Capital Punishment: Strategies for Abolition

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Capital Punishment Strategies for Abolition

What are the critical factors that determine whether a country replaces, retains or restores the death penalty? Why do some countries maintain the death penalty in theory but in reality rarely invoke it? By asking these questions, the editors hope to isolate the core issues that influence the formulation of legislation so that they can be incorporated into strategies for advising governments considering changes to their policy on capital punishment. They also seek to redress the current imbalance in research, which tends to focus almost exclusively on the experience of the USA, by covering a range of countries such as South Korea, Lithuania, Japan and the Caribbean Commonwealth. This valuable contribution to the debates around capital punishment contains contributions from leading academics, campaigners and legal practitioners and will be an important resource for students, academics, NGOs, policy makers, lawyers and jurists.             is the Founder and Director of the Centre for Capital Punishment Studies, Westminister University Law School, London. Prior to joining Westminster in 1989 he was a Probation Officer for fifteen years. He has published extensively on capital punishment.         .       is Professor of Human Rights Law at the National University of Ireland and Director of the Irish Centre for Human Rights. He has published numerous books and articles and is editor-in-chief of Criminal Law Forum.

Capital Punishment Strategies for Abolition Edited by

Peter Hodgkinson and William A. Schabas

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge cb2 2ru, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521815901 © Cambridge University Press 2004 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2004 isbn-13 isbn-10

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Contents

List of figures List of tables Notes on the contributors 1 Capital punishment: improve it or remove it?            

page vii viii ix 1

2 International law and the death penalty: reflecting or promoting change?         .      

36

3 Doctors and the death penalty: ethics and a cruel punishment                      

63

4 Replacing the death penalty: the vexed issue of alternative sanctions         

92

5 Religion and the death penalty in the United States: past and present     .        

116

6 On botched executions       .               .      

143

7 Death as a penalty in the Shari’¯a  .              

169

8 Abolishing the death penalty in the United States: an analysis of institutional obstacles and future prospects          

186

v

vi

Contents

9 Capital punishment in the United States: moratorium efforts and other key developments      .    10 The experience of Lithuania’s journey to abolition                    

208 233

11 The death penalty in South Korea and Japan: ‘Asian values’ and the debate about capital punishment? - 

253

12 Georgia, former republic of the USSR: managing abolition           

273

13 Capital punishment in the Commonwealth Caribbean: colonial inheritance, colonial remedy?        .      

282

14 Public opinion and the death penalty         .       15 Capital punishment: meeting the needs of the families of the homicide victim and the condemned             Index

309

332

359

Figures

10.1 Attitudes to the death penalty page 241 10.2 Function of the death penalty 241 10.3 Institutions that should determine the abolition of the death penalty 242 10.4 Types of crime that should be punished by the death penalty 243 10.5 Public execution of criminals 244 10.6 Capital punishment for juveniles and women 245 10.7 Support for the death penalty if respondent believes that society has sufficient means for re-socialisation of criminals 245 10.8 Support for the death penalty if respondent believes that criminals can be sufficiently isolated 246 10.9 Support for the death penalty if all Lithuania’s neighbours decide to abolish it 247 10.10 The death penalty and Lithuania’s integration into the EU 247

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Tables

3.1 The 1992 AMA policy on medical participation in the death penalty 3.2 Elements of death penalty policy of selected professional associations 6.1 Botched executions in US capital cases, 1977 to 31 December 2001 6.2 Rate of botched executions by state, 1977 to 31 December 2001 6.3 Total executions and botched executions by method, 1977 to 31 December 2001 6.4 Number of cases involving evidence that a non-instantaneous and/or painful death occurred 6.5 Evidence of a lingering death: time of execution 10.1 Number of executed criminals in Lithuania since re-establishment of independence 10.2 Number of murders between 1990 and 1995 10.3 The attitude of the elite to the death penalty

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page 69 79 147 149 150 152 156 235 235 249

Notes on the contributors

                  Professor of Philosophy, Emeritus, Tufts University; editor, The Death Penalty in America (1964, 1982, 1997); author, Death Is Different (1987); co-author (with Michael Radelet and Constance Putnam), In Spite of Innocence (1992); formerly chairman, Board of Directors, National Coalition to Abolish the Death Penalty. He is a Visiting Professor at the Centre for Capital Punishment Studies, University of Westminster.          .               Professor of Law, De Paul University, Chicago, since 1964; Fulbright-Hays Professor of International Criminal Law, University of Freiburg, Germany, 1970; non-resident Dean of the International Institute of Higher Studies in Criminal Sciences, Syracuse, Italy, since 1976. He studied law in France, Switzerland, Egypt, Italy and the US. He is the author of over twenty books and 100 law review articles and served as the SecretaryGeneral of the International Association of Penal Law since 1974. He has been a UN consultant on a range of issues since the mid-1970s, which included chairing the committee of experts which prepared the UN Draft Convention on the Prevention of Unlawful Human Experimentation, and was co-chairman of the committee of experts, which prepared the UN Draft Convention on the Prevention and Suppression of Torture.         .    Associate Professor of Sociology at the University of Florida. Her research and teaching focus on criminology, deviance, and various processes of social control. She has conducted research on death penalty opinion, the use of violence among juveniles in response to conflict, and variation in homicide clearance rates across urban areas. Her publications have appeared in Criminology, Law and Society Review and Deviant Behaviour. Currently, she is working on a project examining legal responses in cases of police misconduct.

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Notes on the contributors

               -       Doctor of Juris (1989) from the University of Freiburg in Germany; LLM (1985) and BA (1982) from the University of Sung Kyun Kwan in Seoul, South Korea. Professor Cho is a Professor of Law at Chongju University College of Law in South Korea. He specialises in environmental law and criminal law. Professor Cho has served as an exchange professor at the University of Freiburg and a visiting professor with the University of Kiel in Germany. He was the Chairman of the Law Faculty and Law Graduate School at Chongju University from 1993 to 1995. Since then, he has been involved in research projects on such varied topics as organ transplantation, the reform of Korean atomic energy law, the death penalty and transitional justice. He has served as a legal consultant to the ¨ Korea on environmenKorean Institute of Nuclear Safety, to TUV tal law, and to the Korean Environmental Protection Union. Professor Cho has travelled extensively in Europe and Asia to deliver lectures and presentations on the death penalty, human rights and environmental law. He teaches ‘Environmental Law in the Asian Region and International Environmental Law’ as visiting professor at the St Louis University School of Law, Missouri.            Director of the International Centre for Prison Studies at Kings College, University of London, whose objectives are to assist governments and other relevant agencies to develop appropriate policies on prisons and the use of imprisonment and to spread best practice in prison management. The Centre carries out all its work from a human rights perspective. In addition to its academic activities, the Centre is involved in prison reform projects in countries such as Brazil, Chile, Kazakhstan, Russia, Turkey and Venezuela. He has also served for twenty-five years at a senior level in the prison services of the United Kingdom. He has a PhD in criminology from the Faculty of Law at the University of Edinburgh, and has written extensively on criminal justice and penal issues. His books include Inside: Rethinking Scotland’s Prisons (1991), The Prisons We Deserve (1994), Managing Prisons in a Time of Change (2002) and A Human Rights Approach to Prison Management (2002). He is an expert on penal matters for the United Nations and the Council of Europe, including the latter’s Committee for the Prevention of Torture. He has visited prisons in over forty countries.                             Professor of Sociology and Head of the Department of Social Theory, Faculty of Philosophy, Vilnius University. He was awarded his PhD in 1985 by the Institute of Philosophy, Sociology and Law, Lithuanian Academy of Science, Vilnius. Among his many publications Dr Dobryninas has written

Notes on the contributors

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‘Death Penalty in Lithuania: From Retentionist Public Support to Abolitionist Well-Informed Opinion’ (Vilnius: Lithuanian Centre for Human Rights, and Strasbourg: Council of Europe, 1997–9); ‘The Death Penalty in Lithuania: Legal and Sociological Aspects’ (Vilnius: Lithuanian Centre for Human Rights, 1999) (co-authored with S. Katuoka); ‘Death Penalty in Lithuania: Between Legal Semantics and Political Pragmatics’, in Human Rights in Lithuania (Vilnius: Independent Institute for Social Research, 1996); and ‘Human Rights in Lithuania: 2001–2002 – A Sociological Survey’, in A. Dobryninas, T. Birmontiene, S. Katuoka and A. Piliavecas (eds.), Human Rights in Lithuania: Situation Assessment (Vilnius: 2002).             Founder and Director of the Centre for Capital Punishment Studies, Westminster University Law School, London. Prior to joining Westminster in 1989, he was a Probation Officer with the Inner London Probation Service for fifteen years during which time he developed an interest and expertise in the management of life sentenced and mentally disordered offenders. He is the Admissions Tutor for Law and module leader for two Criminal Justice courses and the Internship in Capital Punishment Studies. In addition, he teaches a course on capital punishment for the MA in Crime, Human Rights and the International Community. As advisor to the Council of Europe on the death penalty and a member of the UK Foreign Secretary’s Death Penalty Panel, he has worked with the administrations of a number of countries (Russia, Latvia, Lithuania, Estonia, Ukraine, Albania, Belarus, the United States, Yugoslavia, China, Kazakhstan, Armenia and Taiwan) developing penal strategies in preparation for replacing the death penalty and its aftermath. He has produced a number of publications on the death penalty, including Hodgkinson and Rutherford (eds.), Capital Punishment: Global Issues and Prospects (1996) and Hodgkinson et al., Capital Punishment in the USA (1996).             Consultant Forensic Psychiatrist at the Oxford Clinic Medium Secure Unit in Littlemore, Oxford, and Clinical Director of Specialist Services for the Oxfordshire Mental Healthcare Trust. He trained in medicine and psychiatry in Adelaide, South Australia, working in general adult and forensic psychiatry both there and in the Northern Territory before taking up a consultant post at Broadmoor Special Hospital at the end of the 1980s. Since then, he has continued working in the National Health Service, first at Broadmoor and later in a Regional Forensic Psychiatric Service based in Berkshire and Oxfordshire. He has a long-standing interest in ethical issues in psychiatry, particularly in relation to psychiatric involvement in the death

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Notes on the contributors

penalty. Research in this area has included a survey of the attitudes, involvement and ethical training and support of psychiatrists working in countries other than the US retaining the death penalty. He has pursued this interest over a number of years while a member of the Board of Directors of the International Academy of Law and Mental Health, and has published articles on the subject, as well as being directly involved in psychiatric assessments of defendants facing the death penalty in the Caribbean. He is a member of the Advisory Board of the Centre for Capital Punishment Studies at Westminster University Law School in London.             Barrister at Matrix Chambers, Gray’s Inn, London. His practice encompasses public law, extradition, human rights law and criminal law. He has appeared in a number of high-profile cases including the Pinochet extradition, the Lockerbie bombing appeal, the Hillsborough case and the Guinness appeal. A large proportion of his practice has an international aspect, and he has particular expertise in appellate work and cases involving difficult or novel legal issues. He is generally regarded as the leading junior counsel in death penalty work and has appeared in most of the significant capital appeals to the Privy Council from the Caribbean in recent years. He has also appeared as amicus curiae in a number of death row cases in the United States, and in 1999 was admitted to the State Bar of Florida where he represented 350 Members of Parliament before the Supreme Court in support of a British citizen on death row. In 2001, he acted on behalf of a number of death row prisoners in Trinidad and Tobago in proceedings before the Inter-American Court of Human Rights.             .         Professor Emeritus, Department of Philosophy and Religion, University of North Carolina at Wilmington, where he taught from 1974 to 2001 and served as chairman for seventeen of those years. He is author of The Death Penalty: An Historical and Theological Survey (1997), and wrote the entries on capital punishment for Wade Clark Roof (ed.), Contemporary American Religion (2000) and The New Catholic Encyclopedia (2nd edn, 2002). He lectures widely on aspects of the death penalty in Christian history, especially by invitation to programmes held by Catholic diocesan Peace and Justice Offices.                 .       Professor and Associate Chair, Department of Sociology, University of Colorado-Boulder, and Visiting Professor, School of Law, University of Westminster, London. For the past twenty-five years his research has focused on race and death

Notes on the contributors

xiii

sentencing, families of death row inmates, conviction of the innocent, public opinion on the death penalty, and mental health issues involving death row inmates. He has testified in approximately sixty-five death penalty cases, and worked with most of the last fifty people executed in Florida.                 .       Director of the Irish Centre for Human Rights at the National University of Ireland, Galway, where he also holds the chair in human rights law. Professor Schabas holds BA and MA degrees from the University of Toronto and LLB, LLM and LLD degrees from the University of Montreal. Professor Schabas is the author of The Abolition of the Death Penalty in International Law (3rd edn, 2002), The Death Penalty as Cruel Treatment and Torture (1996) and numerous journal articles on capital punishment. Professor Schabas is editor-in-chief of Criminal Law Forum, the quarterly journal of the International Society for the Reform of Criminal Law.      .    Ronald J. Tabak is experienced in death penalty and civil rights litigation. He has chaired the Committee on Civil Rights of the Association of the Bar of the City of New York and is co-chair of the Death Penalty Committee of the American Bar Association’s Section of Individual Rights and Responsibilities. He has been a leader in the ABA’s efforts to recruit and train lawyers for indigent death row inmates. Mr Tabak coordinates the pro bono practice at Skadden, Arps. Under his supervision, hundreds of attorneys at the firm each year handle pro bono cases suitable to their practices and interests. He has established a special pro bono programme in which most of the firm’s summer associates actively participate, and has made substantial use of the firm’s legal assistants on pro bono matters. Mr Tabak is the recipient of many honours and awards, including the New York Criminal Bar Association Award in 2001, the Legal Aid Society Awards in 1998, 1997 and 1984, the Thurgood Marshall Award of the Association of the Bar of the City of New York (1998), a Special Award from the Southern Center for Human Rights (1997), the New York State Association of Criminal Defense Lawyers’ Thurgood Marshall Award (1996) and the Rev. Dr Martin Luther King, Jr ‘Champions for Social Justice and Equality’ Award (2003). Among his numerous publications are ‘Is Racism Relevant? Or Should the Fairness in Death Sentencing Act be Enacted to Substantially Diminish Racial Discrimination in Capital Sentencing?’ (1990–1) New York University Review of Law and Social Change; Commentary, ‘The Death of Fairness? Counsel Competency and Due Process in Death Penalty Cases’ Houston Law Review (1994); Hall Law Review (1996); ‘The

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Notes on the contributors

American Bar Association’s Concerns About Capital Punishment as It Is Administered in the United States Today’ Georgia State University Law Review (1998); and ‘Finality Without Fairness: Why We Are Moving Towards Moratoria on Executions, and the Potential Abolition of Capital Punishment’ Connecticut Law Review (2001);            Faculty of Law, Latvian State University (1979–81); Faculty of Law, Tbilisi State University (1981–4); General Prosecutor’s Office of Georgia (1984–99); Deputy Minister of Justice of Georgia and Government Agent to the European Court of Human Rights (1999–2000); Representative of Georgia to the Committee for the Prevention of Torture (2001 to present).            Coordinator of the Amnesty International medical programme based in London. For two decades, he has been involved in collaborative work on the documentation and analysis of human rights violations and in campaigning for their elimination. He has written numerous articles on health and human rights issues and has lectured in universities in the United Kingdom and abroad. His particular interests are the role of ethics in protecting human rights, doctors and the death penalty, and human rights education for health professionals.

1

Capital punishment: improve it or remove it? Peter Hodgkinson∗

Figures vary somewhat on the number of countries that may be considered abolitionist, essentially because of differences over what constitutes de facto rather than de jure abolition. There is no dispute about the existence of an inexorable trend towards the elimination of capital punishment in national judicial systems during the twentieth century. While only a handful of countries had stopped executing offenders in 1900, by the beginning of the new century approximately two-thirds no longer impose capital punishment. In some cases, there are exceptions for war-related offences or treason. However, despite the progress it is worth remembering that, while seventy-four states out of the 195 states in the world have abolished the death penalty for ordinary crimes, this represents only 14 per cent of the world’s population,1 leaving 86 per cent of people living in countries where the death penalty is available. The abolition of the death penalty stands as one of the great, albeit unfinished, triumphs of the post-Second World War human rights movement. The question we now face, at the dawn of the next century, is whether the trend will continue, or rather how to ensure it continues. I make no secret of my own view that the death penalty makes no constructive contribution to reducing the incidence of the crimes for which it is traditionally reserved. In fact, capital punishment merely perpetuates the pain and anger experienced by homicide victims’ families and those employed to administer the process. I have concerns about the approaches of some in the traditional abolitionist movement believing that they may attract more support for their agenda if they could encourage a climate where respect for crime victims and their families is at least of equal importance to ensuring the legal and civil rights of the accused and ∗

1

I wish to thank the European Commission for their continued support and funding of the Centre’s activities and to the Centre’s Researchers, Ms Seetal Purohit, Ms Nicola Browne and Ms Rupa Reddy for all the help they have given in the preparation of this chapter and volume. Thanks too to my co-editor, William Schabas, for his very helpful comments on this chapter. All opinions expressed are the author’s. Amnesty International, Website Against the Death Penalty, Abolitionist and Retentionist Countries, www.amnesty.org/rmp/dplibrary.nsf (30 July 2002).

