Economic Council, 1984. 14  Belarus, Botswana, Egypt and Japan, among other States.

Children of Parents Sentenced to Death

161

Committee has stated that, with regard to the International Covenant on Civil and Political Rights (ICCPR), ‘the failure to notify the family and lawyers of the prisoners on death row of their execution [is] incompatible with the Covenant’.15 The Committee views these practices as having the effect of ‘intimidating or punishing the families by leaving them in a state of uncertainty and distress, amounting to a violation of Article 7 of the ICCPR’.16 The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated: ‘refusing to provide convicted persons and family members with advance notice of the date and time of execution is a clear human rights violation …. These practices are inhuman and degrading and undermine procedural safeguards surrounding the right to life.’17 Some States do not return the bodies of executed prisoners to their families. In Belarus, Svetlana Zhuk, mother of executed prisoner Andrei Zhuk, told Amnesty International of her unresolved grief at not knowing the location of her son’s body. She recounts how Andrei’s eight-year-old son often stands silently in front of his father’s portrait: ‘What he thinks about now, I don’t know’ (Amnesty International, 2001). Denying children and families a burial or cremation exacerbates their distress, complicating their trauma and grieving process. It can be seen to violate the right to family life, the right to manifest one’s religion, as well as the right to be free from cruel, inhuman and degrading treatment. In other countries, the children of the judicially condemned know their loved one’s location, but not their fate. A considerable body of jurisprudence has developed in support of the argument that ‘death row phenomenon’ and ‘death row syndrome’ (the emotional distress suffered by prisoners on death row and the subsequent manifestation of psychological illness that can occur) can constitute cruel, inhuman or degrading punishment.18 By extension, it can be argued that the suffering of the prisoner is also, to some extent, inflicted on the children of the condemned, violating their human rights. They too endure the vicissitudes of hope and despair, as their parent’s sentence may be reversed, commuted and reinstated over a lengthy appellate process. 15  Concluding Observations of the Human Rights Committee: Japan, UN Doc. CCPR/CO/79/Add.102, 19 November 1998, para. 21. 16  E/2005/3, para. 125. 17  Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/2006/53/Add.3, 24 March 2006, para. 32. 18  See, for example, Pratt and Morgan v. The Attorney General of Jamaica [1993] 3 SLR 995, 2 AC 1, 4 All 749 (Privy Council), Soering v. UK [1989], 11 Eur. Hum. Rts Rep. 439, ECHR Series A, 161, no. 14038/88; in Canada: Minister of Justice v. Burns and Rafay, 2001 SCC 7 (SC Canada, 22 March 2001); in Uganda: Kigali and Others v. Attorney General [2006] S. Ct. Const. App. no. 03; in Zimbabwe: Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General, SC 73/93 (Zimb. 24 June 1993). In 2010, the ECHR expanded its judgment in Soering v. UK, in the case of Al Saadoon and Mufdi v. UK ([2009] ECHR, no. 61498/08). The court found that the UK had violated Article 3 merely by exposing the applicants to the threat of capital punishment.

162

Capital Punishment: New Perspectives

Psychologists and lawyers have argued that prolonged incarceration on death row can trigger delusions, suicidal tendencies and insanity.19 The inhuman and degrading conditions which a death row inmate can suffer include: the conditions on death row itself (which may be tantamount to solitary confinement); the effects of knowing that he or she will die – the execution itself and the ritual of the execution – and delays in the appeal and review procedures. All of these conditions potentially impact on the children of the accused. The following examples illustrate the extraordinary levels of stress and trauma that the children and family may undergo. In the USA, in April 2001 and again in May, Jay Scott, one of 11 children, was minutes from execution in Ohio when the courts granted a stay. On the second occasion, the catheters were already in his arms, ready to receive the lethal injection needles. In June, on the state’s third attempt, the execution of Jay Scott went ahead. His brothers, George and Charles, and sister, Diane, attended, mentally preparing to watch their loved one’s execution, only to see the process halt twice at the last minute, before finally going ahead (Ohio Department of Rehabilitation and Correction, 2001). This author found no information regarding related minor children, but with 10 adult siblings, it is highly likely that Jay had nieces and nephews. In Belarus, Andrei Zhuk’s mother was informed that her son had been shot. Shortly after learning this news, Andrei Zhuk’s father was in hospital, having suffered a heart attack (Amnesty International, 2010). Joseph Ross, a volunteer chaplain in Indiana, USA, wrote of Jerry Bivin’s last hours before execution in 2001 (Ross, 2001). Ross sat with Jerry, Jerry’s mother, brother and sister-in-law to share Jerry’s last meal. Shortly afterwards, Jerry’s mother took an overdose. She was being kept alive in intensive care in a state hospital while the state put her son to death. The chaplain also wrote of Jerry’s last conversation with his niece, who had just given birth to a child: ‘she was in her hospital bed and he was in the death house’s holding cell. She was nursing her newborn child and he awaited execution’ (Ross, 2001). In 1995, Bettye Roberson wrote: ‘If my son gets executed, a part of me will die with him. Every day I have lived with that threat for the past eight years …. This is the true torture of the death penalty’ (Amnesty International, 2001). Brian Roberson was executed in 2000, after thirteen years on death row. In the light of these family members’ experiences, it seems clear that the suffering associated with a death sentence and execution does not remain restricted to the individual convict.

19  See Soering v. UK.

Children of Parents Sentenced to Death

163

Conclusion The pain and harm inflicted on children when a parent is imprisoned has been referred to as ‘institutionalized child abuse’ (Shaw, 1987). When a parent is executed, this pain and harm is likely to be greatly exacerbated. The existing evidence suggests that the death penalty generates more victims, possibly affecting whole communities and multiple generations. There is strong international support for children’s rights, reflected in the fact that the UN Convention on the Rights of the Child is the most widely ratified human rights instrument in the world. To date, very little attempt has been made to research and understand the full impacts and consequences that a parent’s death sentence has for a child, both in order to provide the special care and protection that he or she may need, and to understand how far the repercussions may extend beyond the immediate family. The child psychologist John Bowlby used to regularly remind his students that ‘a society that values its children must cherish their parents’. References Amnesty International (2001), United States of America: State Cruelty against Families, AI INDEX: AMR 51/132/2001. Amnesty International (2010), Belarus Executes Two Men: Andrei Zhuk and Vasily Yuzepchuk, AI INDEX: EUR 49/004/2010. Amnesty International (2011), Written Submission to the Committee on the Rights of the Child Ahead of the Day of General Discussion on Children of Incarcerated Parents, www2.ohchr.org/english/bodies/crc/discussion2011_ submissions.htm (accessed 13 June 2012). Amnesty International (2012), Death Sentences and Executions in 2011, AI INDEX: ACT 50/001/2012. Baldus, D. et al. (1998), ‘Racial Discrimination and the Death Penalty in the PostFurman Era: An Empirical and Legal Overview’, Cornell Law Review, 83, 1,638–71. Beck, E., Britto, S. and Andrews, A. (2007), In the Shadow of Death: Restorative Justice and Death Row Families, New York: Oxford University Press. Beck, E. et al. (2003), ‘Seeking Sanctuary: Interviews with Family Members of Capital Defendants’, Cornell Law Review, 88, 382-418. Bell, C. (1995), ‘Exposure to Violence Distresses Children and May Lead to Their Becoming Violent’, Psychiatric News, 6–8, 15. Boss, P. (1999), Learning to Live with Unresolved Grief, Cambridge, MA: Harvard University Press. Boss, P. (2006), Loss, Trauma and Resilience: Therapeutic Work with Ambiguous Loss, New York: Norton.

164

Capital Punishment: New Perspectives

Braman, D. (2004), Doing Time on the Outside: Incarceration and Family Life in Urban America, Ann Arbor, MI: University of Michigan Press. Carlson, B. (1991), ‘Outcomes of Physical Abuse and Observation or Marital Violence Among Adolescents in Placement’, Journal of Interpersonal Violence, 6, 526–34. Cohen, J., Mannarino, A. and Deblinger, E. (2006), Treating Trauma and Traumatic Grief in Children and Adolescents, New York: Guilford Press. Doka, K. (1989), Disenfranchised Grief: Recognizing Hidden Sorrows, Lexington, MA: Lexington Books.Doka, K. (2010), On Grief Counselling and Psychotherapy, www.psychotherapy.net/interview/grief-counseling-doka (accessed 10 January 2012). Drell, M.J., Siegel, C. and Gaensbauer, T.J. (1993), ‘Posttraumatic Stress Disorder’, in C. Zeanah (ed.), Handbook of Infant Mental Health, New York: Wiley, 291–304. Dyregrov, A. (2008), Grief in Children: A Handbook for Adults, London: Jessica Kingsley Publishers. Fowlkes, M. (1991), ‘The Morality of Loss: The Social Construction of Mourning and Melancholia’, Contemporary Psychoanalysis, 27, 529–51. Haney, C. (1997), ‘Mitigation and the Study of Lives: The Roots of Violent Criminality and the Nature of Capital Justice’, in J. Acker et al. (eds), America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, Durham, NC: Carolina Academic Press, 343–77. Herman, J. (1997), Trauma and Recovery: The Aftermath of Violence – from Domestic Abuse to Political Terror, New York: Basic Books. Hocker, W. (1990), ‘Characteristics of Unsanctioned and Unrecognized Grief, and Appropriate Helping Strategies’, in V. Pine et al. (eds), Unrecognized and Unsanctioned Grief: The Nature and Counselling of Unacknowledged Loss, Springfield, IL: C.C. Thomas, 101–117. Jaffe, P., Wilson, S. and Wolfe, D. (1986), ‘Promoting Changes in Attitudes and Understanding of Conflict Resolution among Child Witnesses of Family Violence’, Canadian Journal of Behavioural Sciences, 18, 356–66. Jones, S. and Beck, E. (2006), ‘Disenfranchised Grief and Nonfinite Loss as Experienced by the Families of Death Row Inmates’, Omega, 54, 281–99. King, R. (2005), Capital Consequences: Families of the Condemned Tell their Stories, New Brunswick, NJ: Rutgers University Press. King, R. (2006), ‘The Impact of Capital Punishment on Families of Defendants and Murder Victims’ Family Members’, Judicature, 89, 292–6. King, R. (2007), ‘No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners’, Boston University Public Interest Law Journal, 16, 195–253. King, R. and Norgard, K. (1999), ‘What about Our Families? Using the Impact on Death Row Defendants’ Family Members as A Mitigating Factor in Death

Children of Parents Sentenced to Death

165

Penalty Sentencing Hearings’, Florida State University Law Review, 26, 1,120–73. Kolbo, J. (1996), ‘Risk and Resilience among Children Exposed to Family Violence’, Violence and Victims, 11, 113–27. Lewis, D.O. et al. (1998), ‘Neuropsychiatric, Psycho Educational and Family Characteristics of 14 Juveniles Condemned to Death in the United States’, American Journal of Psychiatry, 14(5), 584–9. Long, W. (2011), ‘Trauma Therapy for Death Row Families’, Journal of Trauma and Dissociation, 2(5), 482–94. Lowe, R. (2011), The Ultimate Price of Poverty, www.ibanet.org/Article/Detail. aspx?ArticleUid=096d14f2-359c-4830-8ace-4a16cb937747 (accessed 13 June 2012). Meeropol, R. (2003), An Execution in the Family, New York: St. Martin’s Griffin. Meeropol, R. (2005), Statement to the Launch of ‘No Silence, No Shame’, Austin, TX: Murder Victims’ Families for Human Rights, 27 October. Morning Tears (2011), Morning Tears China, Documentary 2011 – English Version, www.youtube.com/watch?v=e1dLAAWEFtg (accessed 14 June 2012). Murray, J. (2005), ‘The Effects of Imprisonment on Families and Children of Prisoners’, in A. Leibling and S. Maruna (eds), The Effects of Imprisonment, Cambridge: Cambridge University Press, 442–65.Ohio Department of Rehabilitation and Correction (2001), www.drc.ohio.gov/web/Executed/ executed25.htm (accessed 14 June 2012). Philippine Department for Social Welfare and Development (DSWD) (2011), ‘DSWD: Executed Drug Mule’s Children Adjusting to Mom’s Death’, www. gmanetwork.com/news/story/216924/news/nation/dswd-executed-drug-mules-children-adjusting-to-mom-s-death (accessed 14 June 2012). Pynoos, R.S. et al. (1997), ‘Issues in the Developmental Neurobiology of Traumatic Stress’, Annals of the New York Academy of Science, 821, 176–93. Radelet, M., Vandiver, M. and Berardo, F. (1982), ‘Families, Prisons and Men with Death Sentences: The Human Impact of Structured Uncertainty’, Journal of Family Issues, 593–612. Redmond, L. (1989), Surviving: When Someone You Love Was Murdered. Clearwater, FL: Psychological Consultation and Educational Services. Ross, J. (2001), ‘A Perspective on Gerald Bivin’s Execution’, Prison Reflections, 21 March. Ruiz, R. (2003), ‘Mentally Ill Inmate Executed’, Houston Chronicle, 27 March. Schabas, W. (1996), ‘Arbitrariness and Inequality’, in The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World’s Courts, Boston, MA: Northeastern University Press, 57–79. Schechter, D. (2003), September 11: Trauma and Human Bonds, New York: Taylor and Francis. Schechter, D. and Serpa, S. (2011), ‘Applying Clinically Relevant Developmental Neuroscience towards Interventions that Better Target Intergenerational

166

Capital Punishment: New Perspectives

Transmission of Violent Trauma’, The Signal: Newsletter of the World Association of Infant Mental Health, 19(3): 9–16. Schwartz, M. and Weintraub, J. (1974), ‘The Prisoner’s Wife: A Study in Crisis, Federal Probation, 38, 20–27. Sharp, S. (2005), Hidden Victims: The Effects of the Death Penalty on the Families of the Accused, New Brunswick, NJ: Rutgers University Press. Shaw, R. (1987), Children of Imprisoned Fathers, London: Hodder and Stoughton. Sheffer, S. and Cushing, R. (2006), Creating More Victims: How Executions Hurt the Families Left Behind, Cambridge, MA: Murder Victims’ Families for Human Rights, www.mvfhr.org/no-silence-no-shame-project (accessed 6 June 2012). Shirali, I. (2009), Children of the Executed, www.youtube.com/ watchv=8zUP79BVGiI (accessed 12 June 2012). Smykla, J. (1987), ‘The Human Impact of Capital Punishment: Interviews with Families of Persons on Death Row’, Journal of Criminal Justice, 15, 331–47. Social Exclusion Unit (2002), Reducing Re-offending by Ex-prisoners, London: HMG Cabinet Office. Spaccarelli, S., Coatsworth, J. and Bowden, B. (1995), ‘Exposure to Serious Family Violence among Incarcerated Boys: Its Association with Violent Offending and Potential Mediating Variables’, Violence and Victims, 10(3), 163–82.Sun Village (2011), www.sunvillage.com.cn/eng/milestone.php (accessed 14 June 2012). UN Human Rights Committee (1998), Concluding Observations of the Human Rights Committee: Japan, UN Doc. CCPR/CO/79/Add.102, 19 November. UN Human Rights Council (2012), Resolution on the Rights of the Child, A/HRC/ RES/19/37, 19th Session, 19 April. UN Social and Economic Council (1984), Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, 1984/50, 25 May. UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (2006), Report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/2006/53/Add.3, 24 March. Vallejo, C. (1995), Death Sentence Experience: The Impact on Family Members of Condemned Inmates, San Bernardino, CA: California State University. Vandiver, M. and Berardo, F. (2000), ‘“It’s Like Dying Every Day”: The Families of Condemned Prisoners’, Families, Crime and Criminal Justice, 2, 339–58. Young, M. (2006), ‘Action on UN Standards and Norms and Victims’ Issues’, paper for the UN Commission on Crime Prevention and Criminal Justice, 27 April.

Chapter 8

Death Penalty Internships in the American South Steven Shatz

Introduction In 2000, the University of San Francisco (USF) School of Law established the Keta Taylor Colby Death Penalty Project (KTC Project) to involve students in work aimed at the interim reform, and ultimate abolition, of the death penalty in the United States.1 In the twelve years since its creation, the KTC Project has conducted educational programmes, sponsored empirical research and consulted with capital defence attorneys on cases, but its principal activity has been the Southern Internship Programme, which each summer has sent six to ten law students from the San Francisco Bay Area to spend ten weeks in the South working with capital defence attorneys. The Southern Internship Programme The Southern Internship Programme was founded in 2001 to respond to the crisis in capital representation in the South.2 Since its inception, 76 students have participated in the programme, including three who participated twice. In its first year, the programme sent USF students to the newly established state post-conviction offices in Louisiana and Mississippi, offices whose funding and staffing were far too low to handle the number of cases assigned by the courts. The following summer, the programme also sent students to the state-wide capital trial office in Mississippi, and in succeeding summers, students were sent, at various times, to capital defence offices in Alabama, Arkansas and Texas. During four of the summers, students from Berkeley Law were included in the programme. 1  The project is named for a 1987 magna cum laude graduate of the USF School of Law, who, prior to her untimely death in 1990, undertook a pro bono death penalty case with her firm and played a leading role in getting other firms in San Francisco to undertake pro bono death penalty cases. 2  In the modern era, since the reinstatement of the death penalty after the US Supreme Court decision in Furman v. Georgia, 408 US 238 (1972), approximately 75 per cent of the executions in the country have been carried out by the 11 states of the South.

168

Capital Punishment: New Perspectives

In preparation for the internship, during the spring semester preceding the internship, students attend four training sessions covering death penalty law and practice, with particular emphasis on conditions in the South. Students receive a stipend to cover their travel and living expenses for the summer, and the project provides each pair of students with a rental car. All the interns work on state death penalty cases.3 By way of background, a state death penalty case proceeds through four stages: trial, direct appeal, state postconviction, and federal habeas corpus. At trial, the prosecution must prove that the defendant is guilty of capital murder (as defined by the particular state’s statute), in which case the trial proceeds to a penalty phase where additional aggravating or mitigating evidence may be introduced and the sentencer (usually a jury) decides whether to impose the death penalty. If a defendant is convicted and sentenced to death, the defendant appeals to the supreme court of the state, raising any issues which appear in the trial record. If unsuccessful on appeal, the defendant may file a petition in state court for post-conviction relief, raising issues based on evidence outside the trial record, for example evidence that the defendant’s counsel was ineffective for failing to adequately investigate and present the defence case. If unsuccessful in state court, the defendant may then petition for habeas corpus in federal court, claiming that his or her federal constitutional rights were violated in the state proceedings. At each stage of the case after the trial stage, the defendant will be confronted with elaborate default rules that may bar claims not properly raised at the prior stage. Each year, one pair of interns is assigned to the Mississippi trial office, where they work on trial-level cases and occasionally on appeals. The remaining interns work on state post-conviction or federal habeas corpus cases, with the majority working on cases in state post-conviction, the one stage where the defendant has no federal constitutional right to appointed counsel.4 The work of the interns and the range of their experiences vary according to the needs of the offices and the procedural posture of the cases when the interns arrive. In general, each intern’s experience includes meeting with the client; performing in-office legal work such as reviewing files and transcripts, researching legal issues and drafting claims, and engaging in out-of-office investigative work, including interviewing witnesses and gathering documents from courts, hospitals and schools. The interns write a midsummer report on their work and a final ‘wrap-up’ at the end of the internship, and many write or call at other times to discuss issues in their cases. The supervising attorneys also write brief evaluations of the interns’ work at the end of the summer. These are some of the interns’ stories.5 3  Although the federal government may impose the death penalty for particular federal crimes or crimes in the military, in the last forty years, the overwhelming majority of death sentences have been imposed by the states. 4  See Murray v. Giarratano, 492 US 1 (1989). 5  In the interests of confidentiality, the capital defendants and death-sentenced prisoners whose cases are described here are not named, and the interns are identified by

Death Penalty Internships in the American South

169

Working with Clients Most interns report that the most powerful and most memorable experiences of the internship come from meeting and working with the clients.6 Leslie (intern in Louisiana, 2003) put it this way: ‘After this experience [visiting the client on death row], I cried and cried – it is quite something to speak to someone for three hours in a row, looking into his eyes through a layer of mesh, knowing the state may well execute this soul.’ The relationship goes two ways. In 2002, Miriam wrote from Mississippi: When I was visiting [the client] for the last time, and I was leaving, he said to me: ‘Thank you so much for all of your work. Thank you for everything. You have worked harder in these two months than any of my lawyers have the entire time I have been on death row. Whatever happens to me, you can know that you did your best. Thank you.’

In 2008, Amelia and Lori interned with the Mississippi trial office and primarily worked on one case that was set for trial seven weeks after their arrival. The client was an African-American man in his forties with a long criminal history involving drugs, weapons and a prior homicide (occurring at about the same time as the charged capital murder), for which he was serving time in a Tennessee prison while he was awaiting trial in Mississippi. He was charged with murdering a young white woman in a virtually all-white county. Everything about the case pointed to the likelihood of a death sentence. The interns were assigned to work with the client to develop a mitigation case. Discovering and presenting mitigation evidence – evidence about the background and character of the defendant – in the penalty phase of a capital trial is often the primary defence focus in a capital case, and the difference between life and death for the defendant. Most capital defendants are the products of poor, highly dysfunctional families where physical and sexual abuse of the children are common and where often there is a history of mental illness and substance abuse, sometimes spanning several generations. The defence presents the defendant’s story to the jury – the mitigation evidence – to explain the defendant’s actions and to evoke sympathy. Although a mitigation investigation should be conducted by a trained mitigation specialist or investigator, offices with limited resources may be forced to rely on interns to do much of the legwork. During the seven weeks leading up to the trial date, Amelia and Lori visited the client regularly and worked tirelessly to develop a mitigation case, seeking out and interviewing family members and other potential witnesses who knew the client, and gathering documentary evidence. Since the pseudonyms. Quotes from the interns are taken from their ‘wrap-ups’. 6  The clients, who may be defendants, appellants or petitioners, depending on the stage of the case, are referred to throughout as ‘clients’. Of course, the clients are clients of the capital defence office and its attorneys, not the KTC Project or its interns.

170

Capital Punishment: New Perspectives

prosecutor’s decision to pursue the death penalty is often greatly influenced by the position taken by the victim’s family members (and the likely impact of their testimony at the penalty phase), recently some capital defenders, inspired by Sister Helen Prejean (author of Dead Man Walking), have attempted to reach out to those family members. With the approval of their supervising attorney, Amelia and Lori decided to visit the victim’s mother. They were unsure what to expect, but the mother invited them in, offered them tea and talked with them for three hours. In Amelia’s words: ‘We talked and cried and hugged. She told us about the person her daughter was and about how much she missed her.’ The mother said she had been against the death penalty all her life and was relieved that she was not the one to decide the sentence. Perhaps in part because of the mitigation case that Amelia and Lori were able to build or because of their visit to the victim’s mother and her response, three days before the trial was to begin, the district attorney offered to take a plea to life without the possibility of parole. When the attorney and the interns told the client of the offer, he did not immediately accept it. Eventually, on the day before trial was to begin, the client called Amelia, and after discussing his situation further, he agreed to take the plea. Capital defence attorneys consider any result other than an execution a victory, and given the circumstances of this particular case, the plea deal was an unexpected victory. However, Amelia was deeply troubled by the result because she would remember that she had played a role in ensuring that her client would spend the rest of his life, and die, in prison. Visiting Prisons and Jails All of the clients are incarcerated, either in prison on death row or in jail awaiting trial. Most of the interns have never been inside a prison or jail prior to their internship, and are deeply affected by their encounter with life behind bars. As a rule, the clients, particularly those on death row, have few visitors, so the clients are particularly grateful for the visits by the interns for reasons going beyond what the visits contribute to the litigation of their cases. Consequently, the offices often have the interns visit multiple clients on the same day. In 2006, Stacey actually spent three days in Angola Prison (Louisiana) visiting more than a dozen death row prisoners to gather declarations concerning a prison disturbance affecting her client. Sometimes the reality of life in prison is brought home in a dramatic fashion. In 2010, Norman and Jody, on the fourth day of their internship in Mississippi, went with their supervising attorney to visit clients in Parchman Farm, the legendary prison farm housing Mississippi’s death row. While the attorney was talking with one client and the interns were talking with another client, an inmate approached their client from behind and stabbed him. The guards responded by entering the visiting room and Macing all the inmates. The prison was locked down, and the attorneys and interns, eyes stinging from the mace in the air, were ordered out. Norman later had the following to say about the incident:

Death Penalty Internships in the American South

171

It was a surreal experience and one that I will never forget. It also gave me a small glimpse of the brutality and ultra-violence associated with life on deathrow. Parchman is one of the most depressing places I have ever been. After speaking with many of the inmates, I realize the conditions in which they live are really unimaginable to outsiders. Witnessing the psychological toll on the inmates left a lasting impression with me.

Undaunted, Norman and Jody returned to Parchman with their supervising attorney three days later to continue their interviews, and made subsequent trips by themselves to the prison. Investigation As in the trial office, resource limitations in the post-conviction offices mean that much of the interns’ time may be devoted to field investigation, usually reinvestigating trial attorneys’ preparation for, and conduct of, the penalty phase of the trial, where trial attorneys have often been found to have been ineffective. In the scores of post-conviction cases on which the interns have worked over the years, there have not been more than a few where the client got a reasonable penalty defence. Reinvestigation of the penalty phase defence is perhaps most critical in cases where the client might be mentally retarded. In June 2002, the US Supreme Court handed down its decision in Atkins v. Virginia,7 holding that the death penalty could not be imposed on mentally retarded defendants. The court did not define mental retardation, but seemed generally to endorse the definitions adopted by professional associations requiring: (1) significant below-average intellectual functioning; (2) limitations in two or more adaptive skill areas, and (3) onset before age 18. Since the Atkins decision, mitigation investigation has had as one of its principal goals discovering evidence of possible mental retardation. In Texas, the Court of Criminal Appeals ordered that any death row inmate claiming mental retardation had one year from the date of the Atkins decision to petition for relief. The Texas Defender Service (TDS) immediately began an attempt to determine who on Texas’s large death row might be mentally retarded and to investigate all possible claims. Nonetheless, when Linda and Anita arrived at the TDS Houston office in 2003, three weeks before the expiration of the time for filing Atkins claims, there remained many cases that had not yet been fully investigated. The interns were handed three files and sent to south Texas to investigate the possibility of the clients’ mental retardation. Operating with minimal supervision, and often separately, they managed to gather sufficient documentary and testimonial evidence to file petitions for relief in all three cases and obtain hearings, thus forestalling the clients’ pending executions. 7  536 US 304 (2002).

172

Capital Punishment: New Perspectives

Encountering the Clients’ Communities In all but a few cases, the KTC Project interns have not been from the South, nor have they had many encounters with Southern culture. In addition, the interns usually do not share the racial or class background of their clients. These differences can pose a significant challenge for interns conducting field investigations, and learning how to bridge these differences is an invaluable lesson for law students. None did it better than Jerry and Celia in 2004. For the most part they worked for the Mississippi trial office, although they also participated in the briefing of some post-conviction cases. Their work for the trial office consisted of mitigation investigations for two clients from Greenville, Mississippi, in the heart of the Mississippi delta, the poorest region in one of the poorest states in the country. The two clients were African-American, and a majority of the residents of the delta are African-American. When Jerry and Celia, two white ‘Yankees’, arrived in Greenville attempting to locate and talk with the clients’ families and acquaintances, initially they were met with suspicion and hostility. They persisted, and ended up spending two days a week in Greenville for the rest of the summer. Little by little they gained the trust of the community. They were asked to dinner by some of the clients’ family members. Then the real breakthrough came when they were invited to attend church with the families. There, the minister introduced them to the African-American community as two law students who were trying to save the lives of members of the community. The service concluded with Jerry and Celia being invited to join hands with all of the congregants in the final prayer. From that point, all doors were opened to the interns. Researching Claims All of the students spend a significant amount of time engaged in legal research. For the most part, they research claims for particular cases, for pre-trial motions in the trial office, or for post-conviction petitions in state or federal court in the other offices. The research may relate to common substantive claims such as trial court challenges to the admissibility of evidence or post-conviction claims based on prosecutorial misconduct or ineffective assistance of trial counsel, or the research may relate to the complex procedural rules that are often employed to bar a death row inmate from presenting some or all of his or her substantive claims in postconviction proceedings. For example, in 2002, in Mississippi, Doug was assigned to the case of a death row client who had completed his direct appeal and who had not filed his petition for post-conviction relief in the state court within the newly enacted one-year statute of limitations. The client was in danger of losing all right to further review of his claims in state court, and because of the procedural default rules enforced in federal habeas corpus cases, all right to review of his claims (except those raised on appeal) in federal court as well. Doug wrote the brief that persuaded the Mississippi Supreme Court to find that equitable tolling applied

Death Penalty Internships in the American South

173

to extend the statute of limitations and to permit the filing of the client’s postconviction petition. In addition to their work on claims for individual cases, many interns spend time researching broader claims that could be used for multiple clients. For example, Marianne (intern in Louisiana, 2001) researched the possible impact of international treaties and norms on the particular aspects of the US death penalty and the use of international treaties and norms by US Courts, all with an eye to drafting a series of ‘international’ claims to be used in all post-conviction petitions. In 2003, a series of newspaper articles and reports revealed the scandalous condition of the Houston (Texas) Police Department Crime Laboratory. Evidence was being improperly stored, damaged by the weather or simply lost, laboratory employees were untrained and under-qualified, and laboratory officials frequently misrepresented test results at trials. That summer, Linda researched and drafted a claim to be used to challenge all convictions resulting from crime lab evidence, arguing that the prosecution’s failure to disclose to the defendants the numerous deficiencies of the crime lab amounted to an unconstitutional suppression of material evidence. A year later in Texas, Andrea delved deeply into the psychological literature to draft a claim challenging one of the tests regularly used by the state’s experts in evaluating a defendant’s possible mental retardation and their refusal to take account of factors shown to inflate IQ scores. Finally, some students have conducted empirical research to support legal challenges the attorneys were hoping to make. The offices generally lack the resources to conduct empirical research, so, without the help of interns, the research would never be done. For example, in 2001, Martin spent a portion of his internship in Louisiana, going through the files of murder trials in Jefferson Parish to determine whether, during jury selection, prosecutors were using their peremptory strikes to exclude African-American potential jurors. Although prosecutors (and defence counsel) are permitted a certain number of peremptory strikes (excusing particular jurors without explanation), the US Supreme Court held in Batson v. Kentucky 8 and subsequent cases that it is unconstitutional to exercise peremptory challenges on the basis of race. Although Martin was not able to complete the study during the summer, the data which he and subsequent researchers collected was used to support ‘Batson challenges’ to cases coming out of Jefferson Parish, and the study became a model for similar studies in other parishes. Interviewing Jurors Most of the students working in post-conviction offices are, at one time or another, given the task of locating and interviewing the jurors who sat on their client’s case. Jurors are interviewed for several reasons: (1) because they may have information of juror misconduct during jury selection or deliberations; (2) because their 8  476 US 79 (1986).

174

Capital Punishment: New Perspectives

observations of the trial may suggest legal challenges to the verdict not apparent from the trial transcript, and (3) because they may be induced, on the basis of facts coming to light since the trial or their own change of heart since the trial, to support the client’s clemency petition. Interviewing jurors is generally the most difficult task the students undertake. Jurors who have voted to condemn a person to death have undergone a profound emotional experience, and their response to interns’ requests to talk with them can be highly unpredictable. Some simply shut the door in the interns’ faces. Others become angry when they learn that the interns are working to set aside the death verdict. And even when the jurors themselves might have been willing to talk with the students, sometimes their husbands have not allowed it, as Jack and Susan (interns in Arkansas, 2004) found out in a small town in western Arkansas when a juror’s husband ordered them off his property at the point of a shotgun. Of course, many jurors do talk to the interns, perhaps simply to be courteous to the young students who have come a long way to meet them. Occasionally, the interns encounter a juror who welcomes the chance to talk with them because he or she has lived for many years with the feelings evoked by the experience with no one to talk to about it. In 2004, in Texas, Andrea found such a juror, although at first her husband, too, attempted to block the interview. The juror told Andrea that she regretted voting to sentence the client to death and that her feelings of guilt had led her to become a deeply religious person. She offered to do anything she could to save the client from execution. Andrea spent many hours over several days talking to the juror, and ultimately, Andrea’s supervising attorney decided to videotape an interview with the juror. The interview was included in a video submitted with the client’s clemency petition.9 Dealing with an Execution The possibility of an execution casts a shadow over all that the interns do and gives their work its emotional intensity. For some of the interns, however, an execution was not just a possibility, but a reality. In 2003, Ron and Maeve arrived at the Federal Defender Office in Arkansas and were assigned to the case of a client facing execution in five weeks. Because the newly formed Capital Habeas Unit had only one full-time attorney, much of the last-minute work on the client’s case fell to Ron and Maeve. The principal claim in the eleventh-hour briefing was that the client was mentally retarded and could not be executed in light of the Atkins case. Ron and Maeve were heavily involved in the briefing in the Federal Court of Appeals and in the simultaneous petition filed in the state courts. On the weekend before the scheduled execution, after the federal court ruled against the client and the Arkansas Supreme Court, in a four–three decision, also denied relief, Ron and 9  The clemency petition was denied, and the client’s execution was one of the recordsetting number of executions presided over by Texas Governor Rick Perry.

Death Penalty Internships in the American South

175

Maeve drafted the petitions to the US Supreme Court challenging both decisions. Meanwhile, they also took it upon themselves to help the client’s wife arrange for the client’s funeral. The petitions were denied, and the client was executed. The day after the execution, Ron and Maeve bought the clothes that the client was buried in. When Ron and Maeve returned to San Francisco, they decided to set up an educational trust fund for the client’s young son in the hope that it would help him avoid the path taken by his father. Witnessing an execution is a traumatic event, even for seasoned capital defence attorneys, let alone for students with only weeks of experience dealing with the death penalty. Consequently, it has always been the policy of the KTC Project that supervising attorneys should not permit students to attend executions. Despite the policy, in 2011, Doran and Justin did attend the execution of their client in Texas. The Office of Capital Writs, where Doran and Justin interned, took on the client’s case during the summer. It was very late in the process because the client had already lost his post-conviction petitions in state court and federal court, and he was facing a September execution date. The interns spent much of the summer preparing a state court successor petition (a petition after denial of a prior petition), which was unsuccessful. Because the interns had spent so much time with the client, he requested that they attend the execution. Moved by the client’s request and thinking that they might serve some purpose in bringing comfort to the client and his family, they accepted.10 They left school and returned to Texas several days before the execution date to work with the attorneys on the efforts to block the execution, and when those failed, they witnessed the execution. When they returned to school, they gave a presentation to my Death Penalty Law class describing their experience, the first time I had ever discussed an actual execution in class. Justin reported being most struck by the client’s gratitude for their work, the devastating impact of the execution on the client’s family, and the clinical and sanitized nature of the execution procedure. The Impact of the Internships The University of San Francisco School of Law describes its mission as ‘Educating for Justice’. Service learning is a vehicle for reaching this goal, and the KTC Project internship embodies the best of service learning. All 76 students who have passed through the internship programme made a meaningful contribution to the struggle against the death penalty because the work they did on the various cases and larger projects quite simply would not have been done but for their presence. And all of the students – even those whose clients were executed – were satisfied that the work they did mattered to the attorneys and that their summer was well spent. 10  I attempted to dissuade them from going, and when they determined to go, I suggested that they prepare themselves by talking with attorneys who had attended executions.

176

Capital Punishment: New Perspectives

A number of the interns continued to work on cases and other projects for their offices after they returned to school. Four interns, Stacey (intern in Louisiana, 2006), Lily (intern in Louisiana, 2009) and Doran and Justin (interns in Texas, 2011) returned to the South during the school year to continue their work. Others worked from law school on legal research, or in one case, on a California-based investigation for a Mississippi case. Four interns published law review comments about legal issues they encountered during their internships, and defence attorneys were able to use the arguments developed by the interns in subsequent litigation. In addition, the internships had a significant effect on the interns’ career choices and career opportunities. Of the 76 KTC Project interns who have graduated law school, 15 joined offices doing capital post-conviction work, 12 of the 15 returning to the South. Many of the others became public defenders or private criminal defence lawyers. Whether or not the interns go on to pursue careers as criminal defence lawyers, the internships have a profound effect on them. They receive an education in the criminal justice system, about the forces causing crime and shaping punishment – an education that, because of its unpredictability and intensity, cannot be replicated in the classroom. The interns confront the profound moral, political and humanitarian questions surrounding the death penalty, and learn about the broader social and cultural issues in which the law is set. And, like any meaningful educational programme, the internship teaches the interns about themselves. For many of the students, struggling with the death penalty first-hand proved to be a life-changing experience, so the students should have the final word on the meaning of the internship. Miriam (intern in Mississippi, 2002) described her experience in these words: If I could take one thing I did this summer – travelling to Parchman, working on writing a [post-conviction] petition …, going on juror interviews, researching such varied claims, working with other like-minded, compassionate and hard-working people – it would be worthwhile. However, all of them together is life-changing.

Jack and Susan (interns in Arkansas, 2004) wrote this about their experience: The education we received included important lessons about cultural differences that divide and all-encompassing human similarities that bind, like the value of human life and the dedication to make the world a better, more just place.

Brandon (intern in Mississippi, 2008) summed up his summer in these words: This experience has been one of the most enlightening, challenging and, overall, best experiences in my short life. Working in this office has shown me the realities of our judiciary, the realities of being a lawyer and the realities of the social heritage which has formed the cultural background of America. Eye-opening does not even begin to describe the effect this experience has had on me.

Death Penalty Internships in the American South

Finally, Amelia (intern in Mississippi, 2008) wrote: I have now seen first-hand how the issues raised by the death penalty are inextricably linked to problems embedded in poverty, race discrimination, education, mental health, the prison system and the criminal justice system in general. Ending the death penalty won’t solve any of these problems, but it is a critical step in stopping the cycle of violence, rather than perpetuating it.

177

This page has been left blank intentionally

Part II Country Perspectives

This page has been left blank intentionally

Chapter 9

Reconciling Human Rights and the Application of the Death Penalty in Malawi: The Unfulfilled Promise of Kafantayeni v. Attorney General Sandra Babcock and Ellen Wight McLaughlin

Introduction Limbikani Wilson Mtambo was only 16 in 1997, when he was arrested for the murder of his wife. After four years on ‘remand’ and a trial with numerous procedural irregularities, he was convicted in 2001 of murder, a crime carrying a mandatory death sentence. Although Malawi’s president commuted his sentence to life without parole, he has no prospect of release. During 15 years in prison, he has suffered from tuberculosis, suicidal thoughts, and chronic headaches and seizures, which may stem from severe beatings received as a child. In 2007, in Kafantayeni and Others v. Attorney General,1 the Malawi High Court invalidated the sentence imposed on Mr. Mtambo – the mandatory penalty of death for murder. It held that Malawi’s constitution and international law forbid the automatic application of the death penalty. Instead, sentences must be imposed with regard for the circumstances of the individual and the offence. For the approximately 200 offenders in Malawi sentenced to the mandatory death penalty, the Kafantayeni judgment promised hope, even possible release for those who had served lengthy terms or whose circumstances were compelling. Yet five years later, 23 of these individuals remain on Malawi’s death row in Zomba Prison. Meanwhile, the 169 prisoners whose sentences were commuted to natural life have little hope of release from prison before death, as their sentences provide no opportunity for parole. This case study of the death penalty in Malawi demonstrates the challenges of implementing international principles in a domestic context. We discuss in Sections II and III how the mandatory death penalty has been abolished in much of the Caribbean and Africa through the incorporation of international and foreign human rights jurisprudence into domestic law, and how, in the wake of its demise, mitigating evidence has affected capital sentencing. In Section IV, we review the 1  [2007] MWHC 1 (Malawi) (unreported).

182

Capital Punishment: New Perspectives

Kafantayeni judgment and its implementation. Section V describes the population sentenced to the mandatory death penalty in Malawi and the mitigating factors these prisoners’ cases present. Section VI explores how the principles underpinning Kafantayeni might be put into practice. The Mandatory Death Penalty The Death Penalty in Malawi The death penalty in Malawi is, as Schabas (1997, 33) writes of the death penalty in Africa, ‘very much a part of the legacy of colonialism.’ In 1930, Britain imposed a Model Criminal Code on its colonies (Lehrfreund, 2007). The death penalty was a maximum punishment for several crimes, including rape and armed robbery. But under Section 210 of the Penal Code, judges were required to impose a death sentence upon those convicted of murder or treason. The end of colonial rule in Malawi in 1964 was followed by the thirty-year dictatorship of Hastings Banda. The post-independence constitution was replaced by one ensuring a strong executive, but the country retained its colonial-era penal code. Hundreds were executed under Banda (Novak, 2009). According to Hands Off Cain (2012), 823 death sentences were handed down between 1972 and 1993; 299 prisoners were executed, the rest dying in prison or pardoned. A transition to democracy began in 1994, with the election of Bakili Muluzi. A new constitution was designed to secure the separation of powers and protect individual rights, including the right to life and to be free from torture and cruel, inhuman, or degrading treatment. These rights, also found in the constitutions of other former British colonies, echo the fundamental freedoms set out in the central instruments of international human rights law, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), as well as regional instruments such as the European Convention for the Protection of Human Rights and Fundamental Freedoms and the African Charter on Human and People’s Rights. Despite these political transformations, however, the new constitution retained the death penalty (Novak, 2009). The government made no substantive amendments to the offence of murder in the Penal Code or to the mandatory death sentence for murder and treason.2 Upon taking office, Muluzi commuted all existing death sentences to life imprisonment (Amnesty International [AI], 1995). Nevertheless, the courts continued to hand down mandatory death sentences (AI, 1995). Although the Penal Code allows the death penalty to be imposed for rape, robbery, burglary,

2  In 2011, Malawi eliminated the mandatory death penalty from its Penal Code, which now provides that individuals convicted of murder or treason ‘shall be liable to be punished with death or with imprisonment for life.’ Penal Code (Amendment) of 2011, Section 125.

Reconciling Human Rights and the Death Penalty in Malawi

183

housebreaking, and treason,3 all 200 prisoners sentenced to death between 1995 and 2007 were convicted of murder (Center for International Human Rights, 2010). On 23 July 1997, Muluzi again commuted all existing death sentences to life imprisonment and pledged not to sign execution orders (AI, 1997). On 9 April 2004, he commuted 79 new death sentences and freed 320 other prisoners.4 Bingu wa Mutharika, Muluzi’s successor from May 2004 until April 2012, also declined to sign death warrants (Hands Off Cain, 2012). Thus, no person has been executed under the current constitution, and Malawi is considered ‘abolitionist de facto.’5 Even so, as of March 2012, 32 prisoners remained on death row, 23 of whom received mandatory death sentences before Kafantayeni. Their cells in Zomba Prison are literally in the shadow of the gallows. Meanwhile, those whose sentences were commuted to life have had no opportunity to receive punishments tailored to their particular crimes and circumstances. Abolition of the Mandatory Death Penalty in the Commonwealth Caribbean The international trend toward abolition of the mandatory death penalty for murder has been detailed elsewhere (Lehrfreund, 2007; Tittemore, 2004; Harrington, 2004). Here, we focus on the mandatory death penalty in the Commonwealth Caribbean and Sub-Saharan Africa. Although the death penalty remains popular in the Caribbean – at least among politicians eager to respond to a high crime rate6 – its use has become so rare that most of the region is considered abolitionist de facto.7 The mandatory death penalty has been abolished in ten of twelve Commonwealth Caribbean countries.8 These restrictions are a striking example of how human rights principles may become universal.

3  CAP 7:02, Laws of Malawi, Sections 38, 132–3, 210, 301 and 309. 4  Hands Off Cain (2012); ‘Easter Pardons for 79 Death Row Prisoners,’ IOL News, 9

April 2004, www.iol.co.za/news/africa/easter-pardons-for-79-death-row-prisoners-1.210157 (accessed 15 May 2012). 5  Schabas (1997) defines an ‘abolitionist de facto’ state as one that has carried out no execution in 10 years. 6  Lehrfreund (2007); BBC News, ‘Jamaica Votes for Death Penalty,’ 25 November 2008, http://news.bbc.co.uk/2/hi/7749207.stm (accessed 11 May 2012); Andrews (2011). 7  Trinidad’s last execution was in 1999. The last execution in Barbados was in 1984, in Jamaica 1988, and in the Bahamas 2000; Death Penalty Worldwide, database search, www.deathpenaltyworldwide.org (accessed 16 May 2012). 8  The ‘Commonwealth Caribbean’ includes Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Trinidad and Tobago. Only Guyana and Trinidad retain the mandatory death penalty. Barbados pledged to abolish the sentence by the end of 2011. ‘Barbados “to abolish mandatory death penalty,’ Antigua Observer, 2 October 2011, www.antiguaobserver. com/?p=65307 (accessed 11 May 2012). Guyana’s parliament voted in 2010 to abolish it for all but those convicted of killing police, soldiers and judges. ‘Guyana Abolishes Mandatory Death

184

Capital Punishment: New Perspectives

Beginning in the mid-1990s, Caribbean and British lawyers affiliated with the London-based Death Penalty Project challenged the mandatory death penalty in domestic and international tribunals in the Commonwealth Caribbean. The first decisions came from the United Nations Human Rights Committee (HRC) and the Inter-American Commission on Human Rights (Tittemore, 2004). During 1999–2001, the latter held in a series of cases that the mandatory death penalty in Trinidad and Tobago, Jamaica, Grenada, and the Bahamas violated the American Convention on Human Rights, which protects the rights to life, humane treatment and a fair trial.9 And in 2000, the HRC held that the arbitrary nature of the mandatory death penalty in St.Vincent and the Grenadines violated the right to life guaranteed by Article 6(1) of the ICCPR.10 Although arguably non-binding (Cerna, 1997, 752), these decisions allowed advocates to make a stronger case in domestic tribunals. In 2001, the Eastern Caribbean Court of Appeal held in Spence and Hughes v. The Queen that the mandatory death penalty was an inhuman and degrading punishment under the constitutions of Saint Lucia and St. Vincent and the Grenadines.11 In March 2002, in a series of three cases from Belize, St. Lucia, and St. Kitts and Nevis, the Judicial Committee of the Privy Council held that the mandatory death penalty violated constitutional proscriptions against inhumane and degrading punishment.12 In these decisions, it relied explicitly on international jurisprudence (Tittemore, 2004). A cascade of judgments followed. The Inter-American Court of Human Rights declared that the mandatory death penalty in Trinidad and Tobago violated ‘the inherent dignity of the human being and the right to humane treatment protected in Article 5(1) and 5(2) of the American Convention,’ as well as the right to life

Penalty,’ Straits Times, 14 October 2010, www.handsoffcain.info/archivio_news/201010.php?i ddocumento=13314750&mover=0 (accessed 15 May 2012). 9  Hilaire v. Trinidad and Tobago, Inter-Am. CHR, Case 11.816, Report no. 66/99 (21 April 1999); McKenzie et al v. Jamaica, Inter-Am. CHR, Cases 12.023, 12.044, 12.107, 12.126, 12.146, Report no. 41/00, OEA/Ser.L/V/II.106, doc. 3 rev., 918 (13 April 2000); Baptiste v. Grenada, Inter-Am. CHR, Case 11.743, Report no. 38/00, OEA/Ser.L/V/II.106 doc. 3 rev., 721 (13 April 2000); Edwards et al. v. The Bahamas, Inter-Am. CHR, Cases 12.067, 12.068, 12.086, Report no. 48/01, OEA/Ser.L/V/II.111 doc. 20 rev., 603 (4 April 2001). 10  (Eversley) Thompson v. St Vincent and the Grenadines, UN Hum. Rts Comm., Communication no. 806/1998, UN Doc. CCPR/C/70/D/806/1998 (1998). 11  Crim. Apps nos 20 of 1998 and 14 of 1997 (2 April 2001) (E. Carib. Ct Apps) (appeals taken from St Vincent and the Grenadines and St Lucia). 12  Reyes v. The Queen [2002] 2 App. Cas. 235 (PC) (appeal taken from Belize); The Queen v. Hughes [2002] 2 App. Cas. 259 (PC) (appeal taken from St Lucia); Fox v. The Queen [2002] 2 App. Cas. 284 (PC) (appeal taken from St Kitts and Nevis).

Reconciling Human Rights and the Death Penalty in Malawi

185

contained in Article 4(1).13 The Privy Council subsequently held the mandatory death penalty unconstitutional in Jamaica and the Bahamas.14 The developments in the Caribbean have exemplified, as Tittemore (2004) writes, ‘the progressive integration of international human rights standards into the domestic legal systems of states.’ Critics claim that international tribunals lack sensitivity to domestic concerns (Dames, 2011), and the Privy Council’s decisions have animated efforts to abolish its appellate jurisdiction and to amend national constitutions to preserve the death penalty (Tittemore, 2004). But perhaps because of their remoteness from domestic pressures, the Privy Council and international human rights bodies have invalidated hundreds of death sentences while creating precedents influential around the world. Abolition of the Mandatory Death Penalty in Africa Similar post-colonial constitutions made it possible to transport death penalty jurisprudence from the Caribbean to Africa. New bills of rights modelled on provisions in existing charters, such as the European Convention and the Universal Declaration of Human Rights (Harrington, 2004), commonly included the rights to life, to be free from inhuman and degrading punishment, and to a fair trial. The Death Penalty Project partnered with Ugandan lawyers to represent 417 prisoners on Uganda’s death row in a challenge to the mandatory death penalty (Lehrfreund, 2007). In Kigula, Uganda’s Constitutional Court held the mandatory death penalty to be arbitrary, inhuman and unconstitutional.15 Upholding the decision, Uganda’s Supreme Court declared that the mandatory death penalty violated constitutional guarantees of equal protection and separation of powers.16 This jurisprudence spread across Africa. The Kafantayeni judgment, discussed below, soon followed. Then, citing Kigula and the Privy Council decisions, Kenya’s Court of Appeal struck down the mandatory death penalty, noting that the relevant Kenyan laws were ‘largely influenced by, and in some cases lifted word for word from international instruments which Kenya has ratified.’17 On 3 August 2009, Kenya’s president commuted the mandatory death sentences of more than four thousand prisoners (Death Penalty Project, 2009). According to the Death 13  Hilaire, Constantine and Benjamin et al. v Trinidad and Tobago, Inter-Am. Ct HR, Ser. C no. 94 (21 June 2002), paras 88, 89, 103, 106 and 109. 14  Watson v. The Queen [2004] UKPC 34 (appeal taken from Jamaica), at paras 33–5 and 49; Bowe and Davis v. The Queen [2006] 1 WLR 1623, 1639 (appeal taken from Bahamas). 15  Susan Kigula & Others v. The Attorney General of Uganda [2003], Constitutional Petition 6 of 2003 (unreported). 16  Attorney General v. Kigula, Sup. Ct of Uganda, Crim. App. no. 3 of 2006 (21 January 2009). 17  Mutiso v. Republic, Ct of Appeal of Kenya, Crim. App. no. 17 of 2008 (30 July 2010), at paras 33–4 and 36.

186

Capital Punishment: New Perspectives

Penalty Project (2012), further challenges to the mandatory death penalty are being pursued in Tanzania, Nigeria, and Sierra Leone. The global demise of the mandatory death penalty is by no means inevitable. Singapore and Ghana have both rejected challenges to the mandatory death penalty.18 According to research compiled by Death Penalty Worldwide, 30 states retain the penalty.19 Even so, the punishment is on the decline, having been discarded by at least 18 countries since 2000 (Hood and Hoyle, 2008, 279–80). These developments have been said to reflect the emergence of ‘a global “common law” of death penalty human rights norms’ and to portend ‘the increasing universality of human rights norms in domestic criminal justice systems worldwide’ (Carozza, 2003). Consideration of Mitigating Circumstances after the Mandatory Death Penalty’s Demise To understand how the demise of the mandatory death penalty has transformed the application of capital punishment, we now review the types of evidence that courts have found to mitigate against a death sentence. Domestic jurisprudence is most developed in the United States and India, while international human rights bodies have imposed additional qualifications on the use of capital punishment. We also examine factors considered in re-sentencing offenders originally sentenced to the mandatory death penalty. General Principles of Mitigation The first principle that emerges from international jurisprudence is that the death penalty requires special justification. Article 6(2) of the ICCPR states that the ‘sentence of death may be imposed only for the most serious crimes,’ which the Human Rights Committee (1993, para. 8) defines as crimes that result in the loss of life.20 The Human Rights Council’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Human Rights Council, 2007, para. 65) would limit use of the death penalty to ‘cases where it can be shown that there was an intention to kill which resulted in the loss of life.’ It follows from this that 18  Yong Vui Kong v. Public Prosecutor [2010] 3 SLR 489 (CA); Johnson v. Republic, Ghana Sup. Ct (16 March 2011). 19  Death Penalty Worldwide, database search, www.deathpenaltyworldwide.org (accessed 16 May 2012). 20  See also Lubuto v. Zambia, UN Hum. Rts Comm., Communication no. 390/1990 (31 October 1995), para. 7.2 (imposition of mandatory death penalty for an armed robbery causing no injury violated Article 6(2)). Likewise, crimes not resulting in death are not ‘most serious crimes’ under Article 4(2) of the American Convention; Raxcacó-Reyes v. Guatemala, 2005 Inter-Am. Ct HR (ser. C) no. 133 (15 September 2005), paras 56 and 71.

Reconciling Human Rights and the Death Penalty in Malawi

187

unintentional and unpremeditated killings – such as an accidental death during a bar fight – would not warrant the death penalty. Nor should the death penalty be imposed for a murder conviction based on participation in a felony leading to an unintended death. Courts often reserve capital punishment for crimes rare even among murders in their heinousness. India limits its use to ‘the rarest of rare cases when the alternative option is unquestionably foreclosed.’21 In other words, the presumptive sentence for even highly aggravated murders is life or a term of years.22 In February 2012, the Indian Supreme Court commuted a man’s death sentence to a term of 21 years because his crime – the murder of his wife and three children – lacked planning, and the circumstances suggested that he was mentally imbalanced.23 Similarly, before abolishing the death penalty altogether, South Africa applied it only when a case presented ‘no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.’24 A second principle is that any type of evidence may be ‘mitigating’ if it might generate compassion for the offender or support a plea for leniency. Relevant evidence includes the offender’s character, background, remorse, capacity for reform and lack of future dangerousness, co-operation, and post-conviction behaviour.25 In Mulla, for example, the Indian Supreme Court considered the offender’s ‘mental or emotional disturbance,’ age, likelihood of future violence, potential for rehabilitation, sense of moral justification, duress, mental impairment, and socioeconomic status.26 The court emphasized that the state bore the burden to prove that an offender was beyond reform, and it declined to impose the death penalty on extremely poor offenders with no criminal history. The US Supreme Court has recognized childhood abuse, mental disabilities, and good conduct in prison as important mitigating factors.27 Evidence of mental disorders or mental illness – even if insufficient to support a defence of diminished responsibility – mitigates strongly against the death penalty. The UN Commission on Human Rights (2005) has called upon countries to avoid executing any person suffering 21  Bachan Singh v. State of Punjab [1980] 2 SCC 684. In February 2010, the Indian Supreme Court reiterated that death may be imposed only in cases of ‘extreme culpability.’ Mulla & Another v. State of U.P. [2010] Crim. App. no. 396 of 2008, at 49. 22  See, for example, Manohar Lal alias Mannu & Another v. State [2000] 2 SCC 92 (death sentence set aside because defendants ‘on a rampage’ triggered by Indira Ghandi’s murder had lost all reason). 23  ‘SC Saves Man who Murdered Wife, 3 Kids from the Gallows,’ Times of India, 29 February 2012, http://timesofindia.indiatimes.com/city/delhi/SC-saves-man-who-murderedwife-3-kids-from-the-gallows/articleshow/12085626.cms (accessed 16 May 2012). 24  S. v. Makwanyane, 1995 (3) SA 391 (CC), at para. 46. 25  See, for example, Lockett v. Ohio, 438 US 586, 604 (1978) (sentencer must ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record’). 26  Mulla (supra, n. 21), paras 53–9. 27  See, for example, Williams v. Taylor, 529 US 362 (2000).

Capital Punishment: New Perspectives

188

from a mental disorder or disability. And in 2002, the US Supreme Court noted an international consensus that ‘mentally retarded offenders are categorically less culpable than the average criminal.’28 Finally, the conditions of detention may be mitigating. The most famous example of this is the ‘death row phenomenon.’ The Privy Council has stated that delay of more than five years between conviction and sentencing may ‘constitute inhuman degrading punishment or other treatment.’29 In Kigula, Uganda’s Supreme Court noted the ‘anguish’ and ‘horrible conditions’ of death row and commuted the sentences of prisoners who had spent more than three years on death row to life imprisonment.30 Jurisprudence from Uganda and the Caribbean We next examine case law from countries in which the mandatory death penalty has recently been abolished. Uganda and various Caribbean countries have faced the task of re-sentencing hundreds of offenders. Uganda: The Bwenge Patrick decision In Kigula, the Supreme Court of Uganda ordered that respondents whose appeals were pending would be heard by the Ugandan High Court ‘only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.’ Uganda’s lower courts were directed to re-sentence those sentenced to death under the unconstitutional regime. Hearings began in 2009, with most conducted by the judges who had convicted the defendants (Lay, 2010, 48). One of the first hearings was that of Bwenge Patrick, who had been imprisoned for 17 years.31 The judge recognized that the High Court was empowered ‘to pass any judgment it deem[ed] fit.’ She noted that the offender was intoxicated when he killed his wife, and the crime lacked premeditation. Defence counsel emphasized the offender’s alcohol dependency, remorse, good relations with other inmates, lengthy incarceration, and ongoing contact with his family while in prison. The judge concluded that had these circumstances been considered at the original sentencing proceeding, the offender might have received a sentence less than the 17 years already completed. She imposed a sentence of two additional years, the second to be suspended and served under probation. Caribbean re-sentencing hearings  Privy Council decisions invalidating the mandatory death penalty required Caribbean courts to institute individualized sentencing proceedings for offenders whose sentences had been quashed, as well 28  29  30  31 

Atkins v. Virginia, 536 US 304, 316 n. 21 (2002). Pratt & Morgan v. Attorney Gen. for Jamaica [1994] 2 AC 1, 4 All ER 769 (PC 1993). Kigula (supra, n. 15). Uganda v. Bwenge Patrick, 03-CR-SC-190/1996, H. Ct Uganda Holden at Kampala (11 November 2009) (Magezi J).

Reconciling Human Rights and the Death Penalty in Malawi

189

as those newly convicted of murder. Several principles have emerged to guide discretionary sentencing. First, courts have applied a presumption against the death penalty, requiring justification for its imposition.32 Second, judges have considered materials concerning the offenders’ backgrounds not found in the original case files.33 Third, judges have required social welfare reports for each offender, as well as psychological evaluations where there is a possibility of mental disability.34 In 2002, after the Privy Council invalidated Belize’s mandatory death penalty in Reyes, the petitioner’s case was remitted to the Supreme Court of Belize for re-sentencing. A probation officer’s report detailed the prisoner’s membership in the village council, good works, good conduct in prison, and remorse. The court concluded: ‘A remarkable picture of a hard-working, religious and familycentered and non-violent person without any previous brush with the law emerges of the prisoner from this report, by all account what he did that fateful day was quite out of character.’35 It further concluded that the prisoner was suffering from a ‘major depressive disorder’ at the time of the offence, and called the three years the offender had spent on death row ‘an extenuating consideration not to pass the death sentence.’ The court instead sentenced the prisoner to concurrent life sentences for the murder of a husband and wife. In Jamaica, legislation enacted in March 2005 provided for the re-sentencing of 38 offenders whose death sentences were invalidated in Watson.36 Ten were resentenced to death (subsequently, one conviction was quashed and one sentence commuted). The others received life sentences, with varying time before parole (Ostrowski, 2009, 51). The title plaintiff in Watson was sentenced to life with the possibility of parole after 20 years for the murder of his wife and infant daughter.37 A review of 33 of the hearings completed by Ostrowski (2009) reveals that several principles guided sentencing. First, even where a murder was ‘especially heinous,’ the death penalty was not applied if mitigating factors were present. Lack of 32  White v. The Queen [2010] UKPC 22 (appeal taken from Belize), at para. 12. 33  See, for example, Pipersburgh v. R. [2008] 72 WIR 108 (PC), at para. 33 (courts

must consider the character, record, and ‘possibility for reform and social re-adaptation’ of the offender). 34  Ibid. (‘It is the need to consider the … possibility of [the offender’s] reform and social re-adaptation which makes the social inquiry and psychiatric reports necessary for all such sentence hearings’); see also DPP v. Che Gregory Spencer [2009] E. Carib. Sup. Ct, High Ct of Justice, Federation of St Christopher and Nevis, at para. 3 (‘It is also now standard practice for the state to provide a Social Enquiry Report and a Psychiatric Report’). 35  The Queen v. Patrick Reyes, Sup. Ct of Belize, Judgment on Sentencing (25 October 2002). 36  Seven other sentences were commuted by the Governor General before resentencing commenced, after the Privy Council held in Pratt (supra, n. 29) that executions must be carried out within five years of sentencing. 37  ‘Death Row Inmate Gets Life at Resentencing,’ Jamaica Observer, 14 December 2005, www.jamaicaobserver.com/news/94607_Death-row-inmate-gets-life-at-resentencing (accessed 12 January 2012).

190

Capital Punishment: New Perspectives

premeditation was a mitigating factor in 26 cases. Second, the courts found partial excuses or defences relevant at sentencing even if previously rejected by the jury. For example, one defendant was spared from death because it was unclear that he was the triggerman. Third, the courts ensured that social, community, and psychiatric reports were made for each offender, and accepted as mitigating both ‘past good character’ and ‘a troubled and disadvantaged start in life.’38 Other Caribbean judges have referenced the principles established by the Eastern Caribbean Court of Appeal’s Spence and Hughes decision and the Privy Council cases, declining to impose the death penalty where they found evidence of diminished responsibility,39 provocation,40 and lack of premeditation.41 In 2009, the Eastern Caribbean Supreme Court spared a defendant convicted of robberymurder from death because, ‘although cold-blooded, brutal and brazen in the form of execution,’ his crime ‘was not the worst of the worst.’42 Similarly, the Court of Appeal of St. Lucia set aside the death sentence of a prisoner convicted of bludgeoning his girlfriend and her daughter to death. The court noted ‘some evidence in the probation report … concerning his work and conduct during the time of his incarceration, which evidence points to the possibility of his reform and rehabilitation.’43 And in March 2012, the Eastern Caribbean Court of Appeal reiterated that before imposing the death penalty, the judge must decide that the defendant falls into the ‘worst of the worst’ category and has no possibility of reform.44 Cross-cultural Issues in Mitigation The new discretion vested in sentencing judges raises questions about how to translate existing principles of mitigation into new domestic judicial systems, where mitigating factors may be weighed differently and murders may have

38  In R. v. David Ebanks and R. v. Rudolph Fuller, for example, reference was made to the defendants’ difficult childhoods, and they were given life sentences; Ostrowski (2009). 39  In R. v. Fox (2002), the defence argued that steroid use by the defendant, a bodybuilder, caused psychological damage and diminished capacity. He received concurrent life sentences for the premeditated murder of his girlfriend and her mother; Ostrowski (2009). 40  R. v. Duncan (2004) (Grenada) High Ct Crim. Case no. 111 of 2003 (4 February 2004, Benjamin J). 41  In R. v Winston Exhale, a convict was found not deserving of the death penalty because the murder was not deliberately planned; Fitzgerald and Starmer (2007), 17. 42  DPP v. Wycliffe Liburd, ECSC Suit no. SKBHCR 2009/0007, from St Christopher and Nevis (Criminal Circuit) (22 October 2009, Belle J). 43  George v. The Queen, HCRAP 2009/005, Ct of App. of St Lucia (22 and 25 July 2011, Rawlins CJ) (unpublished). 44  Cannonier, Isaac, Gardiner and Williams v. The Queen, Crim. App. no. 2 of 2008, nos 19, 20, 21 and 22 of 2008, E. Carib. Ct App. (21 March 2012) (appeal from St Christopher and Nevis).