1

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Peter Hodgkinson

the condemned; additionally strategies towards abolition must address the expressed fears and concerns of the public, alternatives to the death penalty and the dilemmas of politicians. There is much activity on the national level aimed at devising strategies for abolition, but little or nothing on a global scale. This essay, and the others that follow it in this volume, are an effort towards identifying the themes and issues that could ensure that the abolitionist momentum of the twentieth century continues through into the twenty-first. Not all observers are optimistic. The great English criminologist, Professor Sir Leon Radzinowicz, writing in 1999, commented: Should Cesare Beccaria and his eminent followers come back to life and look at the map of capital punishment across the world they would hardly be able to control their disappointment . . . The heaviest blow to the abolitionist cause has come from the United States, which has resolutely rallied behind the retentionist cause . . . I am inclined to state that I do not expect any substantial further decrease in the appointment and the use of capital punishment in the foreseeable future. In my opinion most of the countries likely to embrace the abolitionist cause have by now done so.2

The volume’s intention is to try to understand why countries replace, retain or restore the death penalty, and why some countries maintain the death penalty in law but have taken a formal or informal decision not to carry out any executions. The analysis is carried out in the hope that it will help to devise strategies designed to advise governments contemplating replacing the death penalty. Analysis of those jurisdictions that do not have the death penalty and have thus far been able to successfully resist calls for its restoration may also provide useful pointers for those wishing to rid themselves of the death penalty. It was never the intention in putting together this collection of essays and expertise to cater exclusively for an academic audience, and the editors hope very much that the volume will inform and stimulate discussion among those who support and oppose the death penalty and in those forums frequented by legislators, the judiciary, medical and religious groups, the police and prison services, NGOs and others concerned with protecting human rights. The contributors were invited to bring to bear their considerable individual and collective knowledge and experience in addressing their particular expertise of the death penalty, and the hope is that through our joint endeavours we have brought something fresh to this debate. We wanted too to redress the distortion in death penalty scholarship by shining a light onto issues and parts of the world that too rarely get 2

Leon Radzinowicz, Adventures in Criminology (London: Routledge, 1999).

Capital punishment: improve it or remove it?

3

exposure. The vast majority of death penalty scholarship is based on experience in the United States and, though it represents the experience of only 4 per cent of the world’s population, its data and debate tend to dominate the Western approach to capital punishment. While one should not ignore the wealth of information and scholarship the US experience provides, the reality is that there is precious little authoritative material on capital punishment in other countries,3 and we hope that the chapters on Lithuania, Georgia, South Korea and Japan, the Commonwealth Caribbean and Islam go someway to addressing this poverty of knowledge. The crucial distinction that I want to make is that between the valuable contribution the US data make to the general debate and its questionable relevance for abolitionist strategies worldwide. The core reasons for retaining or removing the death penalty differ from country to country but generally include such issues as deterrence, public opinion, rights of victims, and alternatives – all these against a background of understandable concern about an explosion in violent crime that would follow the removal of the death penalty. The debate elsewhere in the world is usually far from the much-publicised and wellknown debate in the United States. This chapter will briefly review some of the ‘usual suspects’ in the debate whilst others deal with such issues as physician involvement, alternatives to the death penalty, international law, victims, public opinion, mode of execution and religion. Professor Roger Hood identifies several factors that he believes have influenced the increase in the number of abolitionist countries: the spread of international treaties and of the human rights movement; political pressure; political leadership; and the rejection of injustices associated with totalitarian regimes. He proposes four main objections to the death penalty: (1) capital punishment violates the fundamental right to life; (2) capital punishment is not a unique deterrent; (3) the administration of the death penalty, even in developed legal systems, is inherently and irredeemably flawed; and (4) its effect is counter-productive in that it gives out very confused moral messages.4 In an effort to identify what has motivated legislators to abolish the death penalty and to maintain abolition in the face of ongoing demands 3

4

See, for example, the remarks on this subject by Professor Roger Hood, who has conducted the United Nations’ last three quinquennial reviews of the status of the death penalty worldwide: R. Hood, The Death Penalty: A Worldwide Perspective (2nd edn, Oxford: Clarendon Press, 1996), pp. 1, 2. Detailed information about Russia and the CIS, China, Commonwealth Africa, post-communist Europe and the UK is to be found in Peter Hodgkinson and Andrew Rutherford, Capital Punishment – Global Issues and Prospects (Winchester: Waterside Press, 1996). R. Hood, ‘Capital Punishment – A Global Perspective’ (2001) 3 Punishment & Society 331–54.

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Peter Hodgkinson

for harsher criminal sanctions, Professor John Galliher and his colleagues have looked at nine of the twelve states in the United States that are currently without the death penalty.5 They note that, while ‘the history of violence, executions and murder rates has a limited impact on death penalty abolition, heinous acts against children, women, and the elderly generally have considerable influence on capital punishment legislation’. Such brutal crimes outrage political leaders, the public and the media, and can trigger efforts to reinstate capital punishment even in jurisdictions where such crimes are rare. The consequence, as the study notes, is that every abolitionist state provides for life imprisonment of dangerous offenders without any possibility of parole – a fact that undoubtedly strengthens the position of those opposed to the death penalty in any restoration discussions. Galliher and his colleagues considered six empirical questions concerning imposition of the death penalty. In none of these six critical areas of investigation could they establish significant causal links with successful abolitionist strategies. From the standpoint of abolitionist strategies, most of these factors do not lend themselves to meaningful manipulation. For example, there is not a lot abolitionists can do to improve the economic or employment status of a society. In any event, the study rejects suggestions that the death penalty survives during periods when the economy is depressed and unemployment high.6 Several of the abolitionist jurisdictions, such as Alaska, Michigan, West Virginia and Washington, DC, had chronic economic problems. Nor can abolitionists do much to influence population diversity. But here too, the Galliher study found a broad range of mobility patterns in the nine abolitionist states that were studied. They nevertheless observe that in Alaska and Hawaii, as well as in Washington, DC, the political empowerment of minority populations, and the history of racism in the imposition of the death penalty, can only have encouraged the abolition of capital punishment. Engaging with elites emerges as an important factor in maintaining an abolitionist position, and the informing of such elites should, in their 5

6

J. F. Galliher, L. W. Koch, D. P. Keys and T. J. Guess, America Without the Death Penalty – States Leading the Way (Boston: Northeastern University Press, 2002). Michigan, Wisconsin, Maine, Minnesota, North Dakota, Hawaii, Alaska, Iowa and West Virginia. The other three, Massachusetts, Rhode Island and Vermont have an important abolitionist pedigree and differ from the other nine in that their death penalty was removed, not by legislative means but by the state Supreme Courts which found the penalty to be unconstitutional. Mention is also made of the ‘distinguished history of death penalty abolition’ in the District of Columbia, which has successfully resisted efforts by the United States Congress to restore the death penalty. G. Rusche and O. Kircheimer, Punishment and Social Structure (New York: Columbia University Press, 1939).

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view, be part of the agenda of those working to remove the death penalty. As to public opinion, they believe that Zimring and Hawkins are probably correct in their assertion that abolition has usually taken place in the face of the opposition of measured public sentiment.7 Though there are examples where abolition and public support for it coincide, for understandable reasons, such as in Romania, West Germany and Cambodia. Zimring and Hawkins have argued that public opinion evolves following abolition until it eventually opposes capital punishment, but the Galliher study claims that attitudes concerning capital punishment differ little, if at all, between the residents of abolitionist and death penalty states – an observation supported by the majority of abolitionist countries worldwide. Perhaps the strongest effect identified by Galliher and his colleagues is the influence of the media. Decades ago, J. Hagen highlighted the importance of the contribution of the press to all types of legislative activity,8 and the Galliher study states that, without the Des Moines Register and the Charleston Gazette, Iowa and West Virginia respectively would probably have become death penalty states. An earlier piece of research along similar lines conducted by the Centre for Capital Punishment Studies on behalf of Hands Off Cain in the late 1990s9 produced a report that provides a country-by-country review of the status of the death penalty. The data was gleaned through questionnaires sent to Justice and Foreign Ministries of all countries, permanent missions to the UN, the Council of Europe and other country groupings. Review of the debate: the usual suspects The moratorium movement: progress or procrastination? The focus of abolitionist activity in recent years has been the push for 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, as if this will further the goal of abolition set out in Article 6(6) of the 7 8 9

F. E. Zimring and G. Hawkins, Capital Punishment and the American Agenda (New York: Cambridge University Press, 1986). J. Hagan, ‘The Legislation of Crime and Delinquency: A Review of Theory, Method and Research’ (1980) 14 Law and Society Review 603–28. ‘Towards Abolition – The Law and Politics of the Death Penalty’, research conducted by Laban Leake, researcher with the Centre for Capital Punishment Studies. The report and its updates are available from Hands Off Cain, Via di Torre Argentina, 76, Rome 00186, Italy.

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International Covenant on Civil and Political Rights. The moratorium demand was revived in 1994, in the doomed United Nations General Assembly resolution, and again in 1999. It has been part of the controversial resolution adopted annually by the United Nations Commission on Human Rights since 1998. Some abolitionists believe that a period without capital punishment will show its folly, or that it is unnecessary, or that it bears unnecessary political and financial costs.10 In this way, it is believed, a moratorium will lead to genuine abolition. Retentionists, on the other hand, hope to use the moratorium period to ‘fix’ capital punishment’s flaws. In the US, religious fundamentalist supporters of the death penalty, like Pat Robertson, Jerry Falwell and members of the Christian Coalition, are aligned to their current moratorium 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 have found some common ground presents those who seek the replacement of the death penalty with both opportunity and danger. Is there really evidence for the premise that abolition will follow a period of review? The most recent example, that of Illinois, is inconclusive. Governor Ryan of Illinois, a conservative Republican and a strong supporter of the death penalty, was finally satisfied that all was not well with the administration of the death penalty in his state when confronted with the harsh reality that between 1990 and 2000 ten executions had been carried out and that during the same period thirteen prisoners were released from their death sentences for a variety of reasons. On 31 January 2000, he imposed a moratorium on any further executions until a thorough review of the administration of the death penalty had been conducted.11 He was quoted as saying that ‘[t]he Illinois capital punishment system is so fraught with error and has come so close to the ultimate nightmare, the state’s taking of an innocent life’. Since he imposed the moratorium, nine other states have launched similar studies, and there have been widespread calls for similar action. Governor Ryan’s Commission presented its findings in April 2002, making eighty-five recommendations, all with the objective of correcting the flaws and weaknesses identified in the Illinois system. While not part of the Commission’s brief, a narrow majority of its members were inclined to the position that the death penalty should be replaced believing that the system was incapable of being corrected. Yet those who favour the 10 11

‘Moratorium 2000 – Organising Against the Death Penalty’, www.moratorium2000.org. Report of the Governor’s Commission on Capital Punishment, April 2002. Available on the website of the Death Penalty Information Centre, www.deathpenaltyinfo.org.

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death penalty in Illinois and elsewhere view the experience of Illinois as a measure of the rigour of the capital punishment process in identifying such flaws. In May 2002, Governor Ryan announced new legislation based on the eighty-five recommendations of his Commission. During August and September 2002, clemency petitions were prepared on all death row inmates by the Parole Commission with a view to considering commuting the death sentences of some or all of them. At the time some saw this as posturing to encourage the legislature to speed up their deliberations on the new Bill and to challenge the prospective candidates for the governorship after the present governor leaves office in January 2003. The abolitionists hoped that Governor Ryan was laying the foundations for what would be an historical blanket commutation of all those on death row. Governor Ryan kept everyone guessing in the last months of his term of office, leaving it until 11 January 2003, two days before he left office, to announce, at a lecture at Northwestern University Law School, that he was commuting the sentences of all 156 inmates on Illinois’ death row.12 It was a courageous decision, though rationally it was the only decision that he could have taken as it would have been manifestly unfair to proceed with the executions of those already on death row in the near certain knowledge that some will be innocent and all will have been processed by a system ravaged by the many flaws identified by his Commission. This moratorium, which will remain in place under the new Governor, has led to the death penalty being removed from 156 people, 153 of whom will spend the rest of their lives in prison, while three have had their sentences commuted to less than life. A further four have been pardoned. To this extent, the suspension of executions has been beneficial but – and it is a big but – the future in Illinois seems to be concerned with improving the death penalty not removing it. In May 2002, Parris Glendening, Governor of Maryland, also announced a moratorium on executions13 until the research he had commissioned had been completed and reviewed. The research commissioned of the University of Maryland14 has now been completed and, ‘While criminologist Ray Paternoster found that the race of the defendant was not significant in death penalty-eligible cases, the race of the victim proved a major factor in determining whether prosecutors sought the 12 13 14

Chicago Tribune, 11 January 2003. State of Maryland, Governor’s Press Office, www.gov.state.md.us/gov/press/may/html/ baker.html. R. Paternoster and R. Brame, ‘An Empirical Analysis of Maryland’s Death Sentencing System with Respect to Race and Legal Jurisdiction’ (University of Maryland. 2003), www.urhome.umd.edu/newsdesk/pdf/exec.pdf (Executive Summary) and www.urhome. umd.edu/newsdesk/pdf/finalrep.pdf (Final Report).

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death penalty and furthermore, the race of the victim and offender taken together showed significant differences. Prosecutors filed death notices, indicating their intent to seek the death penalty, in almost 1/2 of the homicides where a black defendant killed a white victim, but only in about a quarter of all other homicides.’15 The findings confirm Glendening’s principal concern of racial and prosecutorial disparity. In the 1960s, executions in the United States were halted de facto and between 1972 and 1976 there was a de jure halt to executions.16 On that occasion, we know that the death penalty system was ‘fixed’, not abolished. Many countries, of course, go through periods of de facto abolition before they proceed to eliminate the death penalty from their statute books – though to describe the status of such countries as de facto abolitionist is misleading, and it would be more correct to describe their status as having suspended executions as in general the rest of the panoply of death penalty legislation continues. This type of suspension should be considered only as a last resort as politicians are already past masters at the art of delay and prevarication and one should not be in the business of providing formal opportunities to justify further delay. What is important is that the moratorium not become a goal in itself, and that it be continually presented – by abolitionists, at any rate – as a step towards total and permanent replacement of capital punishment. Even more desirable, where possible, would be to obtain the suspension of the entirety of the death penalty process while the raft of changes to legislation and infrastructure is put in place to prepare society for a life without capital punishment. This in essence is the approach the Council of Europe institutes in those states seeking membership. Deterrence Deterrence claims for the death penalty make occasional appearances in the academic literature and more often in the rhetoric of activists and politicians who favour capital punishment, prompting equally illinformed rebuttals from the anti-lobby. Most informed debate has put the deterrence justification on one side because it provides more heat than light and is essentially a distraction and a political ploy that serves only to raise the hopes of an electorate fearful of crime who are receptive to any solutions on offer. 15 16

Associated Press, 7 January 2003. For further discussion of the moratorium approach in this era, see H. Haines, Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972–1994 (New York: Oxford University Press, 1996).

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In Roger Hood’s words, ‘the issue is not whether the [death penalty] deters some people, but whether, when all the circumstances surrounding the use of capital punishment are taken into account, it is a more effective deterrent than the alternative sanction: most usually imprisonment for life or very long indeterminate periods of confinement’ (p. 1, para. 2). He ‘conclude[s] that econometric analyses have not provided evidence from which it would be prudent to infer that capital punishment has any marginally greater deterrent effect than alternative penalties’ (p. 6, para. 23), and that ‘[i]t is futile therefore for such states to retain the death penalty on the grounds that it is justified as a deterrent measure of unique effectiveness’ (p. 6, para. 27).17 Even so, the issue of deterrence is frequently raised by governments to support their retentionist position, and the evidence most frequently relied on is based on Isaac Ehrlich’s18 work usually without any reference to the many authoritative refutations of his findings and methodology. Ehrlich set out to refute earlier studies by criminologist Thorsten Sellin, who had argued that his research showed that the death penalty is no better a deterrent to murder than life imprisonment. Ehrlich’s work, which attempts to present ‘a systematic analysis of the relation between capital punishment and the crime of murder’, uses sophisticated economic statistical analysis to come 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 over other punishments. More recent and as yet not validated research claiming to demonstrate strong deterrent effects includes that of Hashem Dezhbakhsh, Paul Rubin and Joanna Shepherd,19 who argue that their results suggest that capital punishment has a strong deterrent effect, and that each execution results on average in eighteen fewer murders. An increase in any of three probabilities – arrest, sentencing or execution – tends to reduce the murder rate. They claim to have improved and expanded upon the model designed by Ehrlich in the 1970s. On the other hand, John Sorenson, Robert Wrinkle, Victoria Brewer and James 17

18

19

R. Hood, ‘Capital Punishment, Deterrence and Crime Rates’, Seminar on the Abolition of the Death Penalty, Kiev, 28–29 September 1996, Council of Europe Parliamentary Assembly, Doc. AS/Jur (1996) 70. Isaac Ehrlich, ‘The Deterrent Effect of Capital Punishment: A Question of Life and Death’ (1975) 65 American Economic Review 397–417, http://wings.buffalo.edu/ economics/ehrlich aer 1975.pdf. Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd, ‘Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-Moratorium Panel Data’, Department of Economics, Emory University, January 2002, http://userwww.service. emory.edu/∼cozden/Dezhbakhsh 01 01 paper.pdf.

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Marquart examined executions in Texas between 1984 and 1997, speculating that, if a deterrent effect were to exist, it would be found in Texas because of the high number of death sentences and executions within that state. Using patterns in 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 unrelated to felony rates.20 From my experience, reliance on this justification is usually short-lived once the concerns of methodology and interpretation raised by the research are dealt with. This, coupled with the realisation that most deterrence research is conducted about the paradigm offence of murder when, for example, in Taiwan there are 157 offences that attract the death penalty, leads to a realisation that reliance on the deterrence justification is based more on hope than evidence. Any lingering doubts about the putative deterrent benefits are soon dispelled when introduced to the evidence of the multiple inherent flaws in the administration of the death penalty revealed by the US research. A deeper appreciation of the issues and the research generated by the deterrence debate is provided by Bailey and Peterson21 in Hugo Bedau’s The Death Penalty in America: Current Controversies, Roger Hood’s The Death Penalty: A Worldwide Perspective and William J. Bowers and G. L. Pierce,22 whose study using Ehrlich’s methods model did not find any deterrent effect. Judge/jury sentencing in capital trials Justice Harry Blackmun of the United States Supreme Court tried for decades to fine-tune the death penalty in order to make it compatible with the Constitution. In his last judgment before retirement, he announced that he would no longer ‘tinker with the machinery of death’, and that the incremental reforms that he had fought for so hard could not eliminate the fundamental inequalities and injustices of capital punishment.23 The two most recent examples of ‘tinkering’ are provided by the US Supreme Court’s judgments in 2002 on jury sentencing in capital trials 20

21

22 23

John Sorenson, Robert Wrinkle, Victoria Brewer and James Marquart, ‘Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas’ (1999) 45 Crime and Delinquency 481–93, http://www.deathpenaltyinfo.org/deter.html. W. C. Bailey and R. D. Peterson, ‘Murder, Capital Punishment, and Deterrence: A Review of the Literature’ in Hugo Adam Bedau (ed.), The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997). William J. Bowers and G. L. Pierce, ‘The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment’ (1975) 85 Yale Law Journal 187–208. Callins v. Collins, 510 US 1141 (1994), at p. 4 (slip opinion).

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and exempting the mentally impaired from execution. The Atkins v. Virginia judgment concerns mental impairment24 and is addressed under that heading below. The other case, Ring v. Arizona on judge/jury sentencing,25 decided on 24 June 2002, was immediately hailed by the abolitionist movement as a victory and yet another indication of the changes that they claim are taking place in the jurisprudence of the Supreme Court. The effect of the latter decision is that all death row inmates sentenced by judges not juries26 will have their death sentences reviewed. Similar effects will be felt in a number of other states where judges have the authority to override the sentence recommended by the jury, the crucial decision here being an override from the alternative life sentence to a death sentence.27 Given the history and controversy surrounding jury selection in capital cases, it is difficult to understand at first glance how this judgment can be construed as positive by those opposed to capital punishment. Death-qualified, prosecution-friendly jurors would hardly seem to represent the most balanced and objective group of individuals in which to invest decisions of life and death. However, Professor Liebman of Columbia University Law School is of the view that the evidence available indicates that ‘[t]here is quite general agreement that over time and over geography, the likelihood of getting a death sentence is greater from a judge than from a jury’. It will be some time before the implications of the Ring v. Arizona judgment are apparent. Wrongful conviction and execution of the innocent ‘No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real’, wrote Justice Thurgood Marshall in the celebrated Furman case in 1972. ‘We

24

25

26

27

Atkins v. Virginia considered whether executing those with mental retardation offends society’s ‘evolving standards of decency’ and thus violates the Eighth Amendment’s ban on cruel and unusual punishment. See http://www.deathpenaltyinfo.org/ supremecourt.html. Ring v. Arizona (01-488), 200 Ariz. 267, 25 P 3d 1139, reversed and remanded. This case decided the constitutionality of whether a judge, rather than a jury, should decide the sentence in a death penalty case. On 24 June 2002, the Supreme Court on a 7–2 vote decided that sentencing by a judge in capital cases was a violation of the Sixth Amendment to the US Constitution, which provides for the right to a jury trial. In Arizona, Colorado, Idaho, Montana and Nebraska, a judge or panels of judges is responsible for determining whether there were aggravating circumstances that warranted a death sentence. In Alabama, Delaware, Indiana and Florida, a hybrid system exists under which juries advise on a sentence but the judge determines it. Indiana moved to a jury-only system on 1 July 2002. See Wall Street Journal, 25 June 2002.

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have no way of judging how many innocent persons have been executed, but we can be certain that there were some.’28 During the Parliamentary debate on restoration of the death penalty in the United Kingdom, in 1994, Home Secretary Michael Howard explained that he had consistently voted for capital punishment, but that he had changed his mind. Referring to celebrated miscarriages of justice cases, such as that of the Birmingham Six, he said that ‘the fault lies not in the machinery but in the fallibility and frailty of human judgment’.29 The earliest effort in the United States to identify cases in which the innocent were executed (or nearly executed) was conducted in 1912 by the American Prison Congress.30 After devoting almost a year to this task, it concluded that there were no such cases. Over the years, several academic studies of wrongful convictions have been carried out.31 A classic case – but only one of many – is that of Walter MacMillian, an African-American who was tried, convicted and sentenced to death for the murder of an eighteen-year-old white woman in Monroeville, Alabama, in 1986. MacMillian was a likely target for a zealous prosecutor in a hostile community anxious that the crime be punished, as he had a white girlfriend and his son had married a white woman. The Alabama authorities held him on death row prior to trial, an unprecedented step. The only evidence against him was provided by three witnesses, all known to the police, and all of whom had received favours from the prosecutors in exchange for their testimony. MacMillian had an alibi defence with witnesses to prove it. But Alabama’s determination to get a conviction prevailed, and MacMillian was duly condemned to death, the trial judge overruling a jury recommendation that he be sentenced to life in prison. Four and a half years and seven Alabama executions later, Bryan Stevenson, Attorney and Director of the former Alabama PostConviction Defender Organization, took on MacMillian’s case and, in so doing, the whole of the Alabama legal community. The three witnesses, including the only eyewitness, recanted their testimony, stating that they had been pressured by the prosecutor to implicate MacMillian. It was also discovered that the prosecutors had withheld evidence, which would have exonerated MacMillian. Finally, the authorities agreed that 28 29

30 31

Furman v. Georgia, 408 US 238 at 367–8 (1972). This is an edited extract of Michael Howard’s speech in the debate concerning the restoration of the death penalty in the House of Commons, Criminal Justice and Public Order Bill, 21 February 1994, Hansard, cols. 45–6. Gault, ‘Find No Unjust Hangings’ (1912–13) 3 Journal of the American Institute of Criminal Law and Criminology 131. E. M. Borchard, Convicting the Innocent (New Haven: Yale University Press, 1932); M. Hirschberg, ‘Wrongful Convictions’ (1940) 13 Rocky Mountain Law Review 20–46; and R. C. Donnelly, ‘Unconvicting the Innocent’ (1952) 6 Vanderbilt Law Review 20–40.

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a grave mistake had been made, and Walter MacMillian was released on 3 March 1993. The important research of Bedau, Radelet and Putnam identified 416 cases in which the wrong person had been convicted and sentenced to death in the United States between 1900 and 1991. By the time of publication of their book in 1992, sixty-six more wrongful convictions had been confirmed. According to their research, twenty-four death sentences were actually carried out on the wrongfully convicted.32 Their research indicates that the two most frequent causes of error have been perjury by prosecution witnesses and mistaken eyewitness testimony, followed by what they describe as ‘community passion’ roused against vulnerable defendants and, finally, failures in police work and overzealous prosecution. Much of this pioneering miscarriage work was overlooked during the 1980s and early 1990s, and it is only recently that the issue of possible innocence has taken centre stage, largely as a result of recent advances in DNA technology. By July 2002, 101 condemned men and women had had their death sentences overturned since the resumption of executions in 1976. Despite its many shortcomings, the United States justice system is among the most sophisticated in the world. Thus, the possibility of wrongful conviction, whose virtual inevitability is now being demonstrated with the help of modern science, is surely also present, and probably more present, in less developed justice systems. If it has proved impossible to put in place a legal system that is without flaws, then we must decide whether the mistakes that it makes are acceptable to society. The balance of ‘moral advantage’ and ‘moral disadvantage’ articulated by Professor van den Haag33 may be acceptable and even unavoidable when contemplating the generality of offending and offenders, but surely it is not at all acceptable when the mistake leads to either the wrongful conviction or the execution of an innocent person. Racial discrimination There is a great deal of literature dedicated to the issue of racial disparity in the application of the death penalty in the United States, but little or 32 33

See preface to the revised edition of M. Radelet, H. A. Bedau and C. Putnam, In Spite of Innocence (Boston: Northeastern University Press, 1995). ‘Unless the moral drawbacks of an activity or practice, which include the possible death of innocent bystanders, outweigh the moral advantages, which include the innocent lives that may be saved by it, the activity is warranted.’ E. van den Haag and J. P. Conrad, The Death Penalty: A Debate (New York: Plenum, 1983).

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no data on this topic from death penalty jurisdictions elsewhere in the world. There is certainly no shortage of evidence, anecdotal and even scientific, for the presence of racism in the administration of justice in many parts of the world but as with wrongful conviction it may be that this research still needs to be done and if that is the case there are some obvious candidate countries such as South Africa, Australia and New Zealand where there is evidence of the disproportionate number of black South Africans and aboriginals being subject to prosecution.34 Other countries where examples of ethnic and/or religious disparities may exist are Singapore, Malaysia, Indonesia, Trinidad and Tobago and Sri Lanka. Here too, research in the American ‘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 of the United States – the really damning conclusion, and one that appears to be uncontested in the literature, is that the justice system in the United States is skewed by the race of the victim.35 In other words, the murderer of a white victim is far more likely to receive a death sentence than the murderer of an African-American victim. The issue of racism in the United States death penalty system has dominated the case law of the US Supreme Court. In two cases within the past three decades, the Court has come within a hair of judicial abolition. In 1972, in Furman, the Court invalidated virtually every death penalty statute in the country, by holding that capital punishment was being applied in an arbitrary and capricious manner.36 A few years later, it outlawed the use of capital punishment for rape.37 Many damning studies had indicated the role of racial bias in rape prosecutions;38 Amnesty International reported that 89 per cent of those executed for rape between 34

35 36 38

See I. Potas and J. Walker, Trends and Issues in Crime and Criminal Justice: No. 3, Capital Punishment (Canberra: Australian Institute of Criminology, 1987), note 3, discussing the Sydney Morning Herald, 1 March 1985, which stated that in 1984 ‘of those executed in South Africa, 2 were white, 87 black, 24 coloured and 1 Indian’. See http://www.aic.gov.au/publications/tandi/ti03.pdf. This is confirmed by Amnesty International, When the State Kills: The Death Penalty v. Human Rights (London: Amnesty International, 1989), p. 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. D. C. Baldus, G. G. Woodworth and C. A. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston: Northeastern University Press, 1990). 37 Coker v. Georgia, 433 US 584 (1977). Furman v. Georgia, 408 US 238 (1972). E. Johnson, ‘Selective Factors in Capital Punishment’ (1957) 35 Social Forces 165–9.

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1930 and 1967 were black.39 In 1986, the Supreme Court considered the case of prosecutors who systematically strike blacks from jury panels, ruling this to breach the right to a fair trial.40 This compelling statistical evidence formed the basis of a challenge to the death penalty in McCleskey. Although the Supreme Court conceded evidence of racism, it said this was simply a fact of life of American justice, and that, if it called into question the death penalty, it would ultimately condemn the entire judicial system.41 The vote to dismiss the application was very close – five judges to four – and one member of that majority, Justice Powell, later recanted. More recent evidence suggests that racism continues to plague the administration of the death penalty. The comprehensive study conducted by David Baldus and colleagues between 1996 and 199842 examined a large sample of murders which were eligible for the death penalty in the state of Pennsylvania between 1983 and 1993 and found that, even after controlling for case differences, African-Americans in Philadelphia were substantially more likely to get the death penalty than non-blacks who had committed similar murders. Black defendants faced odds of receiving a death sentence that were 3.9 times higher than other similarly situated defendants. What this study identified that was different from earlier racial disparity research was that there was a race-of-defendant factor separate from the race-of-victim factor, though a combination of a black defendant and a non-black victim still recorded the largest disparity. Another piece of research that might throw some light onto the causes of this persistent racial disparity was conducted by Jeffrey Pokorak,43 who amassed data relating to the race and gender of all lawyers authorised to prosecute capital cases in the thirty-eight states with the death penalty. His findings reveal that 98 per cent of attorneys are white and almost all are male. Further evidence of racial disparity is to be found within the administration of the federal death penalty where minorities are over-represented at every stage.44 Racial discrimination is one of the great human rights 39 40 42

43 44

Amnesty International USA, The Death Penalty (1987), p. 11. 41 McCleskey v. Kemp, 107 S. Ct 1756 (1987). Batson v. Kentucky, 476 US 79 (1986). D. C. Baldus, G. Woodworth, D. Zuckerman, N. Weiner and B. Broffitt, ‘Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia’ (1998) 83 Cornell Law Review; and Death Penalty Information Centre, www.deathpenaltyinfo.org. J. Pokorak, ‘Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors’ (1998) 83 Cornell Law Review 1811–20. ‘The Federal Death Penalty: A Statistical Survey (1988–2000)’. This report was released in September 2000. Full details can be found at www.usdoj.gov/dag/pubdoc/ dpsurvey/.