Reconciling Human Rights and the Death Penalty in Malawi

191

been committed under circumstances that did not arise in countries from which precedents are drawn. For example, as we discuss in Section V.c, witchcraft is a common theme in murder cases in Malawi, where belief in witchcraft is widespread (Short and Bedford, 2009, 119). Because the 1911 Witchcraft Act makes it a crime to accuse a person of being a witch,45 witchcraft is not recognized as a defence to murder, and a defendant’s belief in witchcraft is rarely mentioned in homicide proceedings (Short and Bedford, 2009, 124). In Chimenya v. The Republic, the Malawi Supreme Court held that a ‘wild belief that the [victim] was a witch’ was not a mitigating factor.46 Even if witchcraft does not constitute a defence, however, the fact that an offender believed himself or a family member to have been bewitched may be crucial to understanding his mental state. Foreign precedents offer little guidance as to how this factor should be weighed. A state wishing to discourage mob justice stemming from belief in witchcraft may be reluctant to view ‘bewitched’ offenders sympathetically. On the other hand, if an offender sincerely believed that his actions were necessary to protect himself or loved ones, that belief might justify the exercise of compassion. The role of the victim’s family in sentencing also varies widely. In some precolonial African societies, victims’ families were compensated with payment (Schabas, 1997, 34). Few modern judicial systems would allow an offender to avoid sentence by paying the bereaved, but the views of the victim’s relatives are often considered. Victim impact statements are frequently allowed in the United States, despite fears of prejudice to the defendant and arbitrary sentencing.47 There may be benefits to involving the victim’s family. A Ugandan High Court judge commented in Bwenge Patrick that African justice systems historically prioritized ‘harmonious community relations’, including ‘reconciliation between the offender, the victim and their families.’ A more obvious issue is the vast difference in resources available to develop mitigating evidence. Best practices in the United States require a defence team including a mitigation specialist charged with gathering records and preparing the offender’s social history, and defendants’ constitutional rights may be violated if their defence counsel fails to uncover crucial mitigating factors.48 The devotion of such resources to investigation, however, seems impossible in countries where heavy caseloads preclude public defenders from spending significant time on any particular case. Most African judicial systems are plagued by lengthy case 45  CAP. 7:02, Laws of Malawi. The Malawi Law Commission undertook a review of the Act in 2009; Malawi Law Commission (2010), 19. 46  MSCA Crim. App. no. 8 of 2006, Sup. Ct of App. at Blantyre, at 5 (Chimenya). 47  See, for example, Payne v. Tennessee, 501 US 808 (1991) (allowing victimimpact testimony). 48  In Williams (supra, n. 27), the US Supreme Court held that an offender’s rights were violated when his defence counsel failed to present evidence of an abusive childhood, ‘borderline’ mental retardation and excellent conduct in prison.

192

Capital Punishment: New Perspectives

backlogs and a scarcity of licensed attorneys. In 2001, there were only 200 attorneys in Mozambique, 400 in Uganda and 125 in Sierra Leone, and these few were concentrated in urban areas (Schonteich, 2008, 105). The materials available to an advocate may also vary markedly. In the United States, counsel normally gather school, government disability, military, hospital, and psychiatric records, interview family members, teachers, and acquaintances, and seek the assistance of mental health and other experts (Fabian and Kelley, 2007, 26). In countries like Malawi, school and health records may be nonexistent.49 Even travelling to interview family members may be nearly impossible given high fuel prices or poor infrastructure. In the United States and the Caribbean, the state has been required to fund psychiatric evaluations for defendants facing capital charges.50 In Dacosta Cadogan, the Inter-American Court held that Barbados violated an offender’s right to a fair trial by failing to inform him of his right to a psychiatric evaluation.51 But in poorer countries, no competent psychiatrist or funds for an evaluation may be available. If an evaluation can be arranged, the psychiatrist may lack the life history and records essential for a thorough diagnosis. Add to these problems missing dockets and a lack of judges to handle cases (Ugandan Human Rights Commission, 2007, 35), and the prospects for mitigation hearings that comport with international law seem bleak. One consequence is that countries such as Malawi will need to employ creative strategies to gather evidence, as discussed further below. Another is that courts should not require the level of documentation expected in countries where records are more readily available. While a US court might expect to see low IQ scores and school records demonstrating an offender’s mental impairment, a Malawi court might rely on statements from family members or prison staff. Implementation of the Kafantayeni Judgment Overview of Malawi’s Judicial System Like many former British colonies, Malawi’s criminal justice system is based on common law traditions. Capital murder trials are held before a single High Court judge who determines guilt and imposes sentence. The justice system depends heavily on foreign aid to cover trial expenses. Although Malawi’s criminal procedure code provides for the right of trial by jury, jury trials in homicide cases 49  For example, in March 2012, an investigator attempted to obtain the medical record of a death row prisoner hospitalized for three months for AIDS-related complications. After spending two days trying to find a doctor on duty, she was told that no records were available. Hospital staff could not even identify the medications the inmate was taking. 50  See, for example, Ake v. Oklahoma, 470 US 68, 87 (1985). 51  Dacosta Cadogan v. Barbados, Series C no. 204, Inter-Am. Ct HR (24 September 2009), at paras 80–88.

Reconciling Human Rights and the Death Penalty in Malawi

193

were discontinued in 2009 by executive fiat,52 a decision justified in part by the cost of selecting and paying jurors. The Director of Public Prosecutions (DPP) prosecutes serious criminal cases, including treason and homicide. Article 42 of the Malawi Constitution provides that indigent defendants are entitled to free Legal Aid ‘where the interests of justice so require.’ In practice, however, Legal Aid is provided only in homicide cases. The Legal Aid department is perpetually short-staffed and under-resourced; as of March 2012, only 18 lawyers served the entire country. Advocates handle both civil and criminal cases and rarely find time to visit criminal clients. Most also lack transportation to conduct investigations. The starting salary for a Legal Aid lawyer is approximately $300 per month, and low pay leads to high turnover: most advocates leave after a year or two for more lucrative opportunities in private practice. Malawi has struggled for years with a huge backlog of homicide cases causing severe prison overcrowding (Wines, 2005). As bail is rarely granted in such cases, and homicide trials are often suspended, 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 briefly. The defence rarely calls witnesses or conducts any investigation; in most cases, counsel simply cross-examine prosecution witnesses based on a thin file containing witness statements and a post-mortem examination. Plea bargaining has long been used to resolve homicide cases. In 2011, Malawi’s legislature codified this practice in Section 252A of its revised Criminal Procedure and Evidence Code. Where mitigating factors exist, the prosecution frequently offers to reduce the charge to manslaughter, the maximum punishment for which is life, in exchange for a guilty plea. Sentences are left to the court’s discretion, and range in practice from six years to life (Centre for Capital Punishment Studies, 2010). In theory, each individual convicted of homicide has the right to appeal to the Malawi Supreme Court under Section 11 of the Supreme Court of Appeals Act. In practice, however, appellate rights are often frustrated by the lack of an effective case management system and the failure of Legal Aid attorneys to track cases on appeal. Case files often go missing (Wines, 2005). As of January 2012, no appeals had been filed for 11 of the prisoners sentenced to death during 2005– 2009. In several cases, the courts appear to have lost all court records relating to the conviction, including trial transcripts and exhibits. The Kafantayeni Judgment The five Kafantayeni plaintiffs, represented by Malawian lawyers affiliated with the Death Penalty Project, argued before Malawi’s High Court that the mandatory death penalty for murder violated their rights under Sections 19, 41 and 42 of the 52  Under Section 294 of the Criminal Procedure and Evidence Code, all High Court criminal trials should be held before a jury. Nevertheless, Section 294(2) allows the minister to order that any class of cases shall be tried without a jury.

194

Capital Punishment: New Perspectives

Malawi Constitution to be free from inhuman treatment and degrading punishment, to a fair trial, and to access justice. They further argued that the penalty violated Articles 6, 7 and 14 of the ICCPR, guaranteeing the right to life, barring ‘cruel, inhuman or degrading treatment or punishment,’,and securing a defendant the right ‘to his conviction and sentence being reviewed by a higher tribunal according to law.’ Section 11(2) of the Malawi Constitution requires courts to look to the ICCPR in interpreting constitutional provisions. Counsel submitted in support of these arguments decisions by international tribunals, the Privy Council, the US Supreme Court, and the courts of India and South Africa. On 27 April 2007, the High Court of Malawi held the mandatory death penalty unconstitutional.53 The court found foreign and international case law, particularly the Privy Council’s Reyes decision, persuasive. It concluded that the mandatory death penalty violated the right to a fair trial under Section 42 of the Constitution, which includes the right in all stages of the criminal process to be represented by counsel, to adduce and challenge evidence, and to appeal to a higher court. Arbitrariness and lack of proportionality to the offence also rendered the mandatory death penalty an ‘inhuman treatment or punishment’ in violation of Section 19. Finally, the High Court held that the mandatory death penalty violated Section 41(2), which guarantees that ‘Every person shall have access to any court of law or any other tribunal with jurisdiction for final settlement of legal disputes.’ The automatic sentence denied the convicted the opportunity to access justice by making an argument in mitigation of sentence. Having invalidated the mandatory death penalty, the High Court ordered: each of the plaintiffs to be brought once more before the High Court for a Judge to pass such individual sentence on the individual offender as may be appropriate, having heard or received such evidence or submissions as may be presented or made to the Judge in regard to the individual offender and the circumstances of the offence.

In Jacob v. The Republic,54 the Supreme Court of Appeal affirmed Kafantayeni, agreeing ‘that offenses of murder differ, and will always differ, so greatly from each other that we think it is wrong and unjust that they should attract the same penalty or punishment.’ The court emphasized the varying degrees of culpability, the right to present mitigating evidence, the dignity of human life, the need for proportionality in sentencing, and the right to a fair trial. The Supreme Court of Appeal has since held that courts should consider ‘the manner in which the murder was committed, the means used to commit the offence, the personal circumstances of the victim, the personal circumstances of the accused and what might have motivated the commission of the crime.’55 53  Kafantayeni and Others v. Attorney Gen. [2007] MWHC 1 (Malawi) (unreported). 54  MSCA Crim. App. no. 18 of 2006, Sup. Ct of App. at Blantyre (Jacob). 55  Chimenya (supra, n. 46), 5.

Reconciling Human Rights and the Death Penalty in Malawi

195

Prospective and Retroactive Implementation of Kafanteyani New sentences for murder convictions  Kafantayeni’s impact is most apparent with respect to new sentences. Since the decision, only ten individuals have been sentenced to death: three in 2009, and seven in 2010. This appears to be a substantial decrease from the pre-Kafantayeni era,56 although comparisons are difficult as homicide trials are frequently suspended for months.57 According to a study conducted by interns from the Centre for Capital Punishment Studies (2010), defendants convicted of murder in the Central Region of Malawi from September 2009 to January 2010 received sentences ranging from six years to life imprisonment. As noted above, the Kafantayeni court embraced a broad definition of ‘mitigating evidence,’ encompassing the circumstances of the crime as well as the personal characteristics of each offender. In practice, however, defence counsel present little mitigating evidence. The expansive ‘social history’ investigation routine in the United States is virtually unknown in Malawi. Mitigation specialists do not exist, nor are investigators available to help Legal Aid attorneys to interview witnesses. Investigating a defendant’s family history would typically require travelling to remote villages on unpaved roads. Transporting witnesses to court is equally difficult, since Legal Aid attorneys often lack both private transportation and funding to pay for public transportation. Expert witnesses are also rare. As of January 2012, there was only one licensed Malawian psychiatrist in the entire country. Mental status evaluations are often conducted by medical technicians with scant training in forensic psychiatry. In a country where, according to UNICEF (2012), the adult literacy rate is 74 per cent and only a quarter of children attend secondary school, neither the tiny mental health community nor the legal community is focused on assessing intellectual disabilities in homicide defendants. The concept of ‘mental retardation’ as it relates to capital sentencing is simply not discussed. And apart from familiar legal definitions of ‘insanity’ and ‘incompetence to stand trial,’ the relevance of mental disabilities to capital mitigation is largely unrecognized. The case of Phinza Kuchande is illustrative.58 Kuchande was sentenced to death in 2009 for killing his uncle’s maid by striking her with a footstool. Kuchande testified that the death was not intentional and that, at the time of the crime, he was suffering from massive, debilitating headaches. His mother and aunt testified that he had suffered from headaches and inexplicable rages for some time, despite 56  In 2005, 21 death sentences were handed down – a figure that far exceeds the number of death sentences imposed in any year since 2007. 57  For example, homicide trials were suspended in July 2011 due to a severe fuel shortage; by March 2012, they had not resumed. Although the fuel situation improved somewhat in early 2012, a nationwide judicial strike effectively halted all court proceedings. The number of prisoners awaiting trial consequently skyrocketed. 58  Republic v. Kuchande [2009] Crim. Case no. 36 of 2008 (Judgment), at 17.

Capital Punishment: New Perspectives

196

seeking treatment from a traditional healer. Kuchande’s Legal Aid lawyer argued that he was insane at the time of the crime, but failed to offer expert testimony in support of his defence. When the court convicted Kuchande of murder, the defence failed to argue that Kuchande’s mental impairment should be considered in mitigation of sentence, limiting its mitigation presentation to Kuchande’s youth and lack of prior convictions. The court sentenced Kuchande to death without discussing any mitigating factors, apparently believing that the death sentence for murder was mandatory, notwithstanding the Kafantayeni decision. Death penalty appeals  Kafantayeni has had less influence on mandatory death sentences appealed after the judgment. Of 18 such appeals that we were able to review, the Supreme Court of Appeal upheld the death sentence in 13. Despite the expansive view of mitigation taken by the High Court and the Supreme Court in Kafantayeni and Jacob, in practice, the court’s consideration of mitigating evidence has largely been limited to evidence found in the original case file concerning the crime itself. Because mitigation was not considered when these cases were prosecuted, the trial record does not detail the offender’s life history or the circumstances leading up to the crime. The Supreme Court’s opinion in Jacob is emblematic of this approach. It noted simply ‘that the deceased person was the appellant’s second wife; that he killed her in cold blood using a panga knife on suspicion that she bewitched him so that he was unable to have sexual intercourse with his first wife,’ and concluded: ‘It does not seem … based on the facts of this case that it can be said that it is a proper matter for a lesser sentence than the one the High Court passed.’59 To date, the Supreme Court of Appeal has upheld death sentences involving a robbery-murder,60 a murder that occurred after a fight,61 a grandmother who killed her grandson and dismembered his body,62 a man who killed a woman a witch doctor told him was causing illness and death in his family,63 and a case where the appellant killed one brother and seriously injured another during a fight.64 The Supreme Court considered the personal characteristics of the offender in only two of the appeals we reviewed. In the case of a man who murdered his grandmother, the court noted that the appellant ‘was a young man of twenty years of age when he committed the offence,’ that he had previously ‘lived peacefully with his 59  Jacob (supra, n. 54), 7. 60  Phiri v. The Republic, MSCA Crim. App. no. 32 of 2006, Sup. Ct of App. at Blantyre. 61  Khoviwa v. The Republic, MSCA Crim. App. no. 165 of 2003, Sup. Ct of App. at

Mulanje.

62  Maiche v. The Republic, MSCA Crim. App. no. 4 of 2005, Sup. Ct of App. at

Blantyre.

63  Chimenya (supra, n. 46), 3. 64  Chinkango v. The Republic, MSCA Crim. App. no. 7 of 2009, Sup. Ct of App.

at Blantyre. The court stated: ‘From the manner in which the appellant stabbed the two persons, he appears to be a violent and evil person. He does not deserve leniency’; ibid., 7.

Reconciling Human Rights and the Death Penalty in Malawi

197

grandmother,’ that ‘he did not even attempt to run away into hiding,’ and that he was likely ‘in a state of shock himself.’ The court reduced his death sentence to 15 years’ imprisonment with hard labour.65 In another case, the court noted the age and first-offender status of a woman convicted of murdering her infant son. After observing that the woman had been the ‘victim’ of harassment by her former husband and was driven to commit the murder because she thought it was ‘the only option for her own good and that of her other children,’ the court reduced her death sentence to a term of 15 years.66 Final convictions  Defendants whose appeals were exhausted prior to Kafantayeni have had no opportunity to argue in support of lesser sentences, despite the fact that the Supreme Court has recognized that all prisoners sentenced to the mandatory death penalty are entitled to new sentencing hearings. In Yasini v. The Republic, the Supreme Court held that Kafantayeni ‘affected the rights of all prisoners who were sentenced to death under the mandatory provisions of Section 210 of the Penal Code,’ and because of this, ‘The right to a re-sentenc[ing] hearing therefore accrued to all such prisoners.’67 The court further noted that it was the DPP’s responsibility to present each case for re-hearing.68 But despite this directive, at the time of writing, no prisoner has received a new sentencing hearing. Is Commutation an Acceptable Alternative to Re-sentencing? The fact that most offenders sentenced to the mandatory death penalty are now serving sentences of natural life does not obviate the obligation to review their sentences. The rationale underpinning Kafantayeni extends to every offender denied the opportunity to present mitigating evidence during sentencing. In many cases, natural-life sentences are harsher than the punishments currently imposed for crimes of the same nature. Moreover, allowing the president to impose a term of natural life violates the separation of powers enshrined in Malawi’s constitution.69 The judicial branch is responsible for enforcing laws and ‘has jurisdiction over all issues of judicial nature.’70 Therefore, it alone may impose a sentence. The president may only issue 65  Phiri v. The Republic, MSCA Crim. App. no. 13 of 2009, Sup. Ct of App. Principal Registry, Blantyre. 66  Namboya v. The Republic, MSCA Crim. App. no. 14 of 2005, Sup. Ct of App. at Blantyre, at 4. 67  MSCA Crim. App. no. 29 of 2005, Sup. Ct of App. at Blantyre, at 11–12. The decision notes that because the appellant appealed his sentence and failed to present mitigating evidence, he was not entitled to a second sentencing hearing; ibid., 12. 68  Ibid. 69  See Constitution, Sections 7–9; see also, for example, W. Bongwe & 11 Others v. Minister of Education [1997] MWHC Civil Cause no. 80 (Malawi) (‘the Malawi Constitution clearly divides the powers of the Executive, the Legislature and the Judiciary’). 70  Constitution, Sections 9, 89(2) and 103(2).

Capital Punishment: New Perspectives

198

a pardon or reduce an existing sentence. In Reyes, the Privy Council held that the opportunity to apply for pardon did not render a mandatory death sentence constitutional because an independent judicial body, not the executive, must set a criminal punishment.71 Because Kafantayeni invalidated all mandatory death sentences, the commutation of these sentences to life imprisonment is not a ‘pardon’ or ‘reduction’ within the scope of the president’s executive power, but an unconstitutional imposition of a life sentence. Offenders Sentenced to the Mandatory Death Penalty in Malawi In November 2009 and March 2010, students and attorneys from Northwestern University School of Law interviewed Malawian prisoners sentenced to the mandatory death penalty. The interviews discussed case facts, personal history, health, work, education, and prison experiences. Prison files corroborated prisoners’ ages, trial and imprisonment dates, and some charges and medical conditions. The team obtained copies of some legal case files and appeal decisions. Other files appear to be lost. While follow-up interviews, efforts to contact family members and acquaintances, and psychiatric evaluations would reveal additional mitigation information, the interviews demonstrate that many factors mitigate against sentences of death or life without parole for this population of prisoners. Juveniles Several prisoners were juveniles at the time of the crimes for which they were convicted and sentenced to death. Under Section 26(2) of the Malawi Penal Code, it is unlawful to sentence an offender under the age of 18 to death. This also violates international law.72 As most children born in Malawi lack birth certificates and many Malawians do not know their birth dates, it can be difficult to ascertain an individual’s age. In at least three cases, however, investigators found evidence in prisoners’ case files confirming that they were under 18 at the time of their crimes. Limbikani Wilson Mtambo, the prisoner described in the introduction to this chapter, testified at trial that he was 20 years old – after spending four years on remand. His prison file confirms his age. Mtambo likely suffered brain damage as a child when his alcoholic grandfather beat him until he lost consciousness. He dropped out of school after Standard One. He married and became a father at only 14 or 15. After he was convicted of killing his wife, he endured a year on death row before his sentence was commuted. At the time of writing, he has spent 15 years in an adult prison. 71  Reyes (supra, n. 12), para. 47. 72  Article 6 of the ICCPR bars the execution of individuals under 18 at the time of

the crime. This is also a norm of customary international law. Roper v. Simmons, 543 US 551 (2005).

Reconciling Human Rights and the Death Penalty in Malawi

199

Another prisoner, George Lemani, was arrested and tried at 17. The prosecution argued to the jury that the state would only accuse such a young man of murder if the evidence against him were strong. Neither the defence nor the judge mentioned Lemani’s age. Although he confessed to involvement in the murder of a taxi driver, there were no witnesses to the death, and he later claimed to have been beaten by the police. Now 26, he has served nine years in prison. A third prisoner’s case file suggests that he was charged with murder at age 15, after an altercation led to the death of a distant cousin. No trial transcripts were found, but three years later, his defence counsel stated in an affidavit submitted in support of his release on bail that he was then 18 years old. During an interview, the prisoner was unsure of his birth date, but recalled that he was in secondary school at the time of the crime. He has served 13 years on remand and in adult prison. Elderly Prisoners and Health Problems Many countries prohibit the execution of the elderly, and the American Convention proscribes the execution of those over 70 at the time of the crime.73 But age may be mitigating even for those under 70, particularly when prison conditions are harsh. Fourteen prisoners who received mandatory death sentences are 60 or older at the time of this writing. One 72-year-old inmate has been incarcerated for 18 years. He appears to suffer from dementia, and is too weak to walk unassisted. Another 70-year-old prisoner with AIDS has suffered multiple strokes. Mental health problems are also mitigating. At least 37 offenders reported some type of mental impairment, including depression, memory loss, learning disabilities, and ‘bewitchment.’ One inmate was noticeably dirty and had trouble understanding questions. Another was unable to feed himself or communicate with other prisoners. A third was diagnosed with schizophrenia and confined to the hospital. Even where mental impairment does not create a defence to the crime or demonstrate incompetence to stand trial, it is relevant to blameworthiness, suggesting the offender is less culpable and deserves compassion. Mentally disabled prisoners may also be vulnerable to abuse. The HRC held that the incarceration on death row of a prisoner whose mental health had ‘seriously deteriorated’ was cruel and inhuman treatment that violated Article 7 of the ICCPR.74 Other prisoners suffer from serious physical impairments. Chest pains, shingles, malaria, diarrhoea, anaemia, and toothaches are common. Tuberculosis is rampant in Zomba Prison, where over two thousand prisoners live in close quarters. According to prisoner interviews and documentation in prison files, at least two inmates on death row and 51 serving life sentences have tested positive for tuberculosis. Forty more have never been tested, and others have not had a 73  Death Penalty Worldwide, database search, www.deathpenaltyworldwide.org (accessed 16 May 2012). 74  Francis v. Jamaica, UN Hum. Rts Comm., Communication no. 606/1994, UN Doc. CCPR/C/54/D/606/1994 (3 August 1995).

Capital Punishment: New Perspectives

200

recent test.75 Twenty prisoners are HIV-positive, and another 51 have not been tested.76 According to Penal Reform International (2007), imprisonment can halve the life expectancy of an HIV-positive person. These inmates are highly susceptible to infections like tuberculosis that prey on a weakened immune system. Tuberculosis is the cause of death for up to half of all persons with AIDS worldwide (Center for Disease Control, 2008). Case Facts In many cases, prisoners were sentenced to death for crimes that were not highly aggravated. Some killings resulted from confrontations between an offender and victim who had been drinking – usually the strong locally brewed beer called kachasu. Drunken quarrels escalated when someone produced a knife, circumstances that suggest provocation and diminished capacity. Several offenders have served over 15 years for such crimes – harsh punishment compared to sentences imposed for similar crimes today. As mentioned previously, witchcraft is another frequent theme. Three offenders on death row were involved in an incident of mob justice in which a suspected ‘witch doctor’ was killed. After another inmate told his village that his uncle had bewitched him, a group of men killed the uncle. In a third case, an inmate believed a woman had put a spell on him to ruin his relationship with his wife. When she refused to remove it, he confronted and killed her. Pre-arrest Background In most cases, offenders’ pre-arrest lives provide additional mitigating evidence. The vast majority of prisoners interviewed by the Northwestern team were firsttime offenders. According to interviews and prison case files, only four death row prisoners and seven of those serving life sentences had prior convictions. Most prisoners had families and steady jobs or small businesses. Despite years of incarceration, many have maintained family ties that could ease their reintegration after release. Others have encouraged their spouses to remarry because they are unable to support them while incarcerated. Some inmates were community leaders, clergy, or respected village members. In one case, the village headman confirmed that the prisoner was well liked in the village despite a history of thievery. The community’s willingness to forgive an offender indicates that he is not beyond redemption.

75  Some inmates had a terrible cough, a possible symptom of tuberculosis. 76  The number infected may be higher; some may not have wanted to disclose their

status.

Reconciling Human Rights and the Death Penalty in Malawi

201

Behaviour in Prison and Capacity for Rehabilitation Good behaviour in prison demonstrates a capacity for rehabilitation that should mitigate the severity of a sentence. Many offenders have pursued vocational training and education while in prison. One inmate whose death sentence was commuted to life imprisonment teaches in the prison’s primary school in the mornings and studies in the afternoons for his Malawi School Certificate of Education exams. Many others have learned welding, tailoring, and other skills. Death row inmates are not permitted to attend school, but they report learning languages or mathematics from fellow prisoners. Other offenders have earned the trust of prison staff and been assigned to supervisory positions, called nyapala, in the prison. Still others serve as elders, preachers, or board members in prison churches, advising and ministering to other prisoners. Many pray, study the Bible or Quran, and attend prison churches each week. In February 2010, the Zomba prison chaplaincy office identified numerous inmates whose post-conviction behaviour demonstrated their rehabilitation. Although these offenders’ death sentences had been commuted to life imprisonment, the prison chaplains asked that their sentences be reduced to a term of years. The request was submitted to the president and remains pending. Prison Conditions Time served under difficult conditions may be another mitigating factor.77 Most prisoners currently on death row were convicted in 2005. Some serving life sentences spent over two years on death row before their sentences were commuted. Although executions are not currently taking place, the threat of death weighs heavily on the condemned. One inmate had a direct view of the gallows chamber from his cell. Others reported that the stress caused them insomnia and heart palpitations. In addition, many offenders serving life sentences have already been imprisoned for well over a decade. The length of time spent on remand ranged from 1 to 82 months for those on death row and 4 to 120 months for those serving life sentences. Prison conditions in Malawi are notoriously difficult. According to Amnesty International (2011), the prison system has a capacity of 6,000, but houses 13,000 inmates, 20 per cent of them pre-trial detainees. Prisons receive less than 20 per cent of their stated budget needs (US Department of State, 2010). Overcrowding, poor nutrition, poor sanitation and inadequate health care contribute to the spread of disease, and many prisoners rely on families or charities for supplemental food (AI, 2011). Malnutrition is widespread (US Department of 77  See, for example, Kigula (supra, n. 15), 56–7; Pratt (supra, n. 29); Soering v. United Kingdom, 14038/88 [1989] 11 Eur. Ct HR (ser. A), at para. 111.

202

Capital Punishment: New Perspectives

State, 2010). Families may bring food, but many on death row have lost touch with their kin. Other families can travel to Zomba only once a year. Individual Mitigation Stories Although categorizing mitigating evidence is useful, the jurisprudence that led to Kafantayeni emphasized that each offender must be treated as an individual. Individual histories reveal many sympathetic stories. For example, one offender killed his drunken, abusive stepfather in an effort to protect his younger brothers. The stepfather had beaten his wife and children, the youngest of whom was only four, until they bled. On the night of the offence, he came home from a night of drinking and began to beat the boys. The prisoner hit his stepfather with a stick, killing him. During 16 years of incarceration, the prisoner has been well behaved, has learned to read and to tailor clothes, and has joined a prison church. The prison chaplaincy recommended that his sentence be commuted. Realizing Kafantayeni’s Promise There are formidable barriers to the implementation of Kafantayeni’s promise – that individuals facing the death penalty in Malawi will have a fair opportunity to present mitigating evidence in sentencing. As we note below, these barriers are not unique to Malawi. Given resource constraints and the chronic disorganization of Malawi’s judicial system, it is unlikely that re-sentencing hearings will be provided in the near future for all prisoners given mandatory death sentences. Nonetheless, with a modest investment of resources and personnel, Malawi could give effect to Kafantayeni in many cases. Barriers to Implementing Sentencing Principles: A Comparative View Along with useful jurisprudence, countries that have invalidated the mandatory death penalty offer cautionary tales. As of January 2012, Uganda had conducted 46 re-sentencing hearings. The slow pace of the hearings reflects the fact that, as in Malawi, case files are missing, court records are poor, and lawyers are plagued by heavy case loads and lack of transportation (Harvey, 2012). Defence counsel often fail to present mitigating evidence, and judges have been reluctant to embrace its full scope. For example, evidence of rehabilitation during incarceration has been largely rejected. An absence of guidelines has led to a lack of uniformity in sentencing (Harvey, 2012). Similarly, in Jamaica, courts have discounted offenders’ capacity for reform and lack of future dangerousness, excessive pre-trial delays, and difficult prison conditions, and social history reports prepared for offenders vary greatly in quality (Ostrowski, 2009, 54). Even more troublingly, most offenders sentenced to the mandatory death penalty in Uganda have been denied re-sentencing hearings. Affirming Kigula,

Reconciling Human Rights and the Death Penalty in Malawi

203

Uganda’s Supreme Court distinguished between the 119 death row offenders whose sentences were still on appeal and the 298 others whose sentences had been confirmed. The latter were instructed to petition the executive for mercy. The court stated: ‘Where after three years no decision has been made by the Executive, the death sentence shall be deemed commuted to imprisonment for life without remission.’78 In November 2009, the sentences of 152 prisoners were commuted to life (Lay, 2010, 47). Although Uganda’s Prisons Act defines ‘life’ as a term of 20 years, the Supreme Court stated in 2011: ‘life imprisonment means imprisonment for the natural life term of a convict.’79 Uncertainty as to the meaning of a life sentence has resulted (Harvey, 2012). Prisoners whose sentences were commuted may well die in prison, with no opportunity to argue for a shorter sentence. Creating a Realistic Protocol for Capital Sentencing Proceedings As an initial matter, Malawi’s judiciary should adopt guidelines for capital sentencing proceedings, including procedures for re-sentencing hearings and criteria to be considered prior to imposing sentence in any death penalty-eligible case. The DPP and Legal Aid should jointly review the cases in which mandatory death sentences were imposed. Offenders still on death row should be prioritized for re-sentencing proceedings. Other cases might be prioritized based on length of time served and criteria such as age, physical or mental illness, and gender. Next, case files must be located and copied – no small task in a country where prisoners’ files frequently go missing. With the files in hand, the parties should be able to agree on the appropriate sentence in many cases. As noted above, plea bargaining is commonplace in homicide trials. Formal written sentencing agreements would obviate the need for dozens of sentencing hearings. No witnesses would be necessary; the court would merely review the agreement in light of the case file and decide whether to accept it. Even if formal sentencing proceedings are waived in a number of cases, resolving the backlog of mandatory death sentences will take time. Involving nongovernmental organization (NGO) partners such as paralegal organizations and university legal clinics can expedite the process and minimize the strain on the judiciary and Legal Aid. Paralegals and law students can trace files, visit prisoners, and conduct mitigation investigations under the guidance of lawyers. The Paralegal Advisory Services Institute (PASI) is one example of a strategy to extend limited legal resources.80 In prisons in Malawi, PASI has provided legal assistance to prisoners and helped to reduce the remand population. PASI has

78  Kigula (supra, n. 15). 79  Tigo Stephen v. Uganda, Sup. Ct of Uganda, Crim. App. no. 08 of 2009 (10 May

2011).

80  For information on PASI, see www.governancejustice.org/index.php?option=com_ content&task=view&id=43&Itemid=57 (accessed 15 February 2012).

204

Capital Punishment: New Perspectives

interviewed prisoners and witnesses and provided information to public defenders. The project has been replicated in Kenya, Benin, Uganda, Niger, and Bangladesh. Since 2009, Northwestern University School of Law has been tracing prisoner files in preparation for re-sentencing hearings. Likewise, the Death Penalty Project is working with Malawian lawyers to support the re-sentencing of the five Kafantayeni plaintiffs. The judiciary, Legal Aid, and the DPP can forge alliances with these institutions to develop a protocol for re-sentencing hearings and ensure that capital sentencing in the new, discretionary system is consistent with the best practices developed in other jurisdictions. Conclusion Malawi’s rejection of the mandatory death penalty in Kafantayeni signalled the country’s willingness to embrace principles of international and foreign law relating to the administration of the death penalty. It marked the first time that the Malawi High Court had restricted the application of the death penalty in response to a systemic constitutional challenge. For that reason alone, the decision was path-breaking. By all appearances, Malawi has joined the growing number of jurisdictions in which the death penalty has been progressively restricted. Nevertheless, implementation of Kafantayeni has been fraught with practical difficulties and judicial inertia. While trial courts have begun to consider mitigating evidence in homicide cases, Legal Aid lawyers lack the training and resources to investigate and present a wide range of mitigating evidence. The Malawi Supreme Court of Appeal has refused to remand cases for re-sentencing proceedings, upholding death sentences based on existing case facts without affording an opportunity for the presentation of new mitigating evidence. And the five plaintiffs whose sentences were ostensibly vacated in Kafantayeni remain on death row. Our examination of Kafantayeni’s aftermath illustrates that, while legal decisions announcing new principles of rights-based jurisprudence are significant, they fail to guarantee that those rights will be implemented in practice. Malawi’s struggle to implement Kafantayeni also illustrates the problem with elite- or foreign-driven jurisprudence. In the five years since Kafantayeni was decided, it has been difficult for foreign NGOs to maintain the level of engagement necessary to ensure their legal victory has a real impact. Institutional actors charged with implementing judgments like Kafanteyani – including the courts, prosecution and Legal Aid lawyers – need not only an understanding of the decisions’ implications, but also the resources to put them into practice. Sustained advocacy is essential to ensure that legal victories relating to the application of the death penalty are fully implemented.

Reconciling Human Rights and the Death Penalty in Malawi

205

References Amnesty International (AI) (1995), Annual Report 1995: Malawi, www.unhcr. org/refworld/docid/3ae6a9ff2c.html (accessed 13 January 2012). Amnesty International (1997), Malawi: Amnesty International Welcomes Suspension of Executions and Commutation of Death Sentences, AI Index: AFR 36/03/97. Amnesty International (2011), Annual Report 2011: Malawi, www.unhcr.org/ refworld/docid/4dce15587.html (accessed 13 January 2012). Andrews, E. (2011), ‘91% Favor Death Penalty in Trinidad, Survey Finds – but Details Paint More Complex Picture’, Trinidad and Tobago Journal, 24 February, www.deathpenaltyproject.org/content_pages/5 (accessed 16 May 2012). Carozza, P. (2003), ‘“My Friend is a Stranger”: The Death Penalty and the Global Ius Commune of Human Rights’, Texas Law Review, 81, 1,031. Centre for Capital Punishment Studies (2010), Malawi Homicide Trials Conducted by Legal Aid Lilongwe September 2009–2010, London: University of Westminster. Center for Disease Control (2008), Fact Sheet: TB and HIV/AIDS, Atlanta, GA: Center for Disease Control. Center for International Human Rights (2010), Report on Malawi’s Death Row, Chicago, IL: Northwestern University School of Law. Cerna, C. (1997), ‘International Law and the Protection of Human Rights in the Inter-American System’, Houston Journal of International Law, 19, 731. Dames, C. (2011), ‘Is it Time to Abandon the Privy Council?’, Nassau Guardian, 4 July, www.thenassauguardian.com/index.php?option=com_content&view=a rticle&id=11385&Itemid=37 (accessed 13 February 2012). Death Penalty Project (2009), ‘Kenya Commutes the Death Sentences of more than 4,000 Prisoners’, 5 August, www.deathpenaltyproject.org/news/1089/ kenya-commutes-the-death-sentences-of-more-than-4000-prisoners/ (accessed 15 May 2012). Death Penalty Project (2012), Human Rights Litigation in African Countries, www.deathpenaltyproject.org/content_pages/31 (accessed 24 January 2012). Fabian, J.M. and Kelley, E. (2007), ‘How to Deal with Difficult Clients from a Mental Health Perspective’, Champion, 31, 25. Fitzgerald, E. and Starmer, K. (2007), A Guide to Sentencing in Capital Cases, London: Death Penalty Project. Hands Off Cain (2012), Malawi Country Report, www.handsoffcain.info/ bancadati/schedastato.php?idcontinente=25&nome=malawi (accessed 13 January 2012). Harrington, J. (2004), ‘The Challenge to the Mandatory Death Penalty in the Commonwealth Caribbean’, American Journal of International Law, 98, 126. Harvey, R. (2012), Alternatives to the Death Penalty in Uganda, London: Centre for Capital Punishment Studies, University of Westminster.

206

Capital Punishment: New Perspectives

Hood, R. and Hoyle, C. (2008), The Death Penalty: A Worldwide Perspective, 4th edn, Oxford: Oxford University Press. Human Rights Committee (1993), Concluding Observations of the Human Rights Committee, Islamic Republic of Iran, UN Doc. CCPR/C/79/Add.25. Human Rights Council (1998), Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/1998/68/Add.3. Human Rights Council (2007), Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. A/HRC/4/20/2007/18. Lay, T. (2010), ‘Capital Punishment in Uganda: The Risk of Liberal Complacency, in Centre for Capital Punishment Studies 2010 Internship Reports, London: University of Westminster, https://www.westminster.ac.uk/__data/assets/pdf_ file/0005/79133/CCPS2010InternReportFinal.pdf (accessed 14 May 2012), 44–56. Lehrfreund, S. (2007), ‘Introductory Note to Francis Kafantayeni et al v. The Attorney General of Malawi, Constitutional Case no. 12 of 2005 in the High Court of Malawi’, International Legal Materials, 46, 564. Malawi Law Commission (2010), 2010 Annual Report, www.lawcom.mw/index. php/publications/4-annual-reports/107-2010-annual-report (accessed 20 May 2013). Mendes, D. (2009), The Mandatory Death Penalty: An International and Comparative Perspective, Death Penalty Project Conference, Port of Spain, Trinidad and Tobago, 7 March 2009, www.deathpenaltyproject.org/content_ pages/33 (accessed 16 May 2012). Novak, A. (2009), ‘The Decline of the Mandatory Death Penalty in Common Law Africa: Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda’, Loyola Journal of Public International Law, 11(1), 19. Ostrowski, N. (2009), ‘Aggravating and Mitigating Factors in the Imposition of the Death Penalty in Jamaica’, in Centre for Capital Punishment Studies Internship Reports 2009, London: University of Westminster, www.westminster.ac.uk/__ data/assets/pdf_file/0009/75258/CCPSInternshipReports20092-Copy.pdf (accessed 11 May 2012), 50–59. Penal Reform International (2007), Penal Reform Briefing No. 2: Health in Prisons, www.penalreform.org/publications/penal-reform-briefing-no2-health-prisons-0 (accessed 16 May 2012). Schabas, W. (1997), ‘African Perspectives on Abolition of the Death Penalty’, in W. Schabas (ed.), The International Sourcebook on Capital Punishment, Boston, MA: Northeastern University Press, 30–65. Schonteich, M. (2008), ‘Pre-trial Detention and Human Rights in Africa’, in J. Sarkin (ed.), Human Rights in African Prisons, Athens, OH: Ohio University Press. Short, T. and Bedford, Z. (2009), ‘Witchcraft and Homicide Defense in Malawi’, in Centre for Capital Punishment Studies Internship Reports 2009, London: University of Westminster, www.westminster.ac.uk/__data/assets/pdf_ file/0009/75258/CCPSInternshipReports20092-Copy.pdf (accessed 11 May 2012), 113–45.

Reconciling Human Rights and the Death Penalty in Malawi

207

Tittemore, B. (2004), ‘The Mandatory Death Penalty in the Commonwealth Caribbean and the Inter-American Human Rights System: An Evolution in the Development and Implementation of International Human Rights Protections’, William & Mary Bill of Rights Journal, 13, 445, http://scholarship.law.wm.edu/ wmborj/vol13/iss2/7 (accessed 15 May 2012). Ugandan Human Rights Commission (2007), Tenth Annual Report, Kampala: Ugandan Human Rights Commission. UNICEF (2012), Malawi – Statistics, www.unicef.org/infobycountry/malawi_ statistics.html (accessed 15 May 2012). United Nations Commission on Human Rights (UNCHR) (2005), Question of the Death Penalty. UN Doc. E/CN.4/2005/L.77. United States Department of State (2008), 2007 Country Reports on Human Rights Practices: Malawi, www.unhcr.org/refworld/docid/47d92c1ccd.html (accessed 13 January 2012). United States Department of State (2010), 2009 Country Reports on Human Rights Practices: Malawi, www.unhcr.org/refworld/docid/4b9e52ddc.html (accessed 13 January 2012). Wines, M. (2005), ‘The Forgotten of Africa, Wasting Away in Jails without Trial’, New York Times, 6 November, www.nytimes.com/2005/11/06/international/ africa/06prisons.html?pagewanted=all (accessed 16 May 2012).

This page has been left blank intentionally

Chapter 10

Taiwan: Cutting the Gordian Knot – Applying Article 16 of the ICCPR to End Capital Punishment Nigel Li, Wei-Jen Chen and Jeffrey Li

I. Introduction Capital punishment is the death penalty carried out by the government on people who have committed severe crimes. Whether to abolish capital punishment has long been a lightning rod for controversy and debate. Proponents of the death penalty believe that capital punishment is a fair means of exacting revenge for the pain and suffering that the criminal inflicted on the victim – a pound of flesh. Also, they argue that the death sentence effectively curbs the crime rate because it forces criminals to think twice before committing a heinous act. They emphasize that abolishing capital punishment without an acceptable, effective alternative to the death penalty could intensify the debate and lead to a host of social problems. Some even assert that a person who has taken the life of another does not deserve the right to live (Pojman, 2004). However, people who oppose capital punishment are armed with persuasive arguments. First, taking away one person’s life is tantamount to depriving him or her of human dignity and an opportunity to continue living. And since there is no guarantee that every criminal judgment is correct, the risk of wrongly executing a person is always present. Furthermore, there is no reliable proof (and we have reason to doubt if there has ever been proof) identifying the correlation between the death penalty and the crime rate, and current research suggests that maintaining the death penalty does not necessarily prevent crime (Dayan, 2006). Although Article 3 of the Universal Declaration of Human Rights (the Universal Declaration) is a manifestation of the international community’s consensus against the death penalty, in the beginning it did not carry the force of law. Later, when the International Covenant on Civil and Political Rights (ICCPR) was passed by the United Nations, it was seized on by death penalty abolitionists to validate their movement (Dinstein, 1981). Paragraph 1 of Article 6 of the ICCPR reiterates the ‘inherent right to life’, adding that the right cannot be ‘arbitrarily deprived’. Furthermore, paragraph 6 of the same provision states that ‘Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to this Covenant’;

210

Capital Punishment: New Perspectives

on the other hand, paragraphs 2–5 impose limitations upon the death sentence and execution ‘[i]n countries which have not abolished the death penalty’. The compromise implicit in the wording of Article 6 has sparked speculation and debate over the ‘true’ position of the ICCPR’s framers on the abolition of the death penalty (Schabas, 2002). Meanwhile, Article 7 has fuelled discussions on whether inhuman treatment encompasses capital punishment, since it expressly prohibits ‘torture’ and ‘cruel, inhuman or degrading treatment or punishment’ (Schabas, 2002). But repeated looks at Articles 6 and 7 will yield no decisive conclusion on where exactly the framers stood on the death penalty. In this chapter, the authors suggest that attention instead be turned to Article 16, which promises an elegant solution to this decades-long Gordian knot. Article 16 reads: ‘Everyone shall have the right to recognition everywhere as a person before the law.’ Most commentators would agree that under this provision, a person located everywhere enjoys a right to be recognized as a person in law at the beginning of a personality, usually upon birth, and a right to prevent states from depriving the person of his or her legal personality. Article 16 is relevant as the death penalty takes away more than one’s life – it takes away the person’s entire legal personality. By denying one’s right as a person before the law and turning him or her into a non-person with the death sentence, the institution of capital punishment cannot coexist with the purpose and the letter of Article 16. With Article 16, this chapter aims to illuminate the true meaning of the ICCPR on the death penalty: capital punishment should be prohibited without exception. This chapter will furthermore challenge the position that the ICCPR framers’ intention is the key in any effort to fathom the position of the ICCPR on the death penalty. Originalism is not applicable, since the framers’ silence is not sufficient to dismiss a rational interpretation based on other interpretative methods. Taiwan adopted the ICCPR as domestic legislative material in 2009, and must take a fresh look at the international covenant without delving into originalism unnecessarily. After all, Taiwan stands alone in the application of the ICCPR; not being a signatory to the covenant, asking whether it should be less fettered by the framers’ intention when interpreting Article 16 may help others see the ageing document in a new light. II. The Death Penalty Debate Surrounding the ICCPR i. Background and History of the ICCPR Article 3 of the Universal Declaration reads: ‘Everyone has the right to life, liberty and security of person.’ It is commonly believed that when the Universal Declaration of Human Rights was written, the framers and signatory countries did not intend for it to carry the force of law (Bishop, 2002). The absence of any apparent reference to the death penalty in Article 3 is often exploited by capital punishment proponents to argue for the legality of the punishment. But at the

Taiwan: Cutting the Gordian Knot

211

same time, Article 3 has also been the basis of several international covenants circumscribing the use of the death penalty.1 In December 1966, the United Nations passed the ICCPR, an international human rights treaty concerned with the ‘right to life’; it did not enter into force until March 1976, and has since been ratified by 167 countries around the world. Subsequent to the enactment and ratification of the ICCPR, on 15 December 1989, the General Assembly of the United Nations adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (the Second Protocol). Paragraphs 1 and 2 of Article 1 of the Second Protocol state that ‘No one within the jurisdiction of a State Party to the present Protocol shall be executed. … Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ No state is required to sign the Second Optional Protocol. For those states that do sign it, Article 2.1 of the Second Optional Protocol reads: ‘No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.’ Currently, 75 states have ratified the treaty. While the force of Article 3 of the Universal Declaration remains in doubt, Article 1 of the Second Protocol expressly requires all state parties to ‘abolish the death penalty’ in their jurisdictions. Although the signing of the Second Protocol is not mandatory, the fact that it seeks the state parties’ express commitments to abolish the death penalty does not justify or supply the argument that the ICCPR did not outlaw the death penalty at the outset. Whether most of the states are obliged to abolish the death penalty still depends on the intention behind the ICCPR. Most debates over the ICCPR’s position on the death penalty centre around Articles 6 and 7 of the ICCPR. A comparison and analysis of the arguments are as follows. ii. Article 6 of the ICCPR Article 6 of the ICCPR contains six paragraphs.2 The first paragraph of Article 6 indicates that the right to life is fundamental to humans and should not be arbitrarily 1  For example: Art. 2.1 of the European Convention on Human Rights; Art. 4 of the American Convention on Human Rights and Art. 6 of the ICCPR. 2  Art. 6 of the ICCPR reads: 1. ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. 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 crime and not contrary to provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

212

Capital Punishment: New Perspectives

deprived. As capital punishment deprives human life, whether it is permitted under paragraph 1 rests on the definition of ‘arbitrarily’. Rehman (2003) also pointed out that Article 6 does not provide absolute prohibition against life-taking, but only ‘arbitrary’ deprivation of life. An example where the deprivation of life does not violate this paragraph is a state government’s taking away one person’s life to save more lives in an extreme emergency. However, such action does not constitute support of the death penalty. In 1990, the Human Rights Committee elaborated on the notion of ‘arbitrariness’ in Van Alphen v. The Netherlands, stating that it is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. In Eversley Thompson v. St Vincent and the Grenadines, in 2000, the Human Rights Committee found that mandatory capital punishment could constitute arbitrary deprivation of one’s right to life, and found that: ‘A system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case.’ The Committee also found that: ‘The carrying out of the death penalty in the author’s case would constitute an arbitrary deprivation of his life in violation of article 6, paragraph 1, of the Covenant.’ To determine ‘arbitrariness’ with regard to the death penalty under paragraph 1 of Article 6 of the ICCPR, the Human Rights Committee focused on whether the execution method or style is arbitrary, and the death penalty itself was not considered an arbitrary measure. Paragraph 6 of Article 6 is a sweeping statement that the abolition of capital punishment should not be delayed or prevented, which implies an obligation for all state parties to abolish the death penalty. However, this universality is undercut by the first sentence of paragraph 2 – ‘[i]n countries which have not abolished the death penalty’ – which indicates a degree of tolerance of capital punishment. Paragraph 2 of Article 6 has invited myriad interpretations. Some commentators view the ICCPR as an expansion of the terse and somewhat equivocal ‘right to life’ provision in Article 3 of the Universal Declaration into a complex text that recognizes capital punishment as an exception or limitation on the right to 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. 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.’

Taiwan: Cutting the Gordian Knot

213

life (Schabas, 2004; Bishop, 2002). The commentators point to the phrase ‘[i] n countries which have not abolished the death penalty’ to justify their reading (Rothenberg, 2004). In contrast, Schabas (2002) based his argument on the draft of paragraph 2 of Article 6, which was adopted by the UN Commission on Human Rights. According to his research, the phrase did not include the term ‘abolished’; it read ‘[i]n countries where capital punishment exists’ instead. The report of the Working Group explained that the phrase was intended to show the direction in which the drafters of the ICCPR hoped that the situation would develop. He further stated that it was changed by the Working Party of the General Assembly’s Third Committee so as to satisfy the many delegates who supported abolition of the death penalty. The UN Commission on Human Rights is involved in the elaboration of human rights standards, including those under the ICCPR. It develops standards relating to international human rights, including the right to development, civil and political rights, economic, social and cultural rights, the elimination of racial discrimination, torture, the rights of the child and the rights of human rights defenders. In fact, the Human Rights Committee has already weighed in on the meaning of Article 6 in terms of the relation between the right to life and capital punishment. In 1982, the Human Rights Committee first elaborated on Article 6 of the ICCPR in General Comment no. 6: 3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance …. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities …. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the ‘most serious crimes’. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable.3

3  Emphasis added by the authors. Here is the full paragraph: ‘3. The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities …. 5. Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures … . 6. While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the “most serious crimes”. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged

214

Capital Punishment: New Perspectives

The Human Rights Committee made the following emphasis in its 1984 General Comment no. 14: [T]he right to life enunciated in the first paragraph of article 6 of the International Covenant on Civil and Political Rights is the supreme right from which no derogation is permitted even in time of public emergency. The same right to life is enshrined in article 3 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948. It is basic to all human rights. [emphasis added by the authors]

It also restated the position of Article 6 of the ICCPR in 1992 General Comment no. 20: ‘As the Committee has stated in its general comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death penalty in terms that strongly suggest that abolition is desirable’ (emphasis added by the authors). The Human Rights Committee’s interpretation of paragraph 2 of Article 6 is illuminating; the position of Article 6 of the ICCPR on the death penalty is to encourage the state parties to abolish the death penalty. While encouragement may not be tantamount to imposing obligation, it is enough to settle the debate over whether Article 6 advocates or opposes the death penalty. iii. Article 7 of the ICCPR The first sentence of Article 7 of the ICCPR reads: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The death penalty, compared with other types of punishments under the law, is the cruellest and the most inhuman and degrading. No punishment can be more inhuman than deprivation of life, the fundamental element of a human being. In this sense, permitting capital punishment would defy Article 7 of the ICCPR. The Human Rights Committee also stated in 1992 in its General Comment nos 20(2) and 20(3): 2 …. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. [emphasis added by the authors]

to restrict the application of the death penalty to the “most serious crimes”. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable …. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.’

Taiwan: Cutting the Gordian Knot

215

3. The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority. [emphasis added by the authors]

The Human Rights Committee clearly pointed out that even when inhuman treatment is authorized by official authorities, like the death penalty, it is still prohibited by Article 7 of the ICCPR. Even when the text of Article 7 conflicts with those of other articles under the ICCPR, the Human Rights Committee maintained that the prohibition of inhuman treatment underpinning Article 7 shall prevail. As a result, even if Article 6 allows a state party to maintain capital punishment, such permission might not survive the test under Article 7 and might be deemed a violation of Article 7. According to Schabas (2002), most scholars would concede that Article 7, considered alone, might prohibit capital punishment. Even in ancient China, there were voices opposing the cruel and barbaric penalty of subjecting an inmate to the same fatal atrocity that he or she had committed (Sheng, 2010).4 Public enforcement of capital punishment was therefore abandoned in favour of non-public enforcement.5 But if it was cruel for people to watch the public enforcement of a death penalty, was the execution any less cruel for the convict? In any case, there is yet a global consensus on whether the death penalty constitutes cruel, inhuman or degrading treatment in international precedents. In 1972, the United States Supreme Court found in Furman v. Georgia that the imposition and carrying out of the death penalty in certain cases constitute ‘cruel and unusual punishment’ and are in violation of the 8th and 14th Amendments to the US Constitution. The Supreme Court considered the death penalty unconstitutional for two reasons. First, it violated the equal protection clause because it was discriminatory; second, it violated the due process clause because it was arbitrary and irrational. However, the Supreme Court revisited the death penalty issue four years later (in 1976) in Gregg v. Georgia, and decided that the death penalty was not unconstitutional per se, although it certainly could be unconstitutional as applied. The Supreme Court struck down mandatory death sentences as a violation of the Constitution established in Furman, and allowed

4  In the late Song Dynasty, a court officer named You Lu wrote to the emperor to denounce the cruelty of the dismemberment death penalty, calling it retributive justice because the government was subjecting the prisoners to the same fatal atrocity committed by them. 5  In the final decade of the Ching Dynasty, at the dawn of the twentieth century, public execution of the death penalty was officially abolished and replaced with non-public execution at the initiation of Jia-Ben Sheng, to spare the public the graphic cruelty.

216

Capital Punishment: New Perspectives

the death penalty to stand as a potential method of punishment, if applied under justifiable circumstances. Meanwhile, most of the cases before the Human Rights Committee regarding Article 7 of the ICCPR are merely related to death row issues, specifically the often protracted wait for executions or where the execution itself is carried out in a way that inflicts gratuitous suffering. In 1989, the Human Rights Committee declared in Pratt and Morgan v. Jamaica: 13.6 There are two issues concerning article 7 before the Committee: the first is whether the excessive delays in judicial proceedings constituted not only a violation of article 14, but “cruel, inhuman and degrading treatment.” … In principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However, the situation could be otherwise in cases involving capital punishment and an assessment of the circumstances of each case would be necessary. In the present cases the Committee does not find that the authors have sufficiently substantiated their claim that delay in judicial proceedings constituted for them cruel, inhuman and degrading treatment under article 7. [emphasis added by the authors] 13.7 The second issue under article 7 concerns the issue of warrants for executing and the notification of the stay of execution. The issue of a warrant for execution necessarily causes intense anguish to the individual concerned… . The Committee considers that a delay of close to 20 hours from the time the stay of execution was granted to the time the authors were removed from their death cell constitutes cruel and inhuman treatment within the meaning of article 7. [emphasis added by the authors]

The Human Rights Committee later in 1992 dealt with the duration of detention on death row again in Barrett and Sutcliff v. Jamaica: It further reiterates that prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, even if they may be a source of mental strain and tension for detained persons. This also applies to appeal and review proceedings in cases involving capital punishment, although an assessment of the particular circumstances of each case would be called for. In States whose judicial system provides for review of criminal convictions and sentences, an element of delay between the lawful imposition of a sentence of death and the exhaustion of available remedies is inherent in the review of the sentence; thus, even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies. A delay of 10 years between the judgment of the Court of Appeal

Taiwan: Cutting the Gordian Knot

217

and that of the Judicial Committee of the Privy Council is disturbingly long. [emphasis added by the authors]

If even prolonged detention would not per se be considered by the Human Rights Committee a violation of Article 7 that constitutes cruel, inhuman and degrading treatment, one cannot reasonably expect the Committee to boldly declare the death penalty to be at odds with Article 7 of the ICCPR. In fact, the Human Rights Committee indeed reiterated its position in Errol Johnson v. Jamaica in 1996: The question that must be addressed is whether the mere length of the period a condemned person spends confined to death row may constitute a violation by a State party of its obligations under articles 7 and 10 not to subject persons to cruel, inhuman and degrading treatment or punishment and to treat them with humanity. In addressing this question, the following factors must be considered: (a) The Covenant does not prohibit the death penalty, though it subjects its use to severe restrictions. As detention on death row is a necessary consequence of imposing the death penalty, no matter how cruel, degrading and inhuman it may appear to be, it cannot, of itself, be regarded as a violation of articles 7 and 10 of the Covenant. [emphasis added by the authors]

The position of Article 7 under the ICCPR on the death penalty is therefore not free from conflicting interpretations, and before capital punishment is officially recognized by any international court or committee as cruel, inhuman or degrading treatment, the controversies surrounding whether the death penalty could be sustained under the ICCPR will continue. Consequently, a final conclusion is unlikely to be distilled from repeated critical analysis of Article 7, or Article 6. Another way has to be sought to cut the Gordian Knot. III. Article 16: An Elegant Solution to an Intricate Conundrum i. Interpretative Rules of Treaties To encourage the progressive development of international law and its codification, the UN General Assembly delegated the International Law Commission (ILC) to initiate studies and make relevant recommendations. The Vienna Convention on the Law of the Treaties (VCLT) was drafted by the ILC and was passed by the General Assembly in May 1969. The VCLT then entered into force on 27 January 1980 and has now been ratified by 111 state parties. It is generally recognized as a restatement of customary international law, and contains the general principles for interpreting treaties. Section 3 of the VCLT provides rules for interpreting treaties, under which Article 31.1 embraces interpretation measures including ordinary meaning,

218

Capital Punishment: New Perspectives

context and purpose and object.6 As Lo (2012) clearly pointed out, the context is not the term itself; instead, the context is used as a method to interpret the ordinary meaning given to the terms of the treaty (Lo, 2012). Under Article 31(2) of the VCLT, text of the treaty, subsequent agreement between the parties and practice, and related international laws are considered part of the treaty context and should all be taken into account when interpreting the ordinary meaning. In particular, the subsequent agreement and parties’ post-ratification practice may reflect an implicit agreement to revise the original treaty document (Criddle, 2004). On the other hand, the terms of the treaty should be construed in a manner that honours the treaty’s purpose and object. Meanwhile, according to Article 32 of the VCLT, ‘the preparatory work of the treaty and the circumstances of its conclusion’ are only ‘supplementary means of interpretation’ and can be applied only whenever the purpose is to ‘confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’.7 In other words, preparatory works should only be considered in extraordinary cases. And the International Court of Justice (ICJ) has made it clear that ‘if the relevant 6  Art. 31 of the VCLT reads: ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.’ 7  Art. 32 of the VCLT reads: ‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.’

Taiwan: Cutting the Gordian Knot

219

words in their natural and ordinary meaning make sense in their context, that is an end of the matter’, and refused to consider preparatory works in a previous case, where the text alone was reviewed. Therefore, there is a hierarchical sequence when applying various methods to interpret a treaty under the VCLT interpretation rules. Compared with the preparatory works or circumstances of conclusion of a treaty, the textual meaning or context shall prevail and take precedence in the interpretation process. ii. Prohibition against Capital Punishment under Article 16 1. The inapplicability of originalism  Although the VCLT allows reference to preparatory works where the interpretation by Article 31 either leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable, it does not define ambiguity or absurdity. This deficiency and the hierarchical sequence expressed in Article 32 of the VCLT have come under severe criticism. McDougal, the USA’s chief delegate to the VCLT negotiations, said: The rigid and restrictive system of articles [31 and 32] should not be made international law because it could be employed by interpreters to impose upon the parties to a treaty agreements that they had never made. The parties … could well have a common intent quite different from that expressed by the ‘ordinary’ meaning of the terms used in the text. The imposition upon the parties of certain alleged ‘ordinary’ meanings … could lead to the arbitrary distortion of their real intentions. [emphasis added by the authors]

On such a basis, McDougal proposed a more flexible approach that authorizes the interpreter to weigh all the sources, including context, purpose and preparatory works at the same time. However, delegates from other countries feared that this approach would give treaty interpreters carte blanche to disregard clear, textual meanings. As Uruguay’s delegate commented: International law should avoid the idea of a “will of the parties” floating like a cloud over the terra firma of a contractual text. If respect for the wording of a treaty that had been signed and ratified was not something sacred, if the parties were to be allowed freely to invoke their supposed real will, an essential advantage of written and conventional law would be lost.

Most of the countries’ delegates present at the VCLT negotiation conference agreed with this view. They emphasized that the draft by the ICL, which was later passed by a unanimous vote and became the current version of the VCLT, offered a neutral and fair formation of the generally recognized canons of treaty interpretation (Kearney and Dalton, 1970).

220

Capital Punishment: New Perspectives

Therefore, it is clear that the objective purpose of the treaty under Article 31.1 and the framers’ subjective intention under Article 31.2 should be considered separately. The latter, expressed in the preparatory works of the treaty and the circumstances of its conclusion, may serve as a supplementary interpretative method only when determination of the ordinary meaning cannot be reached by Article 31 of the VCLT. As a matter of fact, even proponents of originalism do not insist that the original intent of the treaty always be adopted. Instead, they admit that ‘the ordinarymeaning rule is the most fundamental semantic rule of interpretation’ (Scalia and Garner, 2012). This approach meshes with Articles 31 and 32 of the VCLT and underscores the importance of ordinary meaning in interpreting a treaty. 2. Capital punishment and the right to recognition as a person  Article 16 of the ICCPR reads: ‘Everyone shall have the right to recognition everywhere as a person before the law.’ The international human rights regime is based on the principle of equal treatment and non-discrimination, and equality before the law stems from respect for human dignity, and indeed for the rule of law itself (Smith, 2007). Smith (2005) also asserted that the right to recognition as a person before the law is embedded in the concept of the right to an existence, and every person is thus entitled prima facie to bear legal rights and obligations. He believed that a state is not open to subject a citizen to a ‘civil death’, which is to deprive an individual of legal personality. Paragraph 2 of Article 4 reads: ‘No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.’ The Human Rights Committee elaborated on the scope of ‘no derogation’ in General Comment no. 29(7) in 2001: Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: … article 16 (the recognition of everyone as a person before the law) …. The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2. Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. Even in times of most serious public emergencies, States that interfere with the freedom to manifest one’s religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3. [emphasis added by the authors]

The Human Rights Committee believed that limitation on the articles enumerated in paragraph 2 of Article 4 is not absolutely prohibited, since non-derogation does not equal non-restriction. However, from the example cited by the Committee,

Taiwan: Cutting the Gordian Knot

221

the limitation must be explicitly provided by the ICCPR. Since there is no direct limitation provided in Article 16 like the one in Article 18, Article 16 should not be subject to either derogation or limitation. Article 16 of the ICCPR does not contain vague concepts like ‘arbitrary’ in Article 6 or ‘cruel, inhuman, or degrading treatment’ in Article 7, nor does it set lax deadlines for countries practising capital punishment like paragraph 2 of Article 6. The only issue is the dearth of direct discussion of Article 16 or its relationship to capital punishment. However, lack of discussion alone should not detract from the potential or potency of Article 16 as an extra key to unlocking the position of the ICCPR on the death penalty. If one’s personality is prohibited from deprivation before law, by extension, one’s life is per se barred from deprivation, be it by private entities or official authorities. To permit capital punishment is to allow the government’s deprivation of a person’s right to recognition as a person before law, which is a violation of Article 16 per se. Capital punishment advocates may point out that because of their inherent ambiguity, Articles 6 and 7 are the Achilles’ heel in the contention that the ICCPR is firmly in favour of abolition. However, compared with an interpretation that would make the articles incompatible with or contradict each other, a different reading that could make them a harmonious whole should be given priority. Article 16 categorically opposes the death penalty, leaving no room for doubt. Article 6 should be understood as favouring the abolition of capital punishment to avoid conflict with Article 16.8 Meanwhile, Article 7 only prohibits cruel and inhuman treatment, and cannot possibly be interpreted as forbidding abolition. Furthermore, as discussed in the analysis of the interpretation rules under the VCLT, the circumstances of a treaty’s conclusion and its preparatory work are merely supplementary interpretation measures; the textual meaning or context of a treaty should be examined first. By the ordinary meaning and the purpose revealed in the text, capital punishment degrades an individual and deprives him or her of dignity and the right to recognition as a person before law – a flagrant violation of Article 16. Therefore, the framers’ intention in this case need not be considered. IV. A Fresh Look at Capital Punishment i. Background and History of Capital Punishment in Taiwan In 1949, Taiwan came under martial law and authoritarian rule, leading to many harsh penalties under the law. But ever since martial law was lifted in 1987, freedom of speech has been better protected. Meanwhile, society has become more tolerant of dissenting voices and has created a more fertile ground for the abolition movement. As late as the 1990s, Taiwan’s statutory enactments provided the mandatory death sentence for 89 specific crimes, while capital punishment was 8  Such an interpretation is adopted by the Human Rights Committee, as described above.

222

Capital Punishment: New Perspectives

an option for another 108 crimes.9 Human rights organizations and individuals pushed for death penalty abolition and the rescue of death row inmates. In 2000, President Chen Shui-bian promised that the country would move towards abolition of capital punishment. In May 2001, the Ministry of Justice (MOJ) further announced that Taiwan would end capital punishment in three years. Since 2006, the government has revised regulations and banned courts from sentencing citizens under 18 years of age to death. Prosecutors are also encouraged by the MOJ to avoid seeking the death penalty in trials.10 According to a report compiled by the Advisory Panel on Human Rights for the Presidential Office, no death penalty was carried out between 2006 and 2009.11 In 2011, however, 15 people were sentenced to death, the highest number in the past ten years, according to the report. And Taiwan executed nine death row inmates in 2010 and 2011, even after Articles 3 and 6 of the ICCPR took effect in 2010.12 Such phenomena may signify that the abolition movement is losing traction in Taiwan. Even today, abolition of the death penalty has yet to garner popular support in Taiwan. According to an opinion poll conducted by the MOJ during 29 December 2007–15 February 2008, 79.7 per cent of those polled voted against abolition of the death penalty and 15.9 per cent supported it. However, when asked whether life imprisonment should replace the death penalty, 56 per cent of the people surveyed agreed, while 43 per cent disagreed. A more recent opinion poll conducted in January 2010 showed that 45.1 per cent supported the death penalty without reservation, while 49.4 per cent supported abolition of capital punishment on the condition that there was an alternative punishment to the death penalty. In the mean time, only 4 per cent strongly supported the abolition of the death penalty unconditionally. The survey shows that even with strong advocacy for the death penalty, more and more people are willing to consider the possibility of abolition and the alternatives to the death penalty. In other words, half the people in Taiwan have started to conditionally accept abolition of the death penalty. A recent public statement of Taiwan President Ma Ying-Jeou gives some indication of the latest public opinion on the death penalty: The two UN covenants [ICCPR and ICSCR] do not ban capital punishment, but encourage all countries to move toward the abolition of it … . We’ve discussed the nation’s situation with the international community and let other countries

9  www.taedp.org.tw/en/about (accessed 3 September 2012). 10  Ibid. 11  Advisory Panel on Human Rights, Country Reports on Human Rights Covenants,

International Covenant on Economic Social and Cultural Rights: Execution Status (Initial Report), International Covenant on Civil and Political Rights: Execution Status (Initial Report), www.president.gov.tw/Default.aspx?tabid=1422 (accessed 3 September 2012). 12  Opinion poll on the abolition of death penalty conducted by the MOJ on the MOJ official website in 2012, www.moj.gov.tw/ct.asp?xItem=259538&CtNode=30968& mp=001 (accessed 3 September 2012).

Taiwan: Cutting the Gordian Knot

223

understand that we haven’t been able to abolish the death penalty because of divided opinions on the issue domestically. What we can do, and have already been doing now, is to reduce the death penalty. (Ma, 2012)

ii. The ICCPR and Taiwan Not until 31 March 2009 did the Taiwan Congress review and approve the ICCPR and International Covenant on Economic, Social and Cultural Rights (ICSCR). The Congress also enacted and passed the Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on the same day, and President Ma Ying-Jeou promulgated the Act on 22 April 2009. He officially signed the ICCPR and the ICSCR on 14 May 2009, and they both came into force on 10 December 2009. Article 2 of the Act reads: ‘The human protection provisions in the Covenants have the same force of law as domestic legislation.’” But the force of law of the two Covenants within Taiwan may be disputable. The dispute stems from the word ‘domestic’ as provided in the Act. Because the Republic of China (ROC) Council of Grand Justices declared in its Interpretation no. 329, dated 1993, that treaties concluded according to the related procedures have the same force of law as domestic laws, the Act may be understood to mean the two Covenants have only domestic force of law. However, international treaties should not merely have the same force of law as domestic legislation, but also be deemed binding as a constitutional norm. Subsequent to Interpretation no. 329, the Council of Grand Justices adopted a number of treaties to interpret or understand articles of the Constitution.13 Furthermore, Justice Lo Chang-Fa of the Council of Grand Justices wrote in his concurring opinion in Interpretation no. 696 and dissenting opinion in Interpretation no. 697, which to a certain extent represent the current Council of Grand Justices’ views on the force of law of international treaties, that the Act is ample evidence that the ROC recognizes the human rights provided in Articles 3 and 6 of the ICCPR as containing worldwide value. He believed the ICCPR and the ICSCR could serve as a direct and binding basis as a constitutional norm when interpreting and understanding the human rights clauses in the ROC Constitution. While Taiwan is not a signatory to the ICCPR, the ICCPR is considered an ROC constitutional norm and has binding force on the people and the governmental authorities of the ROC. Article 8 of the Act reads: All levels of governmental institutions and agencies should review laws, regulations, directions and administrative measures within their functions according to the two Covenants. All laws, regulations, directions and administrative measures

13  For example, Council of Grand Justices Interpretations nos 587 and 623 referred to the Convention on the Rights of the Child, and Interpretation no. 582 cited the European Convention for the Protection of Human Rights and Fundamental Freedoms.

224

Capital Punishment: New Perspectives incompatible to the two Covenants should be amended within two years after the Act enters into force by new laws, law amendments, law abolitions and improved administrative measures.

It is so provided that laws, regulations or administrative measures that are inconsistent with the ICCPR should be amended. The Act therefore bestows upon the ICCPR direct binding force. iii. A Fresh Interpretation of the ICCPR To Taiwan, the ICCPR is an objective norm that Taiwan voluntarily accepts. The ICCPR is not considered an international treaty or a contract that Taiwan jointly conceived with other nations. To sidestep the political issue surrounding Taiwan’s identity as a country, the Taiwan Congress chose to pass the Act to adopt the ICCPR as an internal instrument with binding force in 2009, which is a rare step in the international community. However, because of the confluence of these factors, Taiwan is afforded an opportunity to read the abolition of the death penalty under the ICCPR differently while not being entirely bound by the framers’ subjective intention and interpretation of the ICCPR. That is, the legislative intent of the ICCPR may not bind Taiwan, and Taiwan is free to look at the ICCPR from the perspective of its objective purpose and text. First, since Taiwan is not a signatory, the first sentence of paragraph 2 of Article 6, ‘[i]n countries which have not abolished the death penalty’, has no meaningful effect on Taiwan in terms of understanding the ICCPR’s position on the death penalty. As the Human Rights Committee has already indicated that the abolition of capital punishment is desirable under Article 6, Taiwan has to move toward abolition of the death penalty. Also, the provisions that the Taiwan Congress approved are the same as those in the ICCPR. The general rules of interpretation under the VCLT may serve as interpretative rules in defining Taiwan’s position on the abolishment of the death penalty. According to Article 31.1 of the VCLT, the interpreter should look into the ordinary meaning of the terms in the context and in light of its object and purpose. According to the ordinary meaning of the terms under Article 16 of the ICCPR, as analysed previously, if one cannot be deprived of one’s personhood before law, by extension, deprivation of one’s life should definitely be prohibited. Thus, to permit the government’s deprivation of a person’s right to recognition as a person before law by executing capital punishment is a gross deviation from Article 16 of the ICCPR, the domestic law, and the provisions that safeguard human rights under the ROC Constitution. Furthermore, it is the objective purpose conveyed in the ICCPR that matters in the first stage of interpretation, instead of the framers’ intention during the negotiation. By ‘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’ under paragraph 6 of Article 6 of the ICCPR, it can reasonably be inferred that the ICCPR

Taiwan: Cutting the Gordian Knot

225

leans toward abolition of capital punishment. Although there is disagreement over the framers’ intention on the death penalty, the objective purpose expressed in the ICCPR must be considered as a crucial factor in defining Taiwan’s position on the death penalty. On the basis of the above interpretative rules, it is clear, and the ICJ has affirmed, that when the ordinary meaning of the terms under the ICCPR has been determined in the context that spells the end of the matter under Article 31 of the VCLT. That is, Taiwan should abolish the death penalty without any delay. Then, of course, analysis of preparatory works under Article 32 of the VCLT will become moot, a purely academic exercise. V. Conclusion Over the years, studies of Articles 6 and 7 of the ICCPR alone have yielded no decisive conclusion on the abolition of the death penalty. This chapter turned to Article 16, which offers an elegant solution to this decades-long conundrum while sidestepping all the controversies over Articles 6 and 7. Article 16 of the ICCPR reads: ‘Everyone shall have the right to recognition everywhere as a person before the law’, and states that the death penalty will not only take away a person’s life, but also his or her legal personality. By denying one’s right as a person before the law and turning him or her into a non-person with the death sentence, the institution of capital punishment is at odds with the purpose and the letter of Article 16. The interpretative rules in Article 31 of the VCLT lead one to the conclusion that the text and the purpose of the ICCPR strongly advocate the abolition of capital punishment. And accordingly, there is no need to consider the preparatory works carried out during the negotiations of the ICCPR. Since Taiwan did not jointly conceive the ICCPR with other nations and adopted it only as domestic legislative material, it may take a fresh look at the international covenant without delving into originalism unnecessarily. Article 16 of the ICCPR, together with Article 6, supports the abolition of capital punishment, and may once and for all reveal the intention of the framers. References Books Dayan, M. (2006), ‘The Death Penalty Does Not Deter Crime’, in L.S. Friedman (ed.), The Death Penalty, Farmington Hills, MI: Thomson Gale, 66–71. Dinstein, Y. (1981), ‘The Right to Life, Physical Integrity and Liberty’, in L. Henkin (ed.), The International Bill of Rights: The International Covenant on Civil and Political Rights, New York: Columbia University Press, 114–38.

226

Capital Punishment: New Perspectives

Hood, R. and Hoyle, C. (2008), The Death Penalty, New York: Oxford University Press. Pojman, L.P. (2004), ‘Why the Death Penalty is Morally Permissible’, in H. Bedau and P. Cassell (eds), Debating the Death Penalty, New York: Oxford University Press, 51–75. Rehman, J. (2003), International Human Rights Law: A Practical Approach, New York: Longman. Scalia, A. and Garner, B. (2012), Reading Law: The Interpretation of Legal Texts, St. Paul, MN: Thomson/West. Schabas, W.A. (2002), The Abolition of the Death Penalty in International Law, Cambridge: Cambridge University Press. Sheng, J.B. (2010), ‘Reference to Chinese Criminal Law’, in S.H. Hsu (ed.), Collected Works of J.B. Sheng, Beijing: China University of Political Science and Law Press, 49–356. Smith, R.K.M. (2005), Textbook on International Human Rights, New York: Oxford University Press. Smith, R.K.M. (2007), Textbook and Materials on International Human Rights, New York: Routledge-Cavendish. Periodical Articles Bishop, A.N. (2002), ‘The Death Penalty in the United States: An International Human Rights Perspective’, South Texas Law Review, 43, 1,115–231. Criddle E. (2004), ‘The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation’, Virginia Journal of International Law, 44(2), 431–500. Kearney, R.D. and Dalton, R.E. (1970), ‘The Treaty on Treaties’, American Journal of International Law, 64, 495–561. Lo, C.F. (2012), ‘The Difference between Treaty Interpretation and Treaty Application and the Possibility to Account for Non-WTO Treaties during WTO Treaty Interpretation’, Indiana International and Comparative Law Review, 22(1), 1–23. Rothenberg, L.E. (2004), ‘International Law, U.S. Sovereignty, and the Death Penalty’, Georgetown Journal of International Law, 35, 547–96. Schabas W.A. (2004), ‘International Law, Politics, Diplomacy and the Abolition of the Death Penalty’, William and Mary Bill of Rights Journal, 13, 417–44. United Nations Materials Advisory Opinion, Competence of the General Assembly for Admission of a State to the United Nations, 1950 ICJ 8 (1950). Barrett and Sutcliff v. Jamaica, Communication no. 271/1988, UN Doc. CCPR/ C/44/D/271/1988 (1992). Errol Johnson v. Jamaica, Communication no. 588/1994, UN Doc. CCPR/ C/56/D/588/1994 (1996).

Taiwan: Cutting the Gordian Knot

227

Eversley Thompson v. St. Vincent and the Grenadines, Communication no. 806/1998, UN Doc. CCPR/C/70/D/806/1998 (2000). General Comment no. 6(3)(5)(6), www.unhchr.ch/tbs/doc.nsf/(Symbol)/84ab969 0ccd81fc7c12563ed0046fae3?Opendocument (accessed 3 September 2012). General Comment no. 14(1), www.unhchr.ch/tbs/doc.nsf/(Symbol)/9c882008fd89 8da7c12563ed004a3b08?Opendocument (accessed 3 September 2012). General Comments nos 20(2) and 20(3), www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924 291970754969c12563ed004c8ae5?Opendocument (accessed 3 September 2012). General Comment no. 20(6), www.unhchr.ch/tbs/doc.nsf/(Symbol)/69242919707 54969c12563ed004c8ae5?Opendocument (accessed 3 September 2012). Hugo van Alphen v. The Netherlands, Communication no. 305/1988, UN Doc. CCPR/C/39/D/305/1988 (1990). International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. no. 16, at 52, UN Doc. A/6316 (1966). Pratt and Morgan v. Jamaica, Communications 210/1986 and 225/1987, Human Rights Committee, UN Doc. CCPR/C/35/D/210/D/210/1986 (1989). Rectification of the Second Optional Protocol, http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en (accessed 3 September 2012). Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at Abolition of the Death Penalty, GA Res. 44/128, 44 UN GAOR Supp. no. 49, UN Doc. A/44/49 (1989). United Nations Conference on the Law of Treaties, Official Records, 1st Sess., UN Doc. A/CONF.39/11 (1969). United Nations Conference on the Law of Treaties, Official Records, 2nd Sess., UN Doc. A/CONF.39/11/Add.1 (1970). Universal Declaration of Human Rights, GA res. 217A (III), UN Doc. A/810 at 71 (1948). Vienna Convention on the Law of the Treaties, UN Treaty Series, vol. 1,155 (1969). United States Cases Furman v. Georgia, 408 US 238 (1972). Gregg v. Georgia, 428 US 153 (1976). Websites/Online Materials Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, http:// db.lawbank.com.tw/FLAW/FLAWDAT0202.aspx?lsid=FL048731 (accessed 3 September 2012). American Convention on Human Rights, www.hrcr.org/docs/American_ Convention/oashr.html (accessed 3 September 2012).

228

Capital Punishment: New Perspectives

European Convention on Human Rights, www.hri.org/docs/ECHR50.html (accessed 3 September 2012). Ma, Y.J. (2012), ‘President Vows to Work toward Ending Death Penalty’, www. taedp.org.tw/en/story/2235 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 329, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=329&cnt=1&recor dNo=1 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 582, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=582&cnt=1&recor dNo=1 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 587, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=587&cnt=1&recor dNo=1 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 623, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=623&cnt=1&recor dNo=1 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 696, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=696&cnt=1&recor dNo=1 (accessed 3 September 2012). ROC Council of Grand Justices Interpretation no. 697, http://db.lawbank.com.tw/ FINT/FINTQRY04.aspx?datatype=ctype&typeid=D&N2=697&cnt=1&recor dNo=1 (accessed 3 September 2012).

Chapter 11

Transnational Networks and Norm Compliance: Stopping Executions in Belarus Volha Charnysh

Introduction A real momentum to end the death penalty is gathering around the world. More than two-thirds of states have abolished it in law or practice, only 21 states carried out executions in 2010 (Amnesty International [AI], 2011). Europe, where the death penalty is a pressing human rights issue, has been the leader of the abolition movement. Its most notable success is in the post-Soviet region. By 2008, Armenia, Azerbaijan, Georgia, Kyrgyzstan, Moldova, Turkmenistan, Ukraine and Uzbekistan abolished the death penalty; Tajikistan, Russia, and Kazakhstan imposed moratoria on executions. The region is death penalty-free with the exception of one state – Belarus. As many as 400 people have been executed in Belarus since 1991 (AI, 2009b), with the latest execution in March 2012. Belarus stipulated the provisional character of the punishment in the 1994 Constitution, enjoys a moderate crime rate, is ethnically homogeneous and stable, and was promised Council of Europe (CoE) membership and rapprochement with the European Union (EU) for abolishing the death penalty. Yet years of efforts by domestic and international non-governmental organizations (NGOs), human rights defenders, and the EU, the CoE, the Organization for Security and Co-operation in Europe (OSCE) and the United Nations (UN) have not convinced Minsk to stop executions. This chapter attempts to explain why the abolition effort failed. Understanding the Belarusian case is important because the norm compliance literature over-emphasizes successes, creating a bias in favour of norms that work and states that comply (Kowert and Legro, 1996, 485). While the death penalty norm has triumphed in Europe and the former Soviet Union (FSU), explaining the singular case of Belarus’s non-compliance could help understand the limits of transnational influence in other parts of the world. Furthermore, a small economically weak Belarus offers a good test for norm socialization theories because of the salience of the norm against the death penalty in Europe and the size and strength of the transnational network pushing for abolition. In this chapter, I first evaluate the strength of the norm pressure and the transnational abolition effort, and then explore two potential explanations for their failure. I argue that the failure of the abolition effort in Belarus is a consequence of the weak European linkage and leverage in Belarus, and in particular of the

230

Capital Punishment: New Perspectives

deliberate European policy of isolation. I show that the EU’s tendency to connect rewards to performance on several human rights and political issues at once increases the costs of Belarus’s compliance. The Strength of the Norm against the Death Penalty The strength of the norm against the death penalty is crucial for the success of norm socialization (Thomas, 2001). Belarus’s executions contradict the norm that has taken hold in an astonishing number of states and is enshrined in several international treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Second Optional Protocol to the ICCPR, endorsed by 72 states as of December 2010. Abolition of the death penalty is seen as a requirement for entry to the EU and the CoE, and is stipulated in the two protocols of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as well as the EU Charter of Fundamental Rights. In 2007, the European Parliament, the EU presidency, the European Commission, and the CoE signed a Joint Declaration in order to promote universal abolition. The death penalty in Belarus arguably violates other human rights, including ‘the right to be free of excessive, repressive and tortuous punishments’ (Hood and Hoyle, 2008, 19). Executions in Belarus are also criticized because of their secrecy, the abusive detention system and the flawed justice mechanisms (CoE, 1999, 7; Viasna, 2006; Amnesty International, 2009a) which entail violation of the legal standards of the UN Committee against Torture, the UN Human Rights Committee (UNHRC), the UN Economic and Social Council, the CoE and Belarus’s OSCE commitments.1 In the case of Belarus, the norm pressure is also strengthened by the phenomenon of regional clustering (Simmons, 2009, 18, 89, 91–6). If in the early 1990s Belarus was a typical post-Soviet state executing its criminals, by 2008 it has become the only executioner in the region, and began to face much stronger criticism. Simmons (2009) shows that an explicit public treaty commitment by the target state strengthens the norm and can be employed strategically by transnational actors. Belarus has signed two international treaties related to the death penalty: the ICCPR, seeking to limit the death penalty where it is still applied, and the Convention on the Rights of the Child, prohibiting the death penalty for juveniles and children. In addition, Belarus ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Belarus is obligated to abolish the death penalty by its own constitution (1994) and Criminal Code (1999), both of which see the penalty as temporary. At the same

1  See for example, UN Human Rights Committee (2003); Resolution 1989/64, adopted on 24 May 1989 by the UN Economic and Social Council, Resolution 2005/59, adopted on 20 April 2005 by the UN Human Rights Commission.

Transnational Networks and Norm Compliance

231

time, Belarus has not joined the Second Optional Protocol to the ICCPR, which explicitly prohibits the death penalty. Warr (1995) argues that norms have more impact if they accord with the preexisting social understanding. Indeed, leaders who retain executions refer to public opinion, even in undemocratic states like Belarus.2 Nevertheless, in most states, the punishment was abolished despite its popularity among the public (Garland, 1990, 246). In short, the norm against the death penalty in Europe is strong, which is acknowledged even by Belarusian officials, who concede the pre-eminence of the norm in Europe even as they explain why executions in Minsk continue. The Transnational Network Operating in Belarus The strength of the transnational network seeking abolition is determined by the availability of resources, support by national governments and inter-governmental institutions, and strong links to domestic civil society in the target state (Risse, 2000, 204–5). All of these factors are present in the Belarusian case. The normative pressure on Minsk comes from international and Belarusian NGOs, individual national governments, the CoE, the EU, the OSCE and the UN (see Table 11.1). The key role is played by Amnesty International, which has campaigned against the death penalty in the region since the 1970s. AI published several reports on Belarus and initiated a capacity-building effort aimed at Belarusian civic activism on the death penalty. In 2008, AI held a seminar on campaigning against the death penalty in Ukraine (because AI and the invited NGOs were not registered in Belarus; McGill, personal communication). AI works directly on individual cases, participates in high-level lobbying, and has developed a ‘close working relationship with the CoE’ (Jung, personal communication). The death penalty in Belarus has also been taken up by the international NGO Hands Off Cain and by NGOs in Poland and Lithuania, which have large Belarusian diasporas and many organizations dedicated to human rights violations in Belarus, as well as in other countries. The domestic civil society organizations in Belarus, which have more traditionally focused on freedom of expression and assembly, became actively involved in the abolition of the death penalty because they saw it ‘as a less political issue’ that could ‘unite civil society’ (McGill and Jung, personal communications3). 2  One possible explanation for why public opinion on the death penalty seems so important for authoritarian leaders, according to Anckar (2004, 170), is that ‘[i]n situations where authoritarian governments face the difficult task of legitimating their rule, it is difficult to see why they should confront the population in an issue which does not constitute a threat to is rule.’ 3  Heather McGill is researcher on the Eurasia Team of AI (interviews 11 and 12 January 2011).

Capital Punishment: New Perspectives

232

Table 11.1

Transnational network for the abolition of the death penalty in Belarus

BELARUS Viasna Human Rights Centre (1996)

Documents and publicizes executions; petitions the authorities; liaises with the UN bodies; also involved in other human rights campaigns

Belarusian Helsinki Committee (1995)

Publishes reports about executions; petitions the authorities; monitors other human rights violations

Belarusian PEN-center (1989)

Participates in 2009 campaign against the death penalty

Belarusian Association of Journalists (1995)

Educates the public on the death penalty issue; launched 2009 campaign

Belarusian Center for Constitutionalism

Published Abolishment of Death Penalty in Belarus

Assembly of Pro-democratic NGOs (1997) Legal Initiative

Supports the abolition campaign by publicizing information Educates the public and the officials on the issue

EU STATES Horizon – against Death Penalty (2010) (Poland)

Holds events in support of abolition; teaches a course for abolitionists; promoted the movie on death penalty made by Belarusian activists

Belsat TV Channel (2007) (Poland)

Helped make and screen the movie about the death penalty

Belarus Watch (2004) (Lithuania)

Supports the campaign, but focuses on elections and freedom of movement

Belarusian Human Rights House (2006) (Lithuania)

Supports human rights defenders in Belarus, participates in the abolition campaign

International Association Civic Belarus (2004) (Czech Republic)

Supports Viasna and the abolition campaign by publicizing information

German Coalition Against DP (1997) (Germany)

Publicizes information about the death penalty in Belarus; mobilizes public opinion in Germany

INTERNATIONAL Amnesty International (1961)

Monitors executions; documents cases; examines prison conditions; appeals to the authorities

Hands Off Cain (1993)

Pressured Italian government to intervene; publicizes information

Human Rights Watch (1978)

Mobilizes public opinion; documents executions

Transnational Networks and Norm Compliance Academic Network against Capital Punishment

Provides expertise on the issue; publicizes information and mobilizes public opinion

Poster for Tomorrow (2009)

Organized competition of posters “Death is not justice” in Belarus in 2009

233

REGIONAL ORGANIZATIONS EU (1993)

Made abolition a condition for closer relations with Belarus

CoE (1949)

Raises individual death penalty cases with the authorities; stripped Belarus of its special guest status in 1997 over human rights concerns

OSCE (1975)

Calls on Belarus to abolish the death penalty; publishes case studies on retentionist states

UN (1945)

Addresses human rights violations in Belarus in the Universal Periodic Review; repeatedly called on Belarus to abolish the death penalty and to make information on the death penalty public; issues nonbinding resolutions; criticizes Belarus’ violations in its rulings

The leading domestic organizations campaigning for abolition are Viasna and the Belarus Helsinki Committee (BHC). These organizations increase public awareness by mobilizing the media and public opinion, gather first-hand evidence in specific cases, and help appeal cases to the UN bodies.4 They also send open letters to the president asking for pardons (Viasna, 2009). Human rights activists stage pickets outside the Presidential Administration in Minsk and around the country, and are often detained and fined (Viasna, 2009; Viasna, 2010). The domestic civil society organizations also appeal to public figures to petition the authorities.5 In co-operation with CoE, the Belarusian Center for Constitutionalism and the Belarusian organization Legal Initiative (Pravovaia Iniciativa) have published over thirty books on Belarus’s legal system and its human rights record, including

4  Arguably, their main mission lies in informing the public and not helping the convicted. Oleg Alkaev, who headed the execution command of the Minsk Isolator for five years, said that sometimes human rights defenders have actually made matters worse by ‘putting the court in a situation where a sympathetic verdict was impossible because it would seem to be a concession to the [human rights] defender’ (personal communication, 5 January 2011). 5  One such petition was delivered to the Presidential Administration and Parliament in 2009, signed by more than thirty well-known cultural and civil activists, human rights defenders, lawyers and scientists. In 2010, English musician Sting announced support for the campaign.

234

Capital Punishment: New Perspectives

several volumes on the abolition of the death penalty in Belarus (for example, Filippov and Vashkevich 2003; Filippov and Vashkevich, 2007). In January 2009, a new campaign, Human Rights Activists against the Death Penalty campaign was launched by activists from Viasna, BHC, the Belarusian PEN-center, the Union of Belarusian Writers and the Belarusian Association of Journalists (BAJ). In Belarus, the campaign was also supported by the Belarusian Social Democratic Party, the United Civil Party, the Young Democrats, and the Civil Forum. The activists informed the people about executions in Belarus, submitted a petition to the authorities, and organized a contest of creative works on the issue.6 The campaign was chosen as the civil campaign of the year by the Belarusian Assembly of Pro-democratic NGOs in December 2009. The efforts of domestic and transnational activists suffer from the ‘rigid and hostile political environment’ in Belarus (Expert Council on NGO Law of the Council of Europe, 2009). As of January 2009, there were only 0.2 officially registered NGOs per 1,000 Belarusians (the average in Europe is four; Sahm, 2009, 51). NGOs face obstacles when trying to register, and any activity on behalf of non-registered NGOs is a criminal offence under Article 193-1 of the Criminal Code. Those organizations that do pass the registration process cannot carry out their activities freely because of strict supervision by the government. Even AI was denied registration in Belarus. Viasna also operates without registration; its request has been denied three times for politically motivated reasons.7 The problem is exacerbated by the fact that most organizations campaigning for abolition are also interested in the broader issues of human rights and democratic freedoms, which increases the likelihood of state persecution. The norm against the death penalty has mobilized a vibrant transnational network that includes not only civil society actors, but also the EU, the CoE, the UN and the OSCE. In the Guidelines to EU Policy towards Third Countries on the Death Penalty adopted in 1998, the EU vowed to ‘work towards the abolition of the death penalty as a strongly held policy view agreed by all EU member states’ (Council of the EU, 1998). During 1994–2007, the EU allocated more than 11 million euros for civil society projects aimed at raising public awareness, conducting studies, training lawyers and securing access to legal support for death row inmates (Europa, 2007). The last executioner in Europe, Belarus bears the brunt of the EU’s efforts, and is censured and sanctioned on a regular basis. The UN Committee against Torture, the UN Human Rights Committee, and the UN Third Committee also criticize executions in Belarus. In addition to condemnation, the UN adopts non-binding resolutions, investigates human rights violations, and reviews appeals from the relatives and lawyers of people on 6  Uladzimir Shcherbau, personal communication; Scherbau is the adviser to the UN Representation in the Republic of Belarus, interviewed 23 November 2010 and 4 January 2011. 7  UNHRC (2007); Valiantsin Stefanovich, personal communication; Stefanovich is Deputy Head of Viasna, interviewed 16 November 2011.

Transnational Networks and Norm Compliance

235

death row. In September 2010, the UN Human Rights Council adopted the Universal Periodic Review outcome on Belarus, in which 14 states raised concerns about the death penalty in Belarus. The Committee of Ministers of the CoE and the Parliamentary Assembly of the Council of Europe (PACE) are the strongest crusaders against the death penalty. In 1995, PACE made abolition a precondition for joining the CoE, which led to a wave of policy changes in the post-Soviet countries. Belarus was stripped of its CoE special guest status in 1997 over human rights concerns. PACE indicated readiness to restore it for the first time only in 2009, pending ‘substantive and irreversible progress towards Council of Europe standards’, particularly in regard to the electoral process, respect for political freedom and media pluralism, and the death penalty (Hurskainen, 2009). The CoE raises death penalty issues with Belarusian authorities year after year, making clear that ‘Belarus could never hope to be considered for CoE membership as long as it maintains these brutal punishments’ (CoE Secretary General Walter Shwimmer, quoted in AI, 2004). Belarusian human rights groups have identified the CoE’s influence as central (Viasna, 2002), and so have Belarusian officials, who have dubbed the death penalty ‘a CoE rule’. The OSCE has also consistently called on Belarus to abolish the death penalty. Since 1999, the OSCE has prepared an annual background paper, The Death Penalty in the OSCE Area, asking the Belarusian authorities to answer a questionnaire on the issue. Norm Socialization Mechanisms In the end, even strong norm pressure and a robust network of actors seeking to induce compliance leave the decision to comply with the target state. Most theoretical explanations on norm compliance follow either a rationalist or a constructivist logic. The former focuses on cost–benefit calculations, material reinforcement and coercion (for example, Wagner, 1998). According to rationalist logic, transnational pressure changes the cost–benefit analysis of a target state; the constructivist approach emphasizes learning and persuasion (Adler, 1997; Ruggie, 1998), and explains compliance as a change in preferences through learning and interaction (Finnemore and Sikkink, 1998; Price, 1998). Checkel (2005, 804) bridges the constructivist and rationalist mechanisms by distinguishing between Type I and Type II norm socialization. In Type I socialization, norms are not internalized, and actors engage in cost–benefit analysis and/or role-playing; this type is consistent with rationalist bargaining explanations and the constructivist mechanism of social protest/mobilization. Type II socialization implies norm internalization, and occurs by a more involved

236

Capital Punishment: New Perspectives

mechanism of ‘normative suasion’ (Checkel, 2005, 804).8 Similarly, Simmons (2009, 58) divides states into sincere ratifiers, false negatives (which are committed in principle, but fail to ratify) and strategic ratifiers (which ratify for immediate rewards or to avoid criticism). Sincere ratifiers result from Type II socialization via normative suasion; strategic ratifiers result from Type I socialization that changes the costs/benefits of compliance and/or leads to compliance via exposure and communication; false negatives occur at the intersection of the two mechanisms: when the costs of norm adoption are high (for example, when complex changes to legislation are involved), but normative suasion has succeeded. Type II socialization that results from normative suasion usually comes after Type I socialization has already occurred (Checkel, 2005). Therefore, this chapter does not address Type II socialization in the case study of Belarus, where Type I socialization failed. The features of the two other norm socialization mechanisms are explained below. Strategic Calculation and Conditionality If a state’s leadership is not committed to the norm due to deeply held beliefs, it may engage in cost–benefit calculations when considering whether to comply. In this case, reinforcement rather than persuasion could lead to a behavioural change (Schimmelfennig, 2005b, 107). This approach is taken by the scholars of political conditionality (who tend to emphasize inter-governmental channels) and by the scholars who explore the changes in states’ utility calculations resulting from transnational norm pressure (for example, Kelley, 2004; Finnemore and Sikkink, 1998). In particular, Schimmelfennig argues that the effectiveness of conditionality depends on the size of international rewards versus domestic norm adoption costs, and the credibility of conditionality. Cost–benefit calculations can be changed by material or social reinforcement (Schimmelfennig, 2005b, 108–9). The more the norms ‘affect the security and integrity of the state, the government’s power base, and its core political practices of power preservation’, the more the costs grow (Schimmelfennig, 2005a, 3). The highest costs are those of adopting liberal norms, which ‘limit the autonomy of governments and prohibit the use of certain instruments to preserve their power’ (Schimmelfennig, 2005, 111). This is why liberal norm compliance by undemocratic states is only possible when the costs of compliance are offset by major external gains that come from NATO and EU membership (Schimmelfennig, 2005a, 6).

8  Here I view the choice of a strategy as independent from the type of agency. However, some scholars see the changes in cost–benefit analysis as effected primarily by intergovernmental agents (rather than both transnational civil society and intergovernmental actors) and the transnational civil society channel as utilizing exclusively the social learning and interaction mechanisms (see, for example, Schimmelfennig (2005b), 107).

Transnational Networks and Norm Compliance

237

From Role-playing to Linkage and Leverage Mechanisms Norm socialization often involves more than getting the incentives and disincentives right. According to Checkel (2000, 19), the very process of social interaction within international organizations can promote state compliance by means of ‘policy dialogues, jawboning, learning, persuasion’. Compliance via role-playing works through ‘prolonged exposure and communication’. The result is that the target actors adopt roles ‘because it is easier socially, as opposed to only and always acting strategically and instrumentally’ (Checkel, 2005, 810–11). Importantly, institutional contact may be much more likely to lead to norm socialization when combined with contact in other areas and strengthened by the high leverage of the socializing agent. In particular, Way and Levitsky (2007) argue that the differences along the dimensions of linkage and leverage are crucial for explaining why democratization succeeds in some post-Communist states but not in others, and I extend their argument to explain the socialization of European norms like the norm against the death penalty in the FSU. Way and Levitsky define Western leverage as ‘governments’ vulnerability to external democratizing pressure’ (Way and Levitsky, 2007, 50). Leverage raises the cost of building and maintaining an authoritarian regime (Way and Levitsky, 2007, 51). Leverage rarely leads to effective democratization unless it is combined with linkage, conceptualized as ‘the density of ties (economic, geographic, political, diplomatic, social, and organizational) and cross-border flows (of capital, goods and services, people, and information)’ between a target state and the USA, the EU and Western-dominated institutions (Way and Levitsky, 2007, 53). Strong linkage makes the regime’s abuses known to the international community, increases the probability of a Western response, creates domestic actors interested in good relations with the West, and when ‘combined with leverage reshapes the domestic balance of power within authoritarian regimes’ (Way and Levitsky, 2007, 60). In contrast, weak linkage limits constraints on autocratic governments, undermines Western influence in the country, and undercuts ‘the development of a powerful domestic constituency for democracy and good relations with the West’ (Ekiert, Kubik and Vachudova, 2007, 25). Linkage encompasses contact, seen by Checkel as crucial for socialization via role playing. In combination with leverage, linkage seems more appropriate for explaining norm compliance in the post-Soviet region. It is notable that the states that abolished the death penalty earliest and under the least pressure were those located closest to and with the greatest economic and social ties with Western Europe (Fawn, 2001, 72). Abolishing the Death Penalty in Belarus: One Step Forward, Two Steps Back The Criminal Code of Belarus (1999) provides for capital punishment for 12 offences during peacetime and an additional two offences during wartime, and

238

Capital Punishment: New Perspectives

specifies the temporary nature of capital punishment.9 A person sentenced to death has the right to appeal to the Supreme Court, and then to petition the Presidential Commission for a pardon (Article 84.19 of the Constitution). Executions take place in the Minsk Isolator by shooting, usually approximately a year after sentencing. Reading Belarusian headlines, one gains an impression that a moratorium is just around the corner.10 Indeed, since 1991, the legal system has been liberalized and the 1961 Soviet Criminal Code has been amended. In 1993, the death penalty was abolished for four types of economic crimes; in 1997, life imprisonment was introduced (but terrorism was added to the list of crimes attracting the death penalty). However, these developments cannot be attributed to transnational pressure and do not signify a serious commitment to end executions. Progress slowed in the 2000s, and the death penalty was not even mentioned in the 2010 ‘Concepts for Improving the System of Criminal Prosecution’ (Lukashenka, 2010). Giving in to transnational pressure, the Belarusian Parliament held a hearing on the death penalty in May 2002. Although the majority opposed the abolition of the death penalty or the introduction of a moratorium, the National Assembly (2002) issued a series of recommendations on how to further the decision on the issue. Acting on the recommendations, in March 2004 the Constitutional Court reviewed the application of death penalty and concluded that the constitution allows ‘the president or the parliament’ to declare a moratorium or abolish the death penalty. The court said that the results of the 1996 referendum, in which 80.44 per cent of Belarusians voted in favour of retaining the penalty, was only of an advisory nature, and pointed out the lack of factual basis for the relationship between the crime rate and the presence of the capital punishment (Constitutional Court of the Republic of Belarus, 2004). At the same time, the Belarusian authorities have openly resented the norm pressure. For years, Minsk denied the UN Commission on Human Rights Special Rapporteur on Belarus access to the country, refused to follow the recommendations of the UN Human Rights Committee on the treatment of convicts’ relatives, ignored AI’s requests for statistics on executions, turned down meetings, and punished activists with detentions and fines (Viasna, 2007; Viasna, 2009; Viasna, 2010). The very timing of sentences and executions is telling. In 2009, a death sentence was 9  These are as follows: launching aggressive war (Art. 122.2), murdering a representative of a foreign state or international organization with the intention to provoke international tension or war (Art. 124.2), international terrorism (Art. 126), genocide (Art. 127), crimes against humanity (Art. 128), application of weapons of mass destruction (Art. 134), violations of the laws and customs of war (Art. 135.3), murder committed under aggravating circumstances (Art. 139.2), terrorism (Art. 289.3), treason that results in loss of life (Art. 356.2), conspiracy to seize power (Art. 357.3), terrorist acts (Art. 359), sabotage that results in a loss of life (Art. 360.2) and murder of a police officer (Art. 362). 10  For example, ‘Belarus is Approaching the “Actual Moratorium” on the Death Penalty’, BelaPAN, 8 February 2006; Roman Rud, interview with Valentin Sukalo, Sovetskaya Belorussiya, 1 December 2007; ‘Kaznit Nelzia Pomilovat’, Informationalanalytical Portal of the Union State, 10 September 2008.

Transnational Networks and Norm Compliance

239

passed less than a week after PACE voted to restore Belarus’s special guest status, and two more death sentences were passed two days after a UN Universal Periodic Review Working Group criticized the May 2010 executions. Belarusian officials are dismissive of the pressure from the civil society, and only slightly more cognizant of the CoE’s and EU’s requests.11 Although they feel the need to explain that they are not ‘cruel’ (ITAR-TASS, 11 April 1998, cited in Fawn, 2001), transnational demands often only strengthen the authorities’ desire not to give in to the West. The official line is that if the death penalty is ever abolished in Belarus, it will not be because of European requests, but because domestic public opinion has changed (Konstantinov, 2009). The president says that although ‘Europe insists’, he cannot ‘go against the will of the people’ who voted against abolition in a referendum.12 Transnational actors are blamed for not understanding the situation, and Belarus is said to follow its own path of development. Responding to the CoE, Belarusian officials correctly point out that abolition of the death penalty is a precondition for accession rather than for special guest status, which is denied to Belarus (Foreign Ministry of the Republic of Belarus, n.d.). Virtually all officials have cited the results of the 1996 referendum as a reason for not moving towards abolition.13 Uncovering whether the ‘will of the people’ has changed is difficult, as only government-controlled organizations are allowed to conduct polls.14 Notably, even in the 2009 poll conducted by the Information and Analytical Center of the Administration of the President (2009), with only 4.5 per cent of respondents opposing the death penalty, improving Belarus’s reputation in

11  For example, Belarusian Minister Sergei Martynov answered a question about human rights violations and the continuing executions with ‘I don’t know of a country where NGOs would not like to have more from the government than they do have, the same is true for Belarus, for the United Kingdom, France, Belgium, the United States.’ Foreign Minister Sergei Martynov, interview with Agence Europe, 29 July 2009, www.mfa.gov.by/ en/publications/media/d6d9c86fad8bee01.html (accessed 20 May 2013). 12  Interview with President of Belarus Alexander Lukashenka with Reuters, 4 May 2010, http://president.gov.by/press10274.html (accessed 3 May 2013). 13  In 1996, when the longest available prison sentence was 15 years, 80.44 per cent of those who took part in the referendum did not support the abolition of the death penalty and only 17.93 per cent did. All in all, 84.14 per cent or 6,181,463 people took part in the referendum. Among the questions brought up by the President of the Republic was amending the 1994 Constitution that removed the limit on the number of terms a president could serve; announcement of the Central Committee of the Republic of Belarus on elections and holding republican referenda, 1996. 14  Strict rules regulate the licensing of organizations that conduct public opinion polls. See Decision of the Council of Ministers of the Republic of Belarus no. 1240, On Some Issues of Carrying Out Public Opinion Polls Related to Republican Referenda, Elections and Socio-Political Situation in the Country and on Publication of their Results in Mass Media, 8 November 2005.

240

Capital Punishment: New Perspectives

Europe was cited among the benefits of abolition.15 Most officials admit that at the end of the day, the decision lies with the president, who possesses nearly absolute power,16 rather than with the Belarusian public. Costs and Benefits of Abolishing the Death Penalty in Belarus Scholars agree that the abolition of the death penalty in the post-Soviet region was mainly a result of strategic considerations (Hood and Hoyle, 2008, 24). Therefore, it may be that executions persist in Belarus because the costs of abolishing the penalty exceed the benefits. Domestic Adoption Costs Schimmelfennig (2005b) shows that adopting liberal norms becomes too costly for authoritarian governments if it endangers their grip on power. Indeed, some researchers find an ‘indissoluble link between dictatorship and death penalty’ (Badinter, 2004, 11). Duner and Geurtsen (2002, 13) note that 70 per cent of countries categorized as ‘free’ by Freedom House have signed one of the three protocols abolishing capital punishment, whereas only 30 per cent of countries labelled ‘partly free or not free’ have done so. However, the links between regime type and the death penalty are tenuous at best in the post-Soviet region, where Belarus lags behind other authoritarian states (Turkmenistan, Kyrgyzstan, Tajikistan and Uzbekistan) (see Table 11.2). Abolishing the death penalty would not entail high costs for the Belarusian regime. First, although death sentences may be handed down for crimes like terrorism, treason and sabotage, which theoretically allows the use of the punishment as a political weapon,17 in practice, the death penalty has been applied only for aggravated murders. When the regime needs to blackmail the opposition or intimidate human rights activists, it has a wide variety of more credible tools at hand. Moreover, extrajudicial executions remain an option even with a moratorium on the death penalty in place. Second, the nature of the legal system and the features of the ratification process further decrease the abolition costs in Belarus. Given the strength of the executive, the president could easily decree a moratorium, as happened in Ukraine, where the population opposed abolition 15  Interestingly, a June 2009 poll by the Independent Institute of Socio-Economic and Political Studies (IISEPS) showed different results, with 47.8 per cent voting in favour of retaining the punishment; www.iiseps.org/06-09-06.html (accessed 20 May 2013). 16  Studies show that presidential leadership was also crucial for the abolition of the death penalty in Ukraine (Bae, 2007, 25–37). 17  In 2006, following the presidential election, the head of the state security services was quoted by major media sources as stating that the demonstrators could be punished with measures ranging ‘up to the death penalty’ (Mazaeva, 2006).

Transnational Networks and Norm Compliance

Table 11.2

241

Ending executions in the FSU Freedom House rankings in the year of abolition

State

Year

Details

PR

CL

Moldova Russia Georgia Estonia Lithuania Azerbaijan Latvia Turkmenistan Ukraine Armenia Tajikistan Kyrgyzstan Kazakhstan

1995 1996 1997 1998 1998 1998 1999 1999 1999 2003 2004 2007 2008

Uzbekistan Belarus

2008 —

All Moratorium All All All All All (since 2012) All All All Moratorium All Ordinary crimes

4 3 3 1 1 6 1 7 3 4 6 5 6

All

7 7

—

Status

CoE membership

4 4 4 2 2 4 2 7 4 4 5 4 5

PF PF PF F F PF F NF PF PF NF PF NF

7 6

NF NF

1995 1996 1999 1993 1993 2001 1995 — 1995 2001 — — Applied for special guest status, 1999 — Special guest status revoked, 1997

Note: Each pair of political rights (PR) and civil liberties (CL) ratings is averaged to determine an overall status of Free (F, 1.0–2.5), Partly Free (PF, 2.51–5.5), or Not Free (NF, 5.51–7.0). Sources: Freedom House, Freedom in the World Annual Reports; Center for Systemic Peace, Memberships in Conventional Intergovernmental Organizations 1952–1997, Armed Conflict and Intervention (ACI) Project (1997).

(Bae, 2007, 39). The legal framework is also ready: the idea that Belarus will abolish the death penalty is enshrined in the constitution and the Criminal Code, and the execution rate is low (two to five people per year).18 At the same time, the costs of retaining the death penalty have grown since all other states in the region have abolished executions.

18  In comparison, Uzbekistan abolished the death penalty with 48 people still on death row (OSCE, 2009), and Ukraine executed 167 people on the eve of death penalty abolition in 1996 (AI, 1996).

242

Capital Punishment: New Perspectives

The Size of Rewards It is clear that although the Belarusian administration is not looking for EU accession, it does want to co-operate with the EU in selected areas (Rontoyanni and Korosteleva, 2005, 216–17), and Belarus has a lot to gain by stopping executions. First, abolition of the death penalty is one of the key CoE membership requirements, which was sufficient to persuade other FSU states (including Russia) to abolish executions.19 The benefits of compliance start with the executive and trickle down to the Belarusian parliament, which would get a seat at PACE.20 Schimmelfennig (2005a, 3) argues that the CoE has no ‘major tangible material or political benefits to offer … unless their criticisms and demands were taken up by the EU and NATO’. In the case of Belarus, all PACE resolutions explicitly ‘encourage’ the EU and the USA to continue sanctions. Moreover, while EU accession would result in an almost certain loss of power for the Belarusian president and his inner circle (most of whom are already personae non gratae in the EU), participation in the CoE and enjoying a more cordial relationship with other European structures would bring tangible benefits at a smaller cost. Of course, accession to the CoE would also put Belarus under the jurisdiction of the European Court of Human Rights – but this did not deter other FSU states. Second, by abolishing the death penalty and addressing several other human rights issues Belarus would gain economic integration with the EU. It would become a full participant in the European Neighbourhood Policy (ENP) (on ENP conditionality, see Lavenex, 2008) and the Eastern Partnership.21 Rapprochement with the EU would boost the economy and open up a huge market to Belarusian products (European Commission, 2006). If Belarus complies with the 12 EU conditions (which include abolition of the death penalty), the EU will ‘significantly increase European financial assistance’ to Belarus, making it comparable to the 19  On 25 January 1996, PACE requested Russia to ‘ratify within three years from the time of accession Protocol No. 6 to the ECHR on the abolition of the death penalty in time of peace’. However, Russia remains the only CoE member state that has not abolished the death penalty’. PACE, Opinion no. 193 on Russia’s Request for Membership of the Council of Europe, January 1996, 251996, http://assembly.coe.int/documents/ AdoptedText/ta96/EOPI193.HTM (accessed 20 May 2013). 20  The possibility of restoring ties with the CoE seems to have motivated the Belarusian Parliament to establish a working group to draft a proposal for the introduction of a moratorium in 2009. ‘Dialogue with Belarus Must Start Again’, PACE news item, 22 January 2008, http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView. asp?ID=3497 (accessed 15 January 2011). 21  In order for Belarus to participate in the ENP, the EU needs to ratify its Partnership and Co-operation Agreement with Belarus, which was cancelled at the same time as Belarus’s special status in the Council of Europe (1997) because of Belarus’s human rights violations’. ‘European Neighbourhood and Partnership Instrument: Belarus’, Country Strategy Papers 2007–2013 and Nation Indicative Programme 2007–2013, http://ec.europa.eu/world/enp/ pdf/country/enpi_csp_nip_belarus_en.pdf (accessed 20 May 2013).

Transnational Networks and Norm Compliance

243

assistance received by Belarus’s neighbours (European Commission, 2006). Today, the greatest beneficiaries of EU funds in descending order are Ukraine (assigned 964 million euros for the period 2007–13), Moldova (482 million euros), Georgia (300 million euros), Armenia (255 million euros) and Azerbaijan (214 million euros). Belarus receives only limited funds for technical co-operation and support for democratization, which bypasses the regime’s coffers, – a total of 20 million euros, according to the Eastern Partnership (EaP) Community website.22 However, one problem with measuring the costs of and rewards for Belarus’s compliance is that the rewards for abolition are tied to improvements in other areas. The EU’s and the CoE’s conditions come in batches, and it is unclear whether an improvement on the death penalty alone would be sufficient for the rewards to materialize. Among the conditions are ensuring the right to elect leaders democratically and improving media freedom (European Commission, 2006). These requirements impose the highest costs on autocratic regimes (Schimmelfennig, 2005a, 3).23 If Belarus abolished the death penalty but cracked down on the media the next day, the EU would withhold rewards and impose new sanctions. If Belarus fulfilled many of the EU’s demands, Alyaksandr Lukashenka’s regime would suffer a fatal blow. Therefore, while there is no doubt that stopping executions would remove a major source of European criticism, the actual rewards are uncertain and the total costs might be high. Credibility According to Schimmelfennig (2005a, 2, 111), the credibility of rewards for norm compliance depends on the capabilities and costs of the socialization agency and on the consistency of norm promotion policies. The EU’s financial capabilities are high while the costs of extending its ENP and EaP policies to Belarus are low. The same goes for the CoE, which has already accepted all other post-Soviet states as members. The EU has also been consistent in its demands for human rights improvements in Belarus. However, as Bosse (2009) argues, the credibility of EU’s conditionality is undermined by its ‘highly contradictory’ objectives in Belarus. In particular, the EU’s concern for its own security explains its strict immigration and border policies that weaken European ties with the Belarusian people and its continuing co-operation with the regime on technical issues, which undermines the EU leverage in Belarus. Anxious to provide for its energy needs, the EU sometimes contradicts its own rhetoric with its actions, as examined in more detail below.

22  EaP Community, Country Allocations, www.easternpartnership.org/programmes/ country-allocations (accessed 20 May 2013). 23  The EU attempted a ‘step-by-step approach’ to Belarus in 2002, with each step towards democratization followed by gradual resumption of dialogue and assistance, but the approach was cut short the same year.

244

Capital Punishment: New Perspectives

Linkage and Leverage in Belarus As argued above, transnational pressure may also fail because of weak European linkage to Belarus, which limits the opportunities for socialization of the norm against the death penalty. Weak linkage results from the EU’s self-interest (for example, strict visa policies) and partly from its deliberate policy of isolation (for example, keeping Belarus out of the ENP. Below, I evaluate Belarus on the six dimensions of linkage suggested by Way and Levitsky (2007, 53): 1. economic linkage (flows of trade, investment and credit); 2. intergovernmental linkage (bilateral diplomatic and military ties, participation in European alliances, treaties and international organizations); 3. social linkage (flows of people across borders); 4. information linkage (information flows across borders); 5. civil society linkage (ties to transnational networks); 6. geographic proximity.24 The EU’s economic linkage is considerable, as it is Belarus’s largest export partner, accounting for 38.9 per cent of all Belarus’s exports, and its second largest import partner after Russia (DG Trade Statistics, 2010). By comparison, in 1999, when Ukraine abolished the death penalty, its exports to the EU comprised only 18.3 per cent of all goods (Sidenko, n.d., 48), and today the proportion of Ukraine’s trade with the EU is similar to Belarus’s, even though Minsk suffers from EU sanctions and has faced the tightest bilateral textile trade regime of all EU trade partners. European linkage is also strengthened by Belarus’s geographic proximity. Since 2004, the country borders three EU member states, which broadens opportunities for interaction with the EU. However, the geographical factor is undermined by the weakness of social linkage. While the flows of political refugees grow with each bout of repressions, the flows from tourism suffer from the EU’s restrictive visa policies.25 Obtaining a Schengen visa takes an immense amount of paperwork and costs one third of the average Belarusian monthly wages. With the adoption of the Schengen regime by neighbouring Poland, Lithuania and Latvia in 2007, the volume of visas issued to Belarusians by these states decreased by 73 per cent, 52 per cent and 34 per cent, respectively. The Stephan Batory Foundation (2009, 7) concludes that the EU’s visa policies amount to ‘a new “Iron Curtain”’.

24  Because of the nature of other norm-promoting actors, I will focus on the EU linkage here, even though the abolition of the death penalty is not just the EU norm. 25  In 2010, Belarus was ranked 72nd in the 98-country Visa Restrictions Index, which means that citizens of the 71 other countries included in the list had better travelling opportunities. See Henley & Partners (2010), Visa Restrictions Index Global Ranking, www.henleyglobal.com/fileadmin/pdfs/content/hvri2010_globalRanking.pdf (accessed 20 May 2013).

Transnational Networks and Norm Compliance

245

The information and civil society linkages are also weak as a result of the Belarusian government’s control over the mass media and civil society. Western media penetration remains low. In 2008, 85 per cent of newspapers and 75 per cent of electronic media in Belarus were state-owned, and the subsequent media laws only exacerbated the situation (BAJ, 2009, 7). The Internet could be crucial for increasing the EU–Belarus information flow. In 2011, about 39.6 per cent of the population had Internet access. However, Internet use is restricted to websites registered with the Information Ministry. The only Internet service provider in Belarus is the state-owned Beltelecom, which controls access to international websites and monitors traffic. The civil society linkage also suffers from the repressive situation in the country, described earlier in this chapter. However, ties to European NGOs are strong, especially in the area of human rights, where EU support is a primary lifeline. It is along the dimension of intergovernmental linkage that Belarus differs most starkly from other FSU states. Limited technical co-operation notwithstanding, Minsk has been isolated for most of its history, while other FSU states have participated in regional organizations and initiatives (including the CoE, the ENP and the EaP). For example, Ukraine’s compliance would have been unlikely without the intensive contact between the EU, the CoE and Kiev in the five years between Ukraine’s CoE accession and the abolition of the death penalty. Bae (2007, 34–6) writes that the CoE ‘maintain[ed] a continuous dialogue at all levels’, holding not only ‘regular, confidential monitoring sessions’, but also ‘private meetings between council officials and the Ukrainian elites’. This approach is very different from the European approach to Belarus, where socialization efforts have been abandoned since the mid-1990s (Flockhardt, 2005a, 68). The chances of successful norm socialization were weakened the day the CoE stripped Belarus of its special guest status in 1997. Since 1997, the EU has avoided most ministerial contacts with Belarus, and the OSCE Parliamentary Assembly refused to accept delegations from the Belarusian Parliament (Rontoyanni and Korosteleva, 2005, 214). For several years in the 1990s, all European actors (the CoE, the OSCE and the EU) continued to recognize the Belarusian Parliament elected before 1996 as the only legitimate parliament of Belarus, which ‘meant that only the forty-two opposition (former) deputies were admitted to European forums’ (Rontoyanni and Korosteleva, 2005, 212). Inter-governmental linkages also suffer from the travel restrictions imposed by the EU and the United States on a range of senior Belarusian officials in 2006 (the list has been expanded and amended several times since then). Exacerbating the isolation, Belarus is itself eager to expel the representatives of the socializing agencies that come to Minsk (for example, the EU and US ambassadors in 1998, the OSCE mission in 2010 and Polish and EU ambassadors in 2012). Belarus’s isolation conceals its violations, decreases Minsk’s motivation for bringing the legal system in line with international standards, and deprives officials of the training offered through the CoE (McGill, personal communication).

246

Capital Punishment: New Perspectives

Norm socialization also suffers from the insufficient European leverage in Belarus. Way and Levitsky (2007, 50–51) define leverage by three factors: the size and strength of countries’ states and economies (most important), competing Western foreign policy objectives, and the existence of countervailing powers. Belarus has a small economy vulnerable to external pressures, and the EU’s economic leverage is immense, its 2009 GDP of US$14,794 billion being 122 times greater than Belarus’s GDP (UNIDO, 2009). However, European leverage suffers from competing foreign policy objectives due to Belarus’s role as a major transit country for Russian oil and gas, as evident in many EU official documents (for example, Commission of the European Communities, 2004). Although Russia remains in control of the energy flows across Belarusian territory, EU–Belarus energy co-operation is important enough for the EU to maintain technical cooperation with the regime regardless of its human rights violations (Commission of the European Communities, 2008, 9). More importantly, European leverage in Belarus is weakened by Russia’s influence. Moscow steps in as soon as Brussels steps out, providing Belarus with economic, military and diplomatic support. Belarus’s foreign policy and economics are increasingly oriented towards Moscow, Belarus’s largest trade partner,26 with which Belarus also shares many cultural links (Sannikov, 2002, 222–31). Russian energy subsidies account for about 20 per cent of the country’s GDP, and play a key role in the survival of authoritarian rule in Belarus (Aslund, 2002). The creation of the customs union with Russia in 1995 buttressed the Belarusian economy, which remains the most unreformed in Europe, as the country is able to sell goods to Russia by way of barter at inflated prices (Zlotnikov, 2009, 68). Belarus was forced to rely on Russia in the economic crisis in early 2011 after the IMF refused it a loan due to the lack of reforms. This allowed Russia to gain control of several of Belarus’s economic assets, including Beltransgaz, which controls the pipelines and other infrastructure on Belarusian territory. In January 2012, Belarus, Russia and Kazakhstan created a ‘common economic space’, which will further increase Russia’s leverage. As shown above, linkage between Belarus and Europe is weak on many dimensions. No interaction occurs outside the few areas of mutual interest, and these happen to be the very areas where norm socialization is undermined by the EU’s competing objectives and Russia’s interference. Intentional isolation has left European actors with virtually no channels of influence, and contributes to explaining the failure of transnational norm pressure in Belarus.

26  In 2009, trading with Russia (export and import) accounted for 47.3 per cent of Belarus’s trade (DG Trade Statistics 2010).

Transnational Networks and Norm Compliance

247

Conclusion Portrayed as an ultimate ‘outsider’ and Europe’s last dictatorship (for example, Marples, 2005), Belarus offers an important analytical challenge to understanding transnational norm influence in the post-Soviet region. While some argue that socializing Minsk was hopeless from the start (for example, Flockhardt, 2005b, 19), I contend that Belarus’s odd status among FSU states is an unintended consequence of the deliberate European policy of isolation. The strong norm against the death penalty in Europe has mobilized an impressive network of actors pressuring Minsk to stop executions. However, strong norms, vibrant transnational networks and low costs of compliance proved insufficient for successful norm socialization. The main conclusion of this study is that the ability of transnational actors to exploit European conditionality towards their goals suffers from weak European linkage and leverage in Belarus. Isolation can be a useful policy tool, but it has failed in Belarus, for several reasons. First, isolation is incomplete because European states need to engage the regime at least on the issues of energy security, border protection and immigration. Despite European states’ democratic principles, they cannot neglect the security of their own citizens, and are therefore forced to co-operate with Belarus on some issues. Second, the impact of isolation is negated by Russia’s economic and diplomatic support for Belarus. Transnational norm pressure could still play a role in the abolition of the death penalty in the future, provided that European linkage and/or leverage increase. Because increasing inter-governmental linkage by engaging the authoritarian regime may compromise the European message to other autocratic states, and little can be done to decrease the Russian influence on Belarus, European actors could accomplish most by strengthening their social, informational and civil society ties in Belarus. Some ways to do this would be to liberalize the EU visa regime, to step up European broadcasts into Belarus from the neighbouring countries, and to continue to support the independent media and civil society in the country. These steps may increase norm socialization opportunities in the long run. References Adler, Emanuel (1997), ‘Seizing the Middle Ground: Constructivism in World Politics’, European Journal of International Relations, 3 (September), 319–63. AI (2004), Death Penalty in the Former Soviet Space, EUR 04/009/2004, London: Amnesty International. AI (2009a), Ending Executions in Europe: Towards Abolition of the Death Penalty in Belarus, London: AI Publications. AI (2009b), ‘Stop Executions in Belarus’, 23 March, London: Amnesty International. AI (2011), Death Sentences and Executions in 2011, London: AI Publications, ACT 50/001/2012.