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issues of our time. A legacy of colonialism and slavery, it continues to manifest itself in the often violent ethnic conflicts that have proliferated in Europe, Africa and elsewhere in recent years. Juvenile executions A theme in the international debate on capital punishment has been its imposition on juveniles, or rather for crimes committed by juveniles. The fourth Geneva Convention of 1949, which is the earliest international standard to address the issue, prohibited the imposition of the death penalty on civilians in an occupied territory for crimes committed by persons under the age of eighteen. The International Covenant on Civil and Political Rights, adopted in 1966, prohibited the general application of the death penalty to all juvenile offenders. The norm was reaffirmed in the Convention on the Rights of the Child, adopted in 1989. In 2000, the United Nations Sub-Commission on Human Rights said that the prohibition was a rule of customary international law. The prohibition of juvenile executions is a corollary of the more general principle that young people should be treated differently, and with more clemency, by criminal justice systems. Juveniles lack the emotional and intellectual maturity to analyse and control their behaviour. They also suffer from an acute lack of awareness of the full consequences of their conduct and this intellectual and emotional myopia is accompanied by an invincible sense of self. The young rarely, if ever, contemplate death – death by execution could not be a more remote possibility to the juvenile offender – and the objectives of retribution and deterrence are difficult to achieve when applied to juvenile offenders. In a 1990 publication, Amnesty International reported that six states had executed juvenile offenders in the previous decade: Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States. But, one by one, during the 1990s, this number declined, until by the beginning of the new millennium only two or perhaps three states were still associated with it. Some states indicated their reluctance to abandon the practice, but said they had no choice given the international norm. Today, only one country in the world, the United States, continues to assert its belief in the value of executing persons for crimes committed while under the age of eighteen. Pakistan abandoned the practice in 2002,45 and, while Iran and the Congo are also reported to have sentenced juveniles to death, their sentences appear to have been commuted or the practice has been officially denied. At a recent meeting of the 45

In Pakistan, the Enforcement of the Juvenile Justice System Ordinance 2002 was implemented in June 2002, whereupon seventy-four juveniles had their death sentences commuted to life imprisonment. Pakistan News, 6 June 2002.

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United Nations Committee on the Rights of the Child, the United States reaffirmed its position with respect to the death penalty for juveniles – a position which puts it in the company of Somalia46 – but it took the opportunity at this meeting to sign the Convention with an intention to ratify it as soon as practicable. Attempts to challenge the execution of juveniles on constitutional grounds were rejected by the United States Supreme Court in 1989 in Stanford v. Kentucky,47 although some grounds for optimism were provided in 2002 by three Justices who dissented in the case of Toronto Patterson, a juvenile before the Court. Justices Stevens, Breyer and Ginsburg urged the court to reconsider allowing juveniles to be sentenced to death.48 The mentally impaired and the mentally ill The prohibition on capital punishment of the insane appears to be a universal one, and there is no evidence in recent times of any country knowingly carrying out the death penalty in such cases. The norm’s general acceptance is reflected by its inclusion in the United Nations ‘Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty’.49 It is therefore a norm of customary international law that the insane may not be executed.50 There is less evidence of a prohibitive norm in the distinct though related categories of the mentally impaired.51 International instruments concerning mental disability and the death penalty were first adopted by the UN Economic and Social Council (ECOSOC) in May 1984,52 and provided that the sentence of death shall not be carried out on persons who have become insane. On 24 May 1989, ECOSOC adopted by consensus a resolution which urged UN member 46

47 48 50

51

52

According to the UNHCHR website, http://www.unhchr.ch/pdf/report.pdf, as at 17 June 2002, out of the 193 nations recognised by the United Nations, 191 have signed and ratified the Convention on the Rights of the Child since 1990, with the exception only of the US and the collapsed state of Somalia, which currently has no recognised government and cannot therefore move to the ratification process. However, Somalia did sign the Convention on 9 May 2002 at the UN Special Session on Children and intends to ratify it. See http://www.un.org/ga/children/somaliaE.htm. Sanford v. Kentucky, 492 US 361 (1989). 49 ESC Res. 1984/50 Toronto M. Patterson v. Texas, 536 US 1811 (2002). William A. Schabas, ‘Execution of the Insane, A Customary Norm of International Law?’ (1992) 3 Criminal Law Forum 95; D. J. Broderick, ‘Insanity of the Condemned’ (1979) 88 Yale Law Journal 533–64. ‘Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty’, ESC Res. 1989/64. See also ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1994/7, para. 686; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1998/68, para. 117. Safeguard 3 of Resolution 1984/50 on Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, adopted by ECOSOC on 25 May 1984.

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states to take steps to further strengthen the safeguards guaranteeing the rights of prisoners facing the death penalty. Resolution 1989/64 recommends, inter alia, ‘eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution’. On 20 June 2002, the US Supreme Court ruled in Atkins v. Virginia53 that the sentencing of the mentally impaired to death was a violation of the Eighth Amendment protection against cruel and unusual punishment.54 The Atkins judgment, while laying down some criteria for the identification and assessment of mental impairment, left it to individual states to establish procedures. The judgment effectively reversed a 1989 decision of the same Court. The judgment has implications for those twenty states of the US that provide no exemption for the mentally impaired. It is of interest to note that Justice Sandra Day O’Connor joined the majority, thus reversing her position in Penry in 1989. Penry, whose execution was overturned in 1989 and 2000, was recently re-tried in Texas, and leaves one in no doubt as to how prosecutors and jurors in Texas interpret the Supreme Court’s judgment in Atkins – they sentenced Penry to death for the third time on 3 July 2002. At the time of the 1989 Penry decision, only two states exempted the mentally impaired from the death penalty but, since then, sixteen additional states have enacted similar legislation.55 The Justices in Atkins construed that this signalled the emergence of a national consensus – a view supported by a host of public opinion soundings in recent years. Public opinion versus public education Without exception, governments and others in positions of influence refer to strong public support for the death penalty as one of the justifications for retaining it. I have never found it particularly helpful, when consulting with governments in death penalty states, to dwell too long on this issue, preferring instead to stress the importance of raising public awareness and understanding about a penalty on which it has come to rely and, moreover, one it has every reason to believe is effective in reducing serious crime – an exercise in reassurance. 53 54 55

Atkins v. Virginia (00–8452), 260 Va 375, 534 SE 2d 312, reversed and remanded. The Eighth Amendment to the US Constitution provides that: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ These states have enacted legislation prohibiting the execution of the mentally retarded: Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York (except for murder committed in prison), North Carolina, South Dakota, Tennessee, Washington and the federal statute.

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Another way to approach this issue of ‘beliefs’ and the death penalty is to ascertain what measures ‘the public’ considers effective in the battle against serious crime. An example of such an approach is a recent analysis undertaken by Market and Opinion Research International (MORI) of four social surveys conducted 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 per cent, 58 per cent and 54 per cent). In 2001, ‘better parenting’ was considered the most important measure with 55 per cent support. Capital punishment for murder was rated third with 38 per cent support in 1994 and third with 35 per cent support in 1996. By 2000, capital punishment was tied for fourth place with tougher institutions for young offenders, at 25 per cent, and in 2001 it had fallen to seventh place with 20 per cent.56 This is an approach that can be adopted not just with the general public but with those pivotal agencies that comprise the ‘machinery of death’ an example of which is the poll taken of police chiefs in the US57 who were of the opinion that the death penalty played little part in the fight against serious crime. Another approach is to construct educational initiatives as a vehicle for informing and reassuring rather than for converting, although there is some evidence that the more informed people are about the death penalty the less supportive they are of it. The approach of ‘consulting’ with the public in addition to having access to public opinion polls is not a new one but is perhaps one that has fallen into disuse during the modern debate about capital punishment. It was an approach utilised by a number of commissions in the 1950s and 1960s when Ceylon (now Sri Lanka) and the United Kingdom conducted rigorous examinations into the death penalty in their respective countries.58 The UK Commission referred to the debate on abolition in the House of Commons in July 1948 when the Attorney-General cautioned reliance on public opinion, urging that any reliance must be 56

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MORI crime and punishment polls of 1994, 1996, 2000 and 2001. In the 2001 poll, in rank order, better parenting (55 per cent), more police (53 per cent), better discipline in schools (49 per cent), more constructive activities for young people (40 per cent), introduction of a national identity card (29 per cent) and, in sixth place, more effective programmes to change behaviour (21 per cent). See www.MORI.com. Peter D. Hart Research Associates conducted a national opinion poll in January 1995 of randomly selected police chiefs in the United States, giving them the opportunity to express what they believe really works in fighting crime. The poll is available and discussed in R. Dieter, ‘On the Front Line: Law Enforcement Views on the Death Penalty’, Death Penalty Information Centre, February 1995, http://www.deathpenaltyinfo.org/ dpic.r03.html. The police chiefs surveyed considered the death penalty to be the least relevant factor in reducing violent crime. See http://www.deathpenaltyinfo.org/po.html. Royal Commission on Capital Punishment 1949–53, Cmnd 8932 (London: HMSO, 1953). For Ceylon, see ‘Report of the Commission of Inquiry on Capital Punishment’, Sessional Paper XIV–1959 (Government Press, Sri Lanka, September 1959).

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founded on the confidence that the public opinion under consideration is ‘well informed and instructed’.59 The Commission’s view was that, while politicians might be faced with the dilemma of political practicality and/or social wisdom of a course of action, it was the duty of the members of a commission of enquiry to concentrate on the social wisdom.60 The Council of Europe, the European Union and the United Nations The Council of Europe,61 based in Strasbourg, is dedicated to promoting human rights within Europe (and is not to be confused with the European Union, based in Brussels, whose historic objective has been economic integration). Until the early 1990s, the Council of Europe’s membership was confined principally to Western Europe, with the exceptions of Turkey, Greece and Cyprus. As the iron curtain fell, the Council embarked on a dramatic expansion that not only encompassed Eastern Europe but also pushed its limits deep into Asia. Capital punishment has been a central theme in the growth of the Council of Europe and in the admission of new member states. In terms of the development of strategies of abolition, there is much to be learned from the European experience. The Council was formed when the governments of ten nations62 met in London in May 1949 to establish the Council of Europe.63 Within sixteen months, the European Convention for the Protection of Human Rights and Fundamental Freedoms64 was adopted (4 November 1950); it subsequently came into force on 3 September 1953. Fifty years on, the Council now boasts a membership of forty-four65 nations and can truly be considered a pan-European organisation. Its 59 61

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63 64 65

60 Ibid., para. 21. Ibid., para. 19. The author wishes to acknowledge the work of all the contributors to The Death Penalty: Abolition in Europe, a collection of essays edited by Tanja Kleinsorge and Barbara Zatlokal (Strasbourg: Council of Europe Publishing, 1999) and thank them and the Council of Europe for allowing him to refer liberally to the original text. The founding member states were Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. Greece joined on 9 August 1949, Iceland on 9 March 1950, Turkey on 13 April 1950 and Germany on 13 July 1950. Council of Europe website, http://www.dhdirhr.coe.fr/intro/eng/GENERAL/intro.htm. (1955) 213 UNTS 221; ETS No. 5. With effect from 14 July 2002, there are forty-four member states in the Council of Europe: Albania, Andorra, Armenia, Azerbaijan, Austria, Belgium, Bulgaria, Bosnia and Herzegovina, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, San Marino, Slovakia, Slovenia, Spain, Sweden,

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objectives at the beginning of the twenty-first century are as relevant and as pressing as they were in 1949, as the ethnic wars in Croatia, Serbia, Bosnia/Herzegovina, Yugoslavia, Albania, Kosovo, Macedonia, Montenegro and Chechnya in the 1990s have demonstrated. The European Convention on Human Rights and the origins of the death penalty debate What distinguishes the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights [ICCPR]66 from earlier international instruments is that the death penalty is mentioned as a carefully worded exception to the right to life. The inclusion in Article 2 (right to life) of the ECHR, specifies the right of a state to impose capital punishment. It took another twenty years, until 1973, before a resolution on the abolition of the death penalty was tabled at the Parliamentary Assembly of the Council of Europe,67 and it was not until 1982 that the Committee of Ministers of the Council of Europe mandated its Steering Committee for Human Rights to ‘prepare a draft additional protocol to the European Convention on Human Rights abolishing the death penalty in peacetime’.68 Protocol 6 to the ECHR concerning the abolition of the death penalty was opened for signature in 1983 and entered into force in 1985. The issue of extradition to the US has put a strain on the alliance established in the aftermath of the attacks in Washington and New York on 11 September 2001 as the position of the European Union is unequivocal with respect to its position on not extraditing suspects to the US if the death penalty is pursued. The Council of Europe has been discussing the value of introducing a further protocol offering protection from the death penalty for several years, and the Parliamentary Assembly and the Council of Ministers finally opened Protocol 13 for signature at the Council of Ministers meeting in Vilnius, Lithuania, on 3 May 2002.69 Protocol 13 to the ECHR,70

66 67 68

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Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom. (1976) 999 UNTS 171, Article 6. See Parliamentary Assembly Document 3297 (1973). For a fuller discussion of the work of the Parliamentary Assembly, see Renate Wohlwend, ‘The Efforts of the Parliamentary Assembly of the Council of Europe’, in The Death Penalty: Abolition in Europe (Strasbourg: Council of Europe Publications, 1999), chapter 4. Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances. Doc. 9316, Committee on Legal Affairs and Human Rights, Special Rapporteur, Mrs Renate Wohlwend. The text of Protocol 13 is available on www.coe.int/cm/.

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concerning the abolition of the death penalty in all circumstances permits neither reservations nor derogations, was signed by thirty-seven of the forty-four member states on 3 May 2002, since when a further two states have signed and nine have ratified the Protocol, one short of the required number for the Protocol to enter into force.71 As soon as there are sufficient ratifications, Article 2 of the Convention will be re-drafted to exclude the wording that provides the exception to the right to life, thus consigning capital punishment to history. The sea change in Europe with regards to the death penalty will inevitably lead to broader, more protective interpretations of Article 3, Protocol 6 and Protocol 13. A problematic area for the Council of Europe is that of observer status, particularly as two of the states with observer status, Japan and the US, retain the death penalty, the latter being in the first division of countries that use it.72 On 25 June 2001, the Council of Europe Parliamentary Assembly adopted a resolution requiring Japan and the US to put a moratorium in place without delay and to take steps to abolish the death penalty. In addition, the Parliamentary Assembly also decided to question the continuing observer status of both countries should no significant progress be made by 1 January 2003.73 Abolition in Europe With little doubt, the greatest progress in the abolition of the death penalty in recent years has been in Europe, a continent that knew capital punishment’s worst abuses little more than half a century ago. In the postSecond World War trials, European governments indulged in a few years of executions of war criminals. Those in Western Europe soon lost their enthusiasm for the death penalty, although it is often forgotten that the last executions in France took place as recently as the late 1970s. 71

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Member states of the Council of Europe who have signed Protocol 13 to the ECHR are 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, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Ukraine and the United Kingdom. Those countries yet to sign are Albania, Armenia, Azerbaijan, Russia and Turkey. As of 15 March 2003, nine nations had ratified the treaty: Bulgaria, Croatia, Cyprus, Denmark, Ireland, Liechtenstein, Malta, Switzerland and Ukraine. Introductory Memorandum, ‘Abolition of the Death Penalty in Council of Europe Observer States’, Committee on Legal Affairs and Human Rights, Parliamentary Assembly AS/Jur (2000) 21. ‘Abolition of the Death Penalty in Council of Europe Observer States’, Doc. 9115, 7 June 2001.

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As a Council of Europe Expert on the death penalty, I have had the privilege of working closely with a number of member states (Lithuania, Latvia, Estonia, Russia, Ukraine, Albania and Armenia) and Belarus. The Council’s interventions on this issue have been conducted against the background of fragile democracies slowly emerging from beneath the yoke of more than half a century of Soviet domination, most of which were beginning to appreciate the freedom of this independence. This newly found freedom understandably made some of them hesitant when contemplating the early loss of sovereignty, which they believed would accompany a close association with the Council of Europe. Constitutional Courts played a pivotal role in the transition to abolition in a number of states (Lithuania, Albania and Ukraine) by revisiting the relationship between the right to life provision and the death penalty, and in Russia, where the court imposed restrictions on those states that did have a jury system. Latvia provided a salutary reminder to the UK of its untenable position within both the EU and the Council of Europe when one of the issues raised in their debate was that of the position of the United Kingdom, which, despite being a founder member of the Council of Europe, had still not signed Protocol 6 or repealed its residual legislation allowing for the death penalty: the delegates felt it was unfair to target Latvia when this anomaly existed within its founding membership (this was corrected in mid-1998).74 The position of the Russian Federation75 remains problematic, especially since the early days were marred by the discovery that, in the first half of 1996, fifty-three executions were carried out in Russia, a fact constituting a flagrant violation of her commitments and obligations. President Putin has made his position on the death penalty quite clear – he is opposed to it and insists that Russia will honour the obligations entered into when it acceded to the Council of Europe. His authority suffered something of a setback in 2002 when the Duma supported a motion to end the moratorium on executions, and legislation has now been passed authorising jury trials across Russia. Ukraine, admitted to the Council of Europe in September 1995, also failed to honour its obligations on a moratorium on executions, as was disclosed by Serhiy Holovatiy, Minister of Justice, during the closing 74

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On 20 May 1998, the United Kingdom’s House of Commons voted by 294 votes to 136 to incorporate into domestic law Protocol 6 to the ECHR. It was subsequently ratified on 20 May 1999. For a full description of the history of the death penalty in Russia and the former USSR, see Ger Pieter van den Berg, ‘Russia and the Commonwealth of Independent States’, in Peter Hodgkinson and Andrew Rutherford (eds.), Capital Punishment: Global Issues and Prospects (Winchester: Waterside Press, 1996).