248

Capital Punishment: New Perspectives

Amnesty International (AI) (1996), Death Sentences and Executions in 1996, ACT 51/01/97, London: Amnesty International. Anckar, Carsten (2004), Determinants of the Death Penalty: A Comparative Study of the World, New York: Routledge. Aslund, Anders (2002), ‘Is the Belarusian Economic Model Viable?’, in A. Lewis (ed.), The EU and Belarus: Between Moscow and Brussels, London: Federal Trust London, 2002. Badinter, Robert (2004), ‘Preface: Moving Towards Universal Abolition of the Death Penalty’, in The Death Penalty Beyond Abolition, Strasbourg: Council of Europe Publishing. Bae, Sangmin (2007), When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment, Albany, NY: State University of New York Press. Belarusian Association of Journalists (BAJ) (2009), Mass Media in Belarus 2008, Minsk: BAJ. Beyers, Jan (2005), ‘Multiple Embeddedness and Socialization in Europe: The Case of Council Officials’, International Organization, 59 (Autumn), 899–936. Bosse, Giselle (2009), ‘Challenges for EU Governance through Neighborhood Policy and Eastern Partnership: The Values/security Nexus in EU–Belarus Relations’, Contemporary Politics, 15 (June), 215–27. Campos, Nauro, Saleh, Ahmad and Kuzeyev, Vitaliy (2009), ‘Dynamic Ethnic Fractionalization and Economic Growth’, mimeograph, October. Centre for Civil Society, London School of Economic and Political Science (2002), Global Civil Society, Oxford: Oxford University Press. Checkel, Jeffrey T. (2000), ‘Compliance and Conditionality’, ARENA Working Paper 00/18, Oslo: ARENA Universitetet i Oslo. Checkel, Jeffrey T. (2001), ‘Why Comply? Social Learning and European Identity Change’, International Organization, 55 (Summer), 553–88. Checkel, Jeffrey T. (2005), ‘International Institutions and Socialization in Europe: Introduction and Framework’, International Organization, 59 (Autumn), 801–26. Chilton, Patricia (1995), ‘Mechanics of Change: Social Movements, Transnational Coalitions, and the Transformation Process in Eastern Europe’, in T. RisseKappen (ed.), Bringing Transnational Relations Back In, Cambridge: Cambridge University Press. Commission of the European Communities (2004), European Neighbourhood Policy: Strategy Paper, Communication, 12 May, COM 2004 373 final, Brussels: Commission of the European Communities. Commission of the European Communities (2008), Eastern Partnership, Communication, 3 December, COM 2008 823/4, Brussels: Commission of the European Communities. Constitutional Court of the Republic of Belarus (2004), ‘On the Correspondence of the Constitution of the Republic of Belarus and the Penal Code Provisions Regarding the Use of Capital Punishment’, Decision no. 3-171/2004, 11 March.

Transnational Networks and Norm Compliance

249

Council of Europe (CoE) (1999), ‘Capital Punishment: Outline of Basic Issues’, unpublished report no. S42A-C, Strasbourg: Council of Europe Archives. Council of the EU (1998), Guidelines to EU Policy towards Third Countries on the Death Penalty, 3 June, Brussels: Council of the European Union. Dambrauskaite, Zivile, Jurkonis, Vytis, Kondratjeva, Olga, Narkeviciute, Julija, Pimpe, Justinas and Sirijos Gira, Vytautas (2010), ‘Belarusian Challenge to the New EU Policy: Ignorance Equals Legitimation’, Analytical Review, 2(1). DG Trade Statistics (2010), EU Bilateral Trade and Trade with the World, European Trade Commission, 15 September, Brussels: European Trade Commission. Duner, Bertil and Geurtsen, Hanna (2002), ‘The Death Penalty and War’, International Journal of Human Rights, 6 (Winter), 1–28. Ekiert, Grzegorz, Kubik, Jan and Vachudova, Milada Anna (2007), ‘Democracy in the Post-Communist World: An Unending Quest?’, East European Politics and Societies, 21(1), 7–30. Europa (2007), ‘Launching the European Day against the Death Penalty’, Europa press release, 19 June. European Commission (2006), What the European Union Could Bring to Belarus, non-paper, Brussels: European Commission, http://eeas.europa.eu/delegations/ belarus/documents/eu_belarus/non_paper_1106.pdf (accessed 20 May 2013). Expert Council on NGO Law of the Council of Europe (2009), Annual Report, January: Brussels: Council of Europe. Fawn, Rick (2001), ‘Death Penalty as Democratization: Is the Council of Europe Hanging Itself?’, Democratization, 8 (Summer), 69–96. Filippov, V. and Vashkevich, А. (2003), Ending the Death Penalty in the Republic of Belarus (Otmena Smertnoj Kazni v Respublike Belarus), Minsk: Belarusian Centre for Constitutionalism and Comparative Legal Studies, Legal Initiative (Pravovaia Iniciativa). Filippov, V. and Vashkevich, А. (2007), The Right to Live and the Ban on Torture: European Standards and the Law of the Republic of Belarus, Minsk: Tesei. Finnemore, Martha and Sikkink, Kathryn (1998), ‘International Norm Dynamics and Political Change’, International Organization, 52 (Autumn), 887–917. Flockhardt, Trine (2005a), ‘Complex Socialization and the Transfer of Democratic Norms’, in Trine Flockhardt (ed.), Socializing Democratic Norms: The Role of International Organizations for the Construction of Europe, Basingstoke: Palgrave Macmillan. Flockhardt, Trine (2005b), ‘Socialization and Democratization: A Tenuous but Intriguing Link’, in Trine Flockhardt (ed.), Socializing Democratic Norms: The Role of International Organizations for the Construction of Europe, Basingstoke: Palgrave Macmillan. Florini, Ann M. (2000), The Third Force: The Rise of Transnational Civil Society, Washington, DC: Carnegie Endowment for International Peace. Foreign Ministry of the Republic of Belarus (n.d.), ‘Response by Press Secretary Andrei Popov to a Media Question Over Council of Europe Parliamentary Assembly Resolution on Belarus’, Minsk: Foreign Ministry of the Republic

250

Capital Punishment: New Perspectives

of Belarus, www.mfa.gov.by/en/press/news/ff9250efac15fc62.html (accessed 11 January 2011). Garland, D. (1990), Punishment and Modern Society: A Study in Social Theory, Chicago, IL: University of Chicago Press. Goose, Steve (2007), Statement on Stockpile Destruction, Eighth Meeting of States Parties to the Mine Ban Treaty, Jordan: International Campaign to Ban Landmines, 19 November. Haas, Peter (1992), ‘Introduction: Epistemic Communities and International Policy Coordination’, International Organization, 46 (Winter), 1–35. Hood, Roger and Hoyle, Carolyn (eds) (2008), The Death Penalty: A Worldwide Perspective, 4th edn, New York: Oxford University Press. Hooghe, Liesbet (2005), ‘Several Roads Lead to International Norms, but Few Via International Socialization: A Case Study of the European Commission’, International Organization, 59 (Autumn), 861–98. Hurskainen, Sinikka (2009), ‘PACE and Recent Developments in Belarus’, speech delivered 10 June in Brdo, Slovenia. Information and Analytical Center of the Administration of the President (2009), Public Opinion about the Activity of the Organs of Internal Affairs of the Republic of Belarus, Minsk: Information and Analytical Center of the Administration of the President, September. Katzenstein, Peter (ed.) (1996), The Culture of National Security: Norms and Identity in World Politics, New York: Columbia University Press. Keck, Margaret and Sikkink, Kathryn (1998), Activists Beyond Borders, Ithaca, NY: Cornell University Press. Kelley, Judith (2004), Ethnic Politics in Europe: The Power of Norms and Incentives, Princeton, NJ: Princeton University Press. Keohane, Robert O. and Nye Jr, Joseph S. (1998), ‘Power and Interdependence in the Information Age’, Foreign Affairs, 77 (September–October), 81–94. Khagram, Sanjeev (2002), ‘Restructuring the Global Politics of Development: The Case of India’s Narmada Valley Dams’, in Sanjeev Khagram, James V. Riker and Kathryn Sikkink (eds), Restructuring World Politics: Transnational Social Movements, Networks, and Norms, Minneapolis, MN: University of Minnesota Press. Khagram, Sanjeev, Riker, James V. and Sikkink, Kathryn (eds) (2002), Restructuring World Politics: Transnational Social Movements, Networks, and Norms, Minneapolis, MN: University of Minnesota Press. Kitschelt, H. (1986), ‘Political Opportunity Structures and Political Protest: Anti-nuclear Movements in Four Democracies’, British Journal of Political Science, 16, 57–85. Konstantinov, Gennadiy (2009), ‘Belarus May Impose a Moratorium on the Death Penalty’, Deutsche Welle, 30 June. Kowert, Paul and Legro, Jeffrey (1996), ‘Norms, Identity, and their Limits: A Theoretical Reprise’, in Peter Katzenstein (ed.), The Culture of National

Transnational Networks and Norm Compliance

251

Security: Norms and Identity in World Politics, New York: Columbia University Press. Lavenex, S. (2008), ‘A Governance Perspective on the European Neighbourhood Policy: Integration Beyond Conditionality?’, Journal of European Public Policy, 15 (September), 938–55. Lukashenka, Alyaksandr (2010), ‘Concepts of Improving the System of Criminal Prosecution Measures and the Rules of their Implementation is Approved in Belarus’, 24 December. Marples, David (2005), ‘Europe’s Last Dictatorship: The Roots and Perspectives of Authoritarianism in “White Russia”’, Europe-Asia Studies, 57 (September), 895–908. Mazaeva, Olga (2006), ‘Belarus Opposition May Get the Death Penalty: Belarus KGB Knows Who, When, and How Can Commit a Terrorist Act’, Nezavisimaya Gazeta, 7 March. National Assembly (2002), Political and Legal Problems of Abolishment of Death Penalty in Belarus, Minsk: House of Representatives, 30 May. Okafor, Obiora Chinedu (2004), ‘Modest Harvests: On the Significant (but Limited) Impact of Human Rights NGOs on Legislative and Executive Behavior in Nigeria’, Journal of African Law, 48 (May), 23–49. Organization for Security and Co-operation in Europe (OSCE) (2009), The Death Penalty in the OSCE Area: Background Paper, www.osce.org/odihr/ documents/33566 (accessed 11 January 2011). PACE (2006), Situation in Kazakhstan and its Relations with the Council of Europe, Political Affairs Committee, Strasbourg: PACE, Doc. 11007 7 July, www. assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9998&Language=EN (accessed 20 May 2013). Parau, Cristina E. (2009), ‘The East Side Story: How Executive Uncertainty Created an Accession. Conditionality that Never Was’, Oxford: Wolfson College podcast, http://podcasts.ox.ac.uk/east-side-story-how-executive-uncertainty-createdaccession-conditionality-never-was-video (accessed 20 May 2013). Parliamentary Assembly of the Council of Europe (PACE) (1999), Europe: A Death Penalty Free Continent, Resolution 1187, 26 May, Strasbourg: PACE. Price, Richard (1998), ‘Reversing the Gun Sights: Transnational Civil Society Targets Land Mines’, International Organization, 52 (Summer), 613–44. Price, Richard (2003), ‘Review: Transnational Civil Society and Advocacy in World Politics’, World Politics, 55 (July), 579–606. Reimann, Kim D. (2002), ‘Building Networks from the Outside In: International Movements, Japanese NGOs, and the Kyoto Climate Change Conference’, in Jackie Smith and Hank Johnston (eds), Globalization and Resistance: Transnational Dimensions of Social Movements, Lanham, MD: Rowman & Littlefield. Risse, Thomas (2000), ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’, in Ann M. Florini (ed.), The Third Force: The Rise of Transnational Civil Society, Washington, DC: Japan

252

Capital Punishment: New Perspectives

Center for International Exchange and Carnegie Endowment for International Peace, 177–207. Risse, Thomas, S., Ropp, C. and Sikkink, K. (eds) (1999), The Power of Human Rights: International Norms and Domestic Change, Cambridge: Cambridge University Press. Rontoyanni, Celia and Korosteleva, Elena (2005), ‘Belarus: An Authoritarian Exception from the Model of Post-Communist Democratic Transition?’, in Trine Flockhardt (ed.), Socializing Democratic Norms: The Role of International Organizations for the Construction of Europe, Basingstoke: Palgrave Macmillan, 209–213. Ruggie, John Gerard (1998), ‘What Makes the World Hang Together? NeoUtilitarianism and the Social Constructivist Challenge’, International Organization, 52 (Autumn), 855–85. Sahm, Astrid (2009), ‘Civil Society and Mass Media in Belarus’, in Sabine Fischer (ed.), Back from the Cold? The EU and Belarus in 2009, Chaillot Paper no. 119, November, Paris: EU Institute for Security Studies, 65–78. Sannikov, Andrei (2002), ‘Russia’s Varied Roles in Belarus’, in Margarita Balmaceda et al. (eds), Independent Belarus: Domestic Determinants, Regional Dynamics, and Its Implications for the West, Cambridge: HURI Press, 222–31. Schimmelfennig, Frank (2005a), ‘European Regional Organizations, Political Conditionality, and Democratic Transformation in Eastern Europe’, paper prepared for Club de Madrid – IV General Assembly, Prague, November, 10–12. Schimmelfennig, Frank (2005b), “The EU: Promoting Liberal Democracy through Membership Conditionality’, in Trine Flockhardt (ed.), Socializing Democratic Norms: The Role of International Organizations for the Construction of Europe, Basingstoke: Palgrave Macmillan, 106–25. Shaw, Martin (2000), Theory of the Global State, Cambridge: Cambridge University Press. Sidenko, Volodymyr (n.d.), ‘Ukraine’s Export Potential: The Priorities of Integration’, in National Security and Defense, Kiev: Ukrainian Centre for Economic and Political Studies. Sikkink, Kathryn (1993), ‘Human Rights, Principled Issue Networks, and Sovereignty in Latin America’, International Organization, 47 (Summer), 411–41. Simmons, Beth (2009), Mobilizing for Human Rights, New York: Cambridge University Press. Smith, J. and Wiest, D. (2005), ‘The Uneven Geography of Global Civil Society: National and Global Influences on Transnational Association’, Social Forces, 84 (December), 621–52. Smith, J., Chatfield, C. and Pagnucco, R. (1997), Transnational Social Movements and Global Politics: Solidarity Beyond the State, Syracuse, NY: Syracuse University Press. Stephan Batory Foundation (2009), Changes in Visa Policies of the EU Member States, New Monitoring Report, Warsaw: Stephan Batory Foundation.

Transnational Networks and Norm Compliance

253

Tarrow, Sidney (1998), Power in Movement: Social Movements and Contentious Politics, Cambridge: Cambridge University Press. Thomas, Daniel C. (2001), The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism, Princeton, NJ: Princeton University Press. Tsutsui, Kiyoteru and Shin, Hwa-Ji (2004), ‘The Impact of International Human Rights Law on Contemporary Social Movements: The Case of Korean Residents in Japan’, paper submitted at the Annual Meeting of the American Sociological Association, San Francisco, CA. UN Human Rights Committee (UNHRC) (2003), Communications nos 886/1999 and 887/1999, 77th Session. UNHRC (2007), Communication no. 1296/2004, 90th Session, 9–27 July. UN Industrial Development Organization (UNIDO) (2009), Industrial Development Report 2009, www.unido.org/fileadmin/user_media/Publications/IDR_2009_ print.PDF (accessed 11 January 2011). United Nations Office on Drugs and Crime (UNODC), Homicide Statistics, Criminal Justice Sources (2003–2008), www.unodc.org /unodc/en/data-andanalysis/homicide.html (accessed 15 January 2011). Viasna (2002), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Viasna (2004), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Viasna (2006), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Viasna (2007), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Viasna (2009), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Viasna (2010), Violations of Human Rights In Belarus: Analytical Review, Minsk: Viasna Human Rights Centre. Wagner, R.H. (1988), ‘Economic Interdependence, Bargaining Power, and Political Influence’, International Organization, 42 (Summer), 461–83. Warr, Mark (1995), ‘Poll Trends: Public Opinion on Crime and Punishment’, Public Opinion Quarterly, 59(2), 296–310. Way, Lucan A. and Levitsky, Steven (2007), ‘Linkage, Leverage, and the PostCommunist Divide’, East European Politics and Societies, 21(48), 48–66. Zagoumennov, Yury (2001), Belarus Civil Society: In Need of a Dialogue, Belarus Support Centre for Associations and Foundations SCAF, CIVICUS Index on Civil Society Occasional Paper Series 1 (July). Zlotnikov, Leonid (2009), ‘The Belarusian “Economic Miracle”: Illusions and Reality’, in Sabine Fischer (ed.), Back from the Cold? The EU and Belarus in 2009, Chaillot Paper no. 119, November, Paris: EU Institute for Security Studies, 65–78.

This page has been left blank intentionally

Chapter 12

Afghanistan: Death Penalty at the Crossroads Art Cody and Dominique Day1

Introduction Capital punishment in Afghanistan serves as an interesting microcosm of the rule of law, juxtaposing religious fervour, judicial system immaturity and political realities. Actual use of the death penalty is at a crossroads, with Afghanistan’s de facto moratorium abruptly upset by a November 2012 rash of executions. Still, widespread executions during the Taliban regime have given way to a more tempered application of capital punishment. While popular support for retribution and stringent application of Sharia, or Islamic law, drives capital sentencing, executions are infrequent and generally in response to vox populi calls after particularly heinous events. The Afghan judicial system continues to mature. Capital and non-capital cases proceed through the justice system nearly identically, thus examination of the capital trial and sentencing schemes reveal the challenges facing the Afghan judicial system as a whole. Capital trials in Afghanistan are abbreviated affairs with limited, if any, presence of defence counsel, and the ever-present spectre of corruption. Afghanistan’s capital litigation does not require enhanced judicial scrutiny, better-trainedcounsel or ensure a non-corrupt process. Indeed, corruption and due process concerns are magnified by the possibility of execution. Despite the irrevocable sanction, capital cases receive no special treatment beyond the requirement that the president issue a death warrant prior to execution. Afghanistan’s government under President Hamid Karzai, aware of the Taliban’s record of brutality, has limited state-sponsored executions. Executions, as discussed below, offered a vivid representation of the Taliban approach to rule of law. The current government’s desire to appear more humane than the Taliban, an important driver of its reluctance to execute, is reinforced by the international community. European donor nations, in particular, disdain executions or, at a minimum, require greater due process requirements prior to execution. For the last ten years, Afghanistan has moved away from capital 1  The views expressed in this chapter are the authors’ own, and do not represent the views of the US or Afghan governments, the referenced international organizations or civil society organizations, or specific officials therein.

256

Capital Punishment: New Perspectives

punishment, despite its apparent popularity among Afghans, as part of a strategy to avoid comparison to the Taliban and to demonstrate its status as an emerging member of the international community. From November 2008 to November 2012, there were two hangings, both in response to a high-profile 2011 mass murder. The revival of the death penalty in November 2012, characterized by 16 executions in one week, is a departure from de facto abolition, and may signal a change in policy. In addition, President Karzai, a moderating influence on the execution rate, faces a mandatory term limit and must vacate his office in 2014. The post-2014 drawdown of Coalition troops in Afghanistan also plays into this analysis. The November spate of executions, combined with uncertainty of the political and security landscape post-2014, renders the Afghan government’s intended path forward increasingly unclear. Regardless, Afghanistan stands at a crossroads, and must choose between the clear international trend away from use of the death penalty, even by countries that retain it ‘on the books’, and the perceived popularity of the death penalty amongst the Afghan populace. I. Historical Perspective on Afghanistan’s Death Penalty Despite a decade of reconstruction and rule of law development, modern Afghanistan is defined by the thirty years of civil war during which most adult Afghan nationals came of age. Adult Afghans sometimes refer to themselves as the ‘war generation’ and recount their children’s ridicule as they purchase and store excess goods in preparation for putative shortages. Culturally, modern Afghanistan is more conservative than pre-civil war Afghanistan; young women and men are more conservative than their parents. Prior to the civil war, during the forty-year rule of King Mohammed Zahir Shah, capital punishment was rare.2 Like today, execution required approval of the executive, and the King was reportedly reluctant to issue death warrants.3 Today, tempered application of the death penalty is apparent as the government continues to distance itself from the draconian punishments that characterized the Taliban era. Under the Taliban, which governed Afghanistan from 1992 to 2001, capital punishment was exercised for a wide variety of transgressions, and generally in the name of Islam. Married women charged with zina (non-marital sex, commonly translated as ‘adultery’) were subject to death by stoning or flogging. Persons engaging in homosexual behaviour were executed by being partially

2  Antonella Deledda with Ashraf Hegazy and Omid Saffee, Death Penalty in Afghanistan, Embassy of Italy in Kabul, Development Cooperation Unit, Italian Justice Project Office (2005), www.docstoc.com/docs/34434919/The-Death-Penalty-in-Afghanistan, at 7 (accessed 20 May 2013). 3  Ibid.

Afghanistan: Death Penalty at the Crossroads

257

buried in the ground and then having a wall toppled on top of them.4 Murderers and opponents of the regime faced summary execution.5 Taliban justice was often rooted in misinterpretations of Islamic Sharia6 that closely mirrored pashtunwali 7 and ‘customary law’ practices common in locales where Kabul institutions had limited reach and even more limited authority. Even before the Taliban (and throughout Afghanistan even today), customary law was dominant outside urban areas.8 Exploitation of rural goods produced for trade, delays in ‘exporting’ education and the unwillingness of Kabul to empower leaders dispatched to the localities contributed to the steadfast hold customary law maintained throughout Afghanistan.9 Later, during thirty years of civil war, the absence of state institutions was familiar to many Afghans.10 Afghans accepted ‘revenge killings’ and ‘honour killings’, creating a quasi-official capital punishment in the informal justice system. Formal laws and courts existed, but traditional dispute-resolution resolved conflicts.11 Mujahadeen commanders and local leaders would hold jirgas or shuras12 when presented with malfeasors. Capital

4  See, for example, Jan Goodwin, ‘Buried Alive: Afghan Women Under the Taliban’, 27 February 1998, http://home.mtholyoke.edu/~mvcarmac/women2.html (accessed 20 May 2013)); Ahmed Rashid, Taliban (New Haven, CT: Yale University Press, 2nd edn, 2010), 115; Sayed Salahuddin, ‘Taliban Flog Woman, Cut Off Two Men’s Hands’, Reuters, 27 February 1998, www.rawa.org/handcut.htm (accessed 20 May 2013). 5  In 2000, the Taliban invited the United Nations to attend public executions at the National Stadium; afterward, the corpses were publicly displayed, mouths stuffed with money; Thomas Ruttig, ‘After the Executions: What Approach to the Death Penalty?’, Afghan Analysts Network, 29 November 2012, http://aan-afghanistan.com/index. asp?id=3139 (accessed 20 May 2013). 6  Sharia, Islamic law, has four schools in Sunni Islam (the Hanafi, Maliki, Shafii and Hanbali schools) which range widely from conservative to moderate interpretations of Islamic in daily life. Afghanistan officially adheres to Hanafi jurisprudence, the first and largest (but not the most conservative) school. 7  Pashtunwali describes the Pashtun ‘code of conduct’, applicable to 40 per cent of Afghans. Often unbeknown to local leaders, pashtunwali practices like baad (exchanging daughters to settle a blood feud) run counter to Afghan and Islamic law. Even today, adherence to pashtunwali continues and local leaders express surprise that many pashtunwali practices are prohibited by Islam. 8  Thomas Barfield, Neamat Nojumi and J. Alexander Thier, The Clash of Two Goods: State and Non-state Dispute Resolution in Afghanistan, www.usip.org/ruleoflaw/projects/ clash_two_goods.pdf (accessed 20 May 2013). 9  Antonio Giustozzi with Niamatullah Ibrahimi, Drivers of Anti-Government Mobilisation in Afghanistan, 1978-2011 (Kabul: Afghanistan Research and Evaluation Unit, 2012), Ref. 1203E, at 8. 10  Ibid. 11  Barfield, supra, note 8, at 12–13. 12  Local councils of elders who adjudicate community conflicts.

258

Capital Punishment: New Perspectives

punishment was imposed for crimes including murder, adultery, or collaboration with the communist regime (treason).13 Customary laws, implemented in communities where Islamic identity was paramount, were sometimes wholly inconsistent with Islamic principles, but nevertheless gained popularity. Quoting the Attorney General at the time, Ahmed Rashid decried the tendency to supplant Sharia’s moral guidance for adequate law: ‘The Taliban were right, their interpretation of Islam was right and everything else was wrong and an expression of human weakness and a lack of piety. “The Constitution is the Shari’a so we don’t need a constitution.”’14 Abdou FilaliAnsary also sets forth the central conflict arising from the erroneous conclusion that Sharia was a system of laws guaranteeing ‘law and order’, rather than a model for Muslim life.15 ‘[S]hari’a was never a system of laws in the sense which it is understood nowadays …. [Islamic law] embodies moral and quasi-moral precepts not enforceable in any court.’16 As such, Sharia offers insufficient guidance to implement a fully legitimate system of justice; ‘customary law’ supplemented and, in Afghanistan, contradicted fundamental precepts of Sharia.17 Taliban and pre-Taliban implementation of the death penalty in Afghanistan offers compelling examples of this dangerous dichotomy. As the Taliban gained power, seizing control of the central government by the early 1990s, it commenced widespread executions in the name of Islamic justice18 and played out the conflict between the limits of Sharia and the wideranging enforceability required for a modern justice system. Under Sharia, crimes explicitly enumerated in the Quran face mandatory penalties. These ‘crimes against Islam’, or hudud crimes, include theft, robbery, murder, adultery, drinking 13  Barfield, supra, note 8, at 13. 14  Rashid, supra, note 4, at 107. 15  Abdou Filali-Ansary, ‘Muslims and Democracy’, in Islam and Democracy in the

Middle East (Baltimore, MD: Johns Hopkins University Press and the National Endowment for Democracy, 2003), at 198, quoting Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (Chicago, IL: University of Chicago Press, 1982), 32. 16  Ibid., at 198. 17  Ibid. Filali-Ansary’s claim that Islamic law ‘is an endless discussion on the duties of a Muslim, rather than a neatly formulated code or codes’ reveals how Taliban justice de-legitimized it by reducing Islamic justice to automated responses, including execution, without consideration of Islamic principles. Sharia developed as standards overlaid on nonIslamic politics and society. 18  Rashid explains the Taliban perspective on women, justice and culture, which is ‘rooted in the political beliefs and ideologies, not in Islam or cultural norms’: ‘The Taliban’s uncompromising attitude was also shaped by their own internal political dynamic and the nature of their recruiting base. Their recruits – the rootless, the lumpen proletariat from the war and the refugee camps – had been brought up in a totally male society …. The Taliban are a new generation of Muslim males who are products of a war culture, who have spent much of their adult lives in complete segregation from their own communities; Rashid, supra, note 4, at 111.

Afghanistan: Death Penalty at the Crossroads

259

alcohol, apostasy/blasphemy and defamation. Depending on the circumstances, capital punishment is permitted or mandatory for certain hudud crimes,19 although generally not as employed by the Taliban regime or pashtunwali communities (even today).20 Qasas crimes, derived from the Quran but not defined by it, are referred to as crimes of retribution. Finally, tazir crimes, misconduct not explicitly set forth in the Quran, form the basis of the current Afghan Penal Code and its current revision. Capital punishment is possible for hudud, qasas and tazir crimes. Importantly, recognizing Sharia analysis is not an effective or practical recourse, Paragraph 130, Section 1 of Afghanistan’s Constitution requires judges to confine analyses to codified law, and not to supplant charges or evidence with Sharia jurisprudence unless no law exists to address a transgression. The inadequacy of Sharia for the wide range of criminal fact patterns faced by modern states is tacitly acknowledged by most Islamic countries, even non-secular ones: In almost all countries with substantial communities of Muslims, positive law has replaced shari’a …. Modern institutions – nation-states, modern bureaucracies, political parties, labour unions, corporations, associations, educational systems – have been adopted everywhere while traditional institutions are, at best, relegated to symbolic roles.21

Although the Taliban enjoyed the rhetoric of Islamic penalties imposed by an Islamic state, they failed to acknowledge that strict implementation of Sharia principles generally proves inadequate for modern states.22 For example, while death by stoning is an available penalty for married adulterers, the required quantum of proof is four eyewitnesses to the illicit sexual activity (impossible by design, some Sharia scholars argue). To preserve the relevance of Islamic law to daily life, modern Muslim countries have codified criminal law and procedure, incorporating Sharia considerations and compliance into affirmative legislation.23 19  Deledda, supra, note 2, at 6. 20  Adultery prosecutions in Afghanistan illustrate the interplay between a Sharia

analysis of adultery as a hudud crime and the prosecution of adultery under a penal code provision, Article 47 of the Penal Code. A Sharia analysis of adultery clearly requires four eyewitnesses to non-permissible sexual acts, a near-impossibility that some believe was intended to make the required penalty (stoning to death or 100 lashes) nearly impossible to legally impose. To prosecute adultery under the penal code, a lesser standard of proof is required (the standard for ordinary crimes), and the sentencing is generally – but not always – imprisonment. The much-publicized stoning of women ‘adulterers’ by the Taliban and others does not appear to have occurred with the required quantum of proof set forth in Islamic law. 21  Filali-Ansary, supra, note 15, at 199. 22  Filali-Ansary, supra, note 15. 23  See, generally, ibid.

260

Capital Punishment: New Perspectives

For example, adultery, where criminalized, is typically punished by a period of imprisonment based on ordinary proof, rather than immediate execution. Taliban state-sponsored executions often lacked adequate evidence according to Sharia. Taliban executions evidence a stark disparity between the penalties imposed and the Islamic justice they purported to represent.24 The 1999 public execution of a mother of seven, convicted of killing her abusive husband, occurred against the will of her husband’s family (which informed the Taliban they had forgiven her, in accordance with Islamic principles, allowing them to stop the execution).25 The Taliban proceeded with the execution, citing public expectations.26 The execution was reported widely,27 and a video reached the Internet.28 Taliban justice highlighted the unsuitability of Sharia as a justice system for a nationstate: ‘the Taliban’s rejection of this secularized state model … proved a low ebb for Islamic jurisprudence … they proved incapable of actually administering the complexities of shari’a law’.29 And in fact, Sharia was not evolved to offer a complex and modern criminal justice system. The Taliban frequently cited Islam to impose a harsh sanction, but failed to ensure evidence or alternatives clearly set forth in Islamic jurisprudence were applied. Even as the Taliban regime ended, its central failure to establish a working state structure continued to render its actions, including frequent executions, seemingly haphazard and ungrounded from recognizable Islamic justice. Rashid notes this central failure in the justice system: the Taliban refuse[d] to define the Afghan state they want[ed] to constitute and rule over, largely because they [had] no idea …. The lack of a central authority, state organizations, a methodology for command and control and mechanisms

24  The Taliban commonly executed adulterers. See, for example, ‘Afghanistan Execution for Adultery’, New York Times, 6 November 1996 (man and woman stoned to death); ‘Taliban Stone Woman for Adultery’, Associated Press, 1 May 2000; ‘Woman in Afghanistan is Stoned to Death’, New York Times, 30 March 1997 (stoning occurred after woman caught fleeing but without Sharia-required eyewitnesses to illicit sexual acts); ‘Taliban Hang Convicted Prostitutes’, Associated Press, 23 February 2001. 25  Reported by a journalist working with the Revolutionary Afghan Women’s Association (RAWA), www.rawa.org/murder-w.htm (accessed 20 May 2013). 26  Ibid. 27  See ‘Taliban Publicly Execute Woman’, Associated Press, 17 November 1999, and ‘Taliban Stone Woman for Adultery’,” Associated Press, 1 May 2000; video available at www.rawa.org/zarmeena.htm (accessed 20 May 2013). 28  This video of Zarmeena’s execution is strikingly similar to a viral execution video in 2012 of a woman, Najiba, executed in Parwan Province; www.youtube.com/ watch?v=zfK9PdLfV8A (accessed 20 May 2013). 29  Thomas Barfield, ‘Culture and Custom in Nation-building: Law In Afghanistan’, Maine Law Review, 60 (2008), 347, at 353.

Afghanistan: Death Penalty at the Crossroads

261

which can reflect some level of popular participation … ma[de] it impossible for many Afghans to accept the Taliban ….30

With the fall of the Taliban in 2001–2002, rule of law development in Afghanistan has relied on laws pre-dating the wars, rather than revisions to codified laws used by the Taliban government. II. The Current State of the Death Penalty in Afghanistan Legal Basis for Capital Punishment Today, the death penalty in Afghanistan is imposed under the 1976 Penal Code. Penal Code Article 395 sets forth mandatory death sentences for certain categories of murder,31 akin to statutory ‘special circumstances’ which render crimes eligible for the death penalty in the United States.32 In addition to these crimes for which the death penalty is required, Afghan judges may impose death in any murder under a catch-all provision.33 The Penal Code also sets forth various non-homicide bases for the death penalty, including offences related to treason.34 Other laws, including the Law to Eliminate Violence Against Women (LEVAW),35 permit or mandate death sentences in specific circumstances. Notably, adulterers are rarely subject to capital punishment.36 The Penal Code allows for reductions in sentence even for crimes with mandatory capital sentences. Section 143 allows extenuating circumstances to

30  Rashid, supra, note 4, at 213. 31  Penal Code Article 395 provides for mandatory execution of convicted murderers

where there is malice aforethought, use of poison or explosives, brutality or payment, an accompanying crime or plan to escape, or murder of an ancestor, public official or multiple persons; Afghanistan Penal Code (1976), https://www.unodc.org/tldb/showDocument. do?documentUid=2100 (accessed 20 May 2013). 32  See, for example, California Penal Code, Section 190.2; Alabama (Ala. Stat. Ann. 13A-5-40(a) (1)–(18)); Delaware (11 Del. C. § 4209). See also www.deathpenaltyinfo. org/crimes-punishable-death-penalty (accessed 20 May 2013). Unlike Afghanistan, no mandatory death sentences exist in the United States; specific crimes or aggravated circumstances make a defendant death-eligible; see Woodson v. North Carolina, 428 US 280 (1976). 33  Penal Code Article 396(3) broadens availability of the death penalty to circumstances ‘other than those specified under paragraphs 1 and 2 of Article 395 ….’; supra, note 31. 34  Penal Code Article 173–82; see ibid. 35  See, for example, LEVAW, Art. 17, Sections 1–2 (Afghanistan, 2010, by decree), (mandatory death sentence where female victim dies from rape). 36  See supra, note 20.

262

Capital Punishment: New Perspectives

reduce a capital sentence to continued imprisonment.37 Continued imprisonment, the longest prescribed imprisonment term, is 16–20 years.38 Relief from a capital sentence is also available through presidential pardon; in Afghanistan, the executive typically issues pardons for various categories of offences and sentences (as opposed to individual persons) during the Eid festivals in honour of the birthday of the Prophet Mohammed and on other occasions. In addition, Afghanistan officially adheres to widely internationally practised exclusions from the death penalty, including juveniles, pregnant women, and mentally retarded and mentally ill persons,39 although a 17-year-old was hanged for the 2011 mass murder discussed above.40 The Sentencing Process There are no jury trials in Afghanistan, and a death sentence may be imposed by a single judge as a result of a trial in a district criminal court in any of the country’s 400 districts.41 Appeals are permitted in all criminal cases. There are two levels of appeal. Initially, an intermediate provincial appellate court presiding in each of Afghanistan’s 34 provinces hears the case de novo on all issues (fact and law), then the Supreme Court of Afghanistan in Kabul conducts a final review.42 Both the prosecution and the defence can appeal, and the review on appeal is de novo. Thus, a defendant may be found not guilty by a local judge, but receive a death sentence at the ‘second’ or appellate court upon the government’s appeal.43 That sentence can then be appealed to the Supreme Court by the defendant or the prosecution. Under Afghan law, any combination of exoneration/condemnation is possible. After a sentence of death, Article 129 of Afghanistan’s Constitution requires presidential approval of all decisions resulting in capital punishment.44 If the president refuses to authorize execution, the case returns to the Supreme Court for 37  Penal Code Article 143, supra note 31. 38  Penal Code Article 99, ibid. 39  See Afghanistan Juvenile Code, Art. 39 (2005) (juveniles); Afghanistan Penal

Code 1976, Art. 67(1) (mentally retarded/ill); Afghanistan Constitution, Art. 7 (pregnant women). For limits to these exclusions, see Death Penalty Worldwide, Northwestern Law School Center for Human Rights, www.deathpenaltyworldwide.org/country-search-post.cf m?country=Afghanistan&language=en#f109-3 (accessed 20 May 2013). 40  Zar Ajam was reportedly aged 17 at the time of his execution; see http://abcnews. go.com/Blotter/taliban-killer-zar-ajam-duped-terror-attack/story?id=13894578 (accessed 20 May 2013). 41  American Institute of Afghanistan Studies, Rule of Law in Afghanistan Conference Report, at 3, www.bu.edu/aias/reports/AIAS_ROL.pdf (accessed 20 May 2013). 42  Ibid. 43  See discussion in Section III. 44  Article 129 of the Afghanistan Constitution provides that: ‘All final decisions of the courts shall be enforced, except for capital punishment, which shall require Presidential approval’; http://moj.gov.af/en/page/1684 (accessed 20 May 2013).

Afghanistan: Death Penalty at the Crossroads

263

re-sentencing, likely to be ‘continued imprisonment’.45 More frequently, unsigned execution orders sit on the president’s desk indefinitely awaiting approval.46 With presidential authorization, swift execution follows.47 The Death Penalty Since the Fall of The Taliban in 2001 Capital punishment in Afghanistan was not abolished after the fall of the Taliban, but it fell into disfavour given the frequency and brutality of Taliban-sponsored executions, concerns over shortcomings in the fledgling Afghan judicial system, and international norms rejecting capital punishment.48 Article 23 of the Afghan Constitution recognizes that life is ‘the natural right of human beings’ and that ‘no one shall be deprived of [life] except by legal provision’.49 After taking power in late 2001, President Karzai’s government observed a self-imposed moratorium that lasted until 2004. In 2004, in the first execution since the fall of the Taliban, Abdullah Shah, a former warlord convicted of 20 murders, was executed by a gunshot to the back of the head.50 The execution was criticized broadly on both due process and abolitionist grounds. Due process concerns included Shah’s secret trial, the lack of an opportunity to present a defence, corruption and pressure from the Supreme Court to impose the death sentence.51 Despite Shah’s conviction, widespread speculation suggested that the execution was approved to preclude potential

45  Discussion with Justice Sector Support Program, 24 October 2011. 46  Heather Barr, ‘Kabul Execution Spree Bodes Ill for Human Rights’, The Jurist,

17 December 2012, http://jurist.org/hotline/2012/12/heather-barr-afghanistan-executions. php (accessed 20 May 2013). See also Henry Chu, ‘Afghan Death Penalty Raises Concern’, Los Angeles Times, 20 December 2007, http://articles.latimes.com/2007/dec/20/world/fgexecute20 (accessed 20 May 2013). 47  The November 2012 executions occurred within 48 hours of presidential authorization. See also Barr, supra, note 46; Azam Ahmed, ‘Karzai Gives His Approval for Execution of Prisoners’, New York Times, 20 November 2012, www.nytimes. com/2012/11/21/world/asia/afghan-president-approves-execution-of-prisoners.html?_r=0 (accessed 20 May 2013); Shakeela Ahbrimkhil, ‘Further Six Inmates Hanged as Rights Groups, Taliban Protest’, Tolonews.com, 21 November 2012, www.tolonews.com/en/ afghanistan/8438-further-six-inmates-hanged-as-rights-groups-taliban-protest (accessed 20 May 2013). 48  Carlotta Gall, ‘With Killer’s Execution, Karzai Signals Move on Warlords’, New York Times, 3 May 2004, www.nytimes.com/2004/05/03/world/with-killer-s-executionkarzai-signals-move-on-warlords.html (accessed 20 May 2013). 49  Afghanistan Constitution Art. 23; see supra, note 44. 50  ‘Former Afghan Commander Executed’, BBC News, 27 April 2004, http://news.bbc. co.uk/2/hi/south_asia/3662935.stm (accessed 20 May 2013); see also Gall, supra, note 48. 51  Ibid.

264

Capital Punishment: New Perspectives

testimony against powerful political leaders.52 Reportedly, President Karzai was reluctant to sign the death warrant, but did so “in the interest of justice.”53 Three years later, on 7 October 2007, as concern over widespread violence grew, President Karzai authorized the executions of 15 men.54 The hastily planned en masse executions became a public debacle involving fleeing inmates, an escaped prisoner and mangled bodies. Timor Shah, a convicted murderer, escaped – allegedly with the help of three guards.55 Unexpectedly, police were not allowed access to the execution site and had to find a new site as daylight faded.56 Prisoners were denied final ablutions and prayer, and were killed haphazardly as police unleashed bullets into the crowd of 15 remaining prisoners, some of whom tried to escape like Shah.57 In the end, ‘[s]ome of the dead were disfigured and unidentifiable’.58 Public outcry over the mass shooting generated discussion about the death penalty and its implementation in Afghanistan in the international community.59 Afghanistan changed the means of execution, but did not abandon the practice. In December 2008, the Afghan government conducted approximately 17 executions by hanging, generating international indignation, including due process concerns raised by Amnesty International, which called for an immediate moratorium: ‘The sudden rush in executions is of serious concern, given that Afghanistan’s fledgling justice system is largely incapable of providing fair and sound trials.’60 At the time, 52  Ibid. See also ‘Officials Carry Out First Execution Since Collapse of the Taliban’, Chicago Tribune, 28 April 2004, http://articles.chicagotribune.com/2004-04-28/ news/0404280237_1_first-execution-taliban-president-hamid-karzai (accessed 20 May 2013). 53  Ibid. 54  See ‘Afghanistan Carries Out Executions’, Al Jazeera, 8 October 2007, www. aljazeera.com/news/asia/2007/10/2008525122652731235.html (accessed 20 May 2013). According to Hamish Macdonald of Al Jazeera, ‘There has been a spike in crime here in recent years … and there has been pressure politically on the government to carry out stricter punishments.’ 55  See Chu, supra, note 46. 56  Ibid. 57  Ibid. 58  Ibid. 59  Ibid. The British and Dutch condemned the executions. The Canadians sought assurances that no one executed was caught by Canadian troops. See also ‘Amnesty International Dismayed by Execution of 15 in Afghanistan’, 9 October 2007, www.amnesty.org/en/library/ asset/ASA11/014/2007/en/56123 (accessed 20 May 2013); Human Rights Watch, e-Ariana, 5 November 2007 (‘“It was a grotesque mockery of justice …. The legal systems in even the wealthiest nations are incapable of providing justice when it comes to capital punishment. Afghanistan certainly can’t”’, www.e-ariana.com/ariana/eariana.nsf/allDocs/B35BE7BDDE5 685F28725738B0046B24D?OpenDocument (accessed 20 May 2013). 60  ‘Afghanistan Moves Towards a Wide Use of Executions’, Amnesty International News, 13 November 2008, www.amnesty.org/en/news-and-updates/news/afghanistanmoves-towards-wide-use-executions-20081113 (accessed 20 May 2013); Death Sentences and Executions in 2008, Amnesty International Publications, March 2009, www.amnesty.

Afghanistan: Death Penalty at the Crossroads

265

the Afghan government seemed intent to continue with frequent executions, yet returned to a pseudo-moratorium after the 2008 executions.61 Afghanistan’s self-imposed two-and-a-half-year ban on executions ended on 11 June 2011 with the hangings of two men convicted in the killings of 40 Afghans in a Jalalabad bank in February 2011.62 The crime involved was alleged to have Taliban ties, and political pressures were strong.63 Zar Ajam, one of the convicted men, stated that he enjoyed the systematic shootings of bank customers, caught on a security camera. Public outrage and calls for execution came during a period when President Karzai was publicly critical of foreign influence in Afghanistan.64 President Karzai expressed no misgivings in authorizing these executions.65 At the time, US Embassy observers believed that the de facto death penalty moratorium would resume, and that circumstances and Afghan public outcry forced President Karzai’s hand.66 Similarly, minimal international reaction reflected the belief that this was an outlier event.67 That perception held true until November 2012. On 20 November 2012, the Afghan government ended its de facto moratorium on executions by hanging eight men. The following day, Afghanistan sent an additional six men to the gallows.68 The condemned were convicted of crimes org/en/library/asset/ACT50/003/2009/en/0b789cb1-baa8-4c1b-bc35-58b606309836/ act500032009en.pdf,%20Oct.%2003,%202009 (accessed 20 May 2013); see also ‘Afghanistan: Karzai Should Halt Executions’, Human Rights Watch, 20 November 2012, www.hrw.org/news/2012/11/20/afghanistan-karzai-should-halt-executions (accessed 20 May 2013); David Zucchino, ‘8 Executed by Hanging in Afghanistan, Ending 4-year Moratorium’, Los Angeles Times, 21 November 2012, http://articles.latimes.com/2012/ nov/21/world/la-fg-wn-hangings-afghanistan-20121121 (accessed 20 May 2013). 61  See Addion Morris, ‘Afghanistan Government Ends Death Penalty Moratorium with 8 Executions’, The Jurist, 21 November 2012, http://jurist.org/paperchase/2012/11/ afghanistan-government-ends-death-penalty-moratorium-with-8-executions.php (accessed 20 May 2013); see also supra, note 60; Barr, supra, note 46. 62  Authors’ knowledge; see also Sayed Salahuddin and Pamela Constable, ‘Afghan Mass Killers First to be Hanged by Karzai Government’, Washington Post, 20 June 2011, www.washingtonpost.com/world/afghan-mass-killers-first-to-be-hanged-by-karzaigovernment/2011/06/20/AGq8gwcH_story.html (accessed 20 May 2013). 63  Nick Schifrin, ‘How the Taliban Turned a Child into a Suicide Bomber’, ABC News, 21 June 2011, http://abcnews.go.com/Blotter/taliban-killer-zar-ajam-duped-terrorattack/story?id=13894578&page=3#.ULxFtYNTySp (accessed 20 May 2013). 64  See Salahuddin, supra, note 62. 65  Ibid. 66  Authors’ knowledge; see also ‘Kabul Bank Shooter Hanged’, 20 June 2011, www. tolonews.com/en/afghanistan/3091-kabul-bank-shooter-hanged (accessed 20 May 2013); Hashim Shukoo, ‘2 Killers in Afghan Bank Siege are Hanged in Kabul’, Pittsburgh Post Gazette, 21 June 2011, http://old.post-gazette.com/pg/11172/1155089-82.stm?cmpid=nationworld.xml (accessed 20 May 2013). 67  Ibid. See also Barr, supra, note 46. 68  See Zucchino, supra, note 60; see also Ahmed, supra, note 47; ‘Afghan Authorities Execute Six More Death-row Prisoners’, Radio Free Europe Radio Liberty,

266

Capital Punishment: New Perspectives

including murder, kidnapping, rape and treason (national security crimes).69 Among the executed were several men with Taliban ties who allegedly participated in terrorist operations.70 The hangings were widely condemned by international human rights groups, including Human Rights Watch, the European Union, the United Nations and Amnesty International. Unlike 2011, the sheer volume of hangings, and the potential for more executions, garnered international attention and raised concerns that the Afghan government was shifting policy, ushering in a new era of frequent executions. Amnesty International’s Asia-Pacific Deputy Director, Polly Truscott immediately called for restraint by the Kabul government: ‘We urge President Karzai to halt these executions immediately. The sheer number of people who could be killed by the state is a particularly shocking use of what is the ultimate cruel and inhuman form of punishment.’71 Similar calls were made by the United Nations High Commissioner for Human Rights (OHCHR), who criticized the executions, in part, because of weakness of the Afghan judicial system: ‘Deficiencies in judicial proceedings raise serious concerns about the trials, in particular the routine failure to comply with international fair-trial standards and due-process guarantees under Afghan law.’72 Despite international objections, and perhaps maintaining personal reservations about its use, President Karzai authorized the executions, possibly in reaction to domestic political pressures, including a perceived necessity to assert Afghanistan’s sovereignty and demands for retribution and deterrence. Karzai’s Reluctance to Execute President Karzai’s personal opposition to the use of the death penalty, despite its apparent popularity among Afghans, has limited capital punishment in Afghanistan. Karzai delayed authorizing the 2004 execution of Abdullah Shah for a year and a half because he was personally reluctant to endorse executions despite intense pressure from the victims’ families. In discussing the 15 executions 21 November 2012, www.rferl.org/content/afghan-authorities-execute-six-more-death-rowprisoners/24777524.html (accessed 20 May 2013). 69  See Zucchino, supra, note 60, and Ahmed, supra, note 47. 70  See Ahbrimkhil, supra, note 47. 71  ‘EU, Rights Groups Condemn Afghan Executions’, Al Arabiya News Channel, 21 November 2012, www.alarabiya.net/articles/2012/11/21/250944.html (accessed 20 May 2013). 72  Alissa J. Rubin, ‘Afghanistan Executes Six in Gesture on Taliban’, New York Times, 21 November 2012, www.nytimes.com/2012/11/22/world/asia/afghan-suicide-bomberkills-3-near-us-embassy.html (accessed 20 May 2013); see also Barr, supra, note 46 (the international community, led by the European Union and France, as well as UNOHCHR, Human Rights Watch, Amnesty International, and the AIHRC cited concerns about the ability of Afghanistan’s justice system to ensure fair trials and due process, including in capital cases; OHCHR noted these executions occurred two days after 110 countries ratified a UN General Assembly resolution calling for abolition of the death penalty).

Afghanistan: Death Penalty at the Crossroads

267

in 2007, a Karzai aide noted that ‘President Karzai himself is against executions. He doesn’t like executions. That’s why he took so long to make sure every case was investigated thoroughly.’73 In 2008, rejecting a call for an official moratorium, Karzai stated his preference for imprisonment, but committed to uphold Islamic laws.74 Thus, while rejecting calls for an official moratorium, Karzai in essence imposed a personal moratorium. ‘Presidential nullification’ appears to be the sole basis for the post-Taliban periods of de facto moratorium (2001–2004, 2005–2006, and 2008–12). The recent spate of hangings seems to have been ordered with trepidation as well.75 Karzai’s reluctance to execute may come from recognition of intractable issues plaguing Afghanistan’s justice system, his personal belief system, exposure to Western thought, and/or international pressure. Resistance to International Influence The Kabul government has expressed disdain for international community criticism of the Afghan death penalty, mirroring increasing antipathy towards foreign influence among Afghans. While international reaction to the 2004 execution of Abdullah Shah met little resistance from Kabul (and in fact was followed by a de facto three-year moratorium), international criticism of the 2007 executions brought censure from the Afghan government. Member of Parliament Hussein Alemi Balkhi stated: ‘They can’t tell us not to carry out executions. Our law allows executions, and if we don’t carry them out, that will encourage other people to commit wrongdoing.’76 Similarly, after the 2008 hangings, President Karzai stated that he would not bow to pressure from the international community to end capital punishment.77 The rejection of foreign influence was more explicit in statements from the Attorney General’s office after the 2012 executions: ‘Afghanistan has its own judicial system, and there is no place for foreign interference. The Afghan constitution allows capital punishment.’78 Time will tell whether this is a shift in policy or part of a larger political strategy altogether. After the 2012 executions, Human Rights Watch noted that ‘Karzai has been increasingly eager to stand up to the international community, to demonstrate that he is his own man and to play to an Afghan audience … [even if]

73  See Chu, supra, note 46. 74  Ibid. 75  See Ahmed, supra, note 47 (‘According to Nasrullah Stanekzai, legal adviser

to the president, “The president issued the order after long and deep evaluation of the prisoners’ dossiers by the legal board.”’). 76  See Chu, supra, note 46. 77  See Amnesty International News, supra, note 60. 78  Maria Abi-Habib and Ziaulhaq Sultani, ‘Karzai Revives Death Penalty, Sparking Criticism’, Wall Street Journal, 22 November 2012, http://online.wsj.com/article/SB10001 424127887324712504578133161999377622.html (accessed 20 May 2013).

268

Capital Punishment: New Perspectives

detrimental to human rights.’79 This view is borne out in popular thought, which pairs the political expediency of capital punishment with the irrelevance of Western opposition. As one man said: ‘I don’t know what the Westerners think when they criticize the Afghan government for executing criminals. Afghanistan is a different place; we don’t have 24-hour electricity, we don’t have paved roads, even we don’t have enough food for our children, so why they want us to be like them?’80 International Resistance The revival of executions has sparked concerns about wrongful executions and derelictions of justice among nations that provide Afghanistan with military and financial aid. In 1984, the United Nations Economic and Social Council (ESC) passed a resolution, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,81 which set forth rules to mitigate miscarriages of justice in capital cases. These safeguards included mandatory appeals, heightened evidentiary standards and adequate legal assistance at all stages. Clearly, however, this minimally heightened threshold is unmet in Afghanistan capital trials. In October 2011, the United Nations Assistance Mission in Afghanistan (UNAMA) criticized Afghanistan’s treatment of conflict-related detainees and prisoners.82 UNAMA raised questions about effectiveness of the rule of law since detainees’ treatment was characterized by torture and abuse,83 abuse of authority and corruption by government officials,84 arbitrary detentions and due process violations, including coerced or otherwise unreliable confessions, lack of clear evidence or oversight of the justice process and lack of access to legal aid.85 As discussed below, these concerns remain valid, highlighting the inadequate due process underlying capital convictions in Afghanistan. UNAMA cited clear detriments attendant to harsh sentences despite universally acknowledged due process flaws, including compromises to national security, to the reconciliation/ reintegration process and to formal justice sector legitimacy.86 79  See Barr, supra, note 46. 80  Farhad Piekar, ‘Executions Outrage Foreigners, Not Afghans’, Afghanistan

Today, 25 November 2012, http://list.niqash.org/article/?id=365 (accessed 20 May 2013). 81  Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ESC Resolution 1984/50, annex, 1984 UN ESCOR Supp. (no. 1) at 33, UN Doc. E/1984/84 (1984). 82  See, generally, Treatment of Conflict-related Detainees in Afghan Custody, UNAMA and UNOHCHR, Kabul, October 2011, http://unama.unmissions.org/Portals/ UNAMA/Documents/October10_%202011_UNAMA_Detention_Full-Report_ENG.pdf (accessed 20 May 2013). 83  Ibid., at 16, 35–8. 84  Ibid., at 40. 85  Ibid. at 43–6. 86  Ibid. at 8–11.

Afghanistan: Death Penalty at the Crossroads

269

III. Observing Rule of Law: Case Studies of Recent Death Row Prisoners87 As the UNAMA report suggests, a significant concern in the use of capital punishment everywhere is the distinction between legal and actual guilt – the possibility of executing an innocent person. Retentionist countries, which retain death penalty laws and practices, generally rely on additional procedural guarantees in trial and sentencing, including a meaningful opportunity to confer with counsel and present a defence. However, this is not the case in Afghanistan; although the president must sign off on each death warrant personally, trials and sentencing in capital cases proceed identically to those of non-capital cases until that point. Interviews with prisoners on death row in Afghanistan, and subsequent review of files and reports associated with these cases, fail to support an inference that Afghanistan’s death sentences result from full and unchecked due process of law. Death sentences absent effective (or any) defence counsel, trials lasting mere minutes without witnesses or evidence, justice sector corruption, and charges, court dates and ultimate dispositions without notice characterized these death row cases. The Interviews Each person answered a consistent series of questions about their legal process, opportunities to pay bribes and treatment. All interviews were conducted in translation from Dari or Pashto, the national languages of Afghanistan. Many interviewees were designated national security threats (NSTs). The November 2012 executions included several of the people interviewed and discussed below.88 In Their Own Words … AA was captured by US forces in Jowzjan Province, in the initial invasion by Coalition forces.89 AA was tried in absentia and sentenced to death at the primary court. The ruling was affirmed on appeal, where AA was present. However, he did not speak Dari or Pashto (Afghanistan’s official languages) at the time of trial. 87  Case analyses discussed here are based on interviews conducted by Art Cody and Dominique Day in November 2012, subsequent interviews conducted by Dominique Day in December 2011 through February 2012, and review of case files of interviewed prisoners by Dominique Day. The names of those interviewed have been disguised. 88  Although the names of those executed in November 2012 were not published, the government released photographs of six men and published synopses of some of their crimes. Based on the photographs and analyses of the information provided, it appears that many men interviewed were subsequently executed. 89  Interview with Art Cody and Dominique Day, 12 November 2011, Pul-i-Charki Prison, Kabul, Afghanistan. His case file, provided by the prison, corroborates his account, to the degree it supplies relevant information.

270

Capital Punishment: New Perspectives

Although the judge communicated with AA in Arabic, no translation services were provided and AA was not represented. He was charged with terrorist acts based on his membership in Al Qaeda. The Supreme Court remanded the case and he received a 20-year sentence at retrial, modified to death by the appeals court. AA was assigned a lawyer, whom he met in court for the first time during the second appellate review of his case.90 He described the trials as short, incomprehensible proceedings, lasting only minutes. For 1–1.5 million afghanis (Afs) (approximately US$20–30,000), he was told he could improve his sentence. Although it is not clear, and despite his status as a third-country national, the authors believe he was executed in November 2012. MN was arrested in a bazaar during the Eid festival in Ghazni Province.91 The circumstances of his case coincide with the shooting of Bettina Goislard, a French UNHCR officer working in Afghanistan, at point-blank range from a motorcycle. He reported being ‘beaten silly’ daily by National Security Directorate (NDS) (Afghan intelligence service), police, prison and other government officials, resulting in serious injuries. NDS officials said that they would ‘improve’ his file for the court if he paid 500,000 Afs. MN did not have an attorney at the primary court, but the Governor of Ghazni spoke, urging conviction. At the appellate court, the provincial governor berated MN’s assigned attorney until he left. Neither trial involved witness testimony or the presentation of evidence. The death sentence was issued after judge and prosecutor retreated into an anteroom for private conversation. MN was sentenced to death at the district court, and the appellate and Supreme Courts affirmed. He believed his file awaited signature on President Karzai’s desk for approximately eight years.92 It appears that he was executed in November 2012. MW was living in Kabul, selling timber from a shop, and was charged with membership of the Taliban.93 He had no attorney in primary court, and the trial lasted two minutes; he was not even permitted to sit down. He learned of his death sentence one week later in a letter. At appeal, a female attorney was present from the Afghan Independent Human Rights Commission (AIHRC), and he was re-sentenced to 16 years in a proceeding that lasted 15–20 minutes. He was not allowed to present witnesses or evidence on his own behalf. Other detainees informed him he could pay money to lessen his sentence. At the interview, he believed he was only serving 16 years. While he never received notice that the Supreme Court had restored the death sentence, prison records and his case file

90  He believed the lawyer was supplied by the International Committee for the Red Cross (ICRC). 91  Supra, note 89. 92  The Constitution of Afghanistan requires that the president approve each execution; see supra, note 44. 93  Interview with Art Cody and Dominique Day, 12 November 2011, Pul-i-Charki Prison, Kabul, Afghanistan.

Afghanistan: Death Penalty at the Crossroads

271

indicated he was serving a capital sentence. The authors believe he was executed in November 2012. BA was the president of a construction company in Herat who claimed thengovernor Ismail Khan had framed him because his company received most regional government and foreign contracts.94 Initially detained in Herat, BA was transferred to NDS custody, where he was severely beaten and received injuries requiring two separate surgeries on his legs. BA retained counsel for the primary court, but his attorney was not allowed to speak in court. The trial lasted one hour. The judge retired to a private chamber with the prosecutor (and without defence counsel), and pronounced the death sentence upon re-entering the courtroom. BA was not aware of any the appellate proceeding or pending court dates. BA was also informed that he could reduce his sentence with a bribe. The authors believe he was executed in November 2012. LL was charged with blowing up a vehicle and membership in the Taliban.95 He was detained, severely beaten, and released. As instructed, he returned to the police station, where he was asked for a 90,000 Afs bribe to make the case disappear, which he did not have. He was re-arrested and sent to Kandahar Prison, where officials demanded 400,000 Afs for his release. Prior to the death sentence of the first court, he was approached by someone claiming to be a friend of the judge seeking 400,000 Afs for favourable consideration by the court, which he did not have. He received a death sentence at the primary court, which was affirmed by the secondary court. On remand from the Supreme Court, LL was sentenced to 20 years at the district court, a sentence he believed was affirmed on appeal. He did not believe he currently faced a death sentence, although prison records and his case file indicate he received a final, capital sentence. The authors believe he was executed in November 2012. MH never saw an attorney at any stage of his prosecution or investigation.96 Raised in a refugee camp in Iran and educated in a madrassa there, MH was arrested with five others by NDS, and charged with conspiracy to facilitate a suicide bombing. In an in absentia proceeding five months after his capture, MH received a death sentence in the primary court. He learned of this from fellow inmates, whose families brought news of a televised announcement of death sentences for five insurgents. The appellate proceeding took place over the course of several court appearances a year later; MH provided testimony, including a prepared statement. Although asked by the judge whether he had hired an attorney, no counsel was assigned or offered by the court. He reported a sentence reduction to 20 years, but a death sentence was reinstated by the Supreme Court. MH believed that President Karzai declined to sign the death warrant and that his sentence was commuted to 20 years, which he was currently serving. MH received no official 94  Ibid. 95  Ibid. 96  Interview by Dominique Day, 8 December 2011, Pul-i-Charki Prison, Kabul,

Afghanistan.