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stages of a conference in Kiev in November 1996. The data on executions unearthed by the Council of Europe Rapporteurs came as a genuine surprise to Minister of Justice Holovatiy who roundly condemned the process that treated this information as a ‘state secret’, which meant that not even the Minister of Justice was informed. There followed a period of unemployment for Holovatiy, who now leads the Ukrainian delegation to the Council of Europe. The Council of Europe’s ‘obsession’ on the ratification of Protocol 6 is open to some criticism. Important as it may be, ratification of this instrument does not in and of itself indicate that the foundations of an effective and humane penal policy are in place. There is an apparent lack of debate about what penalty to impose as an alternative to death, and regrettably the indications thus far in research being conducted by the Centre for Capital Punishment Studies are that a significant minority of Council of Europe member states have opted for versions of the life sentence without the possibility of parole, which apart from any other shortcomings potentially puts those states into a position where extradition negotiations could be put at risk. Evidence for this is provided by Mexico, who will not extradite suspects to the US without securing an undertaking that the death penalty will not be imposed and that life sentences without the possibility of parole will not be imposed.76 Ongoing negotiations with the US Attorney General’s office begun in September 2002 reveal that the European Union is also considering extending its restrictions to extradition to include undertakings not to impose sentences of life imprisonment without benefit of parole.77 The European Court of Human Rights has never ruled on whether life imprisonment without the possibility of parole would fall foul of the prohibition on inhuman and degrading treatment or punishment in Article 3 of the European Convention on Human Rights. The successes of the Council of Europe are in great part due to the inducement of the significant rewards that follow accession, with even greater potential rewards in the future through membership of the European Union. Life without the death penalty has become the norm throughout Europe, with all forty-four member states having signed Protocol 6. Europe’s push for abolition has been taken up more recently by the European Union, whose membership is confined to fifteen of the richer states but whose expansion into the east is also projected. In contrast with the Council of Europe, whose approach is essentially introspective,78 76 78

77 Reuters, 5 September 2002. Chicago Tribune, 14 June 2002. Although the Council of Europe’s Parliamentary Assembly is threatening to expel the United States and Japan as observer states because they continue to impose the death penalty.

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the European Union has a genuine foreign policy. It is focused on the promotion of human rights, with abolition of capital punishment as one of its themes. The European Union has been active diplomatically in a wide range of death penalty jurisdictions, from the People’s Republic of China to the United States. It has even intervened in proceedings before the United States Supreme Court to oppose capital punishment.79 Enigmatic Asia Most of the world’s executions are carried out in Asia. This is perhaps understandable, as it is the continent where most of the world’s population lives. But there can be no question that moves towards replacement of the death penalty are least advanced on the Asian continent. Only a handful of Asian countries can be deemed truly abolitionist, and this has often been the result of international influence, such as in Cambodia and East Timor. We must also exclude the ‘European’ Asian states, that is, Australia, New Zealand and Israel, from the list. China alone, of course, executes more people than the rest of the world combined. Yet the country to make the greatest use of the death penalty per capita is Singapore. Visitors to several Asian countries are greeted as part of their entry formalities with endearing threats that drug traffickers may be executed. The Philippines In 1987, in reaction to the tyrannical Marcos regime, the Philippines became the first country in Asia to abolish the death penalty for all crimes. There was a constitutional loophole, however, and some years later high crime figures and pressure from the armed forces and the media led to its reintroduction. Legislators relied mainly upon the deterrence argument, claiming the fear of death by lethal injection would instil fear in potential criminals. President Joseph Estrada, a firm believer in the death penalty, acknowledged that there was poor legal representation in death penalty cases and admitted that there might be innocent people on death row.80 He seemed surprisingly concerned at the possibility of miscarriages of justice 79

80

See note 21 in Atkins v. Virginia, (00-8452). 260 Va 375, 534 SE 2d 312; and the Brief for United States Catholic Conference et al. as Amici Curiae in McCarver v. North Carolina, OT 2001, No. 00-8727, p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for the European Union as Amicus Curiae in McCarver v. North Carolina, OT 2001, No. 00-8727, p. 4. Manila Star Daily, 20 February 1999.

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and wrote to the Supreme Court to voice his fears. In December 2000, Estrada commuted all death sentences that had been imposed by the lower courts and imposed a moratorium on executions for one year. He then announced a congressional review of the implementation of capital punishment in the Philippines. This announcement affected over 1,200 death row inmates81 and was seen as a triumph for those opposed to capital punishment believing it to be an opportunity to demonstrate, as there was no evidence of a drop in crime, that the death penalty was not a successful deterrent. Following Estrada’s ‘resignation’ in early 2001, the country’s new President, Gloria Arroyo, announced a three-year moratorium on the death penalty.82 She chose to suspend all executions during her term of office – a decision some suggest that was influenced by the Church and her own beliefs.83 But in October 2001, Arroyo reversed her decision and ordered the immediate execution of up to ninety-five kidnappers once the Supreme Court had reviewed their sentences, announcing that executions would resume in August 2002. Arroyo stated that her sudden shift was influenced by recent police statistics, which had indicated an escalation in kidnapping offences during her term in office. The Manila-based Free Legal Assistance Group (FLAG)84 reports that over the past seventy years some 100 people have met their fate in the electric chair. They also report that two executions were aired live on television, one by electric chair and the other by firing squad.85 Between 1999 and 2000, seven people were executed by lethal injection.86 There were 1,007 people on death row in July 2002, of whom twentyeight were female. As we enter 2003, there is a suspension of executions awaiting the deliberations of a Senate motion to abolish the death penalty. Taiwan: preparing for abolition Edmund Ryden SJ staged a remarkably successful conference on the death penalty in Taiwan, sponsored by the Fujen Catholic University in June 2001, that brought together an authoritative group of interested actors (William Schabas and Michael Radelet, contributors to this 81 82 83 84 85 86

Reuters, Rick Halperin’s Death Penalty News, 10 December 2000. ‘Philippine Moratorium on Death Penalty for Three Years’, www.CWnews.com, 5 April 2001. Free Legal Assistance Group (FLAG) newsletter, April 2001. More information about FLAG can be found at www.wmin.ac.uk/ccps/aboutflag.htm. ‘Review of the Application of the Death Penalty in the Philippines 1994–1998’, by Free Legal Assistance Group. Leo P. Echegaray was the first person to be executed in twenty-three years for qualified rape on 5 February 1999.

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volume), including some international contributors. What was especially significant about this meeting was the range of domestic interests and expertise, covering such issues as Chinese culture, Christianity, Buddhism, legal and social issues, international law, public opinion, alternatives to the death penalty and strategies for replacing the death penalty.87 Edmund Ryden’s excellent conference consolidated what was obviously a well-informed and advanced debate about the death penalty. The context of this move by Taiwan towards abolition is the position of President Chen Shui-bian88 and Minister of Justice Chen Ding-Nan, who are both opposed to capital punishment and determined to see it removed from Taiwan. President Chen and the Democratic Progressive Party broke through the dominance that Chiang Kai-shek and his son had held on the politics of Taiwan. He had personal experience of the regime of martial law that dominated Taiwanese politics until its repeal in 1987, and remains alert to the fearful effects of totalitarianism in Taiwan’s very recent history and therefore has determined to ensure a wholesale reform of Taiwanese society and respect for human rights. In his Inaugural Address on 20 May 2000, President Chen said: ‘We are also willing to promise a more active contribution to safeguarding international human rights. The Republic of China cannot and will not remain outside global human rights trends. We will abide by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Vienna Declaration and Programme of Action. We will bring the Republic of China back into the international human rights system.’89 These are aspirations with which the Minister of Justice, Chen Ding-nan, concurs. Taiwan would appear to be a good example of a combination of ‘political leadership’ and ‘rejection of injustices associated with totalitarian regimes’ in Hood’s analysis referred to earlier. It is unlikely that the Judicial Yuan (Supreme/Constitutional Court) will be taking the lead in the process of replacing the death penalty through a fresh interpretation of the ‘right to life’ provision in the Constitution, as that Court has very 87

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Edmund Ryden SJ (ed.), Taiwan Opposes the Death Penalty (proceedings of the conference held at Fujen Catholic University, 24–26 June 2001). The conference was sponsored by the Department of Law and the John Paul II Peace Institute of Fujen Catholic University. This excellent contribution to an understanding of the death penalty is available from the university publisher at 24205 Hsinchuang, Taiwan (ISBN 957-0439-28-9). ‘President-elect Chen Shui-bian yesterday spelled out the possibility of abolishing Taiwan’s death penalty, adding that he would consider granting amnesty to the so-called “Hsichih trio” . . . During a meeting with Kaohsiung Cardinal Paul Shan yesterday, Chen responded positively to Shan’s plea to abolish the death penalty. He said that he expects Taiwan will end capital punishment as soon as relevant legislation is enacted.’ Irene Lin, Taipei Times, 29 April 2000. Taipei Times, 21 May 2000.

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recently addressed this issue in an appeal on a drug smuggling case – drug importation is one of the 157 offences that attract the death penalty in Taiwan – referred to it by the presiding judge at the trial. While holding that ‘people’s physical liberty and survival rights are expressly guaranteed by Articles 8 and 15 of the Constitution of the Republic of China’, the Court held that the broader society’s rights under Articles 8 and 15 to be protected from the harmful and life threatening effects of narcotics overrode the rights of the individual.90 However, there seemed to be a willingness to remain open to this issue, and certainly individuals within the Judicial Yuan had strong positions supporting the removal of the death penalty.91 Two factors seem to explain the positive developments in both the Philippines and Taiwan. First, in both countries the moves towards abolition are a result of political leadership at the highest levels, although there has been much wavering in the Philippines since Cory Aquino first eliminated capital punishment in 1987. Secondly, the developments are associated with a desire to break with the injustices of former autocratic regimes, where generous use of capital punishment was associated with a pervasive climate of political repression. China The biggest obstacle to progress in Asia remains the People’s Republic of China. Accurate statistics on use of the death penalty are not available, but the numbers of annual executions are always well into the thousands. Chinese authorities regularly indulge in collective and public executions as part of ‘strike hard’ campaigns against crime, including drug trafficking and fraud on public institutions. There is certainly no ambiguity in China’s apparent commitment to capital punishment as a deterrent, an argument repudiated by scientific research and abandoned by sophisticated retentionists elsewhere in the world. China has signed and is now preparing for ratification of the International Covenant on Civil and Political Rights. While the Covenant does not prohibit capital punishment outright, it imposes a number of limitations on its use, including the requirement that it be imposed only for the ‘most serious crimes’ and following trials that respect the most rigorous due process standards. This has provoked a renewed study of the question within China, although abolition still seems far from the national agenda. The question of the death penalty has since the late 1990s 90 91

Y. J. Interpretation No. 476 (29 January 1999). Irene Lin, Taipei Times, 25 June 2001.

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occupied a more visible position in the EU/China and UK/China human rights dialogues. Both editors of this volume are actively involved in this dialogue, having benefited from continuing meetings in Beijing and London. Frequently, Chinese jurists express their own dislike of capital punishment but then explain it is inevitable given widespread public support. This argument is often coupled to an argument that invokes the country’s state of economic development. With prosperity and development, attitudes will change and the time will become ripe for abolition. Ultimately, capital punishment is justified as the unavoidable legacy of a backward public. The approach, and the arguments, are not all that different from those used in the former Soviet Union barely a decade ago. This alone should be cause for optimism. The political process of ratification of the International Covenant – in which many international experts are involved – is in some ways similar to the ‘Helsinki process’ that ultimately brought reform to the Soviet bloc and, some say, its political and economic transformation. A similar development seems possible if not probable in China. Summary This chapter began by commenting on the dearth of objective, authoritative scholarship on the use of capital punishment worldwide and how important it is to develop a body of knowledge, which reflects and respects different country priorities and which also has relevance for the local debate. It has nonetheless proved necessary to return time and again to the US for the case law and academic research, which is currently incomparably sophisticated when compared to that of other jurisdictions. The debate influenced by the US experiences offers much to the student of capital punishment elsewhere in the world but is also a source of distortion. Most if not all death penalty commentators, be they academics or activists, have cut their teeth on data generated by the experience of the death penalty in the US, which has in turn shaped most of the strategies adopted worldwide by death penalty abolitionists. Some commentators go so far as to assert that the influence of the US is crucial to the success of abolitionist campaigns worldwide and that, once the death penalty has been removed from the US, then death penalty countries around the world will follow suit – the pack of cards theory.92 92

Roger Hood, ‘Capital Punishment: A Global Perspective’ (2001) 3 Punishment & Society 343–4.

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This analysis is problematic in at least two respects. First, there is little evidence that significant progress in replacing the death penalty in the US has been achieved given the huge resources available to the abolitionist cause. Secondly, the focus on the US has been made at the expense of progress in more receptive countries worldwide, an approach compounded by the fact that it is not only the resources of US activists being utilised but the resources of most death penalty campaigns around the world focusing on the US. This seems to be an inexcusable use of scarce resources. Since the death penalty in the US was restored through Gregg in 1976, seventy countries worldwide have removed the death penalty from their statutes and the stance of the US has never been an obstacle to certain ‘improvements’ in capital punishment, such as the virtual elimination of execution of juveniles everywhere else in the world. There are some signs that this outside pressure, be it from activists, lawyers or governments, could in fact be counter-productive. If there was ever any doubt about the impact of the interventions of the international community in the past, then surely there can be no doubt now during the presidency of George W. Bush, whose administration looks set to adopt an increasingly isolationist and unilateral stance vis-`a-vis world affairs, and the implications for domestic progress on the death penalty, following the mid-term successes of the Republicans in November 2002, do not look optimistic. Putting aside the US domestic abolitionist industry, let us consider whether better use could be made of the energies of the activists working with the remaining 82 per cent of the world’s population that live under the death penalty. Whilst this should not preclude continuing to offer support to abolitionists in the US, account should be taken of the fact that the US, the richest country on the globe, is awash with lawyers and activists campaigning against the death penalty. One has to question the prudence of continuing the disproportionate and largely ineffective allocation of resources to supporting abolition there and the wisdom of the uncritical adoption of US data and strategies in worldwide campaigns. As mentioned earlier, there is no convincing evidence that the wholesale importation and application of US models has any benefits for campaigns in the broader world community other than its importance in continuing to provide the most up-to-date evidence of all that is flawed about the administration of the death penalty. Of greater value is being able to refer to the experiences of the increasing numbers of countries where the death penalty has been replaced or replacement is under consideration. The experiences of ‘relevant others’ is of far greater value than being assailed with the data and experience

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of the US or even of the long-standing abolitionist countries in Western Europe. This chapter has highlighted a number of issues where experience in the US resonates elsewhere in the world and is helpful in that it underscores the evidence that even in the most richly resourced legal system on the planet profound errors persist in the criminal justice system. The danger of convicting the innocent, for example, is likely to be even more acute in countries with less-developed judicial systems and fewer procedural safeguards. Racism has its own peculiar dimensions in the US, but as a phenomenon there must invariably be echoes in other countries of pervasive racism in the administration of capital punishment. The US and most other retentionist countries share an insistence upon the importance of public opinion and, while US retentionists and government officials dress this up as ‘democracy’, others grudgingly and apologetically refer to a backward and under-developed public. Some in the moratorium movement argue that fear of an outright suspension of executions, as in Illinois and Maryland, has given the moratorium movement the leverage to extract ‘improvements’ from state legislatures on such issues as mental illness, mental retardation, juveniles, DNA testing, effective legal representation and any other of the ‘problems’ that need ‘fixing’. Hugo Adam Bedau, arguably the most influential thinker and activist in the abolitionist debate in the US, has for many years cautioned the abolitionist movement about the inherent danger in the ‘fix it’ approach to abolition. The questions he raises are fundamental to the development of abolitionist strategies. They are important pointers to the premise on which individuals and groups base their opposition to capital punishment. It is often suggested that support for the death penalty is a kilometre wide and a centimetre deep. I believe a similar assessment can be made of ‘abolitionists’. A very recent example from the US, which illustrates this point, was the execution of Timothy McVeigh for his part in the Oklahoma City bombing.93 If the opinion polls conducted at the time among populations of professed abolitionists are to be believed, many supported his execution on the ground that this was an ‘exceptional’ case 93

For details, see Simon Jeffery, ‘The Execution of Timothy McVeigh’, Guardian, 11 June 2001. Timothy McVeigh was convicted and sentenced to death in 1997 for the murder of 168 people in the 1995 bombing of the Alfred P. Murrah federal building in Oklahoma City. He was executed by lethal injection on 11 June 2001. The Opinion Editorial, ‘Should America Kill the Oklahoma Bomber?’, Economist, 10 May 2001, argues that McVeigh has caused many abolitionists to support his execution by subsequently showing no remorse for the victims and referring to the nineteen children under six years who were killed as ‘collateral damage’, and that McVeigh’s case ‘might have been designed to test the faith of abolitionists everywhere’.