Capital Punishment: New Perspectives

272

notice of this, but instead was informed of the purported amendment by visitors to his co-defendants. Nevertheless, prison records and his case file indicate a death sentence was in effect. The authors believe he was executed in November 2012. MK was arrested after the kidnapping of French soldiers from Kapisa Province.97 He denied the kidnapping, claiming he was charged with a conspiracy and a suicide attack that occurred while he was outside the province. He was arrested by Coalition forces and transferred to NDS custody, where he reported being ‘beaten silly’ and tortured until he put his thumbprint to a confession.98 His leg was broken and he still bore scars from the torture; he acknowledged that he signed a confession to stop the beatings. MK’s family hired an attorney who was sick the day of trial; the court continued without him. The case proceeded in Dari, which he did not speak. MK was banished from the courtroom as judge and prosecutor discussed the case prior to his death sentence. He was unaware of any upcoming court dates. The authors believe he was executed in November 2012. Analysis Each interview presented rule of law concerns. Most inmates did not receive timely or official notice of court dates, death sentences and modifications. Prisoners learned of sentences from fellow inmates, through televised announcements and from jailers. In three cases, prisoners believed their death sentences had been commuted but records indicated they remained on death row, without their knowledge. Uniformly, the prisoners lacked notice of their right to counsel or meaningful access to counsel, enhancing or exacerbating every due process deficiency that occurred. Convictions and sentences ensued after closed-door ex parte sessions between judges and prosecutors, despite the right to public proceedings. Trials lasted minutes, and coerced confessions were accepted. These issues raise questions about the legal process underlying capital punishment in Afghanistan. These themes recur on Afghanistan’s death row.99 Women on death row in Balkh and Kunduz Provinces raised consistent concerns.100 Similarly, an 8 October

97  Ibid. 98  In Afghanistan, where much of the populace is illiterate, standard practice for

verifying official documents involves placing a thumbprint on the document to accredit its contents. 99  An Afghan reporter sentenced to death for apostasy, after circulating an article of how women are treated in Islam, had a consistent story: ‘The trial lasted less than thirty minutes and the accused, Sayed Perwiz Kambakhsh, was given little opportunity to speak or defend himself. There was no defence lawyer to assist him’; Ele Pawelski, ‘Defining Justice in Afghanistan: Development of a National Legal Aid System’, Windsor Review of Legal and Social Issues, 27 (2009), 185 (citations omitted). 100  Interviews by Dominique Day, January–May 2013.

Afghanistan: Death Penalty at the Crossroads

273

2012 trial in Kunar Province101 of a man who raped and beheaded a young girl resulted in a capital sentence. The publicized ‘model’ trial took less than one day, photographs of the victim were displayed in court throughout the trial, and the eyewitness could not make an in-court identification.102 Previously, the victim had refused to marry the defendant, who then kidnapped her, which the family ‘resolved’ through the local shura. Despite little doubt of the defendant’s guilt, this model trial raised questions about the justice system’s capacity and maturity to issue credible capital sentences. IV. Capital Sentencing Discredited by due Process Challenges in the Justice Sector Afghanistan is a nation at the crossroads. The application of the death penalty illustrates the nascent development of Afghanistan’s rule of law, and pervasive issues play out in the justice sector regularly, including ongoing tension between the courts’ formal justice and informal, traditional dispute resolution. Pervasive corruption undercuts the courts’ role in social justice and reconciliation. Incompatible opinions on Sharia’s relationship to the justice system drive endless debate and are apparent in the operation of the rule of law. Until November 2012, it appeared Afghanistan was moving towards de facto abolition. Actual executions were infrequent and driven by heinous events with wide-ranging implications for security or rule of law. While the recent executions arguably fall within this category, these executions did not result from overt pressure, came as a surprise to the international community, and have not been discussed in the context of a broader policy or strategy of Afghanistan’s government. Nor has the recent spate of executions succeeded in deterring terrorist incidents, which continue throughout Afghanistan. The road ahead for Afghanistan’s death penalty depends on myriad factors which drive rule of law development. Afghanistan stands at a crossroads with respect to politics, security and justice. In 2014 Afghanistan will have a new president, who may favour capital punishment, and international combat troops will leave Afghanistan. Today, the reliability of capital sentencing is called into question by insufficient attention to due process. Fundamental fairness considerations, embedded in the system through the role of defence counsel and the expectations of fair trials, are undervalued. To continue a capital punishment regime, Afghanistan should ensure that executions follow a rigorous and enhanced 101  Rafi Sediqi, ‘Kunar Court Sentences Rapist, Murderer to Death’, 9 October 2012, http://tolonews.com/en/afghanistan/7881-kunar-appeals-court-sentences-rapist-murderer-todeath- (accessed 20 May 2013). 102  Authors’ knowledge; see also ‘Kunar Public Trials Highlight an Emerging Effective Criminal Justice System’, US Department of State Cable, 12 Kabul 7452, 25 October 2012.

274

Capital Punishment: New Perspectives

due process of law not susceptible to corruption. However, if Afghanistan follows the clear trend in the international community – abolition – its rule of law could mature without fear of the improper loss of life. These decisions loom on the horizon in Afghanistan, influenced by the political climate and the facts on the ground as the 2014 elections and international military drawdown approach. The apparent popularity of capital punishment among Afghans notwithstanding, Afghans must decide whether continued use of capital punishment is consistent with international treaty obligations, the maturity of its formal justice sector and the stated commitment to rule of law.

Chapter 13

The Death Penalty in Canada: Ethnicity, Abolition and the Current Debate1 Margaret Dudgeon

Introduction Since Canada’s Confederation, 1,533 people have been sentenced to death, and 710 of those were executed (McKenzie, 1979, 2). All executions followed convictions for murder (with the exception of one conviction for high treason, of Louis Riel). Executions took the form of hanging. In examining Canada’s experience of capital punishment, it is important to consider the historical context since Confederation and the significant events, such as the North-West Rebellion, that took place. To give one example, in 1885, eight members of the Cree band were convicted of ‘massacr[ing] several whites’ during the North-West Rebellion and were consequently executed by public hanging (Anderson, 1973, 37). This is the largest mass execution recorded to have taken place since Confederation in 1867. In examining the Canadian experience, many significant questions remain unanswered. For instance, how objectively was the death penalty administered, and how fairly was clemency granted or denied? The underlying relationship between Indigenous peoples and white settlers is an important context to bear in mind when examining the manner in which the death sentence was administered at the turn of the twentieth century. For the significant issue of state-sanctioned execution, it seems there has been limited scrutiny with regard to its historical application. The aim of this chapter is to bring together multi-disciplinary commentary and government statistics which collectively trace the practice of capital punishment since Confederation. This chapter will provide an analysis of the application of the death sentence to ethnic minorities and females. The final section will consider contemporary issues. Although the death penalty was abolished in 1976, the Canadian government’s attitude in death penalty cases, as well as internationally, appears to be flailing somewhat.

1  The author gratefully acknowledges the able research assistance of Justin Raycraft, MA candidate, Anthropology, University of British Colombia.

Capital Punishment: New Perspectives

276

Literature Review This review begins with an examination of the historical context. Colonization and subsequent British rule have negatively impacted the lives of Aboriginal2 peoples, a trend which arguably remains today. For instance, Michael Jackson QC succinctly summarizes such effects: The native people of Canada have, over the course of the last two centuries, been moved to the margins of their own territories and of our ‘just’ society. This process of dispossession and marginalization has carried with it enormous costs of which crime and alcoholism are but two items on a long list. (Jackson, 1989, 218)

The consequence of such marginalization is seen in the disproportionate overrepresentation of Aboriginal people in the criminal justice system and prisons. As the Supreme Court of Canada acknowledged in R v. Williams: ‘There is evidence that … widespread racism has translated into systemic discrimination in the criminal justice system.’3 Similarly, in R v. Gladue, the same court referred to the ‘drastic overrepresentation’ of Aboriginal people within the criminal justice system as a ‘crisis’.4 The Supreme Court of Canada summarized the context as follows: The unbalanced ratio of imprisonment for Aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for Aboriginal people. It arises also from bias against Aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for Aboriginal offenders.5

Bearing the contemporary perception in mind, the relationship between the Aboriginal peoples and European settlers may have had an impact upon the application of the death penalty. For instance, Anderson (1973) describes how in 1852 the ‘lurking menace of powerful Indian tribes’ led to the shooting of a newly settled sheepherder. The two accused were tracked down, assembled on a ship at Vancouver Island for a brief trial, and executed the following day (Anderson, 1973, 21). In discussing the British Columbia experience of capital punishment in the period until 1870, Anderson concludes: ‘needless to say, the majority of victims were Indian’ (Anderson, 1973, 21). Avio (1988) notes the apparent government policy of the Ministry of Indian Affairs to recommend against commutation of sentence because ‘special 2  ‘Aboriginal’ will be used throughout this chapter as this term reflects the present legal definition in Canada. 3  1998 CanLII 782 (SCC), [1998] 1 SCR 1128, para. 58. 4  R. v. Gladue, [1999] 1 SCR 688, para. 64. 5  Ibid., para. 65.

The Death Penalty in Canada

277

deterrence’ was required for this ethnic group (Avio, 1988, 341). Avio’s study relies on anecdotal evidence stemming from court transcripts of capital cases. It suggests there were racial undertones in the judges’ references to non-white offenders in capital cases. For instance, in a 1951 case, the victim was described as a ‘Chinaman’ (Avio, 1988, 341). In a subsequent 1953 case, a trial judge suggested that the defendant’s ‘Indian blood was inflamed with the beer he had drunk’, implying that ‘Indians’ were more aggressive than Anglo-Canadians (Avio, 1988, 341). Another judge in 1942 took exception to Eastern European immigrants: We have in these Slavic immigrants in Western Canada many of [the offender’s] type, with low moral standards, a bullying cruel type, greatly given to drink, especially of the home brews they concoct. They quarrel and fight and have little regard for the consequences …. When they are crossed they seek reprisals and vengeance …. Fear of punishment is the only deterrent they regard with any respect.6

Boyd (1988, 61–2) makes similar assertions regarding prejudices against minority groups in both the trial and commutation process. He references three case files that raise such issues, respectively comprising a Jewish defendant, a homosexual and a defendant belonging to the Doukhobor sect. In each case, Boyd (1988) highlights how the defendant’s character was considered in terms of stereotypes pertaining to his religion or sexuality. In the first, the judge’s address to the jury and the submissions of defence counsel referred to the defendant and his witnesses as ‘Hebrews’. The judge stated: ‘I carefully instructed the jury that they were not in any way to be influenced by the fact that the witnesses for the accused were Hebrews …’.7 One may infer from this statement that public consciousness, including that of the judge himself, regarded a ‘Hebrew’s’ testimony as inferior to that of, for example, Christian members of the community. With regard to the second case file, Boyd criticizes the court proceedings for focusing on the homosexuality of the defendant (Boyd, 1988, 62). A psychiatrist testified at the trial, describing how the defendant ‘has shown features which I encounter typically in homosexuals’ (Boyd, 1988, 62). In this case, Boyd notes that a strong case was made to support a commutation of the death sentence to life imprisonment. The evidence apparently established a defence of provocation, influence of alcohol and actions carried in passion rather than cold blood. Despite these circumstances, the defendant was executed. The final case concerned an individual of the Doukhobor faith. Members of the Doukhobor community settled in British Columbia during the late nineteenth century, and remained an unpopular group into the mid-twentieth century. The case file records the police description of the defendant as a ‘typical Doukhobor’, and even defence 6  Capital Case File no. 539 (F. Patrick), National Archives, Ottawa, quoted in Avio (1988), 341. 7  Letter to Hugh Guthrie, Capital Case Files, RG 13 Series, Abraham Steinberg, 2, National Archives, Ottawa, 10, quoted in Boyd (1988), 61–2.

278

Capital Punishment: New Perspectives

counsel referred to Doukhobor witnesses as ‘inclined to colour their statements’ (Boyd, 1988, 107, 109).8 All three of these defendants were executed. In some cases, it seems that rather than cast blame on minority groups, there may also have been an incentive on the part of the government to seek clemency. In the late nineteenth century, in cases concerning Aboriginal defendants, for instance, there may have been an underlying influence upon the decision maker to ‘keep the peace’. A letter dated 1894 from the Deputy Superintendent General of Indian Affairs in Ottawa made a plea for clemency regarding the case of ‘two Indians’ who were sentenced to death for ‘murder of a white man’.9 The letter suggested that there had been criticism relating to the ‘fairness of the law as applied to Indians’. The Deputy Superintendent reasoned as follows: ‘I would add an expression of my desire, that everything possible may be done in the premises consistent with the demands of justice, to maintain a state of good feeling between the Indians and the white people in British Columbia.’10 This bid for clemency was successful, as Peter and Jack had their sentences commuted to life imprisonment. Carol Strange (1992) considers death sentences in Aboriginal cases to reflect ‘wilful indifference toward inter-Native conflict’, as well as ‘example making’ in the cases where white people were the victims (Strange, 1992, 12). This statement is certainly highlighted in the case of Louis Riel, who was convicted of treason following the North-West Rebellion in 1885. This rebellion involved armed conflict between Métis people, who were defending their right to self-governance against the Canadian government (Strange, 1992, 9). Louis Riel was executed by public hanging. Eight more Aboriginal people were also executed following convictions for murder, during events that led to the armed conflicts of the NorthWest Rebellion. The prime minister of the time made this remark about Louis Riel: ‘the execution of the Indian … ought to convince the Red man that the White man governs’.11 Contrarily, clemency may also have been applied in a way that perpetuated overt racism. Strange argues that the application of clemency was selective, and based in some cases on ‘racist paternalism’ (Strange, 1992, 11). Specifically, she argues that murders that were carried out as part of ‘traditional rituals’ with the intention of dispensing evil spirits were treated more leniently (Strange, 1992, 11). Strange’s overarching argument is that the practice of execution in Aboriginal 8  See for example, Rak, J. (n.d.), ‘The Doukhobors’, University of Alberta, www. ualberta.ca/~jrak/doukhobors.htm (accessed 30 June 2012). 9  Library and Archives Canada, Department of Indian Affairs, ‘Attempts to Get a Commutation of Death Sentence against Two Indians, Peter and Jack’, New Westminster agency letter, 5 January 1894, http://collectionscanada.gc.ca, search reference 2057990 (accessed 30 June 2012). 10  Ibid. 11  Macdonald to Edgar Dewdney, 20 November 1885, quoted in Waiser and Stonechild (1997), 221.

The Death Penalty in Canada

279

cases was first used to oppress these peoples, and subsequently to placate them with the full force of the law (Strange, 1992, 12). The case of Donald Marshall, Jr involved the realization of a wrongful conviction of an Aboriginal person as a result of racism at every stage of the criminal justice process. In 1971, Marshall was convicted of murder (at this time the Canadian government had imposed a moratorium on the death penalty). Marshall was later acquitted in 1983, after serving 11 years in prison. The Royal Commission tasked with determining why he was wrongfully convicted made critical findings against Canada’s criminal justice system: The tragedy of this failure is compounded by evidence that this miscarriage of justice could – and should – have been prevented, or at least corrected quickly, if those involved in the system had carried out their duties in a professional and/ or competent manner. That they did not is due, in part at least, to the fact that Donald Marshall, Jr. is a Native. (Royal Commission on the Donald Marshall Jr Prosecution, 1989, 1)

This potential arbitrary application of the death penalty is also demonstrated by the recent public ‘expression of regret’ by the British Columbia provincial government relating to two Aboriginal men now considered to have been wrongly executed in 1869 (CBC News, 2012). Further to ethnicity, gender also seems to have influenced the manner in which the death penalty was administered in Canada. The application of the death penalty to women has been criticized for its chivalrous undertones (Erickson, 2011). Erickson notes that in the Prairies region of Canada between 1912 and 1942, 12 women were sentenced to death, but only two were executed (Erickson, 2011, 213). She attributes this selective leniency to the chivalrous attitudes that permeated the appeals put forward by the public, the media, pressure groups, and ultimately, the clemency decision-maker (Erickson, 2011, 213). She also points out for comparison that in the same period, 58% of men in the region who were sentenced to death were executed (Erickson, 2011, 213). Canadian courts have considered the potentially arbitrary application of the death penalty. In 1975, the British Columbia Court of Appeal examined the lawfulness of the death penalty in the case of Miller and Cockriell. The appellants sought to challenge their death sentences on the ground, inter alia, that capital punishment had become unlawful, in violation of the prohibition against cruel and unusual treatment under the newly introduced Bill of Rights.12 The appeal was unsuccessful at the British Columbia Court of Appeal and subsequently at the Supreme Court of Canada. Interestingly, at the Court of Appeal level, Justice McIntyre (dissenting) suggested that the granting of mercy in capital cases was arbitrarily applied. Firstly, he argued that women were more likely than men to 12  RSC 1970, App. III, Regina v. Miller and Cockriell [1975] BCJ, 1040, quoted in Avio (1988), 332.

Capital Punishment: New Perspectives

280

be granted mercy: ‘My examination of Canadian statistics entered into evidence indicates that the same inequality has appeared in Canada. Since 1867, 669 men and 12 women have been executed in Canada. The conclusion that some element of arbitrary choice contributed to this disparity is in my view inescapable.’13 Secondly, Justice McIntyre found no difference between the circumstances of those whose sentences were commuted and those who were executed.14 Building on these findings, one explanation may be provided by Chandler (1976). Following a statistical analysis of capital cases, he concluded that ethnicity affects the final disposition in capital cases in Canada. Chandler points out that whites of English or Scottish origin were under-represented in executions and overrepresented in commutations (Chandler, 1976, 216). Contrarily, ‘blacks’ and Germans were associated with the converse trend (Chandler 1976, 216). Avio (1988) made similar findings as to the disparity in the commutation of sentences with reference to gender and ethnicity. He concluded that this was ‘inequality of treatment based upon gender’, and also found the ‘unprincipled factor’ of ethnicity to play a role (Avio, 1988, 339–40). In examining archival files and controlling for all other factors, he found that an individual classified as ‘Native’ was six times more likely to be executed compared to Anglo-Canadians (Avio, 1988, 340). Furthermore, men were 17 times more likely to be executed in comparison to women. Comparisons of ‘non-white’ offenders to ‘white’ offenders revealed that ‘non-whites’ were 14 times more likely to be executed (Avio, 1988, 340–41). He also found higher likelihoods of executions for other ethnic groups (mainly Eastern European nationalities) (Avio, 1988, 340–41). There are limited statistics within government records pertaining to the representation of Aboriginal people amongst those sentenced to death. This gap in statistics is perhaps due to the fact that the death penalty has been abolished for some thirty years, and as such, it may no longer be considered a pressing issue. As discussed, research exploring ethnicity and gender as they intersect with the application of the death penalty has been undertaken, but with reference to specific time periods. Avio’s (1988) review of archival case files was limited to the period 1926–57. Chandler (1976) reviewed cases in the period 1946–67 with reference to the final commutation decisions of capital defendants (Chandler, 1976: 216). With these studies in mind, the following section will consider the representation of ethnic and gender groups within capital cases and the number of executions for the broader period 1867–1976.

13  Ibid., para. 258. 14  Ibid., para. 255.

The Death Penalty in Canada

281

Capital Punishment Since 1867 and its Relationship to Ethnicity, Gender and Nationality Data The basis of this discussion is a list compiled by Archives Canada (Gadoury and Lechasseur, 1994). It purports to be a complete list of capital defendants and final dispositions for all Department of Justice capital files since Confederation in 1867. For the purpose of this section, this list will be referred to as ‘the data’. The data comprises 1,533 capital defendants. The ethnic origin of the defendant is listed in 53% of the case references. Execution is recorded as the final result in 675 cases (44% of capital cases). It is expected that some executions were not recorded in the original case files, as the official number of executions is 710 (McKenzie, 1979). Most of these may be accounted for in noting that 31 cases reference the interrogative term ‘hanging?’ under the ‘Result’ heading. The majority of offences are convictions for murder. A small number of defendants were convicted of rape (28), piracy (four), high treason (two) and burglary (three). This analysis assumes that the data, as well as the individual files of the Department of Justice, are accurate. In accepting the data as such, the following limitations are borne in mind: • The description of an individual as ‘Indian’ is referenced, but it is not clear whether every Aboriginal defendant was consistently categorised as such in the original case files. • There are references to ‘Negro’ and ‘coloured’ defendants, but no references to ‘white’ defendants. • There are references to the nationality of the defendant when he or she is non-Canadian or French-Canadian, but there are no references to ‘Canadian’ defendants. • The level of detail relating to the crime varies, and little is known about the characteristics of victims. • In some cases, information is missing – such as the final disposition or details of the crime. It is also important to consider that there many factors that play a part in the final disposition of death penalty cases, such as government policy and changes to the law. For example, in 1961, the Criminal Code was amended by Bill C-92, which divided murder offences into capital and non-capital offences. The former retained the mandatory sentence of death, and the latter entailed life imprisonment (Jayewardene, 1977, 3). This amendment was passed at a time when the abolition movement was gaining stride. Indeed, the last executions took place in 1962, and in 1964, all death sentences were commuted to life imprisonment (Jayewardene, 1977, 4). Another factor to consider is that different governments of the time

282

Capital Punishment: New Perspectives

may have shown varying amounts of leniency (Boyd, 1988). During 1952–57, the Liberal Louis St. Laurent government commuted 45% of capital cases (Boyd, 1988, 32). The subsequent conservative government of Diefenbaker increased the rate of commutations during 1958–62 to 82% (Boyd, 1988, 32). Prior to 1952, commutation was far less frequent (Boyd, 1988, 32). With these limitations in mind, an overview will be undertaken to assess the demographics of capital defendants in Canada, during 1867–1976. The aim of this discussion is to broadly explore the application of capital punishment as it intersects with ethnicity, country of origin and gender. Method Capital defendants are grouped below according to ethnic origins. Only groups representing more than five capital defendants are included. For this analysis, cases within the data that reference the defendant as ‘Indian’ or ‘Eskimo’ are grouped together as ‘Aboriginal’. References to ‘half-blood’, ‘negro’, ‘coloured’ or ‘mulatto’ are similarly grouped together as ‘people of colour’. Further investigation would be needed to ascertain the extent to which such labels were emphasized during the trial and commutation process. The final disposition (executed, commuted or other15) for each group is also tabulated. References to ethnicity or country of origin are tabulated and displayed in Tables 13.1 and 13.2. In Table 13.1, European origins are grouped by region. From this tabulation exercise, the percentage of each group is calculated, with reference to the overall number of capital defendants. The percentage of executions for each group is also calculated, with reference to the total number of capital defendants. As the purpose of these tabulations is to compare the ethnic groups that feature within Canada’s capital defendants population, where the rate of execution for a particular group is higher than the overall rate of 44%, these results are highlighted in grey. Demographics relating to females and religion are similarly tabulated in Tables 13.3 and 13.4. For females, all ethnic groups are included. Origins of capital defendants  In Table 13.1, the groups with the highest rates of execution are highlighted in grey. European origins are grouped by region, although a detailed breakdown for Europe is provided in Table 13.2. Higher rates of execution are found for a number of groups, when compared to the overall rate of 44%. These groups are: Japanese (76.9%), Western Europe (54.5%), American (53.1%), People of colour (53.1%), Eastern Europe (52.4%), Southern Europe (48.1%) and Aboriginal (45.9%) (Table 13.1, column C). Converse trends are seen with respect to commutations. The following groups had lower rates of commutation when compared to the overall rate of 40%: French 15  Cases categorized as ‘other’ include those referenced under ‘Result’ as one of the following: death in prison, retrial, reduction of sentence or suicide. Cases described as ‘unknown’ are those where the outcome is entered as ‘hanging?’ under ‘Result’.

The Death Penalty in Canada

Table 13.1

Origin

No reference Eastern Europe

283

Origin A

B

C

D

E

F

Number

% of total capital cases

Executed (%)

Commuted (%)

Other (%)

Unknown (%)

709

46.2

40.5

43.0

13.4

3.2

170

10.8

52.4

34.7

14.1

0

French Canadian

150

9.8

42.7

36.3

28

1

Northern Europe

112

7.3

36.6

47.3

14.3

1.8

Aboriginal

98

6.4

45.9

38.8

13.3

2.0

Southern Europe

79

5.2

48.1

39.2

10.1

2.7

People of colour

64

4.2

53.1

34.4

9.4

3.1

Western Europe

55

3.6

54.5

30.9

14.5

0

American

49

3.2

53.1

41.0

Chinese

25

1.6

36

36

Japanese

13

0.8

76.9

15.3

44

40

Overall

1,533

6.1 28 7.7 14

0 0 0 2

Canadians (36.3%), Eastern Europeans (34.7%), Japanese (15.3%), Western Europeans (30.9%) and people of colour (34.4%) (Table 13.1, column D). In comparison, Northern Europeans are overrepresented in commutations, 47.3% of sentences were commuted in comparison to the overall rate of 40%. European defendants  A number of European groups were executed more frequently in comparison to the overall rate of 44%. The following origins have comparatively higher rates of executions: Romanian (75%), Galician (71.4%), Austrian (60.9%), German (59.1%), Russian (56.3%), Ukrainian (53.6%), Polish (50%) and Italian (48.4%) (Table 13.2, column C). The most under-represented groups in commutations are Ukrainian (26.8%), Romanian (25%) and German (18.2%), compared to the overall rate of 40% (Table 13.2, column D). A significant proportion of the executed German defendants are referenced as prisoners of war (six out of 22 capital defendants). Within those referenced as

Capital Punishment: New Perspectives

284

Table 13.2

European capital defendants A

Country of origin

Number

B % of total capital cases

C

D

E

Executed Commuted Other (%) (%) (%)

F Unknown (%)

Eastern Europe Ukrainian

56

3.7

53.6

26.8

19.6

0

Polish

32

2.1

50

37.5

12.5

0

Russian

28

2.1

56.3

34.4

9.4

0

Hungarian

19

1.2

36.8

47.4

15.8

0

Romanian

8

0.5

75

25

0

0

Northern Europe

0

British

60

3.9

43.3

40

15

1.7

Irish

25

1.6

36

56

8

0

Norwegian

8

0.5

12.5

75

12.5

0

Finnish

7

0.5

28.6

71.4

0

0

64

4.2

48.4

40.1

9.4

7

0.5

71.4

28.6

0

Southern Europe Italian Galician

1.6 0

Western Europe Austrian

23

1.5

60.9

34.8

4.3

0

German

22

1.4

59.1

18.2

22.7

0

German prisoners of war, five out of six were executed, all in 1946, following the Second World War. This may be why the rate of execution of Germans is one of the highest. Aboriginal defendants  According to the data, 45 Aboriginal defendants were executed (Table 13.1, column A). This amounts to 46% of Aboriginal cases, indicating that Aboriginal people were executed more frequently compared to the overall rate of 44% (Table 13.1, column C). It is also interesting to note that the four piracy defendants convicted in 1872, were all Aboriginal. Twelve Aboriginal people (including Louis Riel) were convicted in respect of actions during the North-West Rebellion in 1885.

The Death Penalty in Canada

Table 13.3

285

Female capital defendants

Origin No reference

No.

No. executed

Executed (%)

33

7

21.2

48.5

27.2

3

4

1

25

50

25

0

French Canadian

Commuted (%)

Other (%)

Unknown (%)

British

3

1

33

33

33

0

Italian

3

1

33

33

33

0

American

3

0

0

100

0

0

Aboriginal

2

0

0

50

50

0

Ukrainian

2

0

0

0

100

0

Austrian

2

0

0

100

0

0

Polish

2

0

0

100

0

0

Hungarian

1

1

100

0

0

0

Acadian

1

0

0

100

0

0

Galician

1

0

0

100

0

0

Irish

1

0

0

100

0

0

58

11

19.0

25.9

1.7

Overall

Table 13.4

53.4

Religion

Religion

No.

No. executed

Executed (%)

Commuted (%)

Other (%)

Doukhobor

1

1

100

0

Jewish

6

4

67

33

0

Hindu

3

2

67

0

33

Muslim

1

1

100

0

0

Overall

11

8

73

18

1

0

People of colour  In total, 61 defendants who were labelled as people of colour were sentenced to death. People of colour were executed more frequently: 53% of cases resulted in execution compared to the overall rate of 44% (Table 13.1, column C). In addition, this group was under-represented in commutations: 34% of cases were commuted, in comparison to the overall rate of 40% (Table 13.1, column D).

Capital Punishment: New Perspectives

286

Over-representation  It is noteworthy also to consider the representation of these groups in the context of the overall Canadian population at the time. The overall representation of the groups discussed can be ascertained from Statistics Canada (Basavarajappa and Ram, 2008). These statistics span the hundred-year period 1871–1971. For a broad comparison, the median for certain groups is calculated in order to determine the percentage representation of each group within the general population. This representation is then compared to the respective representation of each group within the capital defendants population and executions. With regard to the groups under discussion, three groups are selected and included in Table 13.5 below. Table 13.5

Over-representation Group

General population (%)

% of total capital cases

% of total executions

People of colour

0.2

4.2

5.0

Italian

0.9

4.2

4.6

Aboriginal

1.3

6.4

6.7

As detailed in Table 13.5, each group appears to be over-represented in capital cases when compared to the general population. Females  According to the data, 11 women were executed out of a total 58 female capital defendants (Table 13.3). Women made up 4% of all capital cases. These figures are in line with those of Erikson (2011). Notably, only 19% of female capital cases ended in execution, compared to the overall rate of executions of 44%. Conversely, the rate of commutation was higher (53.4%), compared to the overall rate of 40%. This was an expected outcome, given Erickson’s (2011) commentary that discusses the chivalrous perspective of the legal system towards female murderers prior to the mid-twentieth century. Two women were referenced in the data as ‘Indian’, neither of whom was executed. Female Aboriginal defendants represent 3% of the total number of female capital defendants. The first Aboriginal defendant was Katy Joe, who was tried in 1923 and described as unfit to stand trial by reason of insanity. Marie Paulette was the second and last Aboriginal woman to be sentenced to death. She was convicted in 1951 for the murder of her infant child. Her sentence was commuted to life imprisonment. In addition, Erickson identified one Métis woman, Mary Smith, who was tried in 1935 and who was deemed unfit to stand trial (Erickson, 2011, 214). She was not referenced in the data as ‘Indian’ or Métis. In the data, the final outcome for Mary Smith is listed as ‘new trial’.

The Death Penalty in Canada

287

Religion  Religion is recorded in 11 cases. Where religion is referenced, there is a higher rate of execution (73%) compared to the overall rate (44%, Table 13.4). In addition, a comparatively lower rate of commutation is found (18%, compared to the overall rate of 40%, Table 13.4). The only references to religious affiliation were with regard to minority religious groups: Jewish, Hindu, Muslim and Doukhobor. No references were made to Christianity, the dominant religious faith in Canada in the period. Given that religion was recorded infrequently, however, it is not clear how representative these figures are. As with ethnicity, it is not clear why religion was referenced in these particular cases, and the degree to which this characteristic played a role during the trial and commutation decision-making process. Summary of Findings This broad examination of the data suggests that individuals’ ethnic background, gender or religion may be correlated to some degree with their status as a capital defendants as well as the final disposition in such cases. A more detailed statistical analysis is required in order to understand how significant these trends are. In particular, this examination reveals that Japanese people, people of colour, Aboriginal people, some Eastern Europeans (particularly Russians, Romanians and Ukrainians), Italians, Austrians and Germans had higher execution rates and lower commutation rates compared to the overall rates. Aboriginal people, people of colour and Italians also appear to be over-represented in capital cases and executions compared to the general population of Canada for the same period. These trends seem to be in line with those identified by Chandler (1976) and his findings that ‘blacks’, and ‘Germans’ were more likely to be executed compared to defendants of British origin. These statistics also appear to support the work of Avio (1988), who found that ‘Indians’, ‘non-whites’ and Eastern Europeans were more likely to be executed compared to Anglo-Canadians. The next section will seek to put this data and the historical commentary of the previous section into the contemporary context of the death penalty debate today. The Current Debate The pressure for abolition gained momentum in the 1950s and 1960s, and was ultimately realized in 1976. Notwithstanding this, the past three decades have seen both the courts and parliament continue to grapple with death penalty issues. This section will consider this debate in the context of Canada’s international obligations and domestic jurisprudence. International Obligations Since abolition, Canada has committed itself to a number of international agreements that seek to further the human rights movement, both on a national

Capital Punishment: New Perspectives

288

and global level. Canada has often been regarded as a leader of the international human rights movement, and in particular, an advocate for the global abolition of the death penalty. On 19 May 1976, Canada acceded to the International Covenant on Civil and Political Rights (ICCPR) and the Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol). The ICCPR hints at an ultimate goal of abolition; it emphasizes that limitations on the practice of the death penalty should not delay or prevent ultimate abolition (Art. 6(6)). The Human Rights Committee, in interpretative documentation, has since confirmed this desirability.16 By consenting to these international agreements, Canada committed to restricting the death penalty to only the most serious of crimes, and ensuring that it remained subject to the final judgment of a competent court (Art. 6(2) ICCPR). Two months later, the government abolished capital punishment entirely. In 2005, Canada ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which specifically binds states to an absolute prohibition on the use of the death penalty. This accession sent a strong message of Canada’s abolitionist stance. To this end, the government of Canada described this step as ‘reaffirm[ing its] … commitment to protecting human rights and in particular, promoting the abolition of the death penalty internationally’.17 These agreements were signed prior to the present majority conservative government’s entry into office. Extradition The death penalty issue may be over in one sense, but people residing in Canada continue to face execution in other countries that retain the death penalty. With these international commitments in mind, it is interesting to consider Canada’s responses to extradition requests to countries where a person is at risk of being executed. For example, the government ordered the extradition of Joseph Kindler and Charles Ng in 1991 without seeking assurances that the death penalty would not be imposed. Kindler had been convicted of first-degree murder and kidnapping and sentenced to death in the United States. Ng was charged with multiple murders, and if extradited and convicted in the United States, could also face the death penalty. The appellants sought to challenge the government’s decision to extradite them without assurances. The Extradition Act of 1976 gave the Minister of Justice complete discretion in this regard. In both cases, the Supreme Court of Canada 16  General Comment no. 06: The Right to Life (Art. 6), 30 April 1982, para. 6. 17  Second Optional Protocol to the International Covenant on Civil and Political

Rights, Aiming at the Abolition of the Death Penalty, Preamble. See also ‘Backgrounder: Canada’s Accession to the United Nations Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty’, www. collectionscanada.gc.ca/webarchives/20060209133745/http://www.examenequitesalariale. gc.ca/en/news/nr/2005/doc_31756.html (accessed 30 May 2013).

The Death Penalty in Canada

289

determined that the government was not required to seek assurances, and that an extradition without such terms did not breach the Canadian Charter of Rights and Freedoms.18 Under the current Extradition Act of 1999, the Minister of Justice retains discretion over whether to refuse an extradition request if the person in question is at risk of execution in that country.19 Following this decision, the Human Rights Committee received a communication from Kindler, and pursuant to its rules of procedure, requested that the government postpone the extradition. Kim Campbell, then Minister of Justice, ignored this request, and both men were extradited. The Human Rights Committee regretted Canada’s decision, and regarded this refusal as a failure of the Canadian government to ‘display the good faith which ought to prevail among the parties to the Protocol and the Covenant’.20 Since 2001, the government’s actions have been placed under further scrutiny by the courts. In the case of United States v. Burns, the Supreme Court of Canada overturned its previous decisions in Kindler and Ng.21 The court held that the government must request assurances that the death penalty will not be imposed in all death penalty-related extradition cases. The failure to request such assurances was found to be a violation of Section 7 of the Canadian Charter of Rights and Freedoms, the right to life, liberty and security of the person in all but ‘exceptional circumstances’.22 Notwithstanding this decision, in 2003, the Human Rights Committee received a new communication relating to the sending of an individual to the US to face the death penalty. Roger Judge, a US national, had been sentenced to death before escaping to Montreal. In the wake of his escape, he was deported to the US to face his sentence. The Human Rights Committee determined that the deportation decision violated Judge’s right to life under Article 6 of the ICCPR and that the decision was taken arbitrarily as he was not afforded the opportunity to appeal.23 The Supreme Court of Canada had to force the government’s hand to ensure assurances were always obtained in all but ‘exceptional circumstances’. The ignoring of requests of the Human Rights Committee, the monitoring body of the ICCPR, suggests reluctance by Canada to embrace the spirit of the ICCPR when it comes to death penalty issues in US extradition and deportation cases. These cases suggest reluctance on the part of the government to acknowledge the seriousness of both non-compliance with requests from the Human Rights Committee and Canada’s potential complicity in sending individuals to face execution abroad. 18  Kindler v. Canada (Minister of Justice), [1991] 2 SCR 779, Re Ng Extradition (Can.), 1991 CanLII 79 (SCC). 19  Extradition Act, SC 1999, c 18. 20  Communication no 470/1991: Canada, 18 November 1993 (Jurisprudence), para. 23. 21  2001 SCC 7 (CanLII). 22  Ibid., para. 8. 23  Communication no 829/1998: Canada, 20 October 2003, CCPR/C/78/D/829/1998 (Jurisprudence).

Capital Punishment: New Perspectives

290

Clemency Support Since abolition, the government’s policy with respect to Canadian nationals sentenced to death in other jurisdictions had been to wholeheartedly support their clemency applications. In 2007, the Harper government ended this policy in the case of Ronald Smith, a Canadian national on death row in Montana. The Canadian government had consistently requested clemency for Smith on humanitarian grounds, during 1997–2007. Such requests culminated in the State of Montana agreeing in principle to transferring Smith back to Canada.24 Canada, however, had a change of heart. In 2007, the then Minister of Public Safety stated: ‘We will not actively pursue bringing back to Canada murderers who have been tried in a democratic country that supports the rule of law.’25 In addition, the position on clemency support was clarified in Parliament: ‘With respect to clemency … our government will deal with the issue on a case by case basis.’26 In response, the Canadian Bar Association issued a resolution urging the government to ‘restore its policy of unequivocally seeking clemency for all Canadians facing the death penalty abroad’ (Canadian Bar Association, 2009). Smith’s lawyers also challenged the change of policy at the Federal Court of Canada, where they sought to compel the government to assist Ronald Smith during his clemency hearing. In 2009, the Federal Court determined that the Canadian government’s decision to withdraw its assistance was unlawful.27 The Court ordered ‘the Government to continue to apply the former policy of supporting clemency on behalf of Canadians facing the death penalty in any foreign state to Mr. Smith’.28 The court stated: According to Mr. Graham, a former Minister of Foreign Affairs, this policy allowed for no exceptions and was founded on Canada’s principled objection to the death penalty – a view which evolved since the practice of execution was ended here in 1962. This is also a position that is consistent with Canada’s long-standing international policy to support the universal abolition of the death penalty. In the absence of any other policy, this is the policy that the Government must continue to apply in good faith to Mr. Smith’s case.29

It seems this court ruling is not the end of the issue; in May 2012, lawyers for Ronald Smith accused the Harper government of once again reneging on its 24  Smith v. Canada 2009 FC 228 (CanLII), para. 45. 25  Debates (Hansard) 1435. 1 November 2007, 29th Parliament, 2nd Session, no. 13,

Hon. Stockwell Day, Parliament of Canada. 26  House of Commons Debates, no. 026, at 1493, quoted in Smith v. Canada 2009 FC 228 (CanLII), para. 14. 27  Smith v. Canada 2009 FC 228 (CanLII). 28  Ibid., at 58. 29  Ibid.

The Death Penalty in Canada

291

agreement to provide support at his clemency hearing (CBC, 2012). Smith’s clemency application was denied, and his fate now rests in the hands of the Governor of Montana. The Position of the Canadian Government Since Abolition Ten years after abolition, the death penalty debate reared its head in parliamentary debate. The introduction of a motion in 1987 called for reinstatement of the death penalty. The motion was struck down with a ‘healthy but not overwhelming margin’ of 148 against and 127 for (Thompson, 2008, 179; McKenzie, 1988, 14). The 1987 motion, however, was not the end of the reinstatement attempts. In 1997, Member of Parliament Jay Hill introduced Private Member’s Bill C-212, which was again unsuccessful.30 In his opening statement to the House of Commons, he referenced a Gallup public opinion poll where 63% of Canadians indicated that they would vote in favour of reinstatement.31 At the time of his opening statement, opinion seems to have been generally in favour of reinstating the death penalty. Similarly, Gallup opinion poll findings during 1978–98 found that approximately 60% of the general public were in favour of reinstatement (Department of Justice, Canada, n.d.). In 2007, however, the results of a government-sponsored opinion poll found that only 21% of Canadians supported the death penalty, indicating that public consensus may not be as clear-cut as originally thought (Woods, 2007). In 2012, following the trial of Michael Rafferty, who was convicted of kidnapping, sexually assaulting and killing a child, an online news article called for reinstatement of the death penalty (Ogrodnik, 2012). Also, in June 2012, a City Councillor from Toronto called for the reinstatement of capital punishment in response to a series of violent crimes in the area (Anon., 2012). A similar call was made in response to alleged murderer Luke Magnotta, who is believed to have gruesomely killed a student in British Columbia and produced an Internet snuff film (O’Connor, 2012). It seems that whenever abhorrent crimes appear in the media, they are associated with public appeals and calls for stronger penalties, such as the reinstatement of capital punishment. Since the Harper government gained a majority government in 2011, it has taken a firm stance on criminal justice reforms. These include the introduction of mandatory minimum sentences for a variety of offences, and Bill C-48, ‘Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act’, which grants the courts the power, inter alia, to order consecutive life sentences with ineligibility for parole in the case of multiple murders (Staples, 2012). Canadian criminal justice policy appears to be following its American neighbour’s hard line on crime.

30  Debates (Hansard) 1105, 24 November 1997, 36th Parliament, 1st Session, Mr Jay Hill, Parliament of Canada. 31  Ibid.

292

Capital Punishment: New Perspectives

Some members of the present government have expressed support for capital punishment. Prime Minister Stephen Harper has confirmed that although he is in favour of capital punishment, he does not intend to reopen the debate (CBC, 2011). Indeed, the Reform Party, which in 1999 introduced a bill to try to reinstate the death penalty, merged to become the current conservative party (Davidson, 2011, 230). Davidson argues that capital punishment remains an issue in current Canadian penal policy debate. In addition to the Reform Party’s 1999 bill, he references two ministers who have publicly called for the penalty to be reinstated: Rob Nicholson and Stockwell Day (Davidson, 2011, 230). The latter was responsible for Canada’s decision to refuse support for Ronald Smith’s clemency hearing (Davidson, 2011, 230; see also CBC, 2012). Amnesty International has criticized Canada for reversing a long-standing practice of sponsoring UN resolutions that call for a moratorium on the death penalty.32 This is one of many indications that the government’s once-resilient abolitionist position is now waning. Conclusion In completing this review, a potentially problematic picture arises in respect of Canada’s experience with capital punishment. In the wake of the historic and continuing marginalization and exploitation of Aboriginal peoples, the criminal justice system appears to be an inadvertent oppressor. There is evidence to suggest they may have been over-represented in capital cases. Commentaries cite potential unfairness in both the trial and commutation process for some capital defendants, namely those belonging to minority groups. Many minority groups originating from Eastern, Western and Southern Europe, as well as people of colour, also appear to have been over-represented in both capital cases and executions. Women were substantially under-represented in both categories. The wide variety in ethnic origins among capital cases may be explained by the relatively recent mass migration that took place at the beginning of the twentieth century. Further research is needed to understand the significance and context of these possible trends. Nevertheless, this exercise suggests a potentially uneasy relationship between ethnicity, gender, religion and the administration of the death penalty in Canada – a trend seen in many other countries that have practised state-sanctioned executions. Recently, there are signs that the abolitionist position of Canada is no longer so resolute. In fact, recent attitudes of the Canadian government suggest that it has adopted an ‘uneasy abolitionist’ stance, rather than being a leader in the global abolition movement, as it once was (Thompson, 2008: 189). An almost 32  Neve, A., and Vaugrante, B., Amnesty International Canada letter to Stephen Harper, 6 November 2007, www.amnesty.ca/amnestynews/upload/Open_Letter_DP.pdf (accessed 30 June 2012).

The Death Penalty in Canada

293

indifferent attitude has been assumed in respect of extraditions to the US for individuals at risk of execution, and similarly, in response to requests for support of clemency applications by Canadian nationals facing execution abroad. It is these contemporary issues that bring the past experience of the practice of capital punishment into contemporary relevance and discourse. It is hoped that the miscarriages and injustices of the past will continue to hold due resonance and importance in the shaping of future government policy surrounding national and international death penalty issues. References Journals and Books Anderson, F.W. (1973), Hanging in Canada: A Concise History of Capital Punishment in Canada. Victoria, BC: Frontier Publishing. Avio, K.L. (1988), ‘Capital Punishment in Canada: Statistical Evidence and Constitutional Issues’, Canadian Journal of Criminology, 30, 331–50. Boyd, N. (1988), The Last Dance: Murder in Canada, Scarborough, Ont.: Prentice-Hall. Chandler, D. (1976), Capital Punishment in Canada, Toronto, Ont.: McClelland and Stuart. Davidson, M. (2011), ‘The Ritual of Capital Punishment’, Criminal Justice Studies, 24(3), 227–40. Erickson, L. (2011), Westward Bound: Sex Violence the Law, and the Making of a Settlor Society, Vancouver, BC: UBC Press. Jackson, M. (1989), ‘Locking Up Natives in Canada’, University of British Columbia Law Review, 23(2), 215–300. Jayewardene, C.H.S. (1977), The Penalty of Death, Toronto, Ont.: D.C. Heath. McKenzie, H. (1979), Capital Punishment in Canada, Library of Parliament, Research Branch. Ottawa, Ont.: Minister of Supply and Services. Strange, C. (1992), The Politics of Punishment: The Death Penalty in Canada 1867–1976, Working paper series, University of Manitoba, Canadian Legal History Project, Winnipeg, MB: University of Manitoba. Thompson, S. (2008), ‘Uneasy Abolitionists: Canada, the Death Penalty, and the Importance of International Norms, 1962–2005’, Journal of Canadian Studies, 42(3), 172–92. Report Royal Commission on the Donald Marshall Jr, Prosecution (1989), Digest of Findings and Recommendations, Halifax, NS: The Commission, December.

294

Capital Punishment: New Perspectives

Canadian Cases Kindler v. Canada (Minister of Justice), [1991] 2 SCR 779. R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128. R. v. Gladue [1999] 1 SCR 688. Re. Ng Extradition (Can.), 1991 CanLII 79 (SCC). Regina v. Miller and Cockriell [1975] BCJ, 1040. Smith v. Canada 2009 FC 228 (CanLII). United States v. Burns, 2001 SCC 7 (CanLII). Canadian Law Bill of Rights, RSC 1970, App. III. Canadian Charter of Rights and Freedoms, Section 7. Extradition Act, SC 1999, c 18. Canadian Parliament Debates (Hansard) 1105, 24 November 1997, 36th Parliament, 1st Session, Mr Jay Hill, Parliament of Canada. Debates (Hansard) 1435, 1 November 2007, 29th Parliament, 2nd Session, no. 13, Hon. Stockwell Day, Parliament of Canada. Debates (Hansard) 1010, 1 February 2011, vol. 145(21), 40th Parliament, 3rd Session, Hon. Steven Fletcher, Parliament of Canada. International Law General Comment no. 06: The Right to Life (Art. 6) 30 April 1982. International Covenant on Civil and Political Rights, 16 December 1966, entry into force: 23 March 1976. Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, entry into force: 23 March 1976. Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989, entry into force: 11 July 1991. Individual Communications to the Human Rights Committee Communication no. 470/1991: Canada. 18 November 1993 (Jurisprudence). Communication no. 829/1998: Canada. 20 October 2003, CCPR/C/78/D/829/1998 (Jurisprudence).

The Death Penalty in Canada

295

Online Publications Anon. (2012), ‘Councillor Mammoliti asks for return of Capital Punishment’, 680 News, 4 June, www.680news.com/news/local/article/369598--councillormammoliti-asks-for-return-of-capital-punishment (accessed 27 June 2012). Basavarajappa, K. and Ram, B. (2008), Historical Statistics of Canada, Section A: Population and Migration, Ottawa, Ont.: Statistics Canada, www5. statcan.gc.ca/access_acces/alternative_alternatif.action?l=eng&loc=http:// www.statcan.gc.ca/pub/11-516-x/pdf/5500092-eng.pdf&t=Historical%20 statistics%20of%20Canada,%20section%20A:%20Population%20and%20 migration (accessed 2 July 2012). Canadian Bar Association (2009), ‘Clemency for Canadian Citizens Facing Death Penalty, Resolution 09-07-A, Carried by the Council of the Canadian Bar Association at the Annual Meeting Held in Dublin, Ireland’, 15–16 August, www.cba.org/CBA/resolutions/pdf/09-07-A.pdf (accessed 27 June 2012). CBC (2007), ‘No More Clemency Appeals for Canadians on Death Row in U.S.: Tories’, November, www.cbc.ca/news/canada/story/2007/11/01/death-penalty. html, accessed 30 June 2012). CBC (2011), ‘Death Penalty Not on Agenda: PM’, 19 January, www.cbc.ca/news/ canada/story/2011/01/18/harper-mansbridge-interview-tues.html (accessed 30 June 2012). CBC (2012), ‘Death Row Canadian Says Harper Government Reneged on Offer’, 3 May, www.cbc.ca/m/touch/news/story/2012/05/03/ronald-smith-governmentcomplaint.html (accessed 7 July 2012). CBC News (2012), ‘B.C. Government Regrets 1869 Hanging of 2 Hesquiaht Men’, 17 November, www.cbc.ca/news/canada/british-columbia/story/2012/11/17/ bc-hesquiaht-reconciliation.html (accessed 29 November 2012). Department of Justice, Canada (n.d.), Public Perception of Crime and Justice in Canada: A Review of Opinion Polls, ‘Table 19: Support for Reinstatement of the Death Penalty’, Ottowa, Ont.: Department of Justice, www.justice.gc.ca/ eng/pi/rs/rep-rap/2001/rr01_1/p7.html (accessed 27 June 2012).Department of Justice, Canada, Backgrounder: Canada’s Accession to the United Nations Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, www.collectionscanada. gc.ca/webarchives/20060209133745/http://www.examenequitesalariale.gc.ca/ en/news/nr/2005/doc_31756.html (accessed 30 May 2013). Gadoury, L. and Lechasseur, A. (1994), ‘Persons Sentenced to Death in Canada, 1867–1976: An Inventory of Case Files in the Fonds of the Department of Justice’, Library and Archives Canada, Finding Aid 13-39, Department of Justice Capital Case Files, http://data2.archives.ca/pdf/pdf001/p000001052. pdf (accessed 30 June 2012). Hassan, F. (2012), ‘Reconsider the Death Penalty’, Toronto Sun, 21 June, www. torontosun.com/2012/06/21/reconsider-the-death-penalty (accessed 27 June 2012).

296

Capital Punishment: New Perspectives

Library and Archives Canada, Department of Indian Affairs (1894), ‘Attempts to Get a Commutation of Death Sentence against two Indians, Peter and Jack’, New Westminster agency letter, 5 January, http://collectionscanada.gc.ca, search reference 2057990 (accessed 30 June 2011). O’Connor, J. (2012), ‘Joe O’Connor: Luka Magnotta Deserves Death Penalty (If Only Canada Had It), Full Comment’, National Post, 5 June, http:// fullcomment.nationalpost.com/2012/06/05/joe-oconnor-luka-rocco-magnottadeserves-death-penalty-if-only-canada-had-it/ (accessed 27 June 2012). Ogrodnik, I. (2012), ‘The Victoria Stafford File: Should Canada Bring Back the Death Penalty?’, Global News, 15 May, www.globalnews.ca/the+victoria+st afford+file+should+canada+bring+back+the+death+penalty2/6442641510/ story.html (accessed 27 June 2012). Rak, J. (n.d.), ‘The Doukhobors’, Edmonton, AB: University of Alberta, www. ualberta.ca/~jrak/doukhobors.htm (accessed 30 June 2012). Staples, D. (2012), ‘Staples: The Next Best Thing to the Death Penalty for Multiple Murderers’, Edmonton Journal, 19 June, www.edmontonjournal.com/news/ next+best+thing+death+penalty+multiple+murderers/6808732/story.html (accessed 27 June 2012). Stonechild, B. and Waiser, B. (1997), Loyal Till Death: Indians and the NorthWest Rebellion, Calgary, AB: Fifth House Publishers. Woods, A. (2007), ‘Conservatives Find Slim Support for Death Penalty’, The Star, 5 November, www.thestar.com/news/article/273531--conservatives-find-slimsupport-for-death-penalty (accessed 27 June 2012).

Chapter 14

Successful Capital Litigation in Uganda: A Counterintuitive Approach? Graeme L. Hall

Introduction Over the past quarter of a century, the global fight against capital punishment has gained enormous ground. In the latest UN resolution, a record 109 countries voted in favour of progressively restricting the use of the death penalty while simultaneously calling for a moratorium with a view to securing total abolition.1 The number of countries voting against a moratorium on the death penalty has in turn fallen from 54 in 20072 to 41 in 2010. As Hood and Hoyle (2009) note, this ‘new era’ generally reflects a shift in the fight’s focus from the political and criminal justice arenas to one wrestling firmly with human rights considerations. Ostensibly, at both the international and national levels, Uganda is a stalwart defender of capital punishment. Under Amnesty International’s criteria (AI, 2012, 58), Uganda remains a retentionist state, not a de facto abolitionist state, as Uganda has executed citizens within the last ten years,3 and remains steadfastly supportive of the death penalty. During 2011, at least five people were sentenced to death, although patchy reporting means the number is likely to be higher (AI, 2012, 7). Uganda has consistently voted against UN resolutions calling for a moratorium on the use of the death penalty, and Uganda continues to receive much international criticism over tabled legislation to introduce the death penalty for certain homosexual acts. It could therefore be assumed that the fight against capital punishment in Uganda is one which is not worth pursuing in the political and criminal justice arenas. However, total retreat from these fronts would be premature. While acknowledging that human rights arguments have been increasingly pivotal in capital punishment litigation in Uganda, including the 2009 decision 1  UNGA, 65th Session, Resolution on the Moratorium of the Use of the Death Penalty, Report of the Third Committee, A/65/456/Add.2 (Part II), 21 December 2010, A/Res/65/206, Official Record, 28 March 2011; 41 voted against and 35 abstained. 2  UNGA, 62nd Session, Resolution on the Moratorium of the Use of the Death Penalty, Report of the Third Committee, A/62/439/Add.2, 18 December 2007, A/Res/62/149, Official Record, 26 February 2008. 3  The last executions were in March 2003, when three soldiers were executed by firing squad; Amnesty International USA (2005).

298

Capital Punishment: New Perspectives

of the Supreme Court of Uganda abolishing the mandatory death penalty,4 it is far from clear that an effective abolition strategy should continue in this manner. This chapter will suggest that abolitionists need to re-focus: concentrating on abolition litigation loses sight of the more fundamental problems within the criminal justice system which need to be addressed in order to foster an environment in which abolition is more likely. To achieve this, we will first explore the legal landscape in which the fight against abolition is currently fought in Uganda. We will then assess the abolition litigation to date, highlighting the unintended, although foreseeable, negative consequences of Ugandan capital punishment litigation. Finally, the chapter will put capital punishment in context by examining capital offence charges, including pre-trial practices, the trial regime, and then prisons in Uganda. The intended conclusion is that if we build from the ground up, it is more likely that abolition will flow from a criminal justice system which does not pay lip service to the rights of those it detains: sometimes it’s better to kneel down, get our hands dirty, and begin the painstaking graft of working from the bottom upward, rather than aiming too high, over-reaching, collapsing, and damaging what little progress has been made on the ground. Legal Landscape It is beneficial to outline at the outset of this section the main legal documents and institutions which serve as the landscape in which the abolition battle is fought. The most important is the Ugandan Constitution, which was adopted in 1995.5 This bold legal instrument contains a number of rights to which reference will be made through the course of discussion. Most notably for current purposes, the Constitution contains the right to life (Art. 22), the right to respect for human dignity and protection from inhuman treatment (Art. 24), and the right to a fair hearing (Art. 28). The right to life is not absolute, although the right to freedom from torture, cruel inhuman or degrading treatment or punishment is non-derogable (Art. 44). The provisions of the Constitution are binding on all authorities and persons within Uganda (Art. 2), and the Supreme Court of Uganda is the final arbiter of the Constitution’s meaning (Art. 132). Uganda also has a number of legal responsibilities at the regional level. For example, Uganda has ratified the African Charter on Human and Peoples’ Rights (the Charter),6 an impressive document containing both rights and duties for the peoples of the African Union (AU).7 It includes a qualified right to life (Art. 4), 4  Attorney General v. Susan Kigula and 417 Others, Constitutional Appeal no. 3 of 2006, [2009] UGSC 6. 5  The Constitution was amended in 2005. 6  Adopted 27 June 1981, came into force 21 October 1986; also known as the Banjul Charter. 7  Formerly titled the Organisation of African Unity (OAU).

Successful Capital Litigation in Uganda

299

an absolute prohibition on inhuman and degrading treatment and punishment (Art. 5), and a right to a fair trial (Art. 7). Article 30 of the Charter establishes the African Commission on Human and Peoples’ Rights (African Commission) whose principal functions include assessing communications which allege violations of the Charter, examining reports by member states on their compliance with the Charter, as well as promoting the values of the Charter (Art. 45). The Commission’s role is seen as similar to the UN Human Rights Committee (Mutua, 1999, 345–6). The Commission has a number of working groups, including one on the death penalty, and it has produced a considerable amount of guidance to assist with the interpretation of the Charter.8 Importantly, it has also issued resolutions calling on states to observe a moratorium on executions with a view to abolition, the most recent being in 2008.9 An African Court on Human and Peoples’ Rights (the African Court) has also been established to complement and reinforce the African Commission.10 This is because the Commission’s quasi-judicial role, particularly in the realm of individual petition, has lacked definition and muscle to enforce its decisions: [M]ost state parties have disregarded these [the Commission’s] recommendations with no attendant consequences. Hence, the African Commission’s finding of a violation on the part of a state party does not necessarily afford a remedy to the victim, and despite wide ratifications of the African Charter, many states continue in the wanton violation of rights. This state of affairs has earned the Commission numerous criticisms as a toothless outfit operating at the will and whim of its political master, the AU Assembly. (Wachira and Ayinla, 2006, 470)

Although Uganda has ratified the Protocol establishing the African Court, it has not yet made a declaration, as required by Article 34 of the Protocol, accepting the court’s competence to consider individual petitions. However, this does not mean that Uganda’s human rights record will not fall within the court’s purview, as the Commission can refer cases of non-compliance by states which have ratified, but not declared, the Protocol to the Court (Wachira and Ayinla, 2006, 488). The lack of individual petition notwithstanding, Uganda is generally seen as complying with the Commission and its reporting obligations (Biegon and Killander, 2010, 216; Republic of Uganda, 2011).

8  As authorized by Art. 66 of the Charter. 9  ACHPR/Res 136, Resolution Calling on State Parties to Observe a Moratorium

on the Death Penalty, 44th Ordinary Session, 10–24 November 2008, Abuja, Nigeria. 10  Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an Africa Court of Human and Peoples’ Rights, adopted June 1998, came into force 25 January 2004; see www.african-court.org/en/index.php/about-the-court/brief-history (accessed 20 May 2013).

300

Capital Punishment: New Perspectives

The African Court became operational in 2009, since which time it has rendered 12 judgments.11 It therefore remains to be seen whether the court will improve adherence to human rights in the AU, or merely fall victim to the same criticisms as the Commission. There are further plans to merge the court with the Court of Justice of the African Union, thereby creating the African Court of Justice and Human Rights, which will become the main judicial organ of the AU (Biegon and Killander, 2009, 306–7). However, such rationalization or unification will doubtless take a long time to become fully operational. Of interest, the East African Court of Justice, charged with interpreting the provisions of the 1999 Treaty of the East African Community, comprising Uganda, Tanzania, Kenya, Burundi and Rwanda, has recently stated that it will entertain claims of violations based on the Charter.12 This relatively new development will not be discussed here as it has thus far had limited impact on the death penalty debate. However, its inclusion is instructive for the reader to form a more complete view of the legal landscape in which Uganda operates, and further discussion can be found in Eborah (2011). At the international level, Uganda has signed up to a number of legal instruments by which it is bound, including the Universal Declaration of Human Rights13 and the International Covenant on Civil and Political Rights (ICCPR) 1966.14 Uganda is therefore obliged to uphold the legal principles contained within these documents. In particular, Uganda became a party to the First Optional Protocol to the ICCPR, meaning that it has recognized the competence of the UN Human Rights Committee (the UN Committee) to receive complaints by individuals against Uganda.15 Uganda must submit reports on its compliance with the ICCPR on a regular basis to the UN Committee and consider any recommendations made. In essence, the obligations within the ICCPR system are akin to those under the African Commission. Uganda has not ratified the Second Optional Protocol to the ICCPR calling for the abolition of the death penalty. Indeed, as stated earlier, Uganda has consistently voted against any resolutions calling for the abolition of the death penalty, the most recent instance being the 2010 UN General Assembly Resolution, ‘Moratorium on the Use of the Death Penalty’.16 11  African Court on Human and Peoples’ Rights: www.african-court.org/en/index. php/about-the-court/brief-history (accessed 20 May 2013). 12  Ariviza & Another v. AG Kenya & Others, Application 3 of 2010 (arising out of Reference 7). 13  Adopted 10 December 1948, Uganda admitted on 25 October 1962: www.un.org/ depts/dhl/unms/uganda.shtml (accessed 20 May 2013). 14  Came into force 1976. Uganda acceded on 14 November 1995. 15  Uganda has registered a reservation under the ICCPR to the extent that the UN Committee cannot consider petitions by individuals which have already been considered by other international bodies: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=IV-5&chapter=4&lang=en#EndDec (accessed 20 May 2013). 16  UNGA A/65/PV.71, www.un.org/ga/search/view_doc.asp?symbol=A/RES/65/206 (accessed 30 May 2013).

Successful Capital Litigation in Uganda

301

Uganda’s overt political disinclination to adopt resolutions calling for the abolition of the death penalty is, of course, disappointing. None the less, in the legal arena, litigation has attempted to abolish the death penalty. While some results appear on paper to be positive, scratching the surface shows that the effects of such litigation continue to be detrimental at worst, or to have created further uncertainty at best. Abolition of the Mandatory Death Penalty: Kigula17 Attorney General v. Susan Kigula and 417 Others is the leading Ugandan case challenging the death penalty, which involved lengthy legal proceedings, seeking declarations to the effect that capital punishment was unconstitutional. Novak (2009, 62) describes the case as: ‘an omnibus challenge, targeting the constitutionality of the death sentence per se, and, in the alternative, the constitutionality of hanging as a method of execution, the mandatory nature of the death penalty, and the constitutionality of unduly delayed death sentences and poor prison conditions.’ The Supreme Court of Uganda, upholding the decision of the Constitutional Court,18 dismissed the majority of the challenges and held that the right to life is not a non-derogable right with the Constitution,19 and that hanging as a method of execution does not constitute torture or degrading or inhuman treatment or punishment (the prohibition against which is absolute in the Constitution).20 However, the Supreme Court accepted that the mandatory death sentence (that is, an automatic death sentence imposed once someone is found guilty of a particular crime) was unconstitutional. The Supreme Court stated that an automatic death sentence violated a person’s right to a fair trial: A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. This is clearly evident where the law provides for a maximum sentence. The court will truly have exercised its function as an impartial tribunal in trying and sentencing a person. But the Court is denied the exercise of this function where the sentence has already been pre-ordained by the Legislature, as in capital cases. In our view, this compromises the principle of fair trial. (Odoki CJ’s emphasis)21

17  Attorney General v. Susan Kigula and 417 Others. 18  Susan Kigula and 416 Others v. Attorney General, Constitutional Petition no. 6 of

2003, [2005] UGCC 8, delivered on 9 June 2005. 19  Kigula, 27, 33. 20  Ibid., 62–3; Egonda-Ntende Ag. JSC dissenting on this point, ibid., 97–8. 21  Ibid., 40–41.

302

Capital Punishment: New Perspectives

Furthermore, prescribing a sentence which left the courts no discretion violated the principles of the separation of powers, as the Constitution states that ‘the administration of justice is a function of the judiciary’,22 and any law which has the effect of ‘tying the hands of the judiciary’ is thus inconsistent with the Constitution.23 The Supreme Court also considered the issue of inordinate delay in the execution of the death sentence, and the recognized associated detrimental impact on the mental health of the condemned. In particular, the court noted that some people had been on death row for 18–20 years after the confirmation of their conviction and sentence by the highest court.24 The condemned were waiting for the executive (made up of an Advisory Committee on the Prerogative of Mercy, chaired by the Attorney General, which makes recommendations to the President) to decide whether or not to exercise the prerogative of mercy. The court found that there was no excuse for delay at this point,25 and ruled that holding an individual beyond three years after the highest court has confirmed his or her death sentence constituted an inordinate delay, at which point the death sentence should be commuted to life imprisonment.26 The court subsequently ordered: 1. Death sentences to be commuted to life imprisonment without remission for applicants who had been sentenced to death under the mandatory regime, where they had waited three years or more for the executive to process their petition of mercy following confirmation of their conviction by the Supreme Court; 2. Applicants in the process of appealing their capital offence conviction and mandatory death sentence should have their cases remitted to the High Court for re-sentencing only.27 Although many view the Kigula judgment as a milestone, some have argued that the decision demonstrates a distinct lack of dynamism in its interpretation of the prohibition on cruel, inhuman or degrading treatment (for example, Sander, 2011). However, as Novak (2009, 83) rightly points out: ‘No court has ever invalidated a death penalty regime where the national constitution contains a clause specifically saving the death penalty.’ Despite this, it is true that a number of fairly damning criticisms of the judgment can be made. In Kigula, the Supreme Court essentially ruled that the applicants in the process of appealing their mandatory death penalty convictions and/or sentences were to have their cases remitted to the High Court for mitigation of sentence only (‘mandatory beneficiaries’). The Supreme Court 22  Art. 126 of the Ugandan Constitution: Attorney General v. Susan Kigula and 417 Others, 44. 23  Kigula, 45. 24  Ibid., 53. 25  Ibid., 54. 26  Ibid., 57. 27  For the Orders, see ibid., 63–4.

Successful Capital Litigation in Uganda

303

also ordered that those who had waited three or more years after their death sentence was confirmed by the Supreme Court for their clemency petition to be considered by the executive were to have their death sentences commuted to life imprisonment without remission (‘inordinate delay beneficiaries’). In so doing, the court has disallowed the inordinate delay beneficiaries the opportunity to mitigate their sentences; they will serve a life sentence regardless of the circumstances of the offence and of the offender. The legitimacy of making such a distinction is highly questionable, as it strips the inordinate delay beneficiaries of a right which the mandatory beneficiaries receive without any justification: it constitutes an administrative distinction devoid of any legal merit. As Sander (2011, 272) remarks, such unjustifiable discrimination is tantamount to a failure to treat all individuals equally before the law. The distinction is doubly curious when one considers the circumstances in which it arises. One of the primary motivations driving the Supreme Court to conclude that the mandatory death sentence is unconstitutional was that it unjustifiably usurped judicial discretion in the sentencing part of the trial. The Supreme Court recognized that due process requires that fair trial rights extend to sentence and that by imposing a mandatory sentence, the legislature had overstepped its powers. However, by sentencing all of the inordinate delay beneficiaries to life imprisonment, the Supreme Court has hypocritically usurped their fair trial rights by imposing a blanket and indiscriminate sentence which equally does not permit of an assessment of either the offences committed or the offenders’ particularities. Also, sentencing the mandatory beneficiaries to life imprisonment without remission is notable for two further reasons. First, it is by no means certain that the Supreme Court, or the judiciary in general, has the power to order that sentences be served without remission. The Prisons Act 2006 specifically attributes the power to calculate and administer remission to the prison authorities. As Eldad J (2010) states: The final decision in the Kigula Case has also brought about a few other complications … (d) in view of Sections 84 and 85 of the Prisons Act 2006 it is doubtful whether our Courts have power to interfere with remission of sentences, which is purely administrative act [sic].

It is therefore strongly arguable that the Supreme Court’s decision is ultra vires (that is, the decision extends beyond its competence). Notwithstanding this argument, given that remission can only be attributed to a sentence of a determinate or, at the very least, determinable, number of years, the Supreme Court implies that a life sentence is, or can be, determinate. This implication goes against the Supreme Court’s later ruling in Tigo Stephen v. Uganda,28 in which the Supreme Court ruled that a life sentence is not a determinate or determinable number of years, but rather imprisonment for the rest of the offender’s natural life. 28  Tigo Stephen v. Uganda, Criminal Appeal no. 8 of 2009, [2011] UGSC 7.

Capital Punishment: New Perspectives

304

The Meaning of a Life Sentence: Tigo In Tigo Stephen v. Uganda, the appellant was convicted of aggravated defilement and sentenced by the High Court to ‘life imprisonment (20 Years)’. An appeal was launched, during which the Supreme Court came to consider the meaning of life imprisonment. Statute defined life imprisonment in Section 47(6) of the Prisons Act 1958 (reproduced in Section 86(3) of the Prisons Act 2006). The provision states: ‘For the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years.’ This is evidently the basis on which the trial judge had come to his determination that life imprisonment constitutes a 20-year sentence. However, the Supreme Court thought otherwise. In a judgment the length of which arguably reflects its intellectual rigour, the Supreme Court ruled that although the Prisons Act was ‘meant to assist the Prison authorities in administering prisons and in particular sentences imposed by the courts’, the Act did not bind the courts29 – clearly an ultra vires decision. Thereafter, the court concluded: ‘We hold that life imprisonment means imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned.’30 In one sentence, the Supreme Court usurped the sovereignty of parliament by arrogating to itself the power to interpret the definition of a life sentence in direct contradiction to a valid Act of Parliament. The Supreme Court continued to state that it would be ‘absurd’ if the courts could pass fixed-term sentences which exceeded a life term.31 Yet the real absurdity lies in two intrinsically patent criticisms of this ratio. First, the Supreme Court defines a life sentence as imprisonment for the rest of an offender’s life unless, absurdly, the offender has earned remission – an impossible feat without a determinate or determinable sentence. Being sentenced to imprisonment for the rest of one’s natural life, itself an unpredictable and indefinable period, necessarily implies that remission cannot be calculated. Secondly, the Ugandan courts, with increasing regularity, sentence offenders to fixed-term sentences which far exceed Ugandan life expectancy. Prior to the Tigo judgment, Mujuzi stated that it was fortunate that Ugandan courts have not sentenced individuals to excessive periods of imprisonment of 50 years or more, and that he remained optimistic that that the judiciary would not change this practice (Mujuzi, 2008, 173). Such optimism has proved misplaced. Ugandan courts have started to sentence offenders to periods of imprisonment far exceeding even the most developed country’s average lifespan. For instance, in April 2012, New Vision reported that a man who pleaded guilty to murder and various other offences was sentenced to 310 years’ imprisonment by a general court martial (Kwesiga, 2012). While some of the offences were grave, many of the crimes were 29  Ibid., 6. 30  Ibid.,11. 31  Ibid.

Successful Capital Litigation in Uganda

305

of a minor nature which none the less attracted hefty sentences, and it would seem that all of the sentences were ordered to run consecutively rather than concurrently. Not only is a sentence which offers no prospect of being released from prison arguably incompatible with international human rights law (Gumboh, 2011; Mujuzi, 2008; Mujuzi, 2009; Van Zyl Smit and Ashworth, 2004), it also seriously undermines the day-to-day functioning of the Uganda Prisons Service as it compounds chronic overcrowding, in turn exacerbating issues such as disease and malnutrition. It also leaves inmates with no incentive to behave if they know that they will die in prison. It is understandable, therefore, that the Commissioner General of the Ugandan Prisons Service recently implored the Ugandan Parliament to introduce a system of parole in an effort to curtail or circumvent the judiciary’s approach to sentencing: ‘You know me as an anti-death penalty advocate but in doing this we had not anticipated the lengthy sentences, so we are now appealing to Parliament to consider a parole system, otherwise many of these people will stay with us for the rest of their lives’ (Talemwa, 2012). In relation to how the Tigo judgment has affected the Kigula beneficiaries, according to the Uganda Prisons Service,32 of the 417 applicants in Kigula, 298 were inordinate delay beneficiaries who have had their sentences commuted to life without remission. It remains hopelessly unclear for these individuals whether their sentences are for 20 years, as stipulated by the Prisons Act, or whether Tigo has retrospective effect and means that they should remain in prison for the rest of their lives. Anecdotal evidence suggests that while some inordinate delay beneficiaries were released after the Kigula judgment, having exceeded the 20-year interpretation of life imprisonment, the ensuing confusion has meant that no further releases have occurred. There were also a total of 119 mandatory beneficiaries whose cases were to be remitted to the High Court for mitigation of sentence. Of these 119, only 46 had had their cases heard in the High Court by January 2012, of which six had their death sentences upheld, two received natural life imprisonment, one received 30 years’ imprisonment, three received 25 years, one received 22 years, 12 received 20 years, four received 15 years, 14 received 10 years and three received five years’ imprisonment. This sample does not include those who have been sentenced upon conviction since the Kigula and Tigo judgments, where, as we have seen, lengthy sentences have been meted out by the judiciary, thereby condemning individuals to terminal prison conditions, interminably. The process of re-sentencing has itself been fraught with difficulties and delay. A major problem is that the Supreme Court ordered the re-sentencing hearings to be heard by the same judge who tried and sentenced the individual concerned. Many judges have since retired or died, and allocating the beneficiaries another judge is a bureaucratic nightmare. Further, judges have not been allocated extra time or funds to hear the cases, and many of the files from the original trials, including the evidence, are missing. In addition, many of the prisoners are detained in locations 32  Personal correspondence, January 2012.

306

Capital Punishment: New Perspectives

far away from the High Court which sentenced them, thereby requiring liaison between the prison authorities and the courts, as well as the use of the former’s straitened resources. In reality such liaison does not happen, and the resources to transport prisoners, including staff, simply are not there. Anecdotal evidence suggests that the mandatory beneficiaries are obliged to pay lawyers to locate their files and represent them at the re-sentencing hearings in spite of their desperate poverty. The courts’ approach to mitigation, detailed examination of which cannot be included here, is also extremely troubling, with some judges refusing to consider post-conviction mitigation,33 once again condemning to death someone who has shown an ability to reform. It is hoped that the forthcoming Sentencing Guidelines, the most recent draft dated December 2012,34 may go some way to ensuring a more uniform approach to sentencing. In summary, whilst the abolition of the mandatory death penalty is obviously welcome, and it has resulted in a decrease in the number of offenders facing the death sentence, Kigula and Tigo have produced a number of unwelcome, even if unintended, consequences. In particular, Van Zyl Smit’s observation that life sentences pose ‘massive challenges, particularly in countries in which life imprisonment has been introduced suddenly as an alternative to the death penalty’ (Van Zyl Smit, 2006, 415) is poignantly prescient in the case of Uganda. Moreover, the abolitionists’ approach has also overlooked something more basic and fundamental: a holistic appreciation of the situation on the ground for those within the capital punishment regime. It is this topic on which our attention will now focus. The Ugandan Penal System: Capital Offences in Context Capital Offence Charges According to Penal Reform International, there are 28 crimes which attract the death penalty in Uganda (Penal Reform International, 2012, 25), of which the most recent additions are contained in the Anti-Terrorism Act 2002.35 The offences range from murder, aggravated robbery, defilement and acts of terrorism to crimes by military personnel including cowardice, desertion and treachery, among many others. While the Government of Uganda has stated that the death penalty is only prescribed for the ‘most serious offences’ (Republic of Uganda, 2006), we can see that this is clearly not the case. Indeed, the UN Human Rights Committee (2004) has stated that: 33  For example, Uganda v. Nuwayinamanyi and 2 Others (unreported) per MusokeKibuuka J. 34  Personal copy. 35  The other Acts which prescribe the death penalty are the Penal Code Act 1950 (amended 2007) and the Ugandan Peoples Defence Forces Act 1992.

Successful Capital Litigation in Uganda

307

The Committee is concerned about the broad array of crimes for which the death penalty may be imposed. The State party [Uganda] is urged to limit the number of offences for which the death penalty is provided and to ensure that it is not imposed except for the most serious crimes.

The Supreme Court’s judgment in Kigula (discussed above) has meant that the UN’s criticism is starting to be heeded, either directly or indirectly, by the judiciary. Recently, the Head of the Criminal Division at Kampala High Court, an influential figure within the Ugandan judiciary, stated extra-judicially that the death penalty should be reserved for the rarest of rare offences (Talemwa, 2012), specifically murder and cases where death results from the commission of an offence (Odyek, 2012). Statistics from the Uganda Prisons Service seem to show that this international standard is being followed. Since Kigula was decided in 2009, 64 death sentences have been passed, all of which were for murder.36 While the death sentence remains a possible punishment for far too many crimes, the judiciary’s relative disinclination or reluctance to pass the death sentence is indicative of a harmonization (intended or otherwise) with international legal norms. Once an individual is arrested or detained for an offence, Article 23(4) of the Ugandan Constitution provides that the person should be brought before a court within 48 hours. In practice, regardless of the crime committed, this constitutional timeframe is routinely breached for many reasons, ranging from lack of resources to corruption (Oppenheimer, 2005, 129). Article 23(6)(a) entitles all detained individuals, regardless of the offence alleged, to apply for bail. Article 23(6) (c) of the Ugandan Constitution states that those charged with a capital offence must have their case committed (that is, the Magistrates’ Court must relinquish jurisdiction and transfer the case) to the High Court within 180 days from the date of detention, otherwise the detained person must be bailed. The inherent problems within the criminal justice system regarding arrest and being brought before a court are well described by Bakayana (2009, 28–9): The implication therein is that a person can be arrested on a groundless suspicion of committing a capital offence, formally charged before a court and remanded for at least six months within the provisions of the law. Though the law requires that a person be produced before a court within 48 hours, it does not require the court to do more than read the charges to the accused at such a preliminary stage. In addition, it does not require the police or prosecutors to produce some prima facie proof to justify his detention. Indeed one may rightly argue that the underlying justification for the period of remand has been to enable police to investigate its cases, that is, charge first, investigate later and make a decision on whether or not to prosecute thereafter.

36  Personal correspondence with the Ugandan Prisons Service, January 2012.

Capital Punishment: New Perspectives

308

These problems are particularly acute in relation to defilement (sexual acts with a child under 18 years of age), the aggravated form of which is a capital offence.37 Penal Reform International (2012, 25) records that in March 2011, there were 2,498 inmates on remand accused of committing a defilement offence. As the African Commission’s Special Rapporteur on Prison and Conditions of Detention (Special Rapporteur) has remarked: There have been reports that cases are not always founded and that families get on with the police to extort money from the suspect, or even encouraged relationship between victim and offender only to later use the issue of defilement to extort compensation. As a capital offence, a case for defilement must be heard by a High Court judge, hence lengthy pre-trial periods. Following these delays, and for a variety of reasons such as insufficient evidence, age not proven, unavailability of witnesses, etc., the rate of acquittal is high. (Special Rapporteur, 2003, 9)

The array and number of crimes which continue to attract the death sentence clearly breach international law. The way in which capital offences are investigated by often corrupt criminal justice players – foreseeably so, given chronic underfunding – continues to perpetuate flagrant denials of justice. Abolitionist litigation has done nothing to improve these rudimentary principles of fair trial rights in Uganda. Indeed, it would appear that it has never aimed to. Capital Offence Trials A capital offence cause list consists of around forty cases and involves 50–60 defendants, or ‘accused’. One cause list is heard by a High Court judge, who listens to the evidence, decides guilt and passes sentence. The judge has forty days to dispose of all forty cases, which are split between four or five defence lawyers known as ‘state briefs’. Being charged with a capital offence or an offence which attracts life imprisonment provide the only instances where there is a guaranteed constitutional right to ‘legal representation at the expense of the State’.38 The amount of remuneration which a state brief will receive is decided by the judge presiding over the case, and a capital case will usually attract around 200,000 Ugandan shillings (approximately £50 sterling). The overlapping of financial, administrative and judicial functions, especially leaving the judiciary with the ‘sole discretion’ to select defence lawyers and set their remuneration (Governance and Justice Group, 2011, 15), runs a serious risk of undermining the requirements of independence and impartiality, or at the very least the appearance of such requirements. Undoubtedly, the design of the capital offence trial system undermines the very essence of fair trial rights, and defence lawyers are urged to 37  Section 129(1) Penal Code Amendment Act 2007. 38  Art. 28(3)(e) of the Ugandan Constitution.

Successful Capital Litigation in Uganda

309

read Chenwi’s formidable piece on fair trial rights in death penalty cases to assist their clients (Chenwi, 2006). The amount lawyers receive must cover any preparation, the trial and any appeals thereafter. If the individual is sentenced to death, there will be an appeal to the Court of Appeal, and if the death sentence is upheld, another appeal lies to the Supreme Court. This is because a death sentence cannot be carried out unless it is confirmed by the Supreme Court.39 The offender is also entitled to request clemency from the executive. In reality, no separate funding is available to appeal a capital offence conviction and death sentence, meaning that the lawyers are neither incentivized nor enabled to undertake capital offence appeals, or to undertake such appeals to the standard demanded by the serious nature of the charges and the potentially irreversible consequences of a death sentence. As the Fédération Internationale des Ligues des Droits de l’Homme (FIDH) commented in its fact-finding mission to Uganda on capital punishment: Where a defence lawyer has been appointed by the state, it is unlikely that the same lawyer will appear in the appeal as appeared for the accused in the court of first instance. This makes the appeal more complicated as the new lawyer will have to study the facts of the case afresh. Inevitably, this has a negative impact on the final outcome of the case. State appointed lawyers do not give such criminal appeals the attention they deserve and, like their colleagues in first instance, lack experience. Appeals are beset by the same kind of problems that arise at the trial stage, which accounts for why most condemned prisoners have lost criminal appeals. (FIDH, 2005, 27)

This means that post-conviction capital offenders are left for years languishing in prison while they try desperately to find a lawyer to assist them appeal. The Ugandan Governance and Justice Group, charged with making recommendations for a national legal aid policy, succinctly outlines the drawbacks to the capital offence funding regime as follows: a. the lawyer appointed may not have the skills commensurate with the seriousness of the offence (s/he is often junior and inexperienced seeking exposure); b. the lawyer is appointed at court just before the trial allowing no time for adequate consultation with the client or preparation of the case; c. the lawyer’s fee is low and there are no incentives built into the scheme to encourage take up of such cases; d. the state brief scheme only covers the trial proceedings and does not extend to advice or representation on appeal; and

39  Art. 22(1) of the Ugandan Constitution.

Capital Punishment: New Perspectives

310

e. the state brief scheme excludes those charged with serious (non-capital) offences in the lower courts who nevertheless face long prison terms (Ugandan Governance and Justice Group, 2011, 15). Unarguably, the constitutional right to legal representation is in practice interpreted very literally: an individual charged with a capital offence will be represented in court. Crucially, however, circumstance dictates that such representation cannot be effective, as required by international standards, including the African Commission on Human and Peoples’ Rights (n.d., 7). Furthermore, inmates will have to pay lawyers to progress an appeal. Given that the overwhelming majority are destitute, this means that they will remain on death row with no hope of securing an appeal, for lack of finance. Experience shows that those with money are easily able to bribe prison and court officials to have their cases listed earlier. The motivation to do this is understandable, although it adversely affects the prospects of those without means having their cases listed. None the less, there are plans afoot in Uganda to introduce a national and comprehensive legal aid system, and Uganda has held two conferences recently: the National Legal Aid Conference in October 2011, and the National Validation Workshop for the Draft Legal Aid Policy in February 2012.40 The Ugandan government appears supportive of an expansive legal aid policy, although it stresses that a nationwide legal policy which extends eligibility from capital offence work to all areas of criminal and civil law premised on a means and merits test (Governance and Justice Group, 2011, 32) will require the support of international donors (Minister of Justice and Constitutional Affairs, 2012). The fact that the Legal Aid Policy is in its fifth draft, with minimal tangible progress, indicates that the Ugandan government’s words of support notwithstanding, the ambitious policy risks floundering. It is therefore encouraging that the policy realizes first, that a mixed model of legal aid, harnessing both public and private resources, is the optimal way to make progress, and secondly, that a successful policy will require collaboration, harmonization and co-ordination between the different players offering legal assistance (be they governmental, professional, pro bono or civil society organizations) (Governance and Justice Group, 2011, 20). This will help ensure that the various actors involved in the provision of legal services will complement, rather than duplicate or compete against, one another. Ugandan Prisons According to the Uganda Human Rights Commission (UHRC), a body mandated under Article 52 of the Ugandan Constitution to, inter alia, protect and promote human rights, in 2011 there were a total of 473 prisoners on death row in Uganda, 242 serving ‘life imprisonment’, 10 serving ‘imprisonment for life’, 266 serving 40  See JLOS website for papers presented at this event: www.jlos.go.ug/index.php/ document-centre/document-centre/search_result, search for “Draft National Legal Aid Policy”.

Successful Capital Litigation in Uganda

311

20–30 years’ imprisonment, and 48 serving 31–70 years’ imprisonment (UHRC, 2011, 25). Further, a presentation delivered by the Deputy Commissioner General of Prisons in 2011 shows that while Ugandan prisons have a capacity of 14,334, the prison population stood at 30,159 prisoners, meaning that prisons are operating at over 200 per cent capacity (Mwanje, 2011). The Commissioner also stated that the number of inmates on remand for capital offences was 6,303. The Justice Law and Order Sector (JLOS) is a quasigovernmental body charged with improving the efficiency of the Ugandan legal and criminal justice institutions, both governmental and non-governmental, including their respect for human rights standards. JLOS is heavily reliant on international donor funding in order to execute its responsibilities (JLOS, 2011, 3). One of the projects which JLOS has spearheaded is reducing the time prisoners spend on remand. This has resulted in drastically cutting the period those charged with capital offences spend on remand from an average detention of 30 months in 2007–2008 to just under 15 months in 2010–2011 (Justice Law and Order Sector, 2012). Whilst the reduction of time spent on remand is a laudable aim, concentration on this issue alone risks detrimentally impacting upon considerations which are equally as important to the ingredients of a fair trial, including the right to effective representation at all stages, from pre-trial detention, through to appeals and petitioning the executive for mercy. In spite of JLOS’s policy, the UHRC summed up the state of Ugandan prisons as follows: overcrowding often in dilapidated buildings, cases of long detentions including pretrial detention and of those with mental disabilities awaiting the Minister’s Orders, detention of civil debtors, persistence of torture, cruel, inhuman, degrading treatment or punishment, overworking of the inmates in prison, incarceration of children with adults, cases of detainees without files, mothers incarcerated with their children, inadequate provision for food, bedding and clothing for detainees, and the issues relating to inmates living with HIV and AIDs, among others. Though these concerns were addressed to the relevant prison and police authorities for redress they remained outstanding. (UHRC, 2011, xxv–xxvi)

The Special Rapporteur on Prisons and Conditions of Detention was set up by the African Commission in 1996. Described as ‘one of the major successes of the African Commission’, its work is often overlooked (Viljoen, 2005, 127). In 2003, the Special Rapporteur published a report on the state of prison conditions in Uganda. The report notes that the vast majority of prisons and detention facilities were built in the 1920s, since which time they have not been updated. Consequently, the physical state of prisons consistently fails to meet many of the most basic needs of its detainees in the twenty-first century, such as appropriate shelter and sleeping accommodation, which are often close to collapse (Special Rapporteur, 2003, 17–18).

312

Capital Punishment: New Perspectives

In Luzira Upper Prison – Uganda’s main prison, based in the capital, Kampala, housing death row and many remand prisoners – there is severe overcrowding. Luzira is designed to have a maximum capacity of 668 prisoners, whereas at the time of the Special Rapporteur’s inspection, its capacity was 2,049. Cells of 3 square metres generally held three prisoners each, and many prisoners slept in corridors. Ceilings were found to be missing, thereby exposing prisoners to the volatile elements of equatorial Africa’s weather, which alternates daily from torrential rain to unbearable heat (Special Rapporteur, 2003, 18). Whilst most places of detention have some form of infirmary, demand is so high that any provision is tokenistic and woefully inadequate. Luzira has one doctor and eight paramedics for over two thousand inmates (Special Rapporteur, 2003, 23). These conditions mean that death is an all too familiar feature of prisons, the main cause being tuberculosis (Special Rapporteur, 2003, 21). The report records with haunting perfunctoriness: The UPS [Ugandan Prisons Service] medical officials acknowledge that 90% of deaths that occur in prison are of remand prisoners, and that 50% of these occur within the first year following admission. According to ICRC [the International Committee of the Red Cross], 20% of prisoners die during their first year of detention. (Special Rapporteur, 2003, 22)

This section has shown that the criminal justice system for those charged with capital offences is heavily weighted against them. Not only is the representation which the inmates receive consistently inadequate, but basic legal safeguards such as the right to bail and appeal are routinely flouted. These flagrant denials of justice are compounded by the life-threatening prison conditions in which inmates are incarcerated like sardines; left to rot in the baking sun. Whilst there are some encouraging signs arising from government policy, such as the expansion of legal aid, this alone is woefully insufficient to remedy the institutional obstructions to accessing justice, basic healthcare and protecting physical and psychological integrity. Given that the current, limited, system of legal aid for capital offenders falls far short of delivering a just process, it is difficult to see how extending such a programme will improve the situation on the ground. Rather, a root-and-branch process of reform is required to ensure a fairer justice system. This includes greatly enhancing the training, remuneration and living conditions of the police, prison and court personnel, in order to be serious about fighting endemic corruption, mistreatment of current and prospective inmates, as well as the general feeling of apathy toward their cause. In fact, such action must be prioritized if we are to avoid legal aid reform acting as a small sticking plaster on a well-established, infected wound. Moreover, the issues arising from the pre-trial process must not only inform the abolitionists’ strategy, but become the central plank on which the battle is fought. It is only by ensuring the existence of a rudimentary justice system that abolition litigation can hope to have a positive and enduring impact. By focusing and reaching for the Holy Grail that it is abolition, litigation to date has not necessarily

Successful Capital Litigation in Uganda

313

been blinded to these fundamental failures: rather, its lofty ambition has restricted its purview upwards, overlooking those affected on the ground. Conclusion This chapter has attempted to identify some of the problems which have arisen from capital litigation in Uganda. In particular, the abolition of the mandatory death penalty has failed to improve the situation on the ground, not only for many of the applicants involved, but equally for those who are now facing capital offence charges. This is because in its quest for abolition, litigation has consistently failed to appreciate the imperative to remain focused on the actual circumstances and systems in which those charged with capital offences find themselves. Lengthy sentences, far beyond the life expectancy of Ugandans, have become the default position. Lengthy appeals processes mired by corruption remain the norm. Inadequate legal representation is still a major contributor to conviction rates. All the while, inmates remain detained in conditions of such squalor that the real and immediate threat to their lives arises from their environment, not the noose. Looked at from this angle, abolition litigation has achieved very little, and has caused much more uncertainty, if not hardship. Clearly, if improvement is to materialize, an intensive programme of reform will be required, encompassing all of the key criminal justice institutions. Such reform needs to focus on the front line – police and prison officers, as well as court staff – before moving up the ranks of seniority. Similarly, capital litigation requires a bottom-up approach. If we are serious about achieving real change, maybe it is time to shift our sights away from the heady goal of abolition, and set our sights a little lower. It may seem counter-intuitive; however, tangible, enduring and positive change can only be achieved by taking incremental steps which build on one another. Ensuring that individuals’ rights to bail and appeal are effective is essential. Ensuring basic requirements fundamental to the concept of a fair trial, including appropriately qualified and experienced advocates, is vital. Ensuring that individuals don’t die from incarceration prior to getting to trial is, to put it mildly, absolutely elementary. Abolitionists may feel that prison conditions cannot be their main concern. But when those very conditions have killed, and are killing, vastly more inmates in Uganda than execution, this stark fact might make them reconsider. References Journal Articles Bekker, G. (2009), ‘Recent Developments in the African Human Rights System 2008–09’, Human Rights Law Review, 9(4), 668–89.

314

Capital Punishment: New Perspectives

Biegon, J. and Killander, M. (2009), Human Rights Developments in the African Union during 2008’, African Human Rights Law Journal, 9, 295–311. Biegon, J. and Killander, M. (2010), ‘Human Rights Developments in the African Union during 2009’, African Human Rights Law Journal, 10, 212–32. Chenwi, L. (2006), ‘Fair Trial Rights and their Relation to the Death Penalty in Africa’, International & Comparative Law Quarterly, 55, 609–34. Coldham, S. (2000), ‘Criminal Justice Policies in Commonwealth Africa: Trends and Prospects’, Journal of African Law, 44(2), 218–38. Eborah, S.T. (2011), ‘Human Rights Developments in African Sub-regional Economic Communities during 2010’, African Human Rights Law Journal, 11, 216–50. Gumboh, E. (2011), ‘The Penalty of Life Imprisonment Under International Criminal Law’, African Human Rights Law Journal, 11, 75–92. Hatchard, J. (1995), ‘Constitutionality of the Death Penalty and Penal Policy’, Journal of African Law, 39(2), 192–7. Hood, R. and Hoyle, C. (2009), ‘Abolishing the Death Penalty Worldwide: The Impact of a “New Dynamic”’, Crime and Justice, 38(1), 1–63. Hynd, S. (2008), ‘Killing the Condemned: The Practice and Process of Capital Punishment in British Africa, 1900–1950s’, Journal of African History, 49, 403–18. Mujuzi, J.D. (2008), ‘Why the Supreme Court of Uganda Should Reject the Constitutional Court’s Understanding of Imprisonment for Life’, African Human Rights Law Journal, 8, 163–86. Mujuzi, J.D. (2009), ‘Issues Surrounding Life Imprisonment after the Abolition of the Death Penalty in Rwanda’, Human Rights Law Review, 9(2), 329–38. Mutua, M. (1999), ‘The African Human Rights Court: A Two-legged Stool?’, Human Rights Quarterly, 21, 342–63. Novak, A. (2009), ‘The Decline of the Mandatory Death Penalty in Common Law Africa; Constitutional Challenges and Comparative Jurisprudence in Malawi and Uganda’, Loyola Journal of Public Interest Law, 19(11), 19–85. Oppenheimer, B.J. (2005), ‘From Arrest to Release: The Inside Story of Uganda’s Penal System’, Indiana International & Comparative Law Review, 16, 117–43. Sander, B. (2011), ‘Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda’s Judgment in Attorney General v Susan Kigula and 417 Ors’, Journal of African Law, 55(2), 261–79. Udombana, N.J. (2006), ‘The African Commission on Human and Peoples’ Rights and the Development of Fair Trial Norms in Africa’, African Human Rights Law Journal, 6, 299–332. Van Zyl Smit, D. (2006), ‘Life Imprisonment: Recent Issues in National and International Law’, International Journal of Law and Psychiatry, 29(5), 405–21. Van Zyl Smit, D. and Ashworth, A. (2004), ‘Disproportionate Sentences as Human Rights Violations’, Modern Law Review, 67, 541–60.

Successful Capital Litigation in Uganda

315

Viljoen, F. (2005), ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’, Human Rights Quarterly, 27(1), 125–71. Wachira, G.M. and Ayinla, A. (2006), ‘Twenty Years of Elusive Enforcement of the Recommendations of the African Commission on Human and Peoples’ Rights: A Possible Remedy’, African Human Rights Law Journal, 6, 465–92. Reports African Commission on Human and Peoples’ Rights (n.d.), www.achpr.org/ instruments/fair-trial/ (accessed 20 May 2013). Amnesty International (2012), Death Sentences and Executions 2011, London: Amnesty International Publications. Amnesty International USA (2005), Annual Report: Uganda, www.amnestyusa. org/node/6207?page=show (accessed 20 May 2013). Fédération Internationale des Ligues des Droits de l’Homme (FIDH) (2005), Uganda: Challenging the Death Penalty, International Fact-finding Mission, no. 425/2, Paris and Kampala: FIDH, www.fidh.org/IMG/pdf/ug425a.pdf (accessed 20 May 2013). Governance and Justice Group (2011), Uganda: Draft National Legal Aid Policy, presented to the National Validation Workshop for the Draft Legal Aid Policy, Kampala, Uganda, 16 February 2012, www.jlos.go.ug/index.php/documentcentre/document-centre/doc_download/139-draft-national-legal-aid-policy (accessed 30 May 2013). Justice Law and Order Sector (JLOS) (2011), SWAP Workplan FY 2011/12, Kampala: JLOS, www.jlos.go.ug/index.php/document-centre/document-centre/ cat_view/114-work-plans (accessed 30 May 2013). Justice Law and Order Sector (2012), The Third JLOS Strategic Investment Plan (SIPIII), 2012/13-2016/17, Kampala: JLOS, www.jlos.go.ug/index. php/document-centre/document-centre/doc_download/228-the-jlos-thirdstrategic-investment-plan-sip-iii (accessed 30 May 2013). Penal Reform International (2012), The Abolition of the Death Penalty and its Alternative Sanction in East Africa: Kenya and Uganda, London: Penal Reform International, www.penalreform.org/files/East%20Africa%20research%20 report%20on%20death%20penalty%20and%20life%20imprisonment.pdf (accessed 20 May 2013). Republic of Uganda (2006), Report to the Commission on Human and Peoples’ Rights, 39th Ordinary Session, Commission on Human and Peoples’ Rights, Banjul, The Gambia, May 2006, www.achpr.org/files/sessions/39th/statereports/2nd-2000-2006/staterep2_uganda_2006_eng.pdf (accessed 20 May 2013). Republic of Uganda (2011), Periodic Report by the Government of Uganda to the African Commission on Human and Peoples’ Rights, 49th Ordinary Session, Banjul, The Gambia, 28 April–12 May 2011, www.achpr.org/files/

316

Capital Punishment: New Perspectives

sessions/49th/state-reports/uganda-4th-2008-2010/staterep4_uganda_2011_ eng.pdf (accessed 20 May 2013). Special Rapporteur on Prison and Conditions of Detention (2003), Report on the Mission of the Special Rapporteur on Prison and Conditions of Detentions in Africa to Uganda, DOC/OS (XXXIII)/324c/II, 33rd Ordinary Session of AU, 15–29 May 2003, Niamey, Niger, www.achpr.org/files/sessions/33rd/ mission-reports/uganda/achpr33_misrep_specmec_priso_uganda_2001_eng. pdf (accessed 20 May 2013). Uganda Human Rights Commission (UHRC) (2011), 14th Annual Report to the Parliament of the Republic of Uganda, Kampala, Uganda, www.uhrc.ug/ index.php?option=com_docman&task=doc_view&gid=125&tmpl=compone nt&format=raw&Itemid=137 (accessed 20 May 2013). UN Human Rights Committee (2004), Consideration of Report Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee – Uganda, CCPR/CP/80/UGA, 4 May 2004, 80th Session Human Rights Committee, www.unhchr.ch/tbs/doc.nsf/(Symbol)/ CCPR.CO.80.UGA.En?Opendocument (accessed 30 May 2013). Conference Papers Eldad, M. (2010), ‘Topic: Effects of Susan Kigula and 417 Ors vs AG’, paper presented to the Roundtable on Sentencing in Capital Offences: An Appraisal of Susan Kigula and 417 Others v the Attorney General, Entebbe, 13–15 June 2010. Jabbar, P. (2010), ‘The Rarest of the Rare and the Worst of the Worst: Limiting Capital Punishment Pending Abolition’, paper presented to the Roundtable on Sentencing in Capital Offences: An Appraisal of Susan Kigula and 417 Others v the Attorney General, Entebbe, Uganda, 13–15 June 2010. Lehrfreund, S. (2010), ‘The Progressive Development of International Human Rights Standards Restricting the Scope and Application of the Death Penalty Towards Its Eventual Abolition’, paper presented to the Roundtable on Sentencing in Capital Offences: An Appraisal of Susan Kigula and 417 Others v the Attorney General, Entebbe, Uganda, 13–15 June 2010. Minister of Justice and Constitutional Affairs (2012), ‘Welcome Remarks’, National Validation Workshop for the Draft Legal Aid Policy, Kampala, Uganda, 16 February 2012, www.jlos.go.ug/index.php/document-centre/document-centre/ doc_download/220-welcome-remarks-by-the-hon-maj-gen-kahinda-otafiireat-the-legal-aid-policy-validation-workshop (accessed 30 May 2013). Mwanje, J. (2011), ‘Prison Reports and Experience in Implementation of Case Backlog Quick Win Programme’, paper presented to the Case Backlog Review Conference, Kampala, Uganda, 7 March 2011, http://ppja.org/countries/ uganda/prisons-report-and-experience-in-implementation-of-case-backlogquick-wins-programme (accessed 20 May 2013).

Successful Capital Litigation in Uganda

317

Book Chapter Bakayana, I. (2009), ‘The State of Constitutionalism in Uganda – 2007’, in W. Kioko (ed.), Constitutionalism in East Africa: Progress, Challenges and Prospects in 2007, Kampala: Fountain Publishers, www.kituochakatiba.org/ index2.php?option=com_docman&task=doc_view&gid=1192&Itemid=36 (accessed 20 May 2013), 27–51. News Articles Kwesiga, P. (2012), ‘Man Sentenced to 310 Years for Murder, Robbery’, New Vision, 2 April, www.newvision.co.ug/news/630055-man-sentenced-to-310years-for-murder-robbery.html#.T3rDVkZO278.twitter (accessed 20 May 2013). Odyek, J. (2012), ‘Limit Offences Carrying Death Sentence – Judge’, New Vision, 12 October , www.newvision.co.ug/article/fullstory.aspx?story_ id=636324&catid=1&mid=53 (accessed 20 May 2013). Talemwa, M. (2012), ‘Few Death Sentences Come with Challenges for Prisons’, The Observer, 18 October, www.observer.ug/index.php?option=com_content &task=view&id=21635&Itemid=114 (accessed 20 May 2013).

This page has been left blank intentionally

Chapter 15

The End of the End: Understanding the Paradox of Capital Sentencing in Liberia1 Jessie Munton

When Modesko Nyandeh was sentenced to death by hanging in July 2012 in Gbarnga, Bong County, he was the fourth individual to receive such a sentence in Liberia in just five months.2 On 11 April 2012, Bob Seekie and Attina Wieh were similarly sentenced for the murder of Captain Boye-Blue Dweh (Walker, 2012). On 21 March 2012, at Monrovia’s Temple of Justice, George W. Dweh was sentenced by Justice Zotaa to be publicly hanged from 6 a.m. until 6 p.m., having been convicted of murdering his fiancée – a sentence which was initially misreported as ‘hacking’ by the local press (Parley, 2012). Two years previously, in May 2010, nine men were sentenced to death for the murder of Keith Jubah (Toby, 2010); one of them, Benjamin Toe, was aged 16 at the time of the offence (Amnesty International [AI], 2011b). Earlier that year, on 19 March, Hans Williams and Mardea Paykue were sentenced to be hanged five days later. An appeal filed by their lawyers stayed the executions.3 According to figures from the Ministry for Corrections and Rehabilitation, as of June 2012 15 men and one woman were under death sentences, all of them housed at Monrovia Central Prison.4 Yet on 16 September 2005, Liberia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), committing the country to the abolition of the death penalty (United Nations Treaty Collection, 2012a). Amnesty International describes Liberia as abolitionist in practice (AI, 2012, 64), and the last peacetime executions were prior to the civil war, which began in 1989 (AI, 2003; World Coalition Against the Death Penalty [World Coalition], 2012). None the less, on 22 July 2008, in spite of fierce international criticism, President Ellen Johnson Sirleaf signed into force an amendment to the 1976 Penal Code allowing for capital sentences in cases where death was caused

1  This research was made possible by a Lindsay Fellowship for Research in Africa from the Yale Council on African Studies. I am also indebted to Speedy Rice and Huw Green for advice and practical assistance, and to Kerry-Ann Akers and Peter Hodgkinson for their support. 2  ‘Man, 36, Gets Death Sentence’, Observer, 19 July 2012 3  ‘Death Sentence for Angel Togba’s Murderers’, Public Agenda, 22 March 2010. 4  Personal communication, 15 June 2012.

Capital Punishment: New Perspectives

320

in the course of armed robbery.5 Later that year, she affirmed to representatives of the World Coalition Against the Death Penalty that she did not intend to sign any warrants of execution (World Coalition, 2008), and stakeholders in the justice system agree that executions are unlikely in the current climate.6 Liberia’s relationship to the death penalty is a complex one: whilst Amnesty International describes a sustained abolitionist trend across the African continent, Liberia has taken the extraordinary move of apparently reintroducing the death penalty contrary to its international legal commitments (AI, 2011b). It consequently offers a unique window on the kinds of social and political pressures that demand the availability of the death penalty as a sentencing option, and those that allow for its permanent abolition, and a case study for the interaction of international and domestic law. Though Liberia’s post-conflict environment is unique, understanding Liberia’s paradoxical relationship with the death penalty sheds light on the role of capital sentencing in other contexts. In the first section, I examine the legality of the 2008 amendment to the Penal Code, and the continued distribution of capital sentences. I conclude that rumours of the abolition of the death penalty in Liberia have been greatly exaggerated. In domestic law and sentencing practice, the death penalty has never been successfully abolished, nor was there a hiatus in capital sentencing after the 2005 accession to the Second Optional Protocol. The country is, however, enjoying a stable de facto moratorium on executions. In the following section, I describe the context in which Liberia extended the reach of capital sentencing in 2008 in spite of the stability of that moratorium. The amendment to the Penal Code was a symptom of a profoundly dysfunctional justice system, damaged by fourteen years of civil war and the accompanying social disintegration. In the final section, I look at international efforts to promote the rule of law in Liberia, and the paradoxical ways in which this, too, may contribute to pressure to retain the death penalty as a sentencing option. The case of Liberia indicates that capital punishment is not an isolated extrusion from the legal landscape, but an intrinsic part of it. Only when we view it in this way can we make sense of Liberia’s complex legal relationship with it. An attempt at de jure abolition via international law that failed to treat it as such 5  ‘Ellen Signs Armed Robbery Bill’, Liberian Express, 27 July 2008; World Coalition

(2008).

6  Based on interviews conducted by the author in May–June 2012 with the Hon. Byron Browne, Representative of Electoral District 4, Grand Bassa County; His Honour Kabineh M. Ja’neh, Associate Justice of the Supreme Court of Liberia; His Honour Philip A.Z. Banks III, Associate Justice Supreme Court of Liberia; Counsellor Dedeh Wilson, Public Prosecutor; Senator Joseph N. Nagbe of Sinoe County, Chairman of the Senate Committee on the Judiciary and Human Rights, and Commissioner Augustine Toe of the Liberia Anti-Corruption Commission, previously Executive Director of the Catholic Justice and Peace Commission. As with other interviews cited later in the text, selected transcripts are available from the author on request.

Understanding the Paradox of Capital Sentencing in Liberia

321

was ineffective. Moments of political transition, whilst offering opportunities for legal reform, may not offer the legal and social infrastructure necessary for its successful implementation. The Legal Status of the Death Penalty in Liberia On 16 September 2005, Liberia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights, committing the country to cease executions and “take all necessary measures to abolish the death penalty within its jurisdiction’ (United Nations Treaty Collection, 2012a, Arts 1(1) and (2)). On the same day, Liberia ratified or acceded to 102 other international instruments. A statement released on behalf of the UN Secretary-General described the day as ‘a landmark in Liberia’s journey away from a difficult past and towards a more tenable future grounded in the rule of law, respect for human rights and good democratic governance’ (United Nations, 2005). Others have been less enthusiastic. One scholar has described the event as ‘a case study of quantity over quality in treaty ratification’ (Durham, 2009:189). This scepticism seems justified by Liberia’s 2008 amendment to its Penal Code, providing that ‘In the event death occurs during the commission of a crime of Armed Robbery, Terrorism or Hijacking the accused convicted under Section 14.54, 15.32 and 15.33 of this Act shall be sentenced to death by hanging or imprisonment for life without possibility of parole’.7 International human rights campaigners and scholars were quick to describe this amendment as a reintroduction of the death penalty. The European Union expressed ‘its deepest concern following the promulgation in Liberia of a law reintroducing the death penalty for certain crimes’ (European Union, 2008). This characterization of the law was also adopted by Dr Jamil Mujuzi (2009) and Amnesty International (AI, 2011b). On his blog, Dr William Schabas (2008) described the move as an attempted reinstatement. In this respect, there is a gulf between the view of the international community and that of the Liberian judiciary and Parliament. The Justice Minister at the time of the amendment was Philip Banks, now an Associate Justice of the Supreme Court and previously chair of the Law Reform Commission. In response to international criticism, he produced an opinion arguing that Liberia was not bound by the Second Optional Protocol.8 Under Liberia’s Constitution of 1986, the legislature has the power to approve international instruments (Article 34(f)). 7  Act to Amend Chapters 14 and 15 Sub-Chapter (C), Title 26 of the Liberian Code of Laws Revised, Known as the New Penal Law of 1976 by Adding Thereto Four New Sections Thereby Making the Crimes of Armed Robbery, Terrorism and Hijacking, Respectively Capital Offense and Providing Punishment Thereof (2008), Section 15.34(4). 8  P. Banks, letter to the Minister of Foreign Affairs, ‘Re: Legal Opinion on the Status of Liberia as Pertains to the Second Optional Protocol to the International Covenant on

322

Capital Punishment: New Perspectives

Liberia’s 2005 accession was performed by the then leader of the Interim Government, Charles Gyude Bryant. Although there was a National Transitional Legislative Assembly in place at the time, the instruments enacted by Liberia on 16 September were not presented to it. On this basis, Banks claimed that the accession was not valid.9 From this point of view, the 2008 amendment to the Penal Code did not constitute a reintroduction of the death penalty because the death penalty had never been abolished. This claim is unlikely to exempt Liberia from its obligations under the Second Optional Protocol. Liberia is a signatory to the Vienna Convention on the Law of Treaties (United Nations Treaty Collection, 2012b). Banks’s argument amounts to a claim of invalidity under Article 46 which describes conditions under which a state can claim its accession to a treaty is invalid on the basis of provisions of internal law governing competence to conclude treaties: 1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. The International Court of Justice (ICJ) has been reluctant to accept that a treaty is invalid on those grounds. Aust outlines the principle that ‘States are entitled to regard other states as having acted in good faith when its representatives express their consent to be bound’ (Aust, 2000, 253). Shaw (2007, 940) observes that the International Court dealt with this question in Cameroon v. Nigeria (2002). Nigeria had argued that the Maroua Declaration of 1975 between the two states was not valid because its constitutional rules had not been complied with. There, the court pronounced that: a limitation of a Head of State’s capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized. This is particularly so because Heads of States belong to the group of persons who, in accordance with Article 7, paragraph 2, of the Convention … are considered as representing the State.10

Civil and Political Rights Relative to the Abolition of the Death Penalty in Liberia’ (2008), available from the author. 9  Ibid. 10  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea Intervening) [2002] Judgment, ICJ Reports 2002.303, para. 265.

Understanding the Paradox of Capital Sentencing in Liberia

323

The rationale behind this approach is brought out in Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, where the court reasoned concerning acts that exceeded the authority of the officials performing them: If such unauthorized or ultra vires acts could not be ascribed to the State, all State responsibility would be rendered illusory. For this reason … the practice of states has conclusively established the international responsibility for unlawful acts of state organs, even if accomplished outside the limits of their competence and contrary to domestic law.11

In line with this, an accession by Liberia’s head of state is likely to be regarded as having successfully bound the country to the instrument in question. Whilst international law may well regard Liberia as bound by the Second Optional Protocol, domestically at least, the death penalty has never been removed from the statute books. This is unsurprising given the optimistic flurry of international instruments under which the protocol was hidden. Liberian judges are still sentencing in line with the 1976 Penal Code, which allows for death sentences in the case of first-degree murder.12 Consequently, although the 2008 amendment was described in some quarters as a ‘reintroduction’, there was no cessation in death sentences following the 2005 ratification. On 15 April 2008, the Daily Observer reported that that a man convicted of murder had been sentenced to death by hanging (Menkor, 2008), whilst the New Democrat reported on 18 June 2008 that two men whose rape victim had later died from her injuries had been sentenced to be hanged (Turley, 2008a). Both those reports pre-date the amendment to the Penal Code which passed the House of Representatives on 6 May 2008, the Senate on 15 July 2008, and was signed by the President on 22 July.13 The impression that the death penalty was reintroduced is due to the fact the international community was unaware that such sentences were being handed down until after the 2008 amendment. In conversation with the author, members of the Liberian judiciary expressed the view that the death penalty was never abolished. Justice Banks explained that: the death penalty has been on our statute books for many many decades, and so the amendment that was made in 2008 really did not reintroduce it, all that the amendment of 2008 did was to take the crime which previously was not listed as a capital offence to expose perpetrators to the death penalty.14

11  Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt [1993] 32 International Legal Matters 933, para. 85. 12  Liberia Penal Law (1976), Title 26, Code of Laws, 725, 794, Ch. 14.1. 13  ‘Ellen Signs Armed Robbery Bill’, Liberian Express, 27 July 2008; Poquie (2008); Roberts (2008). 14  P. Banks, author interview, 13 June 2012.

324

Capital Punishment: New Perspectives

Justice Zotaa, who sits in Criminal Court A at the Temple of Justice, and who claims to have handed down in the region of twenty death sentences during his work there, agreed that ‘it has never been repealed, it has always been here’.15 Whether or not Liberia is bound by the Second Optional Protocol, the death penalty has never been successfully removed from the domestic statutes of the country, nor placed out of bounds as a sentencing option. The enthusiasm of the international community to accept Liberia’s adoption of so many international instruments in September 2005 deterred it from scrutinizing whether Liberia was in a position to follow through on those legal commitments and amend its domestic legislation as necessary. Accepting Liberia’s apparent accession to the Second Optional Protocol allowed Liberia to form another data point in an apparent movement towards abolition across the African continent, but obscured the fact that nothing had changed on the ground. The 2008 Amendment to the Penal Code Despite continuing to hand down death sentences, Liberia has enjoyed a moratorium on peacetime executions since before the civil war.16 Whether or not the 2008 amendment ‘reintroduced’ the death penalty, it certainly extended its possible application. It is peculiar that a country should wish to extend the reach of capital punishment on the one hand, whilst disavowing any intention to carry out executions on the other. Indeed, Philip Banks’s legal opinion encourages the continuation of the moratorium on executions: there has been an unwritten moratorium on the death penalty in Liberia as, in spite of death sentences imposed by the courts, Presidents of more recent times, even during the war, have not signed unto death warrants. The present President could continue such moratorium, and we favour such continuation, until the legislature sees fit to act upon the Protocol and pass it into law, as required by the Liberian Constitution.17

President Ellen Johnson Sirleaf has affirmed to representatives of the World Coalition Against the Death Penalty her intention to refrain from signing any such warrants (World Coalition, 2008). Yet the 2008 amendment demonstrates that capital punishment is not seen as an irrelevancy in the Liberian justice system. What role, then, is it playing in the country? One way to approach this question is to look more closely at the pressures that prompted that amendment. The preamble to the 2008 Act explains it is a response to the upsurge in armed robbery that had affected the country: 15  Zotaa J, author interview, 29 May 2012. 16  Executions were carried out during the civil war; AI (2003). 17  Banks, letter to the Minister of Foreign Affairs (2008).

Understanding the Paradox of Capital Sentencing in Liberia

325

there has been an unprecedented increase in recent time in the wave, gravity, magnitude and viciousness of Armed robbery, Terrorism, Hijacking and related offenses in Liberia …. Alarmed by method(s) deployed by the perpetrators/ culprits is/are heinous, frightening, and fearful, to the citizenry and have resulted in numerous deaths, rapes, permanent disabilities, destruction of properties, and other types of extreme victimization of our citizens, especially women and children, and foreign residents within our borders [sic].18

That upsurge in turn was an indicator of the difficult post-conflict transition Liberia was making. In 2003, five years before the passage of the amendment, Liberia had emerged from fourteen years of intermittent civil conflict that resulted in the destruction of much of the country’s infrastructure, the death of an estimated 250,000 people and the displacement of at least 800,000 out of a population of only three million (United Nations, 2003, 6, 7). The criminal justice system was no exception to the widespread destruction. In a 2003 report, the UN Secretary General found that ‘Judicial institutions throughout Liberia have suffered an almost complete breakdown as a result of years of violent conflict and the disregard of the Taylor Government for the rule of law’, before going on to note that ‘Most courts are not functioning and much of the infrastructure has been destroyed or looted. It also appears that various prisons throughout the country are empty and dilapidated, and that former prisoners are on the loose’ (United Nations, 2003, 6). Successful disarmament after so long a period of conflict presented an enormous challenge. The same report estimated that ‘Liberia has some 27,000 to 38,000 combatants, many of whom are children’ (United Nations, 2003, 11). Many newly disbanded ex-combatants were without jobs. In 2009, the United Nations Mission in Liberia (UNMIL) reported that ‘the high number of unemployed or underemployed youth remains a particular challenge, since they constitute a volatile group that could be used by spoilers seeking to undermine stability’ (UNMIL, 2009, 3). With peace came large numbers of returning refugees to Monrovia in particular. In a speech in July 2008, President Sirleaf explained that ‘In addition, we have … people that have been taken from jails in the United States and other places being deported here; and so it just makes it so difficult to combat [the high crime rate]’.19 Additional security concerns were raised by the frequent prison breaks that took place in the period preceding the 2008 amendment. UNMIL’s February 2009 report recorded 31 separate incidents during the six-month reporting period. The largest break-out, in December 2008, saw 163 prisoners escape from Monrovia Central Prison; 85 were still at large when the report was written (UNMIL, 2009, 8). Not only had the civil conflict provided the incentives and means for criminal perpetrators to act, it simultaneously weakened the state’s capacity to respond to criminal activity. Whilst a high number of weapons remained among the general 18  Act to Amend Titles 14 and 15 of the Penal Code (2008), Preamble, paras 1 and 2. 19  ‘Ellen Decries High Crime Rate’, Liberian Express, 13 July 2008.

326

Capital Punishment: New Perspectives

population, the police themselves were not armed, partly as a response to concerns about the reliability of the force, many of whose members had until recently been combatants themselves, and the limitations of the vetting procedures in place for their selection.20 These problems with personnel were exacerbated by the force’s limited resources, including petrol. In its February 2009 report, UNMIL wrote that ‘In the capital, the ability of the Liberian National Police to respond adequately in many high crime areas of the capital also remained hampered by the lack of mobility and basic patrol gear’ (UNMIL, 2009, 6). On 22 July 2008, the same month the President signed the amendment into force, the Parrot and New Democrat newspapers reported that six police officers had themselves been arrested for involvement in armed robbery (Turley, 2008b). Earlier that month, the President had acknowledged there were ‘bad apples’ among the police force.21 Public mistrust in the police resulted in mob violence, not only towards suspected criminals, but also towards the police themselves. On 14 and 15 February 2008, for instance, the Daily Observer carried stories of police stations in different parts of the country being set on fire (Sendolo, 2008; Gibson, 2008), and a similar event was recorded in May.22 Problems with the enforcement of justice extended far beyond the police force. Shortages of personnel and resources as a result of the war meant that those who were arrested were certain to face long periods of pre-trial detention, a problem with which the justice system is still struggling.23 UNMIL admitted in 2009 that ‘Substantial challenges remain, including shortages of qualified personnel, insufficient funding, lack of infrastructure and equipment, poor administration and case flow management, corruption and the need for law reform’ (UNMIL, 2009, 7). These problems were particularly acute outside Monrovia. Poor or non-existent public transport meant that court houses could be several days’ journey away. The International Crisis Group reported in 2006 that ‘Magistrates conduct hearings on their balconies or in private homes because of crumbling or demolished courthouses’, whilst ‘The court in Upper Buchanan has no roof or doors’ (International Crisis Group, 2006, i, 17). It was not just physical infrastructure that the war had destroyed. It also resulted in a brain drain, making it harder to either recruit or train the lawyers, magistrates and judges the justice system was in desperate need of, and to undertake the law

20  ‘New Liberia Police Get First Guns’, BBC News, 1 December 2006 http://news. bbc.co.uk/2/hi/africa/6197980.stm (accessed 28 July 2013); ‘UN-trained Liberia Police Face Many Challenges’ Voice of America News, 27 October 2009 http://www.voanews. com/articleprintview/546696.html (accessed 28 June 2013). 21  Ibid. 22  ‘Yearning for Zero Tolerance on Crime’, editorial, New Democrat, 6 May 2008. 23  According to the Ministry for Corrections and Rehabilitations, on 11 June

2012, out of a total prison population of 1,664, 1,193 were pre-trial detainees; personal communication, 13 June 2012.

Understanding the Paradox of Capital Sentencing in Liberia

327

reforms which fourteen years of civil conflict had interrupted.24 In February 2009, UNMIL recorded that ‘One third of the counties have not been assigned public defenders, while in others they are mainly restricted to county capitals, and legal advice clinics are operating in only three counties’ (UNMIL, 2009, 8). Establishing what the law concerning a particular case is presents an additional hurdle: Lubkemann, Isser and Banks (2011, 206) write that: ‘Given the series of interim, transitional, and military regimes, during all of which laws were promulgated, it is difficult – sometimes impossible – to determine what is actually the law of the land, let alone to find authoritative (or, indeed, any) copies of the laws themselves.’ This lack of clarity contributes to the impression that the system is subject to abuse. Isser Lubkemann and N’Tow (2009, 3) found that ‘many Liberians not only view the formal system as failing to deliver justice, but they regard the formal justice system as one of the most effective mechanisms through which powerful and wealthy social actors are able to perpetrate injustice in service to their own interests’. Given these systemic shortfalls in the formal justice system, it is unsurprising that Liberians in 2008, as now, looked for alternatives. Mistrust in the capacity of the conventional justice system either to maintain law and order or to successfully hold criminals to account and support victims has fostered reliance on two alternative responses. The first of these is the well-established customary system of justice and dispute resolution. Isser, Lubkemann and N’Tow (2009, 4) cite a 2008 study from the Centre for the Study of African Economics at Oxford University which surveyed 3,181 civil and 1,877 criminal disputes. Only 3 per cent of the former and 2 per cent of the latter came before a formal court, while 38 per cent and 45 per cent respectively were dealt with in informal fora. In addition, the disarray of the conventional justice system in 2008 fostered incidents of mob violence, in which the public attacked either symbols of the formal justice system, such as police stations and court houses, or criminals themselves. UNMIL (2009, 3) described these attacks as ‘a major national security concern’ which ‘underline … the tenuous state of the security situation in the country’. Given this preference for customary remedies, it is impossible to ascertain the incidence of armed robbery in the period before the amendment to the 2008 Penal Code was passed. What is clear is how public concern around the issue dominated the media: few newspapers in the three months preceding the Act failed to report a violent crime or a public figure’s pronouncements on the crisis in the security situation. In response to public concern, the UN Development Programme funded a late-night phone-in radio programme, Crime Watch, with the intention of allowing people to keep up to date with security concerns as they arose (CannonWinkelman, 2009). In practice, one effect was to increase public hysteria, as listeners could hear distressed victims describe very recent armed attacks.25 24  K. Ja’neh, author interview, 7 June 2012. 25  P. Banks, author interview, 13 June 2012.

328

Capital Punishment: New Perspectives

Public concern was fuelled by legitimate fears that the high prevalence of armed robbery could provoke deeper civil unrest and a return to lawlessness. That public hysteria translated into political pressure on the government at the time the amendment to the Penal Code was passed. On 8 June 2008, the Liberian Express reported how the Senator for Maryland blamed unrest in his constituency on the government’s inability to quickly apprehend criminals, and later that same month, politicians from several opposition parties together released a statement decrying the high murder rate and blaming it on the weakened judicial system.26 On 4 July 2008, the then Justice Minister Philip Banks was invited by the Hon. Byron Browne, himself a victim of armed robbery on three occasions, to account for its continued high incidence.27 The armed robbery bill was itself first sponsored by Edward S. Forh, from the opposition Congress for Democratic Change Party,28 though it enjoyed cross-party support (Kennedy and Forkpa, 2008). Invoking capital punishment was a simple way for the government to demonstrate a strong response to an apparent crisis. Appreciating the factors that prompted appeal to the death penalty as a deterrent does not explain how it could be thought to work as such with a moratorium on executions in place, as Philip Banks claims: it wasn’t necessarily that the government wanted to execute people, the whole intent there was to see if this could serve as a deterrence, so that the fear of an execution rather than the execution itself, would serve as a deterrent to people who wanted to commit armed robbery and who really did not care whether in the process of committing that act the victim was murdered. So it was never the intention of the government to use it.29

The hope was that it could none the less work as a deterrent, partly on the basis of a lack of public information about the moratorium: one of the things I’ve said about people is that they don’t read very much. … So although we have provided the guarantees to the international community – this is not what we’re going to be doing, this is not what the government intends to do – that is not information that people debated or paraded around the place so that for a lot of the criminals, they just believed that if they committed an offence that they would be executed.30

26  ‘Justice, Internal Affairs Blamed’, Liberian Express, 8 June 2008. 27  Forkpa and Mulbah (2008); B. Browne, author interview, 5 June 2012. 28  In an interview with the author on 13 June 2012, Philip Banks asserted that the

bill itself originated from the Ministry for Justice, and that the honourable member was invited to sponsor it. 29  P. Banks, author interview, 13 June 2012. 30  Ibid.