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and an ‘exceptional’ offence.94 This type of abolitionism is perhaps an inevitable product when opposition to the death penalty is restricted to some injustice in its administration, usually characterised by such concerns as prosecutorial bias, ineffective assistance of counsel, race, mental illness, mental impairment, youth, physician participation and mode of execution. The ‘abolition’ activities concentrate on a particular concern and, once corrected, cease. Can one really describe such an approach as abolitionist? My view is that we cannot. Professor Bedau’s point, that there is an inherent danger to such an approach, in that it runs the risk of consolidating what remains as satisfying a general consensus of acceptance, if only by default, has much validity. While Bedau believes that the ‘rump’ death penalty that remains after this incremental erosion greatly weakens any support for it on the grounds of deterrence and retribution, there is the greater danger that such an approach could considerably delay the process of replacing the death penalty for all crimes in all circumstances and is in any event achieved at the expense of unacceptable compromises. Such a piecemeal approach offers governments an opportunity for delay in confronting the total removal of the death penalty. Any remote hopes that we might identify through the contributions to this volume a blueprint for the removal of capital punishment were quickly put aside as it became obvious to us, as it had to many before us, that this is an issue that does not lend itself to a single analysis and solution. An issue that activists have to consider is whether a predominantly litigation-based strategy is the most effective approach. One assumes that there is no dissent from the proposition that decisions to remove the death penalty need to be enshrined in legislation, be that in criminal codes or in the constitution, and that the strength of the intention to move towards abolition can be demonstrated by one’s adherence to the limitations and protections offered by international law. The challenge for those opposed to capital punishment is how to support governments in getting to this position. The position of those Commonwealth Caribbean countries that retain the death penalty in 2003 offers a cautionary tale to those who believe that the only route to abolition is one paved with successful litigation. Julian Knowles in his chapter on the Caribbean Commonwealth provides a detailed catalogue of the successful litigation mounted largely by the UK legal community over the last decade which has been accompanied by a series of retaliatory measures by the administrations of a 94

Alexander Chancellor, ‘Paying the Penalty’, Guardian, 18 May 2001.

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number of countries in the region, most notably Trinidad and Tobago. Some have questioned the wisdom of pursuing an abolitionist strategy based solely on litigation, believing that following a period of thwarted executions, provoking ill-conceived retaliations by the authorities, the worm would turn. In 2002, this indeed happened and discussions about constitutional amendments are at an advanced stage in Belize, Barbados, Trinidad and Tobago and Jamaica – the effects of which could potentially overturn the legal protections secured over this past decade. Even Jamaica has joined this ‘movement’, despite not having carried out any executions since 1988 – a fact I suspect that is more to do with domestic factors than London-based lawyers. Parallel to, and no doubt coupled to, these proposed constitutional changes, is the imminent arrival of the frequently mooted Caribbean Court of Appeal which, once established, will assume responsibility for a raft of legislation formerly the purview of the London-based Judicial Committee of the Privy Council. Ironically, the successes of litigation could have been responsible for delaying the timetable to replace the death penalty. The example of Jamaica provides an interesting challenge for abolitionists. To begin with, why have there been no executions for fourteen years, when neighbouring countries have been active executioners, and what has brought about this current resurgence of political will to resume executions, apart from the obvious electoral benefits that flow from the adoption of a populist draconian law-and-order platform including capital punishment? How does Prime Minister Patterson effectively respond to a truly enormous problem of serious crime, as I am confident that he is only too aware that resuming executions of the fifty-one condemned persons will have no discernible effect on combating serious violent crime in Jamaica? And by the same token can abolitionists assure him that removing the death penalty will solve his crime problem?95 I doubt it. Many of my observations on strategies are based on experiences drawn from working with the administrations of many countries and the intelligence gained from discussions with those for and against the death penalty. There are a number of issues common to most countries in setting out their stall against abolition, and one of these is that being opposed to abolition does not necessarily indicate support for the death penalty. The clearest manifestation of that is the politician who is personally opposed but who is reluctant, or perhaps ill equipped, to confront the issues raised by a largely pro-death penalty community. If the rumours 95

The figures for December 2002 show that nearly 1,000 murders had been committed thus far in 2002 and that some 230 of these are suspected to be vigilante in origin. Additionally, some 150 killings of suspects by police officers had been recorded by the end of November 2002: see www.wmin.ac.uk/ccps.

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are to be believed, key politicians and decision-makers in the Commonwealth Caribbean are personally opposed to the death penalty, which in the case of Jamaica may explain the fourteen-year drought of executions. The same could be said of Malawi, South Korea and Taiwan, where the Presidents are openly opposed to capital punishment, and in the case of Malawi the President has stemmed executions for the past decade. It could be that the most pragmatic approach in such de facto abolitionist countries is to do nothing to revive the debate – to leave well alone. However, the absence of executions provides an opportunity to engage dispassionately about such issues as infrastructure changes, victim services, public awareness and effective responses to serious violent crime (i.e. alternatives to the death penalty) without expressly focusing on the death penalty. While this debate has to be engaged with the general public, opinion-makers and governments, the priority focus must be the government and its advisers, as it is they that need to be well informed in order to provide the explanations and the reassurances to their electorate when announcing their intention to replace the death penalty. Evidence that governments and citizens are ever in accord on the issue of abolition is scarce. Finally, I have some observations and questions for the traditional abolitionist movement. Capital punishment and activities opposing it have become very popular this past decade. ‘Solutions’ to the ‘problems’ of the death penalty are offered, but very few are subjected to a rigorous assessment of their effectiveness. There is a wealth of evidence in the US, though not restricted to that country, of a movement that has become increasingly competitive, competing for funds, constituencies and headlines, and apparently unwilling to collaborate or learn from the research evidence or from others with greater experience. The very nature and purpose of ‘abolitionist conferences’, which proliferate in the calendars of activists, need to be radically rethought. Meetings to provide mutual support for battle-weary campaigners are understandable but this function needs to be distinguished from rigorous think-tanks that should be concerned with the evaluation of all abolitionist activities and activists – discarding those shown to be ineffective. There is encouraging anecdotal evidence that abolitionist campaigns may be more effective and respected if they devote the time and resources of such gatherings to those who are known to support the death penalty rather than to their own supporters. It should come as no surprise to learn that I am a ‘remover not an improver’, and believe the replacement of the death penalty with proportionate, humane and effective alternatives to be sound penal policy.

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Forgive the repetition, but the death penalty makes no constructive contribution to reducing the incidence of the crimes for which it is traditionally reserved but merely perpetuates the pain and anger experienced by homicide victims’ families and those employed to administer the process. Retentionist governments should be reassured by the experiences of those countries that have rid themselves of the death penalty without any insurmountable negative consequences, and some in the traditional abolitionist community need to consider whether looking down on this debate from the moral high ground can sometimes impair their view and vision.

2

International law and the death penalty: reflecting or promoting change? William A. Schabas

International law – the law of nations or jus gentium – is a relatively recent body of law, whose beginnings are usually associated with the rise of nation states in the seventeenth century. It was not traditionally concerned with the rights of individuals, subject to a few exceptions: the rights of religious minorities and, in the case of the laws of armed conflict, the protection of civilian non-combatants in occupied territories and of wounded soldiers and prisoners. International law’s principal interest was with the reciprocal rights of sovereign states, as set out in treaties or customary rules, and was concerned with such matters as diplomatic immunity, borders and fishing rights. Only in the mid-twentieth century did international law begin to shift its focus to the individual as the beneficiary of international law, and to the creation of rights of individuals vis-`a-vis their own states rather than rights of states vis-`a-vis each other. The distinct category of international law known as international human rights law that emerged following the Second World War has grown into one of the pillars of the international legal system. From the earliest years, the question of capital punishment found itself very much at the core of the international human rights law debate, despite persistent claims by some states that it was a ‘criminal law issue’ and as such not particularly relevant to human rights standard-setting. The first normative instrument of the new system, the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948,1 proclaims the ‘right to life’ as a centrepiece of the legal regime. And it is self-evident that this right, which might also be called the ‘right to existence’, and which is a central concept in the ‘right to dignity’, is very much a prerequisite or sine qua non of the other fundamental rights set out in the Declaration, as the discussions at the very first session of the United Nations Commission on Human Rights in January 1947 indicate.2 The United Nations General Assembly stopped short of encouraging an explicit prohibition of the death penalty in the 1

GA Res. 217 A (III), UN Doc. A/810.

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2

UN Doc. E/CN.4/SR.13.

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final text of the Declaration, although the debates in its Third Committee in 1948 show that this was a serious possibility, and that there was much support for such a measure.3 The drafters of the Declaration understood that abolition would take more time, yet they also grasped its importance within the overall scheme of international human rights, and wanted to do nothing that might inhibit the process. In any event, capital punishment was by then well entrenched as a central issue in the human rights discourse, a place it has retained ever since. This short essay will not endeavour to review the development of norms on capital punishment within the various instruments of the universal and regional human rights systems, and within the related fields of international humanitarian and international criminal law, something that is treated in much detail in other works.4 Rather, this chapter will attempt to summarise the contemporary content of international law with respect to capital punishment. It should be noted that the applicable norms are of considerable complexity, somewhat in contradistinction to many other norms of international human rights law whose expression in various instruments tends to general statements of universal application, and for which there is a high degree of consistency in universal and regional instruments. Thus, rather elaborate provisions dealing with the death penalty with significant differences between them can be found within the various conventions of the United Nations and the regional human rights systems. The result is that often the law applicable in a given state or territory can only be established by taking into account whether or not that state or territory is actually bound by the relevant instrument, as well as whether or not any reservations might be applicable. In addition to treaties or conventions,5 the other pieces of the international law picture consist of customary norms and general principles of law, both of them recognised as principal sources of international law. These sources exist more or less in parallel with treaties, and generally complement them although they may, on rare occasions, contradict them. Customary law is proven by the existence of a consistent practice accompanied by indications from states that this practice is actually indicative of a binding legal rule. General principles of law are those drawn from national legal systems, a kind of common denominator of law distilled from 3 4

5

See William A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge: Cambridge University Press, 2002). For a summary of the issues, see William A. Schabas, ‘International Law and Abolition of the Death Penalty’, in Stephen P. Garvey (ed.), Capital Punishment at Century’s End: New Insights, Continuing Doubts (Chapel Hill, NC: Duke University Press, 2002). A treaty or convention is an international agreement concluded between states in written form and governed by international law, whatever its particular designation, which may be by such terms as charter, protocol, covenant or pact.

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domestic justice and transposed into the international context. Both areas are of considerable interest in the death penalty context. It is common to speak of ‘customary law’ when what is really meant is both custom and general principles. Although conceptually distinct, the two sources are both non-treaty and therefore share the feature of being essentially uncodified. Indeed, for this very reason, it is easy to allege the existence of such norms but equally simple to deny them and very difficult to prove their existence convincingly. Accordingly, this body of customary law or general principles is a rich reservoir but one whose content is not always readily established. The written ‘black letter’ norms of treaty law are more comforting for the jurist, but more confining, because many states do not subscribe to them, and even those that do will sometimes limit their exposure by reservation or even take the dramatic step of denunciation. Attention to issues of customary law seemed particularly important in the past because the applicable international treaties were not that widely ratified. But now these instruments are approaching near-universal acceptance, with the result that we perhaps resort less and less to customary norms, at least within the international context. It is now quite likely that a state is bound by an international human rights treaty dealing with capital punishment, whereas only a decade or two ago this was not at all probable. Still, customary law retains its importance in domestic legal systems where technical questions of implementation block the direct application of treaties. It has also proven to be a helpful guide as to what reservations to treaties may or may not be permissible. Indeed, it appears to be on the basis of customary international law that the Human Rights Committee found the reservation by the United States to the prohibition of juvenile executions to be incompatible with the object and purpose of the International Covenant on Civil and Political Rights.6 Occasionally, customary norms provide a jurisdictional ticket into an international court that is unavailable in the case of treaty norms.7 International law is slowly but surely infiltrating the courtrooms of national legal systems. Historically, there has been resistance to this virtually everywhere. In ‘dualist’ systems, like that in effect in the United Kingdom and countries with similar legal approaches to government, built upon principles of parliamentary sovereignty, international law has been rejected by judges as an encroachment upon the prerogatives of the legislature. In ‘monist’ systems, like that of the United States and much of continental Europe, where international treaties become directly applicable before the courts as a result of ratification, judges have 6 7

(1976) 999 UNTS 171. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States) (1986) ICJ Reports 14.

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tended to impose other kinds of obstacles to implementation, for example by holding that the text of the treaty is ‘non-self-executing’ or, in any event, inferior in status to the national constitution. One way or another, getting international law into the domestic courtroom has been a daunting challenge and a source of great frustration to human rights advocates. All of that is now changing, and at a dramatic pace. Constitutional courts throughout the world seem particularly well attuned to developments within international law on human rights issues. They refer to international instruments and jurisprudence not because they constitute ‘binding’ law but because they comprise a persuasive source of guidance in the interpretation and application of their own constitutions. Incidentally, not only do they cite the truly international sources, but they also refer to each other. Probably, this is as much about a change of culture among judges than any formal development of legal doctrine. For example, when the post-apartheid South African Constitutional Court considered the constitutionality of capital punishment, in 1995, it cited as authority not only decisions of two of the leading international tribunals, the European Court of Human Rights and the United Nations Human Rights Committee, but also judicial pronouncements of the Judicial Committee of the Privy Council, the Supreme Court of Zimbabwe, the United States Federal Court of Appeals and the Supreme Court of Canada.8 In turn, in 2001, when the Supreme Court of Canada revisited the capital punishment issue in an extradition case, it relied upon the 1995 South African decision.9 Some months afterwards, the South African Constitutional Court returned the favour, invoking the recent Canadian decision as authority.10 Still later, the 2001 South African decision was almost surreptitiously introduced into US courts. The offender had been extradited from South Africa to the United States without an assurance that the death penalty would not be imposed. The presiding judge, of the Federal Court in New York City, informed the jury of the South African decision, in effect exhorting it to follow the South African ruling and refuse to impose capital punishment. The jury got the message, and opted for life imprisonment. Thus, the great influence of the international law on human rights, at least where domestic or national courts are concerned, is essentially as a body of comparative law. Courts are rarely concerned with whether they are actually bound by the international authorities. But international law 8 9 10

S. v. Makwanyane [1995] 3 SA 391, 16 HRLJ 154 (Constitutional Court of South Africa). United States v. Burns [2001] 1 SCR 283, reversing Kindler v. Canada [1991] 2 SCR 779. Mohamed et al. v. President of Republic of South Africa et al., 2001 (3) SA 893 (Constitutional Court of South Africa).