Understanding the Paradox of Capital Sentencing in Liberia

329

In fact, no death sentence has ever been passed under the amendment: those that have continued to be handed down are for murder. The apparent decline in armed robbery is more likely due to the deployment of an armed Emergency Response Unit within the police, which, provided with fuel, can attend crime scenes in a timely fashion (Human Rights Watch, 2011), and broader improvements in the stability of the country. In this context, the extension of the death penalty was a short-term measure: nominally invoked as a deterrent, its real function was to demonstrate government strength in the face of a fragile security situation. It was a symptom of a profoundly dysfunctional justice system: the Liberian legislature appealed to the death penalty in response to problems that arose from a far deeper crisis in the execution of justice in the country. In addition, the uncomfortable half-way house of enacting legislation whilst disavowing any intention of using it relies on underlying flaws in the justice system: public ignorance of legislative intentions, and the excessive power of the executive, including the ability to commute sentences. The government could enact the legislation secure in the knowledge that the President has the capacity to grant pardons and commute sentences (Constitution, Art. 59). The death penalty in Liberia thus cannot be treated as an isolated legal concern. In the previous section, we saw that isolated legal reform via international legal instruments failed to have any impact on Liberian sentencing practice. In this section, we have seen that the legislature’s 2008 appeal to capital punishment relied upon and was a symptom of profound dysfunction within the justice system. In the next section, we will examine the possible effects of focusing on the question of capital punishment in isolation from broader legal reform. Rule of Law, the Death Penalty and International Justice Attempts to strengthen the rule of law in the context of a justice system weakened by recent conflict may risk strengthening support for the death penalty: capital punishment can look like an attractive counterbalance to the former’s perceived emphasis of the rights of the defendant. Conversely, de jure abolition that fails to translate into sentencing practice itself runs counter to the rule of law. In this final section, we will look briefly at how capital sentencing and the rule of law inform one another in Liberia. Moments of dramatic political transition such as Liberia enjoyed following its civil war present a double-edged sword. On the one hand, they offer a unique opportunity for legislative reform. The ratification of the Second Optional Protocol was a hopeful step for abolitionists, in line with a trend Amnesty International described across Africa (AI, 2011b). In addition, Liberia’s apparent ratification of the protocol provided a focus for international criticism of the 2008 amendment. On the other hand, such moments are also characterized by heightened instability. The weakened state of the justice system in the years following the cessation of Liberia’s civil conflict made it particularly unlikely that legal abolition

330

Capital Punishment: New Perspectives

via an international instrument would successfully translate into sentencing practice. The resultant status quo weakens the force of international law by opening up the possibility that ratification need not translate into domestic legal application. An additional risk is that international pressure to rectify the disparity with domestic legislation alienates local stakeholders from the abolitionist project. Abolitionist campaigners face a tension between the international community’s ability to promote legal reform via the application of external pressure, and the risk of alienating domestic actors and population from the aims of that reform. Senator Joseph Nagbe is Chair of the Senate Select Committee on the Judiciary and Human Rights, a position he has held since 2008. In an interview with the author, he expressed frustration at the approach of international non-governmental organizations (INGOs) and their focus on the death penalty, particularly in light of the United States’ retention of it: You know sometimes these international human rights organizations come to us without understanding our own environment, without understanding the circumstances under which certain things happen in Liberia, or in any Third World country for that matter. Of course Liberia is a part of the world, a member of the United Nations, a founding member in fact of the United Nations. But you cannot just criticize Liberia because it keeps on its books a piece of law that some countries in the world are opposed to. Because it is not all the countries in the world support non-compliance to capital offence. … Most of the time [INGOs] don’t focus on things which will build capacity, that will lend support to the rule of law. But they want to impose their own views, their own cultural values on a different kind of people.31

In this way, much-needed efforts to promote the rule of law and protect human rights within the Liberian legal system run the risk of seeming to ignore society’s real concerns, and do nothing to reduce the appeal of the death penalty as a strong response to crime. The penalty is also seen as a shortcut to promoting the trust in the formal justice system that those efforts can sometimes undermine. Human rights NGOs in Liberia have been successful in filing a number of nolle prosequi claims on behalf of remand prisoners not tried within statutory time limits.32 Whilst this has provided important protection for pre-trial detainees and relieved pressure on the justice system by reducing their number, it has often been reported in newspapers in sensationalist terms of accused rapists and murderers being freed (Kollie, 2008; Dodoo, 2009). An editorial in the Daily Observer in April 2008 carried the following warning concerning nolle prosequis:

31  J. Nagbe, author interview, 12 June 2012. 32  ‘Beware Vicious Circle of Crimes’, editorial, Daily Observer, 2 April 2008;

American Bar Association (2010).

Understanding the Paradox of Capital Sentencing in Liberia

331

In the past some of these people, among them suspected murderers, quietly bought their way out of prison under the guise that trial was delayed. What these lapses in the justice system are doing is to undermine the confidence people have in the court system as the place where redress is sought against taking arbitrary action against others who offend them.33

Alarmist reporting of successful nolle prosequi claims reinforces the impression that rule of law and NGOs’ promotion of human rights protect defendants whilst doing little for crime victims. Justice Banks recalls that: Many times we have had people argue before us that the human rights organizations focus more on the accused than on the victims, so they are concerned that there should not be a death penalty, but they are not saying very much about what should be done to prevent one going ahead and taking the life of another.34

In this way, promotion of de jure abolition of the death penalty, in the absence of more widespread legal reform, can have the paradoxical effect of shoring up support for mob justice and customary justice. Both can prove fatal for those suspected of criminal activity, the latter when it invokes a practice known as ‘Sassywood’, a form of trial by ordeal during which suspects attempt to prove their innocence by undergoing an ordinarily harmful process such as drinking poison. These are enduring concerns for Liberia’s justice system. In a report published in May 2012, the US State Department found that in the reporting period, ‘Mob violence and vigilantism – which resulted in part from the public’s lack of confidence in the police and judicial system – resulted in deaths and injuries.’ Furthermore, ‘Despite being illegal, the practice of trial by ordeal … reportedly continued in rural areas’ (US Department of State, 2012). In the absence of executions, individuals sentenced to death face an indefinite term of imprisonment. A cessation in capital sentencing in Liberia would translate into an upturn in full-life sentences, which carry their own human rights concerns, particularly in light of the dire conditions in Liberia’s prisons (AI, 2011a). Prison Fellowship Liberia reported that four individuals had died in Monrovia Central Prison between January and the end of May 2012, and estimates that on average roughly ten prisoners die over the course of a year.35 War Crimes Trials and the Death Penalty: The Rwandan Example Liberia’s adoption of the Second Optional Protocol in 2005 failed to translate into a cessation in capital sentencing in the country. One way of deepening 33  Ibid. 34  P. Banks, author interview, 13 June 2012. 35  Personal communication, 30 May 2012.

332

Capital Punishment: New Perspectives

Liberia’s integration into the international legal system is suggested by Rwanda, another country that abolished the death penalty following a destructive internal conflict. Rwanda’s successful abolition came in 2007, thirteen years after the 1994 genocide. The presence of the death penalty on Rwandan statute books prevented the extradition of war crimes suspects from foreign jurisdictions to face trial in Rwanda (Twahirwa, 2007; AI, 2007). The prospect of trying suspected war criminals on Rwandan soil provided an important incentive for the change in legislation, binding Rwanda more firmly into the international justice system. Liberia’s Truth and Reconciliation Commission recommended in its final report that an Extraordinary Criminal Court for Liberia be established to try individuals suspected of committing grave human rights violations and war crimes (Truth and Reconciliation Commission of Liberia, 2009, 349). De jure abolition of the death penalty in Liberia would remove a possible obstacle to the extradition of suspects from the custody of the International Criminal Court and other international jurisdictions.36 The prospect of war crimes trials could therefore provide an important incentive for the outright abolition of the death penalty in the country. In addition, implementing war crimes trials would constitute an important step towards establishing a broader principle of legal accountability within the country. Unfortunately, any kind of war crimes trials remain a remote prospect in Liberia. In addition to the practical challenges of establishing the necessary infrastructure and personnel, the prospect is likely to encounter stiff opposition, given the diffusion of implicated individuals throughout Liberian society. The scale of the conflict and the number of different participating factions was such that a high proportion of Liberians were involved on one side or another. The Truth and Reconciliation Commission has produced a list of individuals recommended for prosecution, which includes at least two current senators and several ex-senators (Truth and Reconciliation Commission of Liberia, 2009, 349). The list of those recommended to be barred from public office for having provided indirect support for the main actors is more extensive still, and includes the present President, Ellen Johnson Sirleaf (Truth and Reconciliation Commission of Liberia, 2009, 361). Conclusion Liberia’s apparent abolition of the death penalty in 2005 was accepted by abolitionist campaigners as part of a narrative of abolitionist progress across Africa. Liberia’s emergence from fourteen years of civil conflict was a moment of major political transition, and as such presented a unique opportunity for legislative change in the form of Liberia’s ratification of the Second Optional Protocol. The social instability accompanying the transition underwrote the failure of that apparent reform: it provided the pressures necessary for an upsurge in criminal 36  Judge v. Canada [2003], Communication no. 829/1998 (2003) UN Doc. CCPR/ C/78/D/829/1998.

Understanding the Paradox of Capital Sentencing in Liberia

333

activity, whilst depriving the government of effective means of responding to it. In addition, it ensured the country lacked the legal infrastructure required for successful domestication of the international instrument. Lasting reform requires that capital punishment be treated as part of a wider legal landscape, held in place by disparate social and legal pressures, not as a discrete appendix which can be successfully removed without broader systemic reform. References AI (2007), ‘Rwanda Abolishes Death Penalty’, www.amnesty.org/en/news-andupdates/good-news/rwanda-abolishes-death-penalty-20070802 (accessed 4 July 2012). AI (2011a), ‘Liberia: Good Intentions are Not Enough: The Struggle to Reform Liberia’s Prisons’, AFR 34/001/2011, www.amnesty.org/en/library/ asset/AFR34/001/2011/en/b5b302eb-69bc-4f10-9993-9ef96fcd319a/ afr340012011en.pdf (accessed 2 July 2012). AI (2011b), ‘Statement to African Commission on Human and Peoples’ Rights on the Situation of Human Rights in Africa’, IOR 63/005/2011, www.amnesty. org/en/library/info/IOR63/005/2011/en. (accessed 3 July 2012). AI (2012), ‘Death Sentences and Executions in 2011’, ACT 50/001/2012, www. amnesty.org/en/library/info/ACT50/001/2012/en (accessed 3 July 2012). American Bar Association (2010), ‘Pre-trial Detention Program Helps Release More than 450 Liberian Detainees’, www.americanbar.org/advocacy/rule_ of_law/where_we_work/africa/liberia/news/news_liberia_pretrial_detention_ project_0510.html (accessed 4 July 2012). Amnesty International (AI) (2003), ‘West Africa: Time to Abolish the Death Penalty’, AFR 05/003/2003, www.amnesty.org/en/library/asset/AFR05/003/2003/ en/6a245dca-d687-11dd-ab95-a13b602c0642/afr050032003en.html (accessed 4 July 2012). Aust, A. (2000), Modern Treaty Law and Practice, Cambridge: Cambridge University Press. Canon-Winkelman, H. (2009), ‘Keep the Crime Watch Live’, 31 August, Uniting Distant Stars blog, http://unitingdistantstars.blogspot.co.uk/2009/08/keepcrime-watch-live.html (accessed 4 July 2012). Dodoo, L. (2009), ‘Lawyers Seek Freedom for 20 Rape Suspects’, Daily Observer, 9 October. Durham, H. (2009), ‘From Paper to Practice: The Role of Treaty Ratification Post Conflict’, in B. Bowden, H. Charlesworth and J. Farrall (eds), The Role of International Law in Rebuilding Societies after Conflict, Cambridge: Cambridge University Press, 177–97. European Union (2008), EU Presidency Declaration Regarding Reintroduction of Death Penalty in Liberia, CL08-116EN, 31 July, www.eu-un.europa.eu/ articles/en/article_8062_en.htm (accessed 3 July 2012).

334

Capital Punishment: New Perspectives

Forkpa, J.K. and Mulbah, N.N. (2008), ‘Echo from the Legislature: “Substance Week” at Legislature’, Daily Observer, 4 July. Gibson, J.S. (2008), ‘Crime Rate Soars in Grand Bassa’, Daily Observer, 14 February. Human Rights Watch (2011), World Report 2011: Liberia, www.hrw.org/worldreport-2011/liberia (accessed 3 July 2012). International Crisis Group (2006), ‘Liberia: Resurrecting the Justice System’, Africa Report, 107. Isser, D., Lubkemann, S.J. and N’Tow, S. (2009), Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options, Peaceworks no. 63, Washington, DC: United States Institute of Peace. Kennedy, D.G. and Forkpa, J. (2008), ‘Death for Armed Robbers’, Daily Observer, 17 July. Kollie, C.M. (2008), ‘10 Rape, Murder Suspects Set Free’, Daily Observer, 7 July. Lubkemann, S.J., Isser, D.H. and Banks, P.A.Z. (2011), ‘Unintended Consequences: Constraint of Customary Justice in Post-conflict Liberia’, in D. Isser (ed.), Customary Justice and the Rule of Law in War-torn Societies, Washington, DC: United States Institute of Peace, 193–238. Menkor, I.F. (2008), ‘Convicted Sentenced to Death by Hanging’, Daily Observer, 15 April. Mujuzi, J.D. (2009), ‘High Crime Rate Forces Liberia to Reintroduce the Death Penalty and Put International Treaty Obligations Aside: What the Critics Missed?’, African Journal of International and Comparative Law, 17(2), 342. Parley, W. (2012), ‘Liberia: Wife Killer Gets Hacking Sentence’, New Dawn, 22 March, http://thenewdawnliberia.com/index.php?option=com_content&view =article&id=5538:wife-killer-gets-hacking-death-sentence&catid=25:politics &Itemid=59 (accessed 4 July 2012). Poquie, F. (2008), ‘Death for Death Inflicting Armed Robbers’, New Democrat, 16 July. Roberts, D.K. (2008), ‘Death Penalty Bill Passed’, New Democrat, 7 May. Schabas W.A. (2008), ‘Liberian Parliament Attempts to Reinstate Capital Punishment’, PhD Studies in Human Rights blog, http://humanrightsdoctorate. blogspot.co.uk/2008/08/liberian-parliament-attempts-to.html (accessed 3 July 2012). Sendolo, J. (2008), ‘Lawlessness in Nimba’, Daily Observer, 15 February. Shaw, M.N. (2007), International Law, Cambridge: Cambridge University Press. Toby, P.N. (2010), ‘Jubah’s Killers to Die by Hanging’, New Democrat, 7 May. Truth and Reconciliation Commission of Liberia (2009), Consolidated Final Report, vol. II, Monrovia: Truth and Reconciliation Commission of Liberia. Turley, N. (2008a), ‘Death for Cemetery Rapists’, New Democrat, 18 June. Turley, N. (2008b), ‘Police Officers Charged with Armed Robbery: Two Allegedly Ordered Released’, New Democrat, 22 July.

Understanding the Paradox of Capital Sentencing in Liberia

335

Twahirwa, A. (2007), ‘Death Penalty – Rwanda: Abolition Spurs Quest for Justice’, Inter Press Service News Agency, www.ipsnews.net/2007/08/deathpenalty-rwanda-abolition-spurs-quest-for-justice/ (accessed 4 July 2012). United Nations (2003), Report of the Secretary-General to the Security Council on Liberia, 11 September, UN Doc. S/2003/875, www.un.org/ga/search/view_ doc.asp?symbol=S/2003/875 (accessed 3 July 2012). United Nations (2005), ‘Secretary-General Welcomes Liberia’s 103 Treaty Actions at UN Event’, SG/SM/10101 L/T/4390, www.un.org/News/Press/docs/2005/ sgsm10101.doc.htm (accessed 3 July 2012). United Nations (2008), Seventeenth Progress Report of the Secretary-General on the United Nations Mission in Liberia, S/2008/553, www.un.org/ga/search/ view_doc.asp?symbol=S/2008/553 (accessed 5 July 2012). United Nations Mission in Liberia (UNMIL) (2009), Eighteenth Progress Report of the Secretary-General on the United Nations Mission in Liberia, S/2009/86, www. un.org/ga/search/view_doc.asp?symbol=S/2009/86 (accessed 3 July 2012). United Nations Treaty Collection (2012a), Chapter IV.12, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, http://treaties.un.org/pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en (accessed 3 July 2012). United Nations Treaty Collection (2012b), Chapter XXIII.1, Vienna Convention on the Law of Treaties, http://treaties.un.org/pages/ViewDetailsIII.aspx?&src= TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mtdsg3&lang=en (accessed 3 July 2012). US Department of State (2012), 2011 Country Reports on Human Rights Practices – Liberia, 24 May, www.unhcr.org/refworld/docid/4fc75a87b4.html (accessed 5 July 2012). Walker, N. (2012), ‘Two Convicted Criminals Sentenced to Death’, New Dawn, 16 April, www.thenewdawnliberia.com/index.php?option=com_content&view=ar ticle&id=5693:friday-national-fast-a-prayer-day&catid=25:politics&Itemid=59 (accessed 4 July 2012). World Coalition Against the Death Penalty (2008), ‘Liberia Illegally Restores the Death Penalty’, www.worldcoalition.org/Liberia-illegally-restores-the-deathpenalty.html (accessed 3rd July 2012). World Coalition Against the Death Penalty (2012), Worldwide Database: Liberia, www.worldcoalition.org/Liberia (accessed 4 July 2012).

This page has been left blank intentionally

Chapter 16

The Political Use of Capital Punishment in Communist Romania between 1969 and 1989 Radu Stancu

Introduction There are two major studies that approach the death penalty in East European countries during the communist period. The first one is a chapter by Stanislaw Frankowski in a book entitled Capital Punishment: Global Issues and Prospects.1 It is a comprehensive survey of the evolution of capital punishment in all the East European countries, and relates it to the political context. The second study is the article ‘The Abolition of the Death Penalty in Central and Eastern Europe’, by Agata Fijalkowski.2 Although focused on post-communist abolitionism, like most of the approaches provided by legal scholars, it also gives an extensive summary of capital punishment during the communist period in Central-Eastern European countries. It emphasizes that during the Stalinist period, the death penalty was used to intimidate the population, becoming a political issue rather than a legal one. The study confronts one of the major problems of the research field – the lack of data – relying mainly upon the data that Frankowski provides in his research.

1  Stanislaw Frankowski, ‘Post Communist Europe’, in Peter Hodgkinson and Andrew Rutherford (eds), Capital Punishment. Global Issues and Prospects (Winchester: Waterside Press, 1996), 215–43. 2  Agata Fijalkowski, ‘The Abolition of the Death Penalty in Central and Eastern Europe’, Tilburg Foreign Law Review, 9 (2001), 62–83. Agata Fijalkowski also published a case study on Poland: ‘Capital Punishment in Poland’, in Christian Boulanger and Austin Sarat (eds), The Cultural Lives of Capital Punishment: Comparative Perspectives (Stanford, CA: Stanford University Press, 2005), 147–68. A case study on Slovakia was published by Robert Fico, former Slovakian Minister of Justice: Robert Fico, ‘The Death Penalty in Slovakia’, in Roger Hood et al. (eds), The Death Penalty: Abolition in Europe (Strasbourg: Council of Europe Publishing, 1999), 117–29. Richard Evans also dedicated a chapter to the GDR in his Rituals of Retribution: Capital Punishment in Germany, 1600– 1987 (Oxford: Oxford University Press, 1996).

338

Capital Punishment: New Perspectives

It is also worth mentioning the comparative study of Andrew Scobell on China, the USSR, Cuba and the GDR,3 which draws some general conclusions regarding the relationship between the evolution of criminal justice systems in communist countries and the use of capital punishment. Of course, most studies focus on the Soviet Union,4 and their findings are relevant to the extent that the Soviet case was a role model. Several other studies focus on China or other communist countries in different parts of the world that I will not focus on.5 Thousands of people were killed by state actors after the communists took power in Romania in the mid-1940s until the late 1950s, while less than three hundred were legally executed, as this chapter will show. Why did the regime choose this fate for just a few of them, and how did the two forms of state killing coexist? Although marginal compared to other repressive phenomena in the period, like extrajudicial executions or deaths in prison, especially from a quantitative point of view, I will assert that the legal provisions and their actual use successfully illustrate the politicization of the death penalty itself. The contradiction between the ideological rejection of capital punishment, rooted in Marxism, and its almost continuous use in Romania from 1944 until 1989 is intriguing at first sight. My aim is to analyse the mechanisms that lie behind both ideology and practice, and to examine how propaganda used the death penalty. Why was capital punishment continuously used, and why could communism not lead to an ideological abolition? Was there a specific debate on the ideological issues, or was the punishment used as in any other society, or was it in fact used as a political weapon? My understanding of the influence of politics on capital punishment starts from the Weberian concept of monopoly on the legitimate use of violence,6 the death 3  Andrew Scobell, ‘The Death Penalty under Socialism, 1917–1990: China, the Soviet Union, Cuba and the German Democratic Republic’, Criminal Justice History: An International Annual, 12 (1991), 189–234. 4  See G.P. Van den Berg, ‘The Soviet Union and the Death Penalty’, Soviet Studies, 35(2) (April 1983), 154–74; Konstantin Simis, ‘Death Penalty under Socialism’, Russia: A Quarterly Review of Contemporary Soviet Issues, 1 (1981), 23–7; Marjorie Farquharson, ‘Four Ex-Soviet States and the Death Penalty’, Helsinki Monitor, 2 (2003), 89–100; William A. Clark, ‘Crime and Punishment in Soviet Officialdom: 1965–90’, Europe-Asia Studies, 45(2) (1993), 259–79; Donald D. Barry and Eric J. Williams, ‘Russia’s Death Penalty Dilemmas’, Criminal Law Forum, 8(2) (1997), 231–58; George L. Kline, Capital Punishment for Crimes against State and Public Property in the Soviet Union Today, interim report to the National Council for Soviet and East European Research, Bryn Mawr College, May 1987, www.ucis. pitt.edu/nceeer/1987-800-14-Kline.pdf (accessed 27 December 2011). 5  Hong Lu and Lening Zhang, ‘Death Penalty in China: The Law and Practice’, Journal of Criminal Justice, 33 (2005), 367–76; Andrew Scobell, ‘The Death Penalty in Post-Mao China’, The China Quarterly, 123 (September 1990), 503–20. 6  Max Weber, ‘The Profession and Vocation of Politics’, in Peter Lassman and Ronald Speirs (eds), Max Weber, Weber. Political Writings (Cambridge: Cambridge University Press, 1994), 310–11.

Political Use of Capital Punishment in Communist Romania 1969 –1989

339

penalty thus being the ultimate coercive instrument in the hands of the state. The legitimacy of the newly established communist regime in Romania faced many challenges, and the use of capital punishment also has to be understood as a way to demonstrate its legitimacy. Going further, Otto Kirchheimer observed that law was dominated during the period of power seizure by a revolutionary legality, when strengthening the state under the leadership of the Communist Party was the main purpose.7 This was translated into swift criminal proceedings or transforming the law into a tool of the regime. The recurrence of this principle throughout the first half of the period is also worthy of analysis. Michel Foucault’s Discipline and Punish 8 marked a paradigm shift in understanding how the punishment system evolved from the Middle Ages to modern times. It is helpful in understanding the judicial system of Western societies, and through all the comparisons that arise, in analysing the communist criminal justice system. Obviously, communist countries obeyed the new paradigm where executions were no longer public, but subtle disciplinary mechanisms indirectly permeated the social body. But there have also been some peculiarities: unlike liberal jurisprudence, the disciplinary penalty, which developed in communist countries, evaluated individual behaviour through mixed rules defined by laws and normativity, be it political or societal, and the study of both is relevant. Although his references to modern totalitarianism were rare, if one follows the Foucauldian paradigm, communism was the zenith of disciplinary power.9 Meanwhile, if one agrees that totalitarian control was not so draconian, one might notice that not everything was controlled, or that sometimes control was exercised indirectly. However, sometimes improvisation also led the way, based on old pre-communist legal provisions still in force, proving once more a shift between communist ideology and real socialist practice. This is also the case with capital punishment, which was politicized, but at a new level of manipulation and in a new manner that I will describe below. In a liberal society, the legal discussion about capital punishment focuses on deterrence, the retributive/restorative justice binomial, or the concepts of consequentialism/utilitarianism,10 while for the communist societies, their conceptual strength weakens and the discussion becomes more focused on ideology. One could speak about retribution in eliminating political opponents in the first decade after the war, and also about the importance of general deterrence in the last two 7  Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton, NJ: Princeton University Press, 1961), 288. 8  Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995). 9  Roumen Daskalov, ‘Le Pouvoir Disciplinaire et le Socialisme d’Etat: Quelques Reflexions Accrochées a celles de Foucault’, in Alain Brossat (ed.), Hommage de l’Est à Foucault (Nancy: Press Universitaire de Nancy, 1994), 111–21. 10  David Dolinko, ‘State Punishment and the Death Penalty’ in R.G. Frey and C.H. Wellman (eds), A Companion to Applied Ethics (Oxford: Blackwell, 2008), 75–87.

340

Capital Punishment: New Perspectives

decades, but in my opinion, they were constructed on a new conceptual basis which was defined by antagonistic concepts. The first and most important is the concept of the New Man. The new communist regimes in the region, most of them imposed by the Soviet Union, had to deal with a lot of enemies, many of them citizens inside the state, be they recently defeated fascists or regular citizens, most of them lacking serious communist ideological convictions. However, one of the core ideas of the New Man concept was that regardless of their past, individuals can be re-educated and made useful to communist society. The archaeology of this idea takes us back to Marx, and specifically related to the death penalty, to one of the articles from his youth where he clearly positions himself against capital punishment.11 On a lower political and public discourse level, the attitude changes, especially when the regime wants to reconcile the inconsistent use of the death penalty with the general penological policy that was based on re-education – although re-education itself was often achieved through terror. I argue that this contradiction was overcome mainly in two ways, but these three elements often intersected, and this result can be confusing, as we will see. First, in the Stalinist period, Stalin’s theory of the intensification of the class struggle in emerging communist societies was the perfect argument to accept capital punishment as an ‘exceptional and temporary measure’.12 Later on, the human rights debate appeared, and the communist countries were keen to show the achievements and advantages of their type of social order in this respect. The basic thesis of the communist approach to human rights was that individual happiness in the new social form was possible only through the achievement of happiness among the whole society. The result was that the individual did not have to fight the state any more, but to obey it, since it assured his or her welfare and protected the happiness of the whole society.13 Therefore, there is certainly a deterrent element, but a retributive one is denied. A second layer of the methodological discussion addresses another question that I posed above, which goes beyond the discourse and is more rooted in reality than in the ideological discussion. How was capital punishment used as a political instrument? To answer this, I will refer to the debate that defined the 11  Robert Bohm, ‘Karl Marx and the Death Penalty’, Critical Criminology, 16(4) (2008), 285–6. 12  Frankowski, ‘Post Communist Europe’, 215–43. 13  Roman Wieruszewski, ‘The Evolution of the Socialist Concept of Human Rights’, SIM Newsletter, 1 (1988), 28–9. Particularly regarding the Romanian perspective, see Ladislau Lörincz and Ioan Vida, ‘Umanismul Dreptului si Legislatiei Socialiste’ (‘The Humanism of the Socialist Law and Legislation’), in Victor Duculescu and Dan Mircea Popescu (eds), Umanismul Revolutionar si Drepturile Omului (‘Revolutionary Humanism and Human Rights’) (Bucharest: Editura Politica, 1984), 137–52; Nicolae Ceausescu, Drepturile Omului in Lumea Contemporana (‘Human Rights in the Contemporary World’) (Bucharest: Editura Politica, 1984).

Political Use of Capital Punishment in Communist Romania 1969 –1989

341

historiography of communism as between totalitarian and revisionist schools of thought. In the totalitarian approach, the almighty state rules every part of political and social life through coercion and terror. This assertion is denied by revisionists, who emphasize how certain aspects of life were more independent, or I would say, negotiated with the state, which is also convergent with Foucault’s theory of disciplinary mechanisms. I will show that the use of the death penalty successfully illustrates frequent irregularities and an incoherent policy of the representatives of a regime that seemed to not always be aware of its aims or the ways to achieve them, as it transformed its own perpetuation into one of its main goals, especially when it was weakest, at the very beginning and close to its end. This resulted in the use of the death penalty in a manner that was dictated by immediate ‘needs’ and reactions to specific events, rather than a coherent criminal policy, and thus was ultimately less influenced by ideology than one might expect. However, the rules of the game were established by the state through legal provisions, so I find a balanced perspective offered by the two schools the most appropriate. Thus, I will try to closely trace the relationship of the death penalty with the state as part of the disciplinary mechanism, applying the following scheme: First, I will describe the legal framework that established the capital crimes from two angles. I will identify the legal provisions in the form they appeared in the Penal Codes and all the subsequent laws that amended them. I will also analyse the way they were presented to the public at large through commented and annotated versions of the Penal Code14 or press, and contrast this with the context from the legal milieu and the debates that they created among jurists, through documents from the Ministry of Justice.15 I will then try to view the legal provisions from an evolutionary perspective, to track all the changes, both in the number of capital crimes and their content, as they occurred from 1969 to 1989, contextualizing the penal policies with reference to the larger political framework and the eventual direct political interferences as they result from documents like Securitate reports16 or transcripts of the meetings of the Central Committee of the Communist Party.17 The second section of my analysis will refer to the application of the death penalty, including both sentencing and carrying it out. There are two main 14  Vintila Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman (‘Theoretical explanations of the Romanian Penal Code’), 4 vols (Bucharest: Editura Academiei Republicii Socialiste Romania, 1970); Teodor Vasiliu et al., Codul Penal al Republicii Socialiste Romania, Comentat si Adnotat, Partea Speciala (‘Penal Code of the Socialist Republic of Romania, Commented and Annotated: Special Part, Volume 2’), 2 vols (Bucharest: Editura Stiintifica si Enciclopedica, 1975–77). 15  Archive of the Ministry of Justice (AMJ), unprocessed fond. 16  Archive of the National Council for the Study of the Archive of ‘Securitate’ (ANCSAS), Fond Documentar (‘Documentary’). 17  National Archives of Romania (NAR), Fond Comitetul Central al PCR – Cancelarie (‘The Central Committee of the RCP – Chancellery’).

342

Capital Punishment: New Perspectives

categories of sources that will allow me not only to see numbers, but also other important data. The penal registration form18 is a short two-page document that the penitentiaries had to fill in for each detainee throughout the communist period, and provides the most extensive set of data regarding executions. Unlike the penal registration forms, State Council and Presidential Decrees19 offer much more information, although they are available mainly for the 1970s and 1980s. A person sentenced to death could address a clemency petition to the State Council prior to 1974, and after that year to the President. Alongside the clemency petition, there was a report issued by several state institutions: the Ministry of Justice, the Ministry of Interior, the Prosecutor General and the Supreme Tribunal. Finally, there are some cases which illustrate how the death penalty was related to politics that are best described through short (collective) biographical accounts: the condemnation of Ioan Mihai Pacepa, an adviser of Ceausescu and head of the Department of Foreign Intelligence, who defected to the United States, for instance. I will also refer to the members of the numerous groups, some of them executed, some others only condemned, such as the groups sentenced for economic crimes in the 1980s. Another factor of my research will include other specific aspects of capital punishment, such as the manner of the executions, who was exempted, and so on. In terms of the death penalty, the first half of the communist period (1944–69) was very dynamic. Its beginning was dominated by the issue of war criminals, which often took a retributive form, a disguised way of punishing the fascists, former political rivals of the communists. The scarcity of the data does not allow us to have a full account of the dimensions of this phenomenon, while a comparison with other East European communist states confirms that the data are incomplete. In 1949, the legal provisions concerning capital punishment were extended to several economic and political crimes, intended to frighten a large proportion of the population. The propagandistic use was centred on the publicity of the legal provisions and not on particular cases, except for a bank robbery case which was presented to a limited audience. Counting first on the specific deterrent effect of the executions, the regime used the death penalty mainly to eliminate fascists, saboteurs, traitors, members of the resistance groups, and so on. Although it could also directly eliminate them, the authorities decided to follow the legal procedures. This was meant to provide an appearance of legality that aimed to improve the regime’s image and also had a general deterrent aspect. Although leading jurists debated and attempted to abolish capital punishment in 1956, legal provisions and actual use tightened in 1958 when the Stalinist ruler Gheorghe Gheorghiu-Dej felt less secure about his position. The reasons were the de-Stalinization process that 18  Archive of the National Administration of Penitentiaries (ANAP), Fond Fişe Matricole Penale (‘Penal Registration Forms’), published online by the Institute for the Investigation of Communist Crimes and the Memory of the Romanian Exile, http:// crimelecomunismului.ro/en/penal_registration_forms/ (accessed 22 November 2011). 19  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’).

Political Use of Capital Punishment in Communist Romania 1969 –1989

343

followed the death of Stalin in the USSR, the events in Hungary in 1956 and the withdrawal of Soviet troops from Romania in 1958. After the high execution rates registered in 1958–59, they returned to normal until the adoption of the new Penal Code in 1969, demonstrating that the application of the legal provisions was, once more, a political matter. Defined by a new attitude of the state towards legality, the period 1969–89 offers more accurate insights into the use of the death penalty. Following the description of the legal provisions concerning capital punishment, I will illustrate its political use through the examples of the campaign against economic criminality in 1984 and the Ceausescus’ continuous obsession with traitors. Finally, I will analyse the last year of the regime, including the execution of the Ceausescus and the abolition of capital punishment. 1969: A New Penal Code The harsh political repression of the 1950s in Romania ended with the release of most of the political prisoners during 1962–64. From a Foucauldian perspective, what followed is very interesting. The brutal imprisonments, prison camps or tortures were replaced by more refined measures of coercion like home imprisonment, marginalization and dispersal of the dissidents. Regarding capital punishment, important changes were initiated by the authorities, first in relation to its use, followed by legislative changes. The generational change of leadership usually marked the adjustment of the official policy regarding the death penalty in communist countries, as Andrew Scobell has revealed.20 This applies to the Romanian case as well, in starting 1965. As we can see, a massive change in the legal framework occurred only in 1969, under the leadership of the younger Nicolae Ceausescu, when a new Penal Code came into force.21 Its provisions were established more attentively, and the attention to legality shows the subtlety of the new death penalty policy, while the use of capital punishment in the 1980s contradicts this legally established attitude. The Romanian authorities paid much more attention to international organizations and norms in this period. On 26 November 1968, the Economic and Social Council of the UN asked member states, through Resolution no. 2393, ‘to provide careful legal safeguards for those accused of a crime punishable by death’.22 Three years later, in 1971, another resolution, no. 1574 of 20 May, stated that ‘the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment might be imposed, with a view 20  Scobell, ‘The Death Penalty under Socialism’, 217. 21  Official Bulletin, 21 June 1968. 22  Quinquennial Report of the Secretary-General of the United Nations on Capital

Punishment (1975), http://humanrightsdoctorate.blogspot.com/2010/07/secretary-generalsquinquennial-reports.html (accessed 21 August 2011).

Capital Punishment: New Perspectives

344

to the desirability of abolishing this punishment in all countries’.23 Romania only answered the comprehensive quinquennial UN questionnaire regarding the death penalty in 1980. However, these answers were provided by Militia, Securitate and the General Direction of Penitentiaries, and not by the Ministry of Justice, which illustrates the politicized character of the death penalty.24 The analysis of the legal provisions and the intentions behind the changes are largely explained after the adoption of the new Penal Code by its official commentary, Theoretical Explanations of the Romanian Penal Code.25 The volume firstly stresses that the death penalty is ‘a means of defence of the society and not a revenge instrument …. This is in accordance with the principle of socialist humanism.’26 The official ideological perspective pictures the future of the death penalty as a one-way street: ‘Because of the political, economic and cultural developments, we are getting closer to the point where the death penalty will be useless.’27 The introduction of this socialist humanism principle has to be understood in the context of the international emergence of the human rights principle. According to Roman Wieruszewski, the official interpretation in communist countries was defined by an original attitude towards human rights that practically denied all its content. The emphasis changed from individual rights to collective duties that had to prevail in order to assure general happiness that the state was taking care of.28 In this way, rights became duties, and any deviation had to be punished; Romania made no exception. In particularly regarding the Romanian perspective, two local authors connect the legal discussion to the New Man concept in a utopian manner: ‘The humanization process of the law is intimately connected to the humanization of the man, to the formation of the new man of our society …’29, while Ceausescu himself denounced Stalinism in rambling words: It is necessary to start from the fact that the socialist law, the socialist legislation have to break any connection with the bourgeois law, with the old bourgeois conception …. Otherwise we will still be stuck in the old Stalinist conception according to which while socialism becomes stronger, the class struggle becomes sharper and the repressive measures have to be increased ….30

23  24  25  26  27  28  29  30 

Ibid. ANCSAS, Fond Documentar (‘Documentary’), file no. 14867/14, 31–57. Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman. Ibid, 24. Ibid. Wieruszewski, ‘The Evolution of the Socialist Concept of Human Rights’, 28–9. Lörincz and Vida, ‘Umanismul Dreptului si Legislatiei Socialiste’, 151. Ceausescu, Drepturile Omului in Lumea Contemporana, 123.

Political Use of Capital Punishment in Communist Romania 1969 –1989

345

In the new Penal Code, capital punishment was mentioned separately from the general list of punishments, in Article 24: ‘because of its temporary character’.31 Extremely importantly, the death penalty was provided only for the aggravated form of particular crimes and mentioned only as an alternative punishment alongside 15–20 years’ imprisonment, with two exceptions: genocide and inhumane treatment. This has to be read in the context of the adoption by the UN of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity on 26 November 1968. Romania signed and ratified it in 1969.32 Stressing that capital punishment was retained for its deterrent role, the authors of the Theoretical Explanations mention, however, that it ‘lacks some of the attributes of a good punishment (because) it is irreparable in case of judicial errors, and lacks the quality of reeducating the criminal’.33 The experts of the official commentary concluded that the careful use and interpretation of the courts should not allow these abstract deficiencies to affect the application of the death penalty.34 There were over thirty capital crimes in the 1969 Penal Code, less than in 1952, when an abolitionist report initiated by five jurists enumerated 48 cases. Seven of them were wartime crimes (leaving the navy, desertion from the battlefield, capitulation and so on). Besides treason (Articles 155 and 156), terrorist attacks (Articles 160 and 161), aggravated murder (Article 176), undermining national economy (Article 165-2) and theft from state property with severe consequences (Article 224-3), capital punishment was reintroduced for embezzlement (Article 223-3). The new Penal Code represented a definite advance to more clearly defined legal provisions regarding capital punishment compared to the previous period, but still retained substantial powers in the state apparatus.35 The debates about the Penal Code stressed the issues surrounding the death penalty, as a joint report of the Ministry of Justice, Prosecutor General and President of the Supreme Tribunal states: It has been proposed that the death penalty should not be provided for any crime (art. 54), or should not be provided for crimes against public property (art. 54). The proposals have been rejected because in this phase this punishment is necessary for serious crimes because of its deterrent role.36

31  Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman, 24. 32  Convention on the Non-applicability of Statutory Limitations to War Crimes and

Crimes against Humanity, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg_no=IV-6&chapter=4&lang=en (accessed 2 April 2012). 33  Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman , 25. 34  Ibid. 35  This also occurred in other countries, like the GDR; see Evans, Rituals of Retribution, 857. 36  NAR, Fond Comitetul Central al PCR – Cancelarie (‘Central Committee of the RCP – Chancellery’), file no. 95/1968, 78.

Capital Punishment: New Perspectives

346

The official transcript of a plenary session of the Central Committee of the Romanian Communist Party fails to admit this, and presents a more balanced perspective: ‘Tov. Vasile Pantilinet: Of over 7000 formulated proposals, most of them refer to … non-application of the death penalty for crimes against public property, the application of capital punishment for some crimes that are not included in the project …’.37 The Ministry of the Interior had an important role in supporting the death penalty for crimes against state property, as evidenced in their written proposals.38 The Penal Code was amended several times before 1989, the most important changes being enacted in 1973.39 Other annotated and commented versions of the Penal Code were also published during this period. One of them,40 whose volumes appeared throughout the 1970s, recorded the decreasing number of capital crimes, although in 1972 hijacking an aircraft was added if it resulted in a person’s death or the consequences were severe. This was probably a result of international events in the same year, when members of the Black September terrorist organization hijacked a Lufthansa airliner. In Romania, such a case occurred in 1984, when Doru George Guguila tried to hijack an airplane to flee the country, in order to avoid his problems with the law. Helped by a minor, he failed. Although the official report only suggested that he ‘is a hardened, parasitic element, antisocial and jobless’,41 his mother’s clemency petition revealed through annexed medical documents that he was suffering from mental problems prior to that event.42 Invariably, even if psychiatric analysis revealed any mental issues, there is no recorded case throughout the communist period when the official report suggests pardoning for this reason. The report usually concludes that it did not alter the criminal’s discernment, and that the criminal should be made fully responsible for his or her actions. However, Doru George Guguila was pardoned,43 although the reasoning behind pardons was usually not revealed. The new Penal Code provided a few exceptions to the application of the death penalty (Article 54). Minors were exempted if they were under 18 at the time when the crime was committed. The deterrent result was considered ineffective, and the possibility of re-education still high.44 Also, a pregnant woman or a woman with a child aged no older than three could not be put to death. In these cases, the penalty would be irrevocably commuted, not only until the birth or when the child reached the age of three years, as in other countries. The reasoning was that the psycho37  38  39  40  41 

Ibid., file no. 176/1968, 15. ANCSAS, Fond Documentar (‘Documentary’), file no. D10172/13, 379. Official Bulletin, 55–6, 23 April 1973. Vasiliu et al., Codul Penal al Republicii Socialiste Romania. NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), file no. 94/1985, 13. 42  Ibid., 37. 43  Ibid., 1. 44  Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman , 26.

Political Use of Capital Punishment in Communist Romania 1969 –1989

347

physical state of a mother expecting to be executed would negatively affect the life of the child. In this case, it would be commuted to a 25-year sentence.45 A similar proposal for persons over 60 years old was rejected during the debates on the Penal Code, as a report of the Ministry of Justice, Prosecutor General and President of the Supreme Tribunal reveals,46 and another proposal increasing the minimum age to 21 was rejected in 1980.47 As a particular element of the new Penal Code, one should emphasize Article 55, dealing with the commutation to a 25-year prison sentence – and not prescription – if the sentence had not been carried out within two years after the delivery of the court’s trial decision. This applied to convicts whose execution had been postponed for two years after he or she had been arrested or surrendered to imprisonment, and seven years after the delivery of the decision if he or she had not been arrested. In justifying this stipulation, the reliance was not on humanitarianism, but the belief of legislators, as revealed by the official commentary, that only the prompt application of the penalty could increase its deterrent effect, which weakens over time, compromising the execution.48 A similar stipulation, although relying upon tradition, was applied in post-Mao China, establishing the possibility to postpone the execution for two years, after which the sentence was in most cases commuted to lifetime detention.49 However, this provision was not respected, as Ion Pirvulet’s case shows. He was sentenced to death on 7 March 1982 for a triple murder that he denied: ‘I am a member of the Unification Church50 …, but I never killed anyone and never threatened someone’s life and no one has the right to sentence me to death if I am not guilty.’51 He was executed after more than four years on 31 October 198652 because the regime’s interest in the campaign against economic criminality prevailed. His execution was delayed to improve statistics, as we shall see. The new regulation for the execution of the death penalty, included in the general Law for the Execution of Punishments in 1969,53 allowed five working days to address the clemency petition after the final sentence was pronounced. The method was death by firing squad, and the political cases were still to be tried by military tribunals under the 1969 Penal Code,54 although further practice 45  Ibid., 27. 46  NAR, Fond Comitetul Central al PCR – Cancelarie (‘Central Committee of the

RCP – Chancellery’), file no. 95/1968, 78. 47  ANCSAS, Fond Documentar (‘Documentary’), file no. D8850/16, 123. 48  Dongoroz et al., Explicatii Teoretice ale Codului Penal Roman , 28–9. 49  Scobell, ‘The Death Penalty in Post-Mao China’, 503–20. 50  A modern religious movement emerging from South-Korea. 51  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), file no. 193/1986, 51. 52  ANAP, Fond Fişe Matricole Penale (‘Penal Registration Forms’), form of Ion Pirvulet. 53  Official Bulletin, 132, 18 November 1969, 1,084. 54  NAR, Fond Comitetul Central al PCR – Cancelarie (‘Central Committee of the RCP – Chancellery’), file no. 170/1968, 10–11.

348

Capital Punishment: New Perspectives

demonstrated that the line between civil and political cases was thin and open to interpretation.55 The first variation in the number of executions was an echo of the events in 1971, when Ceausescu announced through what was later called the ‘July Theses’ a return to real socialism;56 this was the beginning of a neo-Stalinist period in the history of communist Romania. Twelve executions took place in 1971, all for aggravated murder, compared to only seven executions in 1970 and three in 1969.57 In 1974, Iulian Poenaru’s book Contributions to the Study of Capital Punishment undertakes a comprehensive survey of the evolution of the death penalty around the world with no reference to the actual practice towards it in communist Romania. His conclusions suggested that the future for the death penalty was abolition, closely following the official discourse of the regime.58 The politicization of the death penalty went so far during the late 1970s and 1980s that the relatives of those condemned in the 1950s were under surveillance by Securitate, and even imprisoned in some cases.59 Iuliana Predut was the daughter of Ion Constantinescu, executed in 1959 for acts of terror, as a member of the Arnautoiu anti-communist resistance group. She was imprisoned on an unknown date, released in 1964, and condemned again in 1975 to 12 years in prison for plotting against state interests.60 Her mother, Justina Constantinescu, declared in 1978 in front of a Securitate informant: ‘I live in fear, every sound scares me and I have headaches.’61 In 1980, Iuliana was freed, but still under close surveillance.62 Similarly, Gabriela Ioanid, the daughter of Paul Ioanid, one of the perpetrators of a famous political case including a bank robbery in 1959, was still under surveillance in 1983 because her mother and sister lived abroad in the US and Israel, and she corresponded with them.63 The Campaign against (Economic) Criminality Besides the legal provisions, the criminal policy of the regime was marked by noteworthy amnesties in 1972, 1981, 1984 and 1988, in an attempt to prove the 55  I refer here to most of the treason cases during the 1980s. 56  A cultural revolution was projected, mainly demanding ideological conformity;

see Dennis Deletant, Romania under Communist Rule (Bucharest: Civic Academy Foundation, 1998), 120. 57  ANAP, Fond Fişe Matricole Penale (‘Penal Registration Forms’), author’s calculations. 58  Iulian Poenaru, Contributii la Studiul Pedepsei Capitale (Bucharest: Editura Academiei RS Romania, 1974), 205–10. 59  ANCSAS, Fond Documentar (‘Documentary’), file no. D13349/136. 60  Ibid., 47. 61  Ibid., 44. 62  Ibid., 42. 63  Ibid., 64.

Political Use of Capital Punishment in Communist Romania 1969 –1989

349

regime’s humanitarian image. In fact, the situation in prisons was difficult, but the propagandistic exploitation of the amnesties had to be maximized, as one can see from a meeting of the Permanent Bureau of the Political Executive Committee on 19 August 1981: Com. Nicolae Ceausescu: So the problem is, for now, their release from prisons, and I think we should do it through a collective amnesty on the occasion of 23 August. … We are talking about 5,000–6,000 people. Com. Tudor Postelnicu: Regarding what Com. Curticeanu said, I want to report, Com. General Secretary, that the reason is that we have one third more prisoners now than in the past. Com. Gheorghe Radulescu: Alright, but this is an amnesty, not a release because of lack of ‘housing space’. Com. Tudor Postelnicu: Besides this, many prisoners really regret their crimes and want to change …. Com. Nicolae Ceausescu: Alright, darling, no propaganda now. We have to analyse this situation. Com. Silviu Curticeanu: This means a substantive modification of the Penal Code. Com. Elena Ceausescu: No, darling, it is a simple amnesty.64

The amnesties revealed the regime’s severe inconsistency in terms of its own penal policies, as has been criticized by Radio Free Europe commentator E. Georgescu: “I want to remind my former colleagues that while they are asked not to hesitate to apply the death penalty to counter-revolutionary embezzlers, and in general to apply harsher penalties, Mr Nicolae Ceausescu proves his humanity every year granting countless pardoning and amnesty decrees.’65 A similar amnesty decree, no. 290, was issued on 9 August 1984. In January the same year, the aims of the regime regarding economic criminality were summarized by the president of the Bucharest Tribunal, Irina Negrescu, in an interview with Informatia Bucurestiului: Regarding the crimes directed against state property, very important prejudices are produced in the units where preventive financial control does not action as it should, and where financial legislation is misinterpreted. This indifference for

64  NAR, Fond Comitetul Central al PCR – Cancelarie (‘The Central Committee of the RCP – Chancellery’), file no. 64/1981, 3–5. 65  Open Society Archives (OSA), HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14.

350

Capital Punishment: New Perspectives public property – the only source of wealth for the whole people – takes very different forms, being the agency that facilitates the activity of some hardened elements that feast unscrupulously on public property. Each time justice intervened with all force.66

After 1969, important cases of ordinary citizens being accused of economic crimes were brought in front of the courts. Some of them were not made public, for example an economic espionage case in 1974 when the defendant’s capital sentence was commuted, or the case of two others condemned for disclosing state economic secrets in 1976.67 However, the first highly publicized case, also used in a propaganda film,68 ended in 1981. Gheorghe Stefanescu was sentenced to death and executed for embezzlement as the result of transactions involving large quantities of wine in a state winery; the case involved several local party members in Bucharest. Although he was not initially sentenced to death, the Supreme Tribunal decided to issue a death sentence in 1981, after a three-year trial. Legally, the case was never treated as a political one, the authorities avoiding this classification. Nevertheless, it was largely publicized in these terms, showing the ‘decadence of some elements’,69 as the film referred to lets us know. In 1983, murder and robbery cases resulting in death sentences started to be heavily publicized by Romania Libera, a central newspaper that presented at least five such cases.70 In 1984, several people were sentenced to death for stealing meat from processing plants, which shows, alongside other examples, the severe scarcity of basic products.71 The cases were part of the fierce campaign against economic criminality launched in 1984 by the authorities on the grounds of the economic crisis resulting from Ceausescu’s decision to pay external debts.72 This resulted in the number of executions almost doubling within a year, from six to eleven; many of them were for murder and robbery in the same severe economic 66  Val Voiculescu, ‘Cunoasterea Temeinica si Aplicarea Ferma a Legii’ (‘Throughout Knowledge and Firm Enforcement of the Law’), Informatia Bucurestiului, 5 January 1984, 1–2 (record item), in HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 67  When the State Kills (Amnesty International: London, 1989), 195, in HUOSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 68  Secretul lui Bachus (‘Bachus’s Secret’), directed by Geo Saizescu, produced by Casa de Filme Unu, Romania, 1984, 120 minutes. 69  Ibid. 70  HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 71  NAR, Fond Comitetul Central al PCR – Consilul de Stat – Decrete (‘Central Committee of the RCP – State Council – Decrees’), file no. 124/1984 and 23/1984; NAR, Colectia Anneli Ute Gabanyi (‘Collection Anneli Ute Gabanyi’), file no. 313, 70. 72  Michael Shafir, Romania: Politics, Economics and Society. Political Stagnation and Simulated Change (London: Frances Printer, 1985).

Political Use of Capital Punishment in Communist Romania 1969 –1989

351

context.73 No less than 14 other sentences for theft from public property were commuted by the President during the same year, and five more in 1985.74 The press was used to disseminate the deterrent message, and cases involving theft from public property began to abound, as it was not allowed to mention them before. Romania Libera reported on 21 December 1983: ‘A crime committed against the national economy is by itself a counter-revolutionary act that affects the interests of the whole people.’75 Ironically, considering economic crimes as a counter-revolutionary activity in 1958 became the object of severe critiques launched by the Ceausescu regime later, when condemning Stalinist-type abuses. In 1986, small-scale private enterprise involving family members was decriminalized in the USSR, but in Romania things remained unchanged until the fall of the regime in 1989, although the campaign which started in 1984 lasted only one year. In 1986, 15 executions took place,76 but all of them were postponed murder cases from 1984 and 1985 – including the above-mentioned case of Ion Pirvulet. This shows that the authorities preferred to avoid reporting a massive increase in the number of executions; no wonder Amnesty International failed to report them due to lack of information.77 The estimation I am able to make regarding the number of executions can be more accurate regarding the period 1969–89 compared to the situation before 1969. Overall, the penal registration forms reveal 99 executions, with only one classified as political, in 1970, although the registered accusation was murder.78 Except for the embezzlement case of Gheorghe Stefanescu in 1981 and a case of undermining of the national economy in 1973, all the cases concerned aggravated murder, which is one of the biggest differences compared to the period 1944–69. Regarding the capital sentences that were not carried out, the number is higher, and most of them were for theft from state property.

73  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), files nos 124/1984 and 237/1984. 74  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), files nos 237/1984, 124/1984, 94/1985. 75  ‘Masuri Severe Impotriva Celor Care Fura din Avutul Obstesc’ (‘Severe Measures against Those Who Steal from Public Property’)’, Romania Libera, 21 December 1983 (record item), in HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 76  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), files nos 101/1986 and 193/1986. 77  When the State Kills, 195, in HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 78  ANAP, Fond Fise Matricole Penale (‘Penal Registration Forms’), author’s calculations.

Capital Punishment: New Perspectives

352

The Traitors It is very important to place the events in 1980s Romania in the context of the reforms in the USSR and the abolition of the death penalty in the GDR in 1987.79 However, all the amnesties starkly contrast with the campaign against economic criminality and with the position of the Ceaucescus towards treason cases throughout the period. In July 1978, Ion Mihai Pacepa, the chief of the foreign intelligence service and personal adviser to Ceausescu, defected to the US and received a death sentence in absentia.80 This attitude towards traitors, especially that of Nicolae and Elena Ceausescu, lasted until their final year, 1989. Mircea Raceanu was the last person sentenced to death (and not executed) in Romania, on 21 July 1989. While serving as chief of the division for diplomatic relations with North America at the Ministry of Foreign Affairs, he was accused of treason by disclosing state secrets, and for being an American secret agent. The sentence showed that he started his espionage activities in 1974, when he began working for the Romanian embassy in Washington: Nicolae Ceausescu: It is about a shameless person, so to speak …. It is about this guy, Raceanu. He was caught in the act, and after that, he admitted it …. He has been under arrest for a long time, but he is still under investigation. I decided that tomorrow, the Procuracy and our security organs will issue a press release, so the facts will be publicly known.81

His clemency petition was desperate, and justifiably so, as we will soon see: Through my actions, I violated and disregarded the laws of the country, I dishonoured the given trust and, more important, instead of finding the necessary force to prove the courage and dignity typical of the Romanian people, I let myself be driven to serving the interests of the American secret services against socialist Romania. I don’t think a man can decay more than that …. Now, at the hour of truth, truth being my only defence, I obey with all my trust and hope your decision. I bear inside the most severe punishment, the shame of having committed the crime.82

79  Evans, Rituals of Retribution, 860. 80  Ion Mihai Pacepa, Red Horizons: Chronicles of a Communist Spy Chief

(Washington, DC: Regenery Gateway, 1987). 81  NAR, Fond Comitetul Central al PCR – Cancelarie (‘The Central Committee of the RCP – Chancellery’), file no. 15/1989, 1–3. 82  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), file no. 121/1989, 4–5.

Political Use of Capital Punishment in Communist Romania 1969 –1989

353

The Minister of Justice, Minister of Interior, General Prosecutor and the President of the Supreme Tribunal recommended commutation of the sentence, and their report was approved by Ceausescu on 19 September 1989.83 But there is more to say about this story. Mircea Raceanu was the son of Gheorghe Raceanu, one of the signatories of ‘The Letter of the Six’, a document that severely criticized the Ceausescu regime, signed by six high-ranking members of the Communist Party, released by the BBC and RFE on 11 March 1989.84 The event was discussed during the same meeting of the Political Executive Committee when they ruled on Mircea Raceanu’s case, on 13 March 1989: Com. Nicolae Ceausescu: A second problem refers to some old clients, so to speak, political vagabonds, morally and politically déclassé, against whom the Party has already taken some measures. Com. Elena Ceausescu: It is treason. Com. Nicolae Ceausescu: There is no point in talking to them. Their action is identical to treason …. We have to see what the Constitution provides, what the law provides about this, because treason is treason. Com. Elena Ceausescu: No matter who the traitor is; treason is treason.85

Gheorghe Apostol, another one of the six involved, had been Ceausescu’s main rival after the death of Gheorghiu-Dej. He was placed under house arrest, and his investigators hoped to convince him to publicly deny the content of the letter, according to his own statement in 2006.86 On 18 August 1989, the case was discussed in the Political Executive Committee of the RCP: Com. Nicolae Ceausescu: Gheorghe Apostol has recently sent a letter to the Central Committee of the Party admitting his espionage activities and asking for clemency. …. He joined in the imperialist and Soviet espionage. The fact is admitted that he drafted, at their request, all sort of materials, like any traitor. This is the main point. And now, after he promises he will not do it any more, yesterday he said in front of the comrades that he realizes that he deserves capital punishment. …

83  Ibid., 1. 84  Vladimir Tismaneanu, Stalinism for All Seasons: A Political History of Romanian

Communism (Berkeley, CA: University of California Press, 2003), 263. 85  NAR, Fond Comitetul Central al PCR – Cancelarie (‘The Central Committee of the RCP – Chancellery’), file no. 15/1989, 4. 86  Nicolae Balint, ‘Principiul Dominoului’ (‘The Domino Principle’), Ziarul de Mures, 13 March 2006.

354

Capital Punishment: New Perspectives Of course, he declares that he regrets this and asks for clemency. … There is no point in an auto-critique in this case. Treasonable consequences – treason against one’s own country – cannot be solved through auto-critique. Com. Elena Ceausescu: One who betrays has to be made responsible for his acts. … Com. Nicolae Ceausescu: Of course, there is no hurry. But we have to take a clear position, draw conclusions, and severe measures have to be taken.87

His interrogations continued without being sentenced until the revolution upheaval in December 1989, when the regime fell apart. As we have seen, all treason cases were actually a betrayal of Ceausescu. Although capital punishment was not used in treason cases during the 1980s, it clearly emerges from the content of the discussions within the Central Committee of the Communist Party that those making the decisions did not have a problem applying it, considering it the right punishment. An amnesty decree, no. 11 on 26 January 1988, was meant to mark Ceausescu’s 70th birthday. Its provisions were again discussed at a high level in the Executive Political Committee: Com. Nicolae Ceausescu: I’m considering an amnesty for all crimes. Com. Gheorghe Radulescu: Very good. Com. Nicolae Ceausescu: And also the reduction of some punishments. … And it seems that we also have two more death sentences. Is that true? Com. Dumitru Apostol: That is true. Com. Nicolae Ceausescu: I propose to commute the death sentences to 20 years’ imprisonment.88

Article 3 of the decree established that ‘Capital sentences provided by courts are commuted to 20 years’ imprisonment.’89 This measure was easy to mistake for a sign of general improvement. Presumably, Roger Hood wrongfully refers to this episode when he notes in his book that Ceausescu had proposed in February 1988 to restrict capital punishment to serious cases involving state security and Romanian sovereignty.90 On the contrary, Frankowski states that in 87  NAR, Fond Comitetul Central al PCR – Cancelarie (‘The Central Committee of the RCP – Chancellery’), file no. 56/1989, 12–19. 88  Ibid., file no. 4/1988, 6. 89  Ibid. 90  Roger Hood, The Death Penalty: A Worldwide Perspective (New York: Oxford University Press, 2002), 17.

Political Use of Capital Punishment in Communist Romania 1969 –1989

355

January 1990, when the death penalty was abolished, 27 prisoners were awaiting execution,91 which is highly unlikely, since the only decree for commutations I identified for 1989, no. 121 on 19 September, referred to only one condemned person, Mircea Raceanu.92 1989 and the Abolition The last people to be sentenced and executed in Romania, ironically, were the Ceausescus. Fleeing Bucharest on 22 December 1989, they were captured during the same day, in Targoviste, 80 kilometres away from the capital city of Bucharest. An Exceptional Military Tribunal (chaired by Victor Atanasie Stanculescu, the Deputy Minister of Defence) was set up by the newly constituted Council of the Front of National Salvation. After a summary trial, they were accused, among other things, of genocide (more than 60,000 victims), undermining state power, acts of subversion by destroying state property, attempting to leave the country with a large amount of money and undermining the national economy. Nevertheless, their advocate asked the judge not to apply the death penalty. Ignoring other procedural safeguards (the right to appeal, for instance), they were immediately executed in Targoviste on 25 December 1989. Their execution generated a lot of scenarios, one of them being that it was an internal affair, a revenge of the nomenklatura.93 In this manner, the new leaders wanted to avoid a real political process of the regime as a whole, including its institutions, and wished to place all the blame on the Ceausescus’ shoulders. A few days later, the death penalty was abolished by the National Salvation Front through Decree Law no. 6 of 7 January 1990, with no previous debate. This rapid decision may also be interpreted as resulting from the fear of former communists of being punished in such troubled times, while many of them were occupying most of the leading positions in the new power structures. In this context, general support for capital punishment also determined the discussions regarding the restoration of capital punishment through a referendum in January 1990,94 but this was never held. Frankowski rightly noted that the abolition of the death penalty was also the result of political influence,95 as well as most of its other aspects. Still, he identifies two more reasons for the abolition after 1989 that apply 91  Frankowski, ‘Post-Communist Europe’, 226. 92  NAR, Fond Consiliul de Stat – Decrete (‘State Council – Decrees’), file no.

121/1989, 4–5. 93  Vladimir Tismaneanu, ‘Sange, Minciuni si Whiskey, sau cum a Murit Ceausescu’ (‘Blood, Lies and Whiskey, or How Ceausescu Died’), www.contributors.ro/politicadoctrine/sange-minciuni-si-whiskey-sau-cum-a-murit-ceausescu/ (accessed 22 May 2012). 94  HU-OSA-300-60-1, Records of RFE/RL Research Institute (‘fonds’), Romanian Unit (‘subfonds’), Subject Files (‘series’), container no. 14. 95  Frankowski, ‘Post Communist Europe’, 231.

Capital Punishment: New Perspectives

356

more appropriately to the rest of the East European countries, which took this decision one after another, most of them during the 1990s: a late reaction to the excesses of Stalinism, with the goal of joining the Western community.96 His other observation – that in the new transition conditions the rising criminality, in new forms, previously unknown, led to a high level of support for capital punishment97 – could also be observed in the Romanian case. Following Scobell’s article,98 the last two stages in the development of criminal policy and the death penalty in communist countries included a reform of the penological system through decriminalization and shortening of prison terms, and ultimately the abolition of capital punishment, as in the GDR, followed by a public demand for harsher measures due to increasing criminality. But, as Scobell also mentioned, this did not apply to the countries where the generational change did not take place. Although overt executions of dissidents did not occur, in 1980s Romania the propaganda machine relied heavily on capital punishment. Unfortunately, stagnation in an antiquated ideology and a backward leader made Romania an exception, where capital punishment was a political tool until the last days of the regime. Conclusions The period after the penological reform in 1969 was particularly linked to the personality of Nicolae Ceausescu. The legal provisions, as they were explained to the wider public, were developed in the spirit of claims about the regime’s humanitarianism, and thus blamed the violent repression specific to the Stalinist period. The dream of an ideological abolition is recycled through a discourse on the natural disappearance of the death penalty accompanying the construction of the New Man and the decrease in criminality in general. This ideological discussion had no connection with the tight legal framework, and even less with its interpretation and the politicized use of capital punishment. Compared to the Stalinist period, the use of the death penalty for direct political purposes such as eliminating opponents disappeared, especially if we consider that no person was executed for treason. However, the politicization of capital punishment can be observed if we look at its inconsistent use, dependent on various deterrent campaigns disseminated by the propaganda machine. For example, the first increase in the number of executions, in 1971, followed the adoption of the ‘July Theses’, a declaration of a return to real socialism. The regime took a neoStalinist turn in the 1980s, when, after first degree murder, economic crimes and treason were the main capital crimes. Economic criminality drew attention as a result of the deep economic crisis Romania was facing, and resulted in at least 96  Ibid., 226. 97  Ibid. 98  Scobell, ‘The Death Penalty under Socialism’, 189–234.

Political Use of Capital Punishment in Communist Romania 1969 –1989

357

19 capital sentences for economic crimes in 1984 and 1985, largely publicized by propaganda through central newspapers together with murder and robbery execution cases. Unlike these, treason cases were discussed secretly in high-level meetings by the increasingly intransigent Ceaucescus, who allowed no dissent. In this period, the GDR abolished the death penalty and most of the East European countries decreased the use of capital punishment. In this respect, Romania was an exception, not just for its excessive use of capital punishment, but because its application was uneven and dictated by political interests, thus making the Romanian case interesting. In the face of the deepening gap between the official discourse and the rising criminality, Ceausescu reacted by granting wide-ranging amnesties which aimed to improve his own image. Ultimately, Ceausescu himself was sentenced to death and executed during the upheaval of December 1989.

This page has been left blank intentionally

Chapter 17

Capital Punishment in Vietnam: Status and Perspective Giao Vu Cong

The Socialist Republic of Vietnam is among the countries which still retain both de jure and de facto capital punishment. This chapter examines the current situation and perspective about capital punishment in Vietnam. The author will use different sources to demonstrate that, in recent decades, following the international general trend, the Government of Vietnam has amended the Penal Code several times in order to reduce the number of capital crimes. In addition, more and more citizens, including government officials and members of the academic community, support abolition or reduction of capital punishment. A Brief History of Capital Punishment in Vietnam Law in Vietnam historically comprised written law (ius scriptum) and unwritten law (ius non scriptum). It is difficult to determine when capital punishment has laid down in Vietnamese unwritten law, as available sources of relevant information are comparatively limited. However, as noted in some historical documents, capital punishment was applied in the Dinh (968–80) and Early Le Dynasties (969–79), including some extremely cruel forms such as throwing criminals into tigers’ and panthers’ cages or into boiling cauldrons of oil. It is widely accepted that Vietnamese written law was initiated in the Ly Dynasty (1009–1255) with the Hinh Thu (‘Penal Code’), which consists of three volumes written under the order of King Ly Thai Tong in 1042. That Penal Code was lost, but some say that it specified capital punishment, while others argue that capital punishment was not applicable, at least for a certain period, when Buddhism was the national religion during the Ly Dynasty. However, if capital punishment was stipulated in the Hinh Thu, such punishment would have been established in Vietnamese written law since the Ly Dynasty. The Ly Dynasty was succeeded by the Tran Dynasty (1256–1417). At that time, the system of legal documents comprised Quoc Trieu Thong che, written under order of King Tran Thai Tong in 1230, which consists of 20 volumes, and Hoang Trieu Dai dien, written under order of King Tran Du Tong in 1341. Both of these codes stipulated capital punishment.

360

Capital Punishment: New Perspectives

In the Le Dynasty (1418–1656), there existed a renowned code on both the national and global scale, Quoc Trieu Hinh luat (‘The National Penal Code’), or Bo luat Hong Duc (‘The Hong Duc Code’), written under order of King Le Thanh Tong (Hong Duc date), in 1483. It consists of six volumes, 13 chapters and 722 provisions. Although the code contains many truly humane provisions, it also stipulated regulations on capital punishment. As regards the Nguyen Dynasty (1802–1945), there existed a significant code, Hoang Viet Luat le (‘The Gia Long Code’), written under order of King Gia Long in 1815. It consists of 22 volumes and 398 provisions. This can be considered the last code of the feudal regime in Vietnam, and similar to the previous codes, it stipulated certain regulations on capital punishment. In general, all these feudal codes follow the system of five penalties, including (1) xuy (flogging), (2) truong (cudgel), (3) do (servitude), (4) luu (exile) and (5) tu (capital punishment). The category or system of crimes for which capital punishment was applied varied in different dynasties. However, in general, capital punishment could be applied to a large number of crimes, and certain types of crimes were laid down in all codes for which capital punishment applied. Those crimes included murder, high treason, receiving bribes and embezzling property. Many forms of capital punishment enforcement were found to be cruel or vilely revengeful, such as chu di tam toc (‘three exterminations’), slow slicing, mutilation, dismemberment, or quartering, applied in accordance with the principles of duc phat bat nhi bach (‘punishing a person to warn others’) or dung hinh ky vu vo hinh (‘stipulating the punishments so as not to be applied’).1 However, these Vietnamese feudal codes, especially the Hong Duc Code, also include regulations demonstrating the spirit of clemency and humanity towards criminals. Examples are regulations on pardon or commutation for those who plead guilty, or waiver, commutation or suspension of the penalty enforcement on women taking care of infants, or people with mental illness, or the elderly. In the French colonial period (1858–1945), the system of written law promulgated by the French was applied separately to each of the three regions of Vietnam: Bac Ky (North Vietnam), Trung Ky (Central Vietnam) and Nam Ky (South Vietnam), in order to be appropriate to the political systems of each region. Among the legal texts drafted by the French during this period, there were a few providing for capital punishment, in particular the 1881 North Vietnam Penal Code (Hinh luat Bac Ky), dated 29 July 1891, the decree dated 2 June 1932, the decree dated 31 December 1937 and the decree dated 23 June 1941.2 There was a rather long list of crimes for which capital punishment was applied in this period, 1   See Bui Xuan Dính, ‘Hinh phat va viec ap dung hinh phat thoi Nguyen giai doan 1802–1858’ (‘Situation On Crimes and the Application of Penalties Under the Nguyen Dynasty in the Period 1802–1858’), State and Law Journal, 8 (2000). 2   Ministry of Justice – Legal Science Institute, Ve hinh phat tu hinh va viec thi hanh hinh phat tu hinh (‘On the Death Penalty and the Implementation of Death Penalty’), Hanoi: National Politics Publishing House (2006), p. 31.

Capital Punishment in Vietnam: Status and Perspective

361

including murder and rebellion against the protectorate government. The main method of execution was the guillotine. The August 1945 revolution founded the new country of Vietnam, which is independent from foreign colonial rule and adheres to a democratic republican system. The first legal texts creating the foundation for the judicial system of the nation were the series of Decrees no. 33 dated 13 September 1945 promulgated by President Ho Chi Minh, including Decree no. 33A allowing Ty liem phong (the Security Service Department) to arrest those who threatened the country’s democracy and send them into exile, Decree no. 33B setting up rules and procedures for the security service and police stations in arresting offenders, Decree no. 33C establishing military courts and Decree no. 33D stipulating regulations concerning the release of those who had been sentenced before August 19, 1945. Among these, Decree no. 33C provided that military courts had the jurisdiction to pronounce sentence and enforce sanctions imposed on those who carried out actions impairing the independence of the Democratic Republic of Vietnam (except for soldiers, to whom military law should be applied). The penalties varied, with capital punishment as the highest of all. Those who were sentenced to capital punishment could ask the President for commutation. Accordingly, capital punishment was specified from early on in the law of the new country of Vietnam. Subsequent to these legal documents, during the period 1945–85, capital punishment was specified in various other documents of the state of Vietnam in the forms of decrees, laws, ordinances and circulars. In researching those documents, one can draw the following conclusions: 1. During this period, there were no legal documents stipulating capital punishment specifically and the system of penalties in general. Capital punishment was mentioned in various legal documents issued in different years. 2. Capital punishment was reserved mainly for crimes against national security, such as spying, rebellion, infringing upon territorial security, conducting banditry activities, defecting to the enemy or pursuing counterrevolutionary ideas then fleeing from the country, murder, intentionally inflicting injury on or causing harm to the health of other persons, detaining persons, threatening to murder for counter-revolutionary purposes, destroying, opposing or destroying the implementation of state policies, and so on. Capital punishment was not clearly distinguished from administrative sanctions. 3. The procedure for reviewing the death sentence was not provided until the law dated 14 July 1960 requiring that death sentences must be reviewed by the Plenary Council of Judges of the Supreme People’s Court before execution. To be quorate, at least two thirds of the judges of the Supreme People’s Court must be in attendance, of whom a simple majority is needed to approve the death sentence.

362

Capital Punishment: New Perspectives

Capital Punishment: Modern Criminal Codes of Vietnam The 1985 Penal Code, the first ever criminal code and the first legal document to be codified of the Socialist Republic of Vietnam, was passed by the National Assembly on 27 June 1985 and entered into force on 1 January 1986. It comprised 20 chapters and 280 provisions. The adoption of the Penal Code was a great landmark in the development of Vietnam’s criminal law. With regard to capital punishment, Article 27 of the 1985 Penal Code provided: Capital punishment is a special penalty applied to persons committing particularly serious crimes. Capital punishment shall not apply to juvenile offenders and pregnant women at the time of committing crimes or being tried. Execution of capital punishment is postponed in the case of pregnant women or mothers of infants under 12-month old. In cases where persons sentenced to death enjoy commutation, the capital punishment shall be converted into life imprisonment. In the extraordinary case stipulated in a specific law, the execution may be carried out immediately following the trial.

In the 1985 Penal Code, capital punishment was specified in 29 articles, accounting for 15 per cent of the 195 articles on crimes. However, after four amendments, the number of articles providing for capital punishment in the 1985 Penal Code had increased, as follows: • In 1989, the first amendment added four capital crimes concerning narcotics in Article 96(a). • In 1991, the second amendment added another three capital crimes relating to infringement of property rights. • In 1992, the third amendment added the capital crime of illegal crossborder transportation of goods and/or currencies (Article 97). • In 1997, the fourth amendment added another six capital crimes. Accordingly, after four amendments, the 1985 Penal Code now specified 44 capital crimes, accounting for 20.5 per cent of the total of 216 provisions. Such an expansion reflected the increasingly strict policy of law and order in Vietnam during the period 1985–97. The list of provisions governing capital punishment in the Penal Code of 1985, as amended four times, is shown in Table 17.1 (see pp. 364–5).

Capital Punishment in Vietnam: Status and Perspective

363

The 1999 Penal Code was passed by the National Assembly of the Socialist Republic of Vietnam on 12 December 1999, replacing the 1985 Penal Code. The 1999 Penal Code comprised 24 chapters and 267 provisions, amongst which were 29 articles stipulating capital punishment, which accounted for 11 per cent of the total articles on crimes. Article 35 of the 1999 Penal Code provided: Capital punishment is a special penalty only applied to persons committing particularly serious crimes. Capital punishment shall not apply to juvenile offenders, pregnant women and women nursing children under 36 months old at the time of committing crimes or being tried. Capital punishment shall not apply to pregnant women and women nursing their children under 36 months old. For these cases, the capital punishment shall be converted into life imprisonment. In cases where persons sentenced to death enjoy commutation, the punishment shall be converted into life imprisonment.

The list of provisions governing capital punishment in the Penal Code of 1999 is shown in Table 17.2 (see pp. 366–7). Comparing the capital crimes in the 1985 Penal Code with the 1999 Penal Code, one can see the following. First, with regard to definition, the forms of capital punishment’s definition provided in the 1985 Penal Code and 1999 Penal Code are similar. However, regarding the content of the articles, there are significant differences, as shown in Table 17.3 (see p. 368) Second, the number of capital crimes in the 1999 Penal Code (29 articles, accounting for 11 per cent of the total articles) are much reduced compared to those in the 1985 Penal Code (44 articles, accounting for 20.5 per cent of the total articles). Third, as for the procedure for capital crimes in the 1999 Penal Code, which retains crimes seriously endangering national security, experienced a significant decrease in the number of crimes relating to national security, which stood at an extremely high rate in the 1985 Penal Code. In addition, the proportion of narcotics-related capital crimes was also reduced in the 1999 Penal Code. On 19 June 2009, the National Assembly’s 12th Session voted to pass a law amending and supplementing the Penal Code of 1999 (hereafter, ‘the amended 1999 Penal Code’). The majority of the legislators (64.5 per cent) approved the removal of capital punishment from certain articles of the 1999 Penal Code, namely:

Capital Punishment: New Perspectives

364

Table 17.1 List of provisions governing capital punishment in the Penal Code of 1985 No.

Provision

Crimes with capital punishment

1.

72(1)

High treason

2.

73(1)

Carrying out activities aimed at overthrowing the People’s administration

3.

74(1)

Spying

4.

75(1)

Infringing upon territorial security

5.

76(1)

Rebellion

6.

77(1)

Banditry

7.

78(1)

Terrorism

8.

79(1)

Sabotaging the material-technical foundations of the Socialist Republic of Vietnam

9.

84(1)

Destroying detention camps

10.

87(1)

Hijacking aircrafts, ships

11.

94(2)

Destroying important national security works and/or facilities

12.

97

Illegal cross-border transportation of goods and/or currencies

13.

95(3)

Illegally manufacturing, stockpiling, transporting, using, trading in or appropriating military weapons and/or technical means

14.

98(2)

Making, storing, transporting, circulating counterfeit banknotes, cheques, bonds, and destroying currency

15.

101(1)

Murder

16.

112(3)

Rape

17.

112(4)

Rape against children

18.

129(2)

Plundering the property of the Socialist Republic of Vietnam

19.

132(3)

Stealing property of the Socialist Republic of Vietnam

20.

133(3)

Embezzling property of the Socialist Republic of Vietnam

21.

134

Appropriating property of the Socialist Republic of Vietnam through swindling

22.

134(a)

Abusing positions and/or powers to appropriate property of the Socialist Republic of Vietnam

23.

138(3)

Destroying or deliberately damaging property of the Socialist Republic of Vietnam

24.

151(2)

Plundering civil property

25.

156

Abusing positions and/or powers to appropriate civil property

26.

157

Appropriating civil property through swindling

27.

167(3)

Producing and/or trading fake goods

Capital Punishment in Vietnam: Status and Perspective No.

Provision

Crimes with capital punishment

28.

185(b)

Illegally producing narcotics

29.

185(c)

Illegally stockpiling narcotics

30.

185(d)

Illegally transporting narcotics

31.

185(đ)

Illegally trading narcotics

32.

185(e)

Illegally appropriating narcotics

33.

185(i)

Organizing the illegal use of narcotics

34.

185(m)

Forcing, inducing other persons into illegal use of narcotics

35.

226

Receiving bribes

36.

227

Giving bribes, mediating bribes

37.

250

Disobeying orders

38.

256

Surrendering to the enemy

39.

257

Abandoning combat positions

40.

269

Destroying military weapons, technical means

41.

277

Undermining peace, provoking aggressive wars

42.

278

Crimes against humanity

43.

279

War crimes

44.

280

Recruiting mercenaries or working as mercenaries

• • • • • • • •

365

rape (Art. 111); appropriating property through swindling (Art. 139); smuggling (Art. 153); making, storing, transporting and/or circulating counterfeit money, treasury bills and/or bonds (Art. 180); organizing the illegal use of narcotics (Art. 197); hijacking aircraft or ships (Art. 221); offering bribes (Art. 289); destroying military weapons or technical means (Art. 334).3

Nevertheless, the National Assembly neither approved nor passed the motion to separate the illegal stockpiling of, transporting, trading in or appropriating of narcotics crimes into the illegal stockpiling of and transporting narcotics crimes (Art. 194(a)) and the crime of trading in or appropriating narcotics, Art. 194). The majority of the National Assembly delegates proposed to keep these provisions of the 1999 Penal Code, asserting that they were dangerous crimes, and moreover, the illegal trading in, transporting, stockpiling narcotics acts were closely linked. 3   Source: National Assembly of the Socialist Republic of Vietnam, www.na.gov.vn/ htx/Vietnamese (accessed 20 May 2013).

Capital Punishment: New Perspectives

366

Table 17.2 List of provisions governing capital punishment in the Penal Code of 1999 No.

Provision

Crimes with capital punishment

Chapter XI: Crimes infringing upon national security 1.

78(1)

High treason

2.

79(1)

Carrying out activities aimed at overthrowing the People’s administration

3.

80(1)

Spying

4.

82(1)

Rebellion

5.

83(1)

Banditry

6.

84(1)

Terrorism

7.

85(1)

Sabotaging the material-technical foundations of the Socialist Republic of Vietnam

Chapter XII: Crimes infringing upon human life, health, dignity and honour 8.

93(1)

Murder

9.

111(3)

Rape

10.

112(3,4)

Rape against children

Chapter XIV: Crimes infringing upon ownership rights 11.

133(4)

Plundering property

12.

139(4)

Appropriating property through swindling

Chapter XVI: Crimes infringing upon economic management and order 13.

153(4)

Smuggling

14.

157(4)

Manufacturing and/or trading in fake goods being food, foodstuffs, curative medicines, preventive medicines

15.

180(3)

Making, storing, transporting and/or circulating counterfeit money, treasury bills and/or bonds

Chapter XVIII: Narcotics-related crimes 16.

193(4)

Illegally producing narcotics

17.

194(4)

Illegally stockpiling, transporting, trading in or appropriating narcotics

18.

197(4)

Organizing the illegal use of narcotics

Capital Punishment in Vietnam: Status and Perspective No.

367

Provisions Crimes with capital punishment

Chapter XIX: Crimes infringing upon safety and public order 19.

221(3)

Hijacking aircrafts, ships

20.

231(2)

Destroying important national security works and/or facilities

Chapter XXI: Crimes relating to position 21.

278(4)

Embezzling property

22.

279(4)

Receiving bribes

23.

289(4)

Offering bribes

Chapter XXIII: Crimes infringing upon the duties and responsibilities of army personnel 24.

316(4)

Disobeying orders

25.

322(3)

Surrendering to the enemy

26.

334(4)

Destroying military weapons, technical means

Chapter XXIV: Crimes undermining peace, against humanity and war crimes 27.

341

Undermining peace, provoking aggressive wars

28.

342

Crimes against humanity

29.

343

War crimes

In fact, these were the crimes which figures indicated were on the increase, and were highly dangerous; thus, retaining capital punishment for these crimes was essential to deter, prevent and strictly punish criminals. Also, the National Assembly passed a resolution on the implementation of the law, amending and supplementing the Penal Code of 1999, with 88.44 per cent of votes in favour. Accordingly, the law came into force on 1 January 2010. Crimes stipulated in the law amending and supplementing the Penal Code of 1999 committed prior to 00:00 hours on 1 January 2010 stand, as the 2012 legislation is not retroactive. If an appeal relied on other bases or was lodged prior to 1 January 2010, the cassation review must be in conformity with point (b) and (d) of this clause. When the law amending and supplementing the Penal Code of 1999 was promulgated, capital punishment did not apply to those criminals charged with illegal stockpiling or transporting of narcotics stipulated in Article 194(4) and criminals stipulated in Articles 111(3), 139(4), 153(4), 180(3), 197(4), 221(3), 289(4) and 334(4) of the 1999 Penal Code. With regard to the criminals affected by this provision, they will have their sentences commuted by the People’s Supreme Court President to life imprisonment. To conclude, the 1999 Penal Code, amended by the 2009 legislation, now contains 21 articles that attract the death penalty, as shown in Table 17.4 (see p. 369).

Capital Punishment: New Perspectives

368

Table 17.3

Differences between definitions of capital punishment in the Penal Codes of 1985 and 1999

Criteria

Article 27 of the 1985 Penal Code

Article 35 of the 1999 Penal Code

The scope of application

Serious crimes (minimum sentence five years’ imprisonment)

Particularly serious crimes (minimum sentence 15 years’ imprisonment)

Inapplicable subjects

Juvenile offenders, pregnant women at the time of committing crimes or being tried

Juvenile offenders, pregnant women and women nursing children under 36 months old at the time of committing crimes or being tried

Reprieving and commuting

Capital punishment to pregnant women and women nursing their children under 36 months old shall be reprieved

Capital punishment shall not apply to pregnant women and women nursing their children under 36 months old. For these cases, the capital punishment shall be converted into life imprisonment

Judgmentexecuting immediately after the court’s decision

Provided that ‘Death sentence shall be executed immediately after trial only in special cases provided separately by law’

Remove the provision: ‘Death sentence shall be executed immediately after trial only in special cases provided separately by law’

Procedures to Impose and Implement Capital Punishment in Vietnam: A Summary According to Article 170 of the Criminal Procedures Code of Vietnam, the courts competent to give the death sentence are provincial courts. The Code also contains strict regulations on criminal cases in which the accused are prosecuted for capital crimes. In particular, the 2003 Criminal Procedures Code provides: With regard to defence counsel, pursuant to Article 57(2), where the accused are charged with offences punishable by death do not seek the assistance of defence counsel, the investigating bodies, procuracies or courts must request bar associations to assign law offices to appoint defence counsels for such persons or request the Vietnam Fatherland Front Committees or the Front’s member organizations to appoint defence counsel for their organizations’ members. However, the accused or defendants and their lawful representatives shall have the right to request the change of, or refuse to have, defence counsel. Pursuant to Article 190 governing the appearance of defence counsels, if defence counsel is

Capital Punishment in Vietnam: Status and Perspective

Table 17.4

369

List of articles governing capital punishment in the Penal Code of 1999, revised 2009

No.

Provision

Crimes with capital punishment

1.

78(1)

High treason

2.

79 (1)

Carrying out activities aimed at overthrowing the People’s administration

3.

80(1)

Spying

4.

82(1)

Rebellion

5.

83(1)

Banditry

6.

84(1)

Terrorism

7.

85(1)

Sabotaging the material-technical foundations of the Socialist Republic of Vietnam

8.

93(1)

Murder

9.

112(3,4)

Rape against children

10.

133(4)

Plundering property

11.

157(4)

Manufacturing and/or trading in fake goods, being food, foodstuffs, curative medicines or preventive medicines

12.

193(4)

Illegally producing narcotics

13.

194(4)

Illegally stockpiling, transporting, trading in or appropriating narcotics

14.

231(2)

Destroying important national security works and/or facilities

15.

278(4)

Embezzling property

16.

279(4)

Receiving bribes

17.

316(4)

Disobeying orders

18.

322(3)

Surrendering to the enemy

19.

341

Undermining peace or provoking aggressive wars

20.

342

Crimes against humanity

21.

343

War crimes

absent, the courts shall still open the court sessions. Nevertheless, where defence counsel is compulsorily required under the provisions of clause 2, Article 57 of this Code (the accused or defendants charged with capital crimes) but they are absent, the trial panels must postpone the court sessions. As for composition of first-instance trial panels, in compliance with Article 185, for cases where the defendants brought for trial are charged with capital crimes the trial panel shall be composed of two judges and three jurors.

370

Capital Punishment: New Perspectives Regarding the presence of procurators, according to Article 189(1), for serious and complicated cases, two procurators may together participate in court sessions. In case of necessity, there may be alternate procurators.

Apart from the above stipulations, the 2003 Criminal Procedures Code contains strict regulations of procedures for consideration of death sentences before execution (Art. 258) and execution of capital punishment (Art. 259). Pursuant to those articles, within seven days after the judgments become effective, the condemned may lodge amnesty petitions to the State President. Where the convicts have made petitions for commutation of their death penalties, the death penalties shall be executed only after the State President rejects their petitions. On the right to appeal, according to Article 231 of the 2003 Criminal Procedures Code of Vietnam, in any criminal cases, the accused has the right to appeal to the upper court. Article 233 and 234 of the Code state that the appeal must be either submitted to the court of the first instance or the court of appeal within 15 days from the day of announcement of the death sentence. According to Article 235, an out-of-date appeal may be accepted if the accused show appropriate reason. In case of appeal, the court of the first instance has to transfer the case to the upper court to re-hearing the trial within seven days from the day when it received the appeal (Art. 237). According to Article 242, in the case of a death sentence, the court of appeal has to review (open the appeal trial) within 90 days of the appeal being lodged. Since Vietnam’s criminal procedures basically follow the civil law tradition, the issue of mandatory capital punishment does not arise in the country. In relation to methods of execution, as mentioned earlier, in the feudal periods, the most popular method of execution in Vietnam was decapitation (by knife or sword), whilst during the French colonial period, the guillotine was the most popular means. Following independence in 1945, the Democratic Republic of Vietnam opted for execution by firing squad instead of using the guillotine. Nevertheless, during two wars of resistance against France and the USA, enemy combatants were executed, extrajudicially, by dagger, sword, knife, mine, grenade, bows and arrows, traps or poison, and so on.4 However, lawful executions are conducted by firing squad, as required by Article 259(3) of the Litigious Penal Code of Vietnam (2003): ‘The death sentence is executed by shooting (firing squad)”. Nevertheless, according to Degree 82/2011/NĐ-CP dated 19 September 2011, the firing squad has been replaced by the method of lethal injection since 1 November 2011. The replacement of the execution method was explained by the government as being in order to cause less pain to offenders as well as less negative psychological impacts for the executioners. Relating to the issue of extradition in cases of capital punishment, the 2003 Penal Criminal Procedure Code of Vietnam only stipulates general principles about 4   See Ministry of Justice – Legal Science Institute, ‘On the Death Penalty and the Implementation of the Death Penalty’, 104–6.

Capital Punishment in Vietnam: Status and Perspective

371

criminal extradition in order to examine penal liabilities or execute judgments (Arts 343, 344, 345 and 346), but does not specifically refer to extradition in cases imposing capital punishment. According to Article 343, based on the international agreements which the Socialist Republic of Vietnam has signed or acceded to on the principle of reciprocity, the state agency with procedure-conducting competence of Vietnam may: 1. request foreign authorities with corresponding competence to extradite persons who have committed criminal acts or been convicted under legally valid judgments to the Socialist Republic of Vietnam in order to be examined for penal liability or to serve their penalties; 2. extradite foreigners who have committed criminal acts or been convicted under legally valid judgments who are in the territory of the Socialist Republic of Vietnam to the requesting nations in order to be examined for penal liability or to serve their penalties. Article 344(1) stipulates some grounds for refusal of extradition; accordingly, the bodies with procedure-conducting competence of the Socialist Republic of Vietnam may refuse to extradite a person if: 1. the person requested to be extradited is citizen of the Socialist Republic of Vietnam; 2. under the provisions of the laws of the Socialist Republic of Vietnam, the persons requested to be extradited cannot be examined for penal liability or serve penalties as the statute of limitations has expired, or for other lawful reasons; 3. the person requested to be extradited for penal liability examination has been convicted by the courts of the Socialist Republic of Vietnam under legally valid judgments for the criminal acts stated in the extradition requests, or the case has been abandoned under the provisions of this Code; 4. the person requested to be extradited is residing in Vietnam because he or she may possibly be ill-treated in the extradition-requesting countries in terms of racial discrimination, religion, nationality, ethnicity, social status or political views. Pursuant to Article 344(2), the state agency with procedure-conducting competence of the Socialist Republic of Vietnam may refuse to extradite if: 1. under the criminal legislation of the Socialist Republic of Vietnam, the acts undertaken by the person requested to be extradited do not constitute offences; 2. the person requested to be extradited is being examined for penal liability in Vietnam for the acts stated in the extradition requests.

372

Capital Punishment: New Perspectives

Transparency in the Application of Capital Punishment in Vietnam Regarding the issue of transparency in executing capital punishment, the 2003 Penal Criminal Procedures Code stipulates some related regulations and procedures in Chapter XXVI, which include provisions on procedures for consideration of death judgments before execution (Art. 258) and the carrying out of capital punishment (Art. 259). Pursuant to Article 258, the consideration of death judgments before execution is conducted in accordance with the following process and procedures: 1. After the death sentence judgment becomes legally valid, the case files must be immediately sent to the President of the Supreme People’s Court and the judgment must be immediately sent to the Chairman of the Supreme People’s Procuracy. Within two months of receiving the judgment and case files, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy must decide whether or not to object to the judgment according to cassation or by re-opening proceedings. Within seven days of the judgment becoming legally valid, the condemned may send an amnesty petition to the State President. 2. The death sentence judgments will be carried out if it is not protested against by the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy according to cassation or by re-opening proceedings. Where the death sentence judgment is protested against according to cassation or by re-opening proceedings but the cassation trial panel or the re-opening trial panel of the Supreme People’s Court decides to reject such a protest and retain the death sentence judgment, the Supreme People’s Court must immediately notify the condemned thereof so that the latter can submit a petition for commutation of his or her death penalty. Where the condemned has submitted a petition for commutation of his or her death penalty, the death penalty shall be carried out if the State President rejects the petition. Pursuant to Article 259, capital punishment executions must comply with the following process and procedures: 1. The presidents of the courts which have conducted first-instance trials shall issue execution decisions and set up councils for execution of capital punishment, each consisting of representatives of the court, Procuracy and police. The judgment-executing councils must check the identity cards of the condemned before executing the judgments. Where the condemned are women, before issuing decisions to execute the judgments, the presidents of the courts which have conducted first-instance trials must examine the conditions for non-application of capital punishment prescribed in Article 35 of the Penal Code. If there are grounds that the condemned meet the conditions prescribed in Article 35 of the Penal Code, the presidents of

Capital Punishment in Vietnam: Status and Perspective

2.

3. 4. 5.

373

the courts which have conducted first-instance trials shall not issue decisions to execute the judgments, and shall report such to the President of the Supreme People’s Court for consideration and commutation of the capital punishment to life imprisonment. Before executing women, the judgment-executing councils, apart from checking their identity cards, must check the documents related to the conditions for non-application of the capital punishment prescribed in Article 35 of the Penal Code. Where the judgment-executing councils determine that they meet the conditions prescribed in Article 35 of the Penal Code, they shall postpone the execution and report such to the presidents of the courts which have conducted firstinstance trials for reporting to the President of the Supreme People’s Court for consideration and commutation of the capital punishment penalty to life imprisonment. Before the execution, the condemned must be given and read the decisions to execute the judgments and decisions not to object to the judgments made by the President of the Supreme People’s Court, and decisions not to protest against the judgments made by the Chairman of the Supreme People’s Procuracy; if they have submitted petitions for commutation, they must be given and read the State President’s decisions to reject their commutation petitions. Death penalties shall be executed by shooting.5 The carrying out of capital punishment must be recorded in minutes which must clearly state the handing of decisions to the convicts for them to read, and any words, correspondence and articles they have left to their relatives. In special circumstances, the judgment-executing councils shall postpone the execution and report such to the presidents of the courts which have issued the execution decisions for further reporting to the President of the Supreme People’s Court.

In general, the above provisions relate to transparency and publicity in application of the death penalty in Vietnam in conformity with relevant international standards. However, in this area, one aspect of transparency is that all information regarding the application of capital punishment in the country should be recorded on an annual basis – this remains a very controversial topic globally, as it is recognized that such disclosure is a state obligation in the area of human rights. Historically, Vietnam has disclosed execution, but in recent years (see Table 17.5), this practice has been terminated, which is why there are no accurate figures about the numbers of executions in Vietnam in recent years.6 Nevertheless, the government is reconsidering its decision not to disclose this information.

5   This provision has been revised, as mentioned earlier. 6   However, some unofficial information was leaked from different sources. For

example, according to a local online newspaper, An Ninh Thu Do (‘Security of the Capital’ – published by Police Agency of Hanoi), the number of prisoners awaiting execution in

Capital Punishment: New Perspectives

374

Table 17.5

The application of the death penalty in Vietnam during 1999–2002

No. of judged defendantsa

No. of sentenced defendantsb

% of judged defendantsc

Specific no. of sentenced defendantsd

1992

39,920

88

0.22

1993

47,237

95

0.20

1994

47,822

88

0.18

1995

51,757

104

0.20

1996

62,494

117

0.18

1997

42,440

162

0.38

Group I:7; Group II:26; Group III:10; Group IV:118

1998

75,280

200

0.26

Group I:8; Group II:57; Group III:7; Group IV:128

1999

76,663

202

0.26

Group I:9; Group II:78; Group III:5; Group IV:109

2000

61,272

208

0.34

Group I:2; Group II:87; Group III:9; Group IV:109

2001

58,454

159

0.27

Group II:60; Group III:3; Group IV: 90

2002

62,264

140

0.22

Total:

625,603

1,563

2.71

Source: The Supreme People’s Court of Vietnam. Notes: a Defendants judged in the court of first criminal judgment b Defendants who were sentenced to the death penalty c Percentage of the total no. of defendants who have been judged to those given the death penalty d Specific number of defendants sentenced to the death penalty in four separate criminal sanction groupings: Corruption(I), Narcotics(II), Rape against children(III), Felony Murder (IV)

The Trend Regarding Capital Punishment in Vietnam The issue of capital punishment is attracting more and more public attention in Vietnam, especially since the 7th Session of the National Assembly has recently Vietnam in December 2011 was 360; www.anninhthudo.vn/An-ninh-doi-song/Tu-hinhbang-tiem-thuoc-doc-se-bat-dau-tu-thang-122011/425765.antd (accessed 20 May 2013).

Capital Punishment in Vietnam: Status and Perspective

375

adopted the law amending and supplementing the Penal Code of 1999, which includes the rules on capital punishment. As referred to above, with respect to the government’s position, it is possible that Vietnam has been in tune with global trends, demonstrated by the reduction in capital crime provisions from 44 in the 1985 Penal Code to 29 in the 1999 Penal Code, and subsequently to 25 in the amended 1999 Penalty Code which was adopted in the latest session of the 12th National Assembly in 2009. The motivation in this field in Vietnam is generated by many factors. First, since Vietnam is integrating deeply into every aspect of international life, the legal system in general and the penal judiciary in particular are required to be in line with general worldwide trends. Second, the issue of declining and repealing capital punishment is often raised in multilateral and bilateral dialogues about human rights between Vietnam and many other countries and organizations. Third, it is due to the efforts of the United Nations and the European Union to encourage Vietnam to address this issue. However, there are some factors constraining the abolition of capital punishment in Vietnam in the near future, one of which is that the crime situation, especially in terms of highly dangerous crimes such as murders and crimes relating to narcotics, which are increasing. This not only puts pressure on the government to develop effective prevention methods, but also affects the public’s attitudes to the application of strict punishments to criminals. Therefore, the majority of the public, the competent bodies and even National Assembly delegates favour the retention of capital punishment for highly dangerous crimes. Officially, from the government’s point of view, in 2007 and 2008, when the United Nations General Assembly voted to pass resolutions aiming to establish a moratorium on executions, Vietnam abstained on both occasions, showing that Vietnam does not oppose the resolutions, but is not yet ready to adopt a moratorium. In general, the deterrent effect of capital punishment is now at the centre of the discussions in Vietnam. Recent debates about capital punishment in many forums in Vietnam, including the National Assembly, point out that local people who share the view that capital punishment is an effective deterrent outnumber those who do not believe it has strong impact in preventing crimes of this nature. In particular, in the draft Law on Amending and Supplementing the 1999 Penal Code submitted to the 12th National Assembly, the government initiated the abolition of capital punishment for 17 crimes, including those shown in Table 17.6. However, the discussion on this Draft at the National Assembly shows many dissenting opinions on abolishing capital punishment for economic crimes (smuggling; manufacturing and/or trading in fake goods, being food, foodstuffs, curative medicines or preventive medicines), official crimes (embezzling property, receiving bribes, offering bribes) and crimes relating to narcotics. A recent survey conducted by the School of Law at Vietnam National University Hanoi also shows that the abolition of capital punishment in Vietnam is still controversial (see Tables 17.7 and 17.8).

Capital Punishment: New Perspectives

376

Table 17.6 List of crimes for which the government abolished capital punishment in the Draft Law on Amending and Supplementing the Penal Code of 1999 No.

Article

Crimes with capital punishment

1.

111(3)

Rape

2.

139(4)

Appropriating property through swindling

3.

153(4)

Smuggling

4.

157(4)

Manufacturing and/or trading in fake goods being food, foodstuffs, curative medicines, preventive medicines

5.

180(3)

Making, storing, transporting and/or circulating counterfeit money, treasury bills and/or bonds

6.

194(4)

Illegally stockpiling, transporting, trading in or appropriating narcotics

7.

197(4)

Organizing the illegal use of narcotics

8.

221(3)

Hijacking aircraft or ships

9.

278(4)

Embezzling property

10.

279(4)

Receiving bribes

11.

289(4)

Offering bribes

12.

316(4)

Disobeying orders

13.

322(3)

Surrendering to the enemy

14.

334(4)

Destroying military weapons or military technical equipments

15.

341

Undermining peace or provoking aggressive wars

16.

342

Crimes against humanity

17.

343

War crimes

In total, 570 out of 1,103 respondents(51.68 per cent) were against capital punishment. The reasons why they supported abolition of the death penalty are shown in Table 17.9. Finally, the survey also examined the opinions of 50 respondents regarding the deterrent effect of capital punishment. The results are as shown in Table 17.10.

Capital Punishment in Vietnam: Status and Perspective

Table 17.7

377

Opinions on the death penalty of the first group

No.

Opinion

1. 2. 3. 4.

Should remove from punishment system Should restrict the application Should continue the penalty Other opinions

Totals

No. of questionnaires

%

222 305 35 25

37.82 51.96 5.96 4.26

587

100

The first group consisted of convicts who had been imprisoned. In the survey, 587 questionnaires were distributed to convicts who were sentenced to a term of imprisonment in three different prisons in three separate provinces of Vietnam, including Thanh Hoa, Bac Giang and Hanoi. Source: School of Law, Vietnam National University Hanoi, Survey Project on Death Penalty: Report of Findings, Hanoi: Vietnam National University (2011).

Table 17.8

Opinions on the death penalty of the second group

No.

Opinion

1. 2.

Should abolish the death penalty Should continue the death penalty

Totals

No. of questionnaires

%

348 168

67.44 32.56

516

100

The second group consisted of people who were randomly selected from the law and educational communities, including: (1) law students; (2) officials who worked in state agencies of the judicial system, such as police, the Procuracy and court officials, as well as from departments of judgment and execution; (3) people who worked in law firms; (4) professors, and (5) from 10 families who had had relatives sentenced to the death penalty after committing a particularly serious crime as defined in the Penal Code. Source: School of Law, Vietnam National University Hanoi, Survey Project on Death Penalty: Report of Findings, Hanoi: Vietnam National University (2011).

Capital Punishment: New Perspectives

378

Table 17.9

Reasons for supporting abolition of capital punishment

No.

Reasons

1.

The nature of the death penalty is the most severe and cruel punishment available Life imprisonment is enough to punish convicts Both of the two reasons above Vietnam rarely applies the death penalty in practice Other opinion, or those without an expressed reason

2. 3. 4. 5. Totals

No. of questionnaires

%

75

21.55

141

40.52

94 23

27.01 6.61

15

4.31

348

100

Source: School of Law, Vietnam National University Hanoi, Survey Project on Death Penalty: Report of Findings, Hanoi: Vietnam National University (2011).

Table 17.10 Opinions on the deterrent effect of capital punishment No.

Deterrent effect of capital punishment

1. 2. 3. 4. 5.

No effect Low Average High Other opinion

Totals

No. of questionnaires

%

1 6 20 22 1

2 12 40 44 2

50

100

Source: School of Law, Vietnam National University Hanoi, Survey Project on Death Penalty: Report of Findings, Hanoi: Vietnam National University (2011).

References Beo, Pham Van (2010), The Death Penalty in Vietnamese Criminal Law, Hanoi: National Politics Publishing House. Dinh, Bui Xuan (2000), ‘Hinh phat va viec ap dung hinh phat thoi Nguyen giai doan 1802–1858’ (‘Situation On Crimes and the Application of Penalties Under the Nguyen Dynasty in the Period 1802–1858’), State and Law Journal, 8. Ministry of Justice – Legal Science Institute (2006), Ve hinh phat tu hinh va viec thi hanh hinh phat tu hinh (‘On the Death Penalty and the Implementation of the Death Penalty’), Hanoi: National Politics Publishing House.

Capital Punishment in Vietnam: Status and Perspective

379

School of Law, Vietnam National University Hanoi (2010), Death Penalty: Questions and Answers, Hanoi: Vietnam National University. School of Law, Vietnam National University Hanoi (2011), Survey Project on Death Penalty: Report of Findings, Hanoi: Vietnam National University. Vietnam Lawyers Association (2008), The Death Penalty in International Law, Hanoi: Hong Duc Publisher.

This page has been left blank intentionally

Index

abolitionist strategies 1–5, 8, 18–21, 29–31, 57, 120 cost-benefit analysis of 37–8 criticisms of 3, 32–3, 85–6, 93, 298 in the US 85–94 Aboriginal peoples 275–80, 284 Afghanistan 20, 81, 255–74 case studies of death row prisoners in 269–73 current state of the death penalty in 261–8 historical perspective on the death penalty in 256–61 African Charter on Human and People’s Rights 298–9 African Commission on Human and People’s Rights 299–300, 310–11 African Court on Human and People’s Rights 299–300 African Union 300 age of criminal liability 79–80, 84 AIDS 200 Ajam, Zar 265 Ali, Sher 71 Allen, Barbara 160 alternatives to the death sentence 29, 50–52 ‘ambiguous loss’ 156 American Convention of Human Rights 100 American Medical Association (AMA) 16–17 American Psychiatric Association (APA) 16–17 Amnesty International (AI) 31, 51, 64, 68, 70, 129, 146, 201, 231, 238, 264, 292, 297, 319–20, 351 Anderson, F.W. 276 An-Na’im, Abdullahi Ahmed 13 Ansheles, Cathy 122 Apostol, Gheorghe 353 appeal procedures 193, 312–13

Ashcroft, John 117 Aust, A. 322 Austin, Texas 87–8 automatic death sentences 181, 301; see also mandatory sentencing Avio, K.L. 276–7, 280 Bae, Sangmin 245 bail conditions 307, 312–13 Bailey, W.C. 7 Bakayana, I. 307 Balkhi, Hussein Alemi 267 Banda, Hastings 182 Banks, Philip 322–4, 327–8, 331 Barbados 192 Beck, E. 154–6 Bedau, Hugo 53 Belarus 23, 39, 56, 161–2, 229–47 costs and benefits of abolishing the death penalty in 240–43 transnational network for the abolition of the death penalty in 231–3, 247 Belize 189 Bernardin, Joseph 90 Biblical references to capital punishment 12 bills of rights 185 Biro, David 115–19 Bishop, Jeanne 5, 20, 86, 88, 92, 119–20, 123 Bishop Langert, Nancy 115–17 Bivin, Jerry 162 Black September 346 Blecker, Robert 5–6 Boss, P. 156 Bosse, Giselle 243 Bowers, W.J. 7 Boyd, N. 277 brain development in children see cognitive development bribery 310 Brookes, Charlie 1

382

Capital Punishment: New Perspectives

Brown, Byron 328 Brunei Darussalam 82 Bryant, Charles Gyude 322 Buddhism 14–15 California 88, 132 Cambodia 39 Campbell, Kim 289 Canada 23, 100, 102, 275–93 Caron, Jane 123 Catholic Church 14, 90 Ceausescu, Elena 352–7 Ceausescu, Nicolae 343–4, 348–57 Centre for Capital Punishment Studies (CCPS) 1–2, 6, 46–7, 139 Centre for the Study of African Economies, Oxford 327 chain refoulement 97, 99 Chandler, D. 280, 287 Checkel, Jeffrey T. 235, 237 Chen Shui-bian 222 Chenwi, L. 308–9 children of the condemned 21, 145–63 compared with children of long-term prisoners 150–51 compared with children of the murdered 154–5 compared with children of parents who died of natural causes 152 children’s villages 153 China, People’s Republic of 3, 15, 21, 66, 146, 151, 347 Christianity 85–6, 89–90 Clements, Diane 5 ‘closure’ for grief 113, 117–20, 124 cognitive development in children 80, 159 Colorado 132 communist rule and the death penalty 24, 342 Congo 66 conjugal visits to prisoners 140 Connecticut 123 Constantinescu, Ion and Justina 348 constitutionality of capital punishment 9 Cook, Robin 33 Council of Europe (CoE) 23, 35–6, 51, 55–6, 101–2, 136, 230, 242–5 Parliamentary Assembly (PACE) 235

Criminal Justice Act (England and Wales, 2003) 52 Cushing, R. 5 customary law 257–8, 327, 331 Czech Republic 9 Dallas 1 Davidson, M. 292 Day, Stockwell 292 Deans, Marie 128 Death Penalty Information Center 53 Death Penalty Project 184–6, 204 Death Penalty Worldwide 186 death row 5–6, 22, 88 conditions on 131–4 contacts between the condemned and their family members 127–8, 131–5, 156 effects of incarceration on 162 length of time spent by the condemned on 131, 302 death row phenomenon (or syndrome) 43, 101, 107, 161, 188 Death Watch 1 Delaware 132 Denmark 137 deterrence doctrine 6–8, 54, 375, 378 Dezhbakhsh, H. 7 diminished responsibility 80–81 Ding Hu 151 diplomatic assurances 22, 95, 105–8 definition of 105 two types of 106 disciplinary power (Foucault) 339 disparities in the administration of capital punishment 11–12 doctors’ involvement in executions 15–16 domestic violence 158–9 due process of law 273–4, 303 Duner, Bertil 240 Durham, H. 321 Dweh, Boye-Blue and George W. 319 East African Court of Justice 300 Economic Community of West African States (ECOWAS) 101 economic criminality 348–51, 356 Ehrlich, Isaac 6–7

Index Ekiert, Grzegorz 237 Eldad, M. 303 elderly prisoners, execution of 199 electric chair 1 Erickson, L. 279, 286 Eschholz, S. 127–8 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 136–7 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 35, 98–102, 230 European Convention on Extradition 104 European Court of Human Rights (ECtHR) 54, 95, 101–2, 160 European Instrument for Democracy and Human Rights (EIDHR) 36–8 European Union (EU) 23, 36, 230, 234, 243–4, 321 Charter of Fundamental Rights 101, 103, 230 execution methods 1, 15–16, 259, 361, 370 exemptions from the death penalty 346 expert witnesses 195 extradition 21–2, 54, 95, 99–109, 288–9, 292–3, 370–71 extrajudicial executions 338 Fagan, Jeffrey 7–8 faith communities and faith issues 90–93 Falwell, Jerry 38 families of the condemned 20 prison visits by 127–8, 131–5 surveillance over 348 see also children of the condemned families of murder victims 113 in opposition to the death penalty 118–24 in support of the death penalty 116–18 role in sentencing 191 Fédération Internationale des Ligues des Droits de l’Homme (FIDH) 309 Fijalkowski, Agata 337 firing squad, execution by 370 Fitzsimmons, Bobby 155 Florida 134 Foreign and Commonwealth Office 33 forgiveness in religious doctrine 12–13 Forh, Edward S. 328

383

Foucault, Michel 339, 341 Fowlkes, M. 155 France 32 Frankowski, Stanislaw 337, 354–5 gender issues 279–80, 285–7 Georgescu, E. 349 Geurtsen, Hanna 240 Ghana 186 Ghandi, Mahatma 13–14 Gheorghiu-Dej, Gheorghe 342 Gia Long, King 360 Goislard, Bettina 270 grief, ‘disenfranchised’ 155–7; see also closure Guatemala 15 Guguila, Doru George 346 guillotine, execution by 361, 370 Hall. Graeme 23 Hands Off Cain 182, 231 Harper, Stephen 291–2 Hashemi-Shahrudi, Mahmoud 66, 73 Healy, Mary 123 hijacking of airplanes 346 Hill, Jay 291 Hilli, Allameh 82 Hilton, Perez 93 Hinduism 13–14 HIV 200 Ho Chi Minh 361 Hocker, William 156 Hodgkinson, Peter (editor) 33–6, 56, 139 homosexuality 256–7, 277 Hood, Roger 6–7, 297, 354 Hoyle, C. 297 hudud crimes 68–9, 81–4, 258–9 Huffington Post 86 human rights and human rights law 2, 9, 35, 95–8, 128–9, 186, 330, 340 Human Rights Watch (HRW) 32, 106, 267–8 humility, gift of 93–4 Ibn Abi Shayba 63 Iceland 137 Idaho 133 Illinois 90, 122–3 India 104, 187

384

Capital Punishment: New Perspectives

‘indirect abolition’ 22, 96 individuals, abolitionist pressures focused on 30, 41 innocent people, execution of 53, 269 Inter-American Commission on Human Rights 184 Inter-American Convention on Extradition 101 Inter-American Court of Human Rights 184, 192 International Convention on Civil and Political Righs (ICCPR) 20–23, 38, 97–8, 103, 130, 161, 194, 196, 199, 209–11, 288–9, 300 Article 6 99–100, 211–14, 225 Article 7 214–17, 221, 225 Article 16 210, 217–21, 224–5 Optional Protocols 211, 288 International Council of Nurses (ICN) 17 International Court of Justice (ICJ) 218–19, 225, 322 International Criminal Court 332 Rome Statute of 109 International Crisis Group 326 international law 22, 38, 63, 65, 320–21; see also human rights and human rights law International Law Commission (ILC) 101, 217 international standards on imprisonment 136–7 on the use of the death penalty 129 Internet use 245 internship programmes 24, 167–75 Ioanid, Gabriela 348 Iran 65–6, 72–8, 146 Iraq 101–2 irreversibility of capital punishment 53, 309 Islam 13, 19–20 Isser, D. 327 Italy 32 Jackson, Michael 276 Jafar, Imam 74, 77 Jamaica 40–41, 57, 189, 202, 216–17 Japan 104 Jesus Christ 12, 14, 119 trial of 91–3

Joe, Katy 286 John Paul II, Pope 14 Johnson, R. 50–51, 140 Jones, S. 156 Jordan 98 Journey of Hope 5 Jubah, Keith 319 Judaism 12–13 Judge, Roger 99, 103, 289 Justice for All (JFA) 4–5 juveniles sentenced to death 19–20, 50, 63–84 Kafantayeni judgment (2007) 22, 40, 48–50, 181, 193–8, 202–4 Karzai, Hamid 255–6, 264–7, 270 Kenya 40, 48–51, 185 Keta Taylor Colby (KTC) Death Penalty Project 167 Khan, Ismail 271 Kibaki, Mwai 49 Kigula judgment (2009) 23, 42–50, 301–7 Kindler, Joseph 288–9 Kirchheimer, Otto 339 Kon Wei 152, 158 Kozinski, Alex 116 Kubik, Jan 237 Kuchande, Phinza 195–6 legal aid 193, 195, 203–4, 309–12 legal education 24 lethal injection 1, 15–16 Le Thanh Tong, King 360 leverage 237, 246–7 Levitsky, Steven 237, 244, 246 Liberia 23, 319–33 amendment to the Penal Code (2008) 324–9 legal status of the death penalty in 321–4 Truth and Reconciliation Commission 332 Libya 81 life sentences 52–6, 303–6 without parole 54–5 see also whole-life sentences linkage 244–7 Liptak, A. 8

Index litigation strategies against capital punishment 2, 29, 40–41, 48–50, 56–7, 298, 308, 313 Lo Chang-Fa 218, 223 London Panel of Lawyers 2 Lowenstein, Kate 120 Lubkemann, S.J. 327 Lukashenka, Alyaksandr 243 Luzira Upper Prison, Uganda 312 McIntyre J 279–80 McVeigh, Timothy 117 Madigan, Lisa 116–17 Madrid World Conference against the Death Penalty (2013) 3 Magnotta, Luke 291 Malawi 22–3, 40, 48–51, 181–3, 191–204 mandatory sentencing 33 in Africa 185–6 in the Commonwealth Caribbean 183–5 in Malawi 182–3 in Uganda 301–3, 306, 313 March to Abolish the Death Penalty 87–8 Maroua Declaration (1975) 322 Marshall, Donald Jr 279 Marshall, Thurgood 9–10 Ma Ying-Jeou 222–3 Meeropol, Robert 145, 157 mental impairment and the death penalty 17–18, 187–9, 195–6, 199 Millward, J. 139 minority groups 277–8, 292 mitigating circumstances 171, 186–92, 195–6 cross-cultural issues in 190–92 definition of 195 jurisprudence on 188–90 mob justice 331 Mohamad the Prophet 79 Mongolia 88 monopoly on the legitimate use of violence 339 moratorium on executions 38–9, 328 Mtambo, Limbikani Wilson 181 Mufid, Shaykh 82 Mujuzi, Jamil 304, 321 Muluzi, Bakili 182–3 Murder Victims’ Families for Human Rights (MVFHR) 5, 153

385

Murder Victims’ Families for Reconciliation (MVFR) 5, 128 Mutiso judgment (2008) 48–9 Nagbe, Joseph 330 narcotics crimes 365, 367 National Organization of Victim Assistance 5 Nebraska 134 Negrescu, Irina 349 New Jersey 120–21 New Man concept 340, 344, 356 New Mexico 122 New York State 121–2 Ng, Charles 288 Nicholson, Rob 292 Nigeria 72–3 nolle prosequi claims 330–31 non-governmental organizations (NGOs) 231–4, 330 non-refoulement principle 21–2, 95–109 absolute obligation of abolitionist states 98–105 norm socialization mechanisms 235–7, 246 North Carolina 132 Northwestern University Law School 204 Novak, A. 302 Nowell, S. 4–5 N’Tow, S. 327 nurses’ involvement in executions 17 Nyandeh, Modesko 319 Oklahoma 133 Oklahoma City bombing (1995) 117 Organization for Security and Cooperation in Europe (OSCE) 36, 235, 245 Osler, Mark 86, 88, 92 Ostrowski, N. 189 Pacepa, Ioan Mihai 342, 352 Pakistan 66, 69–71 Paralegal Advisory Services Institute (PASI) 203–4 pardons 262 Parents of Murdered Children (POMC) 4 Patrick, Bwenge 188 Paulette, Marie 286 Paykue, Mardea 319

386

Capital Punishment: New Perspectives

Penal Reform International (PRI) 32, 200, 306, 308 People of Faith against the Death Penalty 90 personhood, recognition of 220–21 Peter, St 92 Peterson, R.D. 7 petitions for clemency 342 Pettigrew, Mark 132 Pew Research Center 89–91 Philippines, the 15, 154 Pierce, G.L. 7 Pirvulet, Ion 347, 351 plea bargaining 193, 203 Poenaru, Iulian 348 politicization of capital punishment 356 populism 8–9 post-conflict states, abolition in 39 Power-Forde J 54–5 Predut, Iuliana 348 Prejean, Helen 90–91, 170 presumption against the death penalty 189 presumption of innocence 108 prison breaks 325 prison conditions 201–2, 310–13; see also death row prisoners behaviour of 201 deaths of 338 entitlement to family visits 137–40 treatment of 136–41 Privy Council 40–41, 185, 188–9, 194, 198 propaganda 342, 356 psychiatrists’ involvement in the death penalty 16–18 puberty, age of 79–80 public opinion on the death penalty 8–12, 231, 239, 375–7 punishment fitting the crime 117 Quinn, Patrick 90–91, 116, 123 The Quran 80 Raceanu, Gheorghe and Mircea 352–5 racism and racial discrimination 11–12, 279 Rafferty, Michael 291 Randhawa, Trisha 47–8 rape, punishment for 11 Rashid, Ahmed 258–61

reconviction rates 53, 141 Redmond, Lu 152 refugee law 97 rehabilitation of prisoners 201 Rehman, J. 212 Reid, Ida 155 religion and capital punishment 12–15 remand prisoners 193, 201, 311, 330 remedies for crime 10 repeal of execution statutes 29 restorative justice 127–8 retributive elements in capital punishment 5, 53, 113, 339–40 Riel, Louis 278 right to life 108, 128, 298, 301 Roberson, Brian and Bettye 162 Robertson, Pat 38 Romania 9, 39, 337–57 New Penal Code (1969) 343–8 Rosenberg, Ethel and Julius 145 Ross, Joseph 162 Royko, Mike 116 rule of law 329–30 Russian Federation 39 Rwanda 331–2 St Lucia 190 San Francisco University Law School 167, 175 Sander, B. 303 ‘Sassywood’ trials 331 Saudi Arabia 65–8, 73 Schabas, W. 182, 213, 215 Scheiber, Vicki 118 Scherzer, Aaron 121 Schimmelfennig, Frank 236, 240–3 Scobell, Andrew 338, 343, 356 Scott, Jay 162 secondary victims of capital punishment 4, 20–21, 127 secrecy surrounding the death penalty 130–31, 156, 160 Seekie, Bob 319 Sellin, Thorsten 7 sentencing principles 202–3 Serbia 137–8 Sevenants, Koen 158 Shah, Abdullah 263–6

Index Shah, Timor 264 Shapiro, Bruce 117 Sharia law 13, 20, 66–7, 72–4, 255–60 Sharp, Susan 150 Shaw, M.N. 322 Shirali, Imam 152, 157 Shwimmer, Walter 235 Simmons, Beth 230, 236 Singapore 186 Sirleaf, Ellen Johnson 319–20, 324–5, 332 Smith, Mary 286 Smith, R.K.M. 220 Smith, Ronald 290–92 social welfare reports 189 socialization, ‘Type I’ and ‘Type II’ 236 Soering judgment (1989) 95, 101–2, 108 Sorenson, J. 7 South Africa 9, 39, 102–3, 187 South Korea 104 Southern Internship Programme 167–8 Spain 32 Stalin, Joseph 340–43 Stalinism 344, 356 Stanculescu, Victor Atanasie 355 Stefanescu, Gheorghe 350–51 Steger, Phil 92 Stephan Batory Foundation 244 stoning to death 259 Strange, Carol 278 Sudan 68–9, 73 support for capital punishment 3–6 survivors, reasons for concern about 114–16 Tabriz, S. 50–51, 140 Taiwan 15, 22, 131, 135, 221–5 Taliban justice and the Taliban regime 20, 255–7, 260, 263 terrorist suspects 109 Texas 1, 7, 127, 133–4, 138–9, 171 University of 87 Tigo judgment (2009) 304–6 Tittemore, B. 185 Toe, Benjamin 319 Tokyo Declaration (1975) 16 torture 16, 97, 105–9 totalitarianism 340–41 traditional discourse on capital punishment 6–18

387

Train Du Tong, King 359 Tran Thai Tong, King 359 trauma, inter-generational 159–60 treason cases 351–4, 357 trial by ordeal 331 trial procedure 91–2 Trinidad and Tobago 40, 53–4 Truscott, Polly 266 Tsebe judgment (2012) 95, 103, 108 Uganda 23, 40–48, 135, 185, 188, 202–3, 297–313 prison conditions in 310–13 Ukraine 240, 245 United Nations 34–5 Assistance Mission in Afghanistan (UNAMA) 268 Commission on Human Rights 100–101, 187–8, 213 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 345 Convention on the Rights of the Child 19, 66, 152–3 Committee for 145 Declaration of Universal Principles of Justice for Victims of Crime and Abuse of State Power 153 Economic and Social Council (ESC) 268, 343–4 General Assembly 38, 375 High Commissioner for Refugees 105 Human Rights Committee (HRC) 38, 49, 97–100, 103, 130, 160–61, 184, 186, 199, 212–17, 220–21, 224, 238, 288–9, 306–7 Human Rights Council 146, 235 Mission in Liberia (UNMIL) 325–7 Recommendations on Life Imprisonment 55 Secretary General’s Quinquennial Report on Capital Punishment 103–4 Standard Minimum Rules for Treatment of Prisoners 136 Working Group on Arbitrary Detention 98

388

Capital Punishment: New Perspectives

United States State Department 331 Supreme Court 11, 50, 75–6, 171, 187–8, 215–16 Universal Declaration of Human Rights 209, 212–13 Uzbekistan 130 Vachudova, Milada Anna 237 Van Zyl Smit, D. 306 vengeance 118 Verzulli, Marie 121–2 victim impact statements 191 victim support 3–5, 113 victimization, perceptions of 157–8 Vienna Convention on the Law of Treaties (VCLT) 217–21, 224–5 Vietnam 24, 134–5, 359–78 history of capital punishment in 359–61 imposition and implementation of capital punishment in 368–71 modern criminal codes in 362–9 transparency in the application of capital punishment in 372–4 trend in the use of capital punishment in 374–8

Virginia 88, 171 wa Mutharika, Bingu 183 war crimes trials 332 Warr, Mark 231 Way, Lucan A. 237, 244, 246 Weber, Max 338 whole-life sentences 51–2, 55–6 Wieh, Attina 319 Wieruszewski, Roman 344 Williams, Hans 319 witchcraft 191, 200 World Medical Association (WMA) 16 World Psychiatric Association (WPA) 16–17 ‘worst of the worst’ category of offender 190 Yemen 69 Young, Marlene 152 Zakaria Mohammed, Abdulrahaman 68 Zhuk, Andrei and Svetlana 161–2 Zomba Prison 199, 201 Zondo, Raymond 103, 108 Zotaa J 319, 324

Advances in Criminology Full series list

Penal Culture and Hyperincarceration The Revival of the Prison Chris Cunneen, Eileen Baldry, David Brown, Mark Brown, Melanie Schwartz and Alex Steel Governing through Crime in South Africa The Politics of Race and Class in Neoliberalizing Regimes Gail Super Locating Deviance Crime, Change and Organizations Gerald Mars Racialized Correctional Governance The Mutual Constructions of Race and Criminal Justice Claire Spivakovsky Transitional Justice Images and Memories Edited by Chrisje Brants, Antoine Hol and Dina Siegel The Arts of Imprisonment Control, Resistance and Empowerment Edited by Leonidas K. Cheliotis The Hidden Order of Corruption An Institutional Approach Donatella della Porta and Alberto Vannucci Comparative Criminal Justice and Globalization Edited by David Nelken

Racial Criminalization of Migrants in the 21st Century Edited by Salvatore Palidda Pervasive Prevention A Feminist Reading of the Rise of the Security Society Tamar Pitch Children’s Rights and the Minimum Age of Criminal Responsibility A Global Perspective Don Cipriani Hate on the Net: Extremist Sites, Neo-fascism On-line, Electronic Jihad Antonio Roversi Decisions to Imprison: Court Decision-Making Inside and Outside the Law Rasmus H. Wandall The Policing of Transnational Protest Edited by Donatella della Porta, Abby Peterson and Herbert Reiter Migration, Culture Conflict, Crime and Terrorism Edited by Joshua D. Freilich and Rob T. Guerette Re-Thinking the Political Economy of Punishment: Perspectives on Post-Fordism and Penal Politics Alessandro De Giorgi

390

Capital Punishment: New Perspectives

Deleuze and Environmental Damage: Violence of the Text Mark Halsey Globalization and Regulatory Character: Regulatory Reform after the Kader Toy Factory Fire Fiona Haines Family Violence and Police Response: Learning From Research, Policy and Practice in European Countries Edited by Wilma Smeenk and Marijke Malsch

Crime and Culture: An Historical Perspective Edited by Amy Gilman Srebnick and René Lévy Power, Discourse and Resistance: A Genealogy of the Strangeways Prison Riot Eamonn Carrabine