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informs their appreciation of fundamental rights in a number of areas that impact upon death penalty litigation. Sometimes, there even seems to be a degree of cunning in this synergy. In Ukraine and Albania, the abolitionist agenda that was more or less imposed upon these states by the Council of Europe seemed unlikely to succeed because of resistance from domestic legislators, who in turn hid behind the screen of public opinion. The solution was to enact new constitutions with unqualified ‘right to life’ provisions. As had been done in South Africa earlier in the decade, in December 1999 the national constitutional courts promptly ruled that capital punishment had been implicitly repealed by the new constitutional norms.11 The core of the debate can be summarised in the question ‘Does international law prohibit capital punishment?’ Here the answer is usually given as a straightforward ‘no’, although important distinctions and qualifications must be made. But courts are often confronted with related issues involving the implementation of capital punishment: categories of persons who may not be executed, crimes for which the death penalty may not be imposed, can the death penalty be mandatory, fair trial standards, and so on. On all of these issues, and more, international law has much to say that can enrich judicial interpretation by national jurisdictions. This is the subject matter of this essay. Does international law prohibit capital punishment? The Universal Declaration of Human Rights enshrines the right to life but says nothing of the death penalty. The Declaration states that ‘[e]veryone has the right to life’ and that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. When it was being drafted, an amendment that would have added an explicit prohibition on capital punishment, as a clarification of the scope of the right to life, was rejected. But then, another amendment aimed at adding an explicit recognition of the death penalty was also defeated. Nevertheless, the international human rights treaties that built upon the normative groundwork of the Universal Declaration of Human Rights – the European Convention on Human Rights,12 the International Covenant on Civil and 11

12

Similarly, for Hungary, earlier in the decade: Ruling 23/1990 (X.31) AB, Constitutional Court of Hungary, Judgment of 24 October 1990, Magyar K¨ozl¨ony (Official Gazette), 31 October 1991. See also the dissenting opinion in Echegaray v. Secretary of Justice (1998) 297 SCR 754 at 811 (Supreme Court, Philippines). Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’), (1955) 213 UNTS 221.

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Political Rights and the American Convention on Human Rights13 – all recognise the death penalty as a permissible exception to or limitation on the right to life, subject to a number of detailed exceptions.14 This has prompted a number of commentators, diplomats and judges to suggest that ‘international law does not prohibit the death penalty’.15 Such an affirmation cannot be true. It is based, essentially, on reference to the applicable texts in the three major international human rights treaties, all of which were drafted in the 1950s and 1960s. Even these documents, however, explicitly prohibit the death penalty under specific circumstances: for crimes that are not sufficiently serious, and in the case of juvenile offenders, pregnant women and the elderly. Because they also proscribe deprivation of the right to life ‘arbitrarily’, they contain additional implicit limitations on capital punishment. The scope of these implicit limitations is a question for interpreters of the provisions, who must necessarily take into account evolving standards of human rights. So it would be more accurate to state that certain international human rights instruments continue to allow the death penalty under certain carefully defined circumstances. Some avant garde judges have taken the more advanced view that the references to capital punishment in the major human rights treaties are obsolete and ought to be ignored altogether, as if any recognition of the death penalty has been implicitly repealed, although their views cannot be said to represent the majority.16 International law prohibitions of capital punishment go further, though, because alongside the three treaties that tolerate capital punishment, as discussed above, are four protocols to these treaties abolishing 13 14

15

16

(1978) 1144 UNTS 123. An overview would not be complete without reference to the two other regional treaties, the African Charter of Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 Rev.5, and the Arab Charter of Human Rights, 15 September 1994, Council of the League of Arab States, 102nd Session, Res. 5437 (unofficial translations in (1996) 56 Review of the International Commission of Jurists 57; (1997) 4 International Human Rights Reports 850. The African Charter recognises the right to life but is silent on the subject of the death penalty, while the Arab Charter, which is not in force and has found little support, reiterates the limitations on capital punishment in the other international instruments. For example, ‘Report of the Special Rapporteur, Ms Asma Jahangir, Submitted Pursuant to Commission on Human Rights Resolution 1999/35’, UN Doc. E/CN.4/2000/3, para. 60; United States v. Burns [2001] 1 SCR 283, para. 89; and UN Doc. A/C.3/49/ SR.33, paras. 23–7 (Singapore). For example, Soering v. United Kingdom and Germany, 7 July 1989, Series A No. 161, pp. 51–2 (per De Meyer); Garza v. United States (Case No. 12.243), Report No. 52/01, 4 April 2001, Concurring Opinion of Commissioner H´elio Bicudo; Lamey et al. v. Jamaica (Cases Nos. 11.826, 11.843, 11.846 and 11.847), Report No. 49/01, 4 April 2001, Concurring Opinion of Commissioner H´elio Bicudo; and Knights v. Grenada (Case No. 12.028), Report No. 47/01, 4 April 2001, Concurring Opinion of Commissioner H´elio Bicudo.

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the death penalty. These protocols were adopted in order to address a growing discomfort that certain states felt with the right to life provisions of the general human rights treaties, that appeared to endorse capital punishment. The first of them to be adopted, Protocol No. 6 to the European Convention on Human Rights,17 only contemplates abolition of the death penalty in peacetime. It leaves aside the issue of the death penalty in wartime, a point that has not been lost among critics who argue that in so doing European human rights law continues to recognise the admissibility of capital punishment, at least under narrowly defined circumstances. The limitation is not merely theoretical: in recent litigation in Bosnia and Herzegovina, where Protocol No. 6 is incorporated into national law as a result of the Dayton Peace Agreement, it was judged inapplicable to a case where the death penalty had in fact been imposed during ‘wartime’.18 Conscious of this weakness, in 2002 the Council of Europe adopted yet another protocol – Protocol No. 13 – to the European Convention, abolishing the death penalty in wartime as well. It should quickly win near-universal ratification within Europe. The Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at Abolition of the Death Penalty19 and the Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty20 were adopted some years after Protocol No. 6, in 1989 and 1990 respectively. They are somewhat more advanced, in that they prohibit the death penalty at all times, although they do permit states to make reservations allowing for the use of capital punishment in wartime. In fact, only a handful of reservations have been formulated. Between them, the four abolitionist protocols can count approximately sixty states among their signatories or parties. The American Convention on Human Rights expressly prohibits the reinstatement of the death penalty in a country where it has already been abolished. Accordingly, the American Convention is also an abolitionist treaty with respect to those of its states parties that have abolished capital punishment, and this comprises most of the twenty-five states parties to the Convention. Approximately twelve states parties to the Convention have abolished the death penalty, but have not ratified one of the abolitionist protocols. Finally, the International Covenant on Civil and Political Rights, according to an interpretation that is widely accepted but not yet unanimous, also implicitly prohibits the reinstatement of capital 17 18 19

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. Damjanovic v. Federation of Bosnia and Herzegovina (Case No. CH/96/30), 5 September 1997, Decisions on Admissibility and Merits 1996–1997, p. 147. 20 OASTS 73. GA Res. 44/128, Annex.

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punishment in countries where it has been abolished.21 Article 6(2) of the Covenant allows imposition of the death penalty ‘[i]n countries which have not abolished the death penalty’. Accordingly, the exception does not apply to countries that have abolished the death penalty. Implicitly, then, a country that has abolished capital punishment cannot reinstate it. Several countries that have not yet signed or ratified one of the abolitionist protocols fall within this category – Canada is an example. The total of states parties to the three protocols, and of states parties to the American Convention on Human Rights and the International Covenant on Civil and Political Rights that have already abolished the death penalty, comes to more than seventy states. For these states, there is most definitely an international norm prohibiting use of the death penalty. These numbers are impressive when we consider how young the abolitionist norm actually is. It first came into force in 1978, with the American Convention on Human Rights. The pace of ratification of the abolitionist protocols during the 1990s was dizzying. Still, it is obviously far short of the level of consensus necessary for us to speak of a customary international norm. The interest in demonstrating the existence of a customary international norm is that it binds states that have not yet ratified one of the abolitionist treaties. International law requires proof of two elements in order to demonstrate the existence of a customary norm: an objective dimension, manifested by a consistent state practice which must be widespread though it need not be universal or unanimous; and a subjective dimension, by which states generally indicate that they consider themselves to be bound by such a norm. Although talk of a customary norm prohibiting the death penalty is obviously premature, the trend is clear and it does not seem unduly optimistic to expect it to crystallise within a few decades, much as was the case for the prohibition of slavery, torture and genocide in the past. Public international law also recognises the concept of regional customary norms.22 The idea developed with respect to such issues as the right to asylum, fishing zones and maritime boundaries, where practice may vary from one part of the world to another. There is nothing exceptional in the transposition of this concept to the field of human rights law. Although there is great resistance to theories of cultural relativism that argue human rights norms to be a Western or European creation inapplicable to other 21

22

Cox v. Canada (No. 539/1993), UN Doc. CCPR/C/52/D/539/1993, (1994) 15 HRLJ 410, Dissenting Opinions of Christine Chanet, Fausto Pocar and Francisco Jose Aguilar Urbina. Asylum Case (Columbia v. Peru) (1950) ICJ Reports 266 at 276–7; Anglo-Norwegian Fisheries Case (United Kingdom v. Norway) (1951) ICJ Reports 116 at 136–9; Rights of US Nationals in Morocco Case (United States v. France) (1952) ICJ Reports 176 at 200.

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parts of the world, there should be nothing unacceptable in recognising that human rights standards do vary somewhat from one part of the world to another. This can be seen in the relatively minor differences that become apparent when regional human rights treaties are compared. Thus, the American Convention on Human Rights takes a somewhat more absolute view of freedom of expression than does its European counterpart. The African Charter of Human and Peoples’ Rights23 insists upon a right to development, something absent in the American and European texts. From the standpoint of customary law, it seems reasonable to speak of an abolitionist norm that exists within Europe and, with perhaps slightly less certainty, in Latin America. As far as Europe is concerned, executions have effectively ceased, and virtually all European states have now declared their commitment to abolition. In most cases, this is de jure abolition, often associated with a constitutional prohibition. In June 2001, Ireland took this to the most advanced stage, holding a popular referendum to introduce a provision into the constitution forbidding reintroduction of the death penalty. The only real exceptions within Europe are Turkey and Belarus. Turkey has not imposed the death penalty since 1984 and seems likely to proceed with de jure abolition as a condition of admission to the European Union.24 The argument that there exists a regional custom within Europe prohibiting capital punishment may be of genuine legal interest in a pending case before the European Court of Human Rights.25 Although the Court does not apply customary international law in the strict sense, it might well feel itself obliged to in effect disregard the provision within the European Convention on Human Rights that allows capital punishment on the grounds that this runs contrary to a customary norm. It has been suggested that at least some of the international law norms respecting the death penalty have acquired the status of jus cogens, that is, peremptory rules of international law that trump an inconsistent treaty.26 Publicists have claimed that the prohibition of execution of prisoners of 23 24 25 26

OAU Doc. CAB/LEG/67/3 rev.5. Mehmet Semih Gemalmaz, ‘The Death Penalty in Turkey (1920–2001): Facts, Truths and Illusions’ (2002) 13 Criminal Law Forum 91. ¨ Ocalan v. Turkey (No. 46221/99), Admissibility, 14 December 2000. Roach and Pinkerton v. United States (Case No. 9647), Resolution No. 3/87, reported in OAS Doc. OEA/Ser.L/V/II.71 doc.9 rev.1, p. 147, Inter-American Yearbook on Human Rights, 1987 (Dordrecht, Boston and London: Martinus Nijhoff, 1990), p. 328, para. 56: ‘The Commission finds that in the member States of the OAS there is recognised a norm of jus cogens which prohibits the State execution of children.’ See also the speech of Commissioner Monroy Cabra to the Inter-American Court of Human Rights in Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of 8 September 1983, Series B No. 3, p. 218.

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war is a norm of jus cogens.27 It has also been argued that the right to life is a norm of jus cogens.28 Even a persistent objector to the formation of a customary norm of international law cannot avoid a rule of jus cogens.29 Crimes subject to the death penalty It is surely a general principle of criminal law that penalties must be proportionate to the crime. This was expressed in ancient times by the maxim ‘an eye for an eye, a tooth for a tooth’, or lex talionis, a concept that more recently is understood (or rather misunderstood) as one of retributive justice. The most recent affirmation of the principle is in Article 49(3) of the European Union’s Charter of Fundamental Rights, adopted in December 1999, which states: ‘The severity of penalties must not be disproportionate to the criminal offence.’ The explanatory notes to that document observe that the provision affirms ‘the general principle of proportionality between penalties and criminal offences which is enshrined in the common constitutional traditions of the Member States’. An early attempt by international law to regulate use of the death penalty, the fourth Geneva Convention of 1949, addressed its application to civilians in an occupied territory. Although the occupying power may make some modifications to the criminal law in force, under Article 68, it can only impose the death penalty for espionage, serious acts of sabotage against the military installations of the occupying power, or intentional offences that have caused death.30 ‘Serious’ acts of sabotage could include the destruction of an air base or a major line of communication but would not include such acts of resistance as a strike or work slowdown.31 When the provision was being drafted, the International Committee of the Red Cross had hoped to limit the list of crimes still further, to ‘the case of homicide, or any other wilful offence directly causing the death of a person or persons’.32 27 28

29 30 31

32

A. Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) 60 American Journal of International Law 55. W. Paul Gormley, ‘The Right to Life and the Rule of Non-Derogability: Peremptory Norms of Jus Cogens’, in Bertrand G. Ramcharan (ed.), The Right to Life in International Law (Boston: Martinus Nijhoff, 1985), pp. 120–59 at p. 125; ‘Human Rights in Chile’, UN Doc. E/CN.4/1983/9. Nguyen Quoc Dinh, Patrick Daillier and Alain Pellet, Droit international public (6th edn, Paris: Librairie G´en´erale de Droit et de Jurisprudence, 1995), p. 302. Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, (1950) 75 UNTS 135, Article 68(2). Oscar M. Uhler, Henri Coursier et al., Commentary, IV, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), p. 369. International Committee of the Red Cross, ‘Remarks and Proposals Submitted by the International Committee of the Red Cross, Document for the Consideration of

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The norm is expressed somewhat more generally in Article 6(2) of the International Covenant on Civil and Political Rights, which limits the scope ratione materiae of the death penalty by the expression ‘the most serious crimes’. Identical wording is used in Article 4(2) of the American Convention on Human Rights. Although the African Charter of Human and Peoples’ Rights is silent on the subject of capital punishment, the African Commission on Human and Peoples’ Rights has called upon states that maintain the death penalty to ‘limit the imposition of the death penalty only to the most serious crimes’.33 The idea of limiting the death penalty to the ‘most serious crimes’ appeared at the very earliest stages of the drafting of the Covenant, in the late 1940s, although the expression was frequently criticised during the drafting, and some countries had argued for a specific enumeration of offences for which the death penalty might be imposed.34 The reference to ‘most serious crimes’ has since been attacked for allowing too much variation in state practice and for being ineffectual as a check on some states’ proneness to resort to capital punishment.35 The ‘Safeguards Guaranteeing Protection of Those Facing the Death Penalty’, which were adopted by the Economic and Social Council in 1984 and subsequently endorsed by the General Assembly, declare that ‘serious crimes’ for which the death penalty might be applicable ‘should not go beyond intentional crimes, with lethal or other extremely grave consequences’.36 According to the Secretary-General of the United Nations, ‘the offences should be life-threatening, in the sense that this is a very likely consequence of the action’.37 The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of the United Nations Commission of Human Rights has said that ‘the death penalty should be eliminated for crimes such as economic crimes and drug-related offences’.38 The Commission on Human Rights, in a 1999 resolution, urged states not to impose the death penalty for non-violent financial crimes or for non-violent religious practice or expression of conscience.39

33

34 35

36 38 39

Governments Invited by the Swiss Federal Council to Attend the Diplomatic Conference at Geneva (April 21, 1949)’ (Geneva, 1949), p. 75. ‘Resolution Urging States to Envisage a Moratorium on the Death Penalty, 13th Activity Report of the African Commission on Human and Peoples’ Rights’, OAU Doc. AHG/Dec.153(XXXVI), Annex IV. UN Doc. A/C.3/SR.814, para. 12. Daniel D. Nsereko, ‘Arbitrary Deprivation of Life: Controls on Permissible Deprivations’, in Bertrand G. Ramcharan (ed.), The Right to Life in International Law (Boston: Martinus Nijhoff, 1985), pp. 245–83 at pp. 254–5. 37 UN Doc. E/2000/3, para. 79. ESC Res. 1984/50; GA Res. 39/118, Article 1. ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1997/60, para. 91. Also UN Doc. E/CN.4/1999/39, para. 63. UN Doc. E/CN.4/1999/RES.61.

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The United Nations Secretary-General has distinguished between three categories of ‘most serious offences’: ordinary offences, offences against the state, and military and wartime offences.40 The SecretaryGeneral, in reports prepared by criminologist Roger Hood and based on replies to questionnaires from member states, notes that not all of the offences for which capital punishment may be imposed appear to comply with the standards of the Covenant. ‘For example’, says one of the reports, ‘offences aimed at the domination of a social class or at overthrowing the basic economic and social orders (as reported by Turkey), and theft in aggravated circumstances, sexual intercourse with a female relative under 15 or arousing of religious and sectarian feelings and propagation of Zionist ideas (as reported by Cuba), may not stand the test of a “most serious crime” in the sense of article 6 of the Covenant.’41 The Human Rights Committee is the expert body with principal responsibility for the implementation of the International Covenant on Civil and Political Rights. General Comment 6(16) of the Human Rights Committee states that the expression ‘most serious crimes’ must be ‘read restrictively’, because death is a ‘quite exceptional measure’. Moreover, the Human Rights Committee considers that, while Article 6 of the Covenant does not require states to abolish the death penalty altogether, they must abolish it for other than the ‘most serious crimes’. The General Comment states: ‘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.”42 During consideration of the periodic reports of states parties under Article 40 of the Covenant, members of the Human Rights Committee have indicated the restrictive interpretation to be given to the term ‘serious crimes’. Often, they have focused solely on the length of the list of capital offences. For example, during presentation of a report from Jordan, a Committee member said that eleven capital crimes was ‘a high number’.43 In response to criticism from members of the Committee that the number of capital crimes was too large, the representative of Tunisia, during presentation of its third periodic report, agreed that the list was long and that ‘it should be shortened as a first step’.44 In its comments on the third periodic report 40 41 43

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UN Doc. E/1995/78, paras. 53–60. 42 General Comment 6(16), para. 7. UN Doc. E/1990/38, para. 41. UN Doc. CCPR/C/SR.362, para. 43. See also ‘Initial Report of Madagascar’, UN Doc. CCPR/C/1/Add.14, UN Doc. CCPR/C/SR.87, para. 19; UN Doc. A/33/40∗ , para. 282; ‘Initial Report of Democratic Yemen’, UN Doc. CCPR/C/50/Add.2, UN Doc. CCPR/C/SR.927, SR.932, UN Doc. A/45/40, para. 45; ‘Initial Report of Viet Nam’, UN Doc. CCPR/C/26/Add.3, UN Doc. CCPR/C/SR.982, SR.983, SR.986, SR.987, UN Doc. A/45/40, para. 465. ‘Third Periodic Report of Tunisia’, UN Doc. CCPR/C/52/Add.5, UN Doc. CCPR/ C/SR.990–992, UN Doc. A/45/40, paras. 513–14.

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of Belarus, the Committee said it was troubled by the large number of crimes for which the death penalty was still provided, despite the fact that in practice it is of limited application.45 The Supreme Court of India has concluded that Indian legislation is in accordance with Article 6(2) of the Covenant, because the death penalty only applies in the case of seven offences.46 There is some support in international instruments for the existence of a norm promoting the progressive reduction in capital offences.47 Some periodic reports to the Human Rights Committee have indicated that the list of capital crimes is in the process of being shortened. Algeria, in its initial report, said that the reduction of capital crimes is under consideration by a commission responsible for revising the Penal Code and that opinion favours abolition of the death penalty for economic offences.48 But, in its comments on the Algerian report, the Committee recalled that economic crimes could not be sanctioned by the death penalty.49 When Japan failed to make good on a pledge to shorten the list, the Committee said it was gravely concerned and implied that there was a violation of Article 6(2).50 The Human Rights Committee has singled out a number of individual offences suggesting that they do not meet the standard of ‘serious crimes’ susceptible of capital punishment: apostasy,51 abetting suicide,52 homosexual acts,53 illicit sex,54 espionage,55 evasion of military responsibility,56 economic crimes57 and political crimes.58 45 46 47 48 49 50 51 52 53 54 55 56 57

58

‘Comments on the Third Periodic Report of Belarus’, UN Doc. CCPR/C/79/Add.5, para. 6. Bachan Singh v. State of Punjab, AIR 1980 SC 898 at 931. GA Res. 32/61; CHR Res. 1998/8. ‘Initial Report of Algeria’, UN Doc. CCPR/C/62/Add.1, para. 84. ‘Comments on the Initial Report of Algeria’, UN Doc. CCPR/C/79/Add.1, para. 5. ‘Concluding Observations, Japan’, UN Doc. CCPR/C/79/Add.102, para. 20. ‘Concluding Observations, Sudan’, UN Doc. CCPR/C/79/Add.85, para. 8. ‘Concluding Observations, Sri Lanka’, UN Doc. CCPR/C/79/Add.56, para. 14. ‘Concluding Observations, Sudan’, UN Doc. CCPR/C/79/Add.85, para. 8. ‘Annual Report of the Human Rights Committee, 1998’, UN Doc. 53/40, para. 119. ‘Concluding Observations, Cameroon’, UN Doc. CCPR/C/79/Add.116, para. 14. ‘Concluding Observations, Iraq’, UN Doc. CCPR/C/79/Add.84, para. 11. ‘Concluding Observations, Libyan Arab Jamahiriya’, UN Doc. CCPR/C/79/Add.45 (1994), para. 8; ‘Concluding Observations, Libyan Arab Jamahiriya’, UN Doc. CCPR/C/79/Add.101, para. 8; UN Doc. CCPR/SR.1628, para. 37 (Sudan); ‘Concluding Observations, Sri Lanka’, UN Doc. CCPR/C/79/Add.56, para. 14; ‘Second Periodic Report of Sudan’, UN Doc. CCPR/C/75/Add.2, ‘Concluding Observations, Sudan’, UN Doc. CCPR/C/79/Add.85, para. 8; ‘Initial Report of Mongolia’, UN Doc. CCPR/C/1/Add.38; UN Doc. CCPR/C/SR.197, para. 6 (Janca); UN Doc. CCPR/C/SR.198, para. 21 (Koulishev); UN Doc. CCPR/C/SR.198, para. 32 (Sadi). ‘Initial Report of Democratic Yemen’, UN Doc. CCPR/C/50/Add.2; also ‘Concluding Observations, Kuwait’, UN Doc. CCPR/CO/69/KWT, para. 464.

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Recent case law of the Committee suggests that its interpretation of ‘most serious crimes’ is confined to murder,59 although the possibility that it might cover other crimes of violence with grave consequences, such as aggravated forms of rape, cannot be excluded. There have been isolated suggestions that it might even consider capital punishment for drug trafficking to be consistent with Article 6(2) of the Covenant.60 But, commenting on Iran’s second periodic report, the Committee said that imposition of the death penalty for crimes that do not result in loss of human life is contrary to the Covenant.61 In its Concluding Observations on Sri Lanka’s periodic report, the Committee said that ‘drug-related offences’ were not ‘serious crimes’ within the meaning of Article 6.62 In Lubuto v. Zambia, the Committee concluded that there had been a violation of Article 6(2) because sentence of death was imposed under a law providing a mandatory sentence of death for aggravated robbery in which firearms are used. The Committee observed that ‘use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence’.63 Where the term ‘murder’ is confined to intentional homicide, there can be little doubt that it meets the ‘most serious crimes’ test. But, in focusing the debate upon the result alone, namely, the loss of human life, relatively less serious offences such as manslaughter (negligent homicide) or felony murder (that is, when there is unintended loss of life associated with the commission of another criminal act) might be deemed consistent with the Covenant. In Piandong v. Philippines, although neither counsel nor the state party had addressed the fact that one or more of the applicants had been convicted of felony murder, the Committee referred to the issue, hinting that it might find this to be contrary to Article 6(2).64 According to Professor Martin Scheinin, himself a member of the Human 59

60

61 62

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In Cox v. Canada (No. 539/1993), para. 16.2, the Committee noted that the applicant was to be tried for complicity in two murders, and that these were ‘undoubtedly very serious crimes’. ‘Second Periodic Report of Mauritius’, UN Doc. CCPR/C/28/Add.12, p. 113; see also ‘Initial Report of Bolivia’, UN Doc. A/44/40, p. 95; UN Doc. A/44/40, para. 508. For a spirited argument that execution of drug offenders is compatible with the Covenant, see Singapore’s letter to the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of 27 June 1997, UN Doc. E/CN.4/1998/13. UN Doc. CCPR/C/79/Add.25, para. 8. ‘Concluding Observations, Sri Lanka’, UN Doc. CCPR/C/79/Add.56, para. 14. Also ‘Concluding Observations, Kuwait’, UN Doc. CCPR/CO/69/KWT, para. 464; ‘Concluding Observations, Cameroon’, UN Doc. CCPR/C/79/Add.116, para. 14. Lubuto v. Zambia (No. 390/1990), UN Doc. CCPR/C/55/D/390/1990/Rev.1, para. 7.2. Piandong et al. v. Philippines (No. 869/1999), UN Doc. CCPR/C/70/D/869/1999, para. 7.4.

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Rights Committee, ‘one should be careful not to put too much importance on the fact that the Human Rights Committee, in paragraph 7 of its General Comment No. 6 and also in the Lubuto case emphasised the gravity of the consequences of a crime in defining whether it belongs to the most serious ones . . . Classifying the gravity of a crime merely or primarily with reference to the consequences of the act is not in line with current thinking in the field of criminal law.’65 The Inter-American Commission on Human Rights has suggested that mandatory sentencing, by eliminating any individual determination of fit sentence, may impact upon the prohibition of the death penalty except for the ‘most serious offences’.66 Given that the concept of proportionality of sentences is rooted in general principles of law, and furthermore the fact that the prohibition of ‘cruel, inhuman and degrading punishment’ is unarguably a customary norm, it seems relatively safe to assert that limitation of the death penalty to the ‘most serious crimes’ is an international norm applicable to states whether or not they have ratified one or other of the applicable treaties. States cannot impose the death penalty for offences that are not the ‘most serious crimes’ without violating international law, whether the basis is customary law or general principles of law, both of them recognised as principal sources of public international law. Interest in this question is more than academic given the existence of a reservation by the United States on this very point. When it ratified the International Covenant on Civil and Political Rights, the United States formulated a general reservation to Article 6 that has often been misinterpreted as being restricted to application of the juvenile death penalty. The intent to give a broad scope to the reservation can be seen in the explanation submitted by the Bush administration to the Senate, noting ‘the sharply differing view taken by many of our future treaty partners on the issue of the death penalty (including what constitutes “serious crimes” under Article 6(2))’.67 Thus, even if the United States is not bound by such a treaty norm, as a consequence of its reservation (whose legality, by the way, is hotly contested by many of its treaty partners68 as well as by the Human Rights 65

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Martin Scheinin, ‘Capital Punishment and the International Covenant on Civil and Political Rights: Some Issues of Interpretation in the Practice of the Human Rights Committee’ (unpublished paper, on file with author), p. 13. Edwards et al. v. Bahamas (Case Nos. 12.067, 12.068 and 12.086), Report No. 48/01, 4 April 2001, para. 139. See also Reyes v. The Queen [2002] 2 AC 235; [2002] 2 WLR 1034, para. 40. United States, ‘Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights’ (1992) 31 ILM 645 at 653. For a recent example, see ‘EU Demarche on the Death Penalty’, 25 February 2000, http://www.eurunion.org/legislat/DeathPenalty/Demarche.htm.

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Committee), it cannot escape its obligations under customary law or general principles of law. Reintroduction of the death penalty The only treaty norm to prohibit explicitly the reintroduction of the death penalty is Article 4(3) of the American Convention on Human Rights: ‘The death penalty shall not be reestablished in states that have abolished it.’ Furthermore, Article 4(2) of the Convention concludes with the sentence: ‘The application of such punishment shall not be extended to crimes to which it does not presently apply.’ According to the InterAmerican Court of Human Rights, in an interpretation of these provisions, ‘a decision by a State Party to the Convention to abolish the death penalty, whenever made, becomes, ipso jure, a final and irrevocable decision’.69 But, because the American Convention can be denounced,70 the decision is not technically final and irrevocable. A state wanting to reintroduce the death penalty would first have to denounce the Convention if it wished to avoid condemnation for a breach of its treaty obligations. That such decisions are truly irrevocable seems clearer with respect to the Second Optional Protocol to the International Covenant on Civil and Political Rights. This abolitionist protocol in effect becomes an additional provision to the Covenant for states that have ratified it. The Covenant itself cannot be denounced; its ratification by a state creates a minimum level of human rights protections from which it can never retreat. The same must logically apply in the case of ratification of the Second Optional Protocol. Nothing in the Second Optional Protocol admits the possibility of denunciation, in quite sharp contrast with the earlier first Optional Protocol, which not only can be71 but has been denounced.72 The same question does not arise with respect to the abolitionist protocol of the inter-American system, because the obligations therein are merely additional to those in the American Convention, which adequately addresses the issue. The problem is somewhat more complex with respect to the two abolitionist protocols to the European Convention on Human Rights, which say nothing about denunciation. However, because it is 69 70 71 72

Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of 8 September 1983, Series B No. 3, para. 56. OASTS 73, Article 78. Optional Protocol to the International Covenant on Civil and Political Rights, (1976) 999 UNTS 171, Article 12. See Kennedy v. Trinidad and Tobago (No. 845/1999), UN Doc. CCPR/C/67/D/845/1999, para. 6.3.

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possible for a state to withdraw from the European Convention itself, this would seem to be possible;73 obviously, a state cannot remain a party to a protocol if it is no longer a party to the treaty upon which the protocol depends. Article 6(2) of the International Covenant on Civil and Political Rights sets out the principal limitations on capital punishment, and begins with the phrase ‘[i]n countries which have not abolished the death penalty . . .’. This suggests that the limitations are inapplicable to those states that have abolished the death penalty. It has been suggested that this phrase also implies that there can be no retraction of abolition of the death penalty. In other words, once a state has abolished the death penalty, it cannot reinstate it. In 1970, a Committee of Experts of the Council of Europe felt that it was ‘not clear’ whether the Covenant prohibits reintroduction of the death penalty in a country where it has already been abolished and noted that this did not appear to be the intention of its drafters.74 In 2000, in Piandong v. Philippines, the Committee did not speak to the issue because ‘neither counsel nor the State party has made submissions in this respect’.75 But, by raising it despite the silence of the parties, the Committee may have been suggesting that it was open to the view that reinstatement of the death penalty might be prohibited by Article 6.76 Varied individual opinions on the subject have been expressed by Committee members over the years.77 The most compelling argument in favour of such a view relies on the relationship between paragraphs 2 and 6 of Article 6. Paragraph 6 states: ‘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.’ Accordingly, abolition is more than just a fact that conditions the application of paragraph 2, it is also a goal of the Covenant. The drafting history of the Covenant justifies such a connection, as the two references to abolition were both introduced at the same time, and for the same reason.78 In his dissenting opinion in Kindler v. Canada, Fausto Pocar wrote: 73 74 75 76

77 78

Note 12 above, Article 58. ‘Problems Arising from the Co-existence of the United Nations Covenants on Human Rights and the European Convention on Human Rights’, CoE Doc. H(70)7, para. 91. Piandong et al. v. Philippines (No. 869/1999), UN Doc. CCPR/C/70/D/869/1999, para. 7.4. One of the members of the Committee who participated in the decision has described this portion of the Committee’s views as an obiter dictum. See Martin Scheinin, ‘Capital Punishment’, p. 13. See note 21 above. See the discussion of the drafting history of Article 6 of the Covenant in William A. Schabas, The Abolition of the Death Penalty in International Law (3rd edn, Cambridge: Cambridge University Press, 2002).

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[T]he wording of paragraphs 2 and 6 clearly indicates that Article 6 tolerates – within certain limits and in view of future abolition – the existence of capital punishment in States parties that have not yet abolished it, but may by no means be interpreted as implying for any State party an authorization to delay its abolition or to introduce or reintroduce it. Consequently, a State party that has abolished the death penalty is in my view under the legal obligation, according to Article 6 of the Covenant, not to reintroduce it. This obligation must refer both to a direct reintroduction within the State party’s jurisdiction, and to an indirect one, as it is the case when the State acts – through extradition, expulsion or compulsory return – in such a way that an individual within its territory and subject to its jurisdiction may be exposed to capital punishment in another State.79

May a state extend the scope of the death penalty? The Human Rights Committee has stated that ‘[e]xtension of the scope of application of the death penalty raises questions as to the compatibility with Article 6 of the Covenant’.80 The Committee criticised Lebanon for extending the death penalty to new crimes, noting that this was ‘not compatible’ with Article 6.81 The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has also expressed the view that the expansion of the scope of the death penalty violates the spirit of Article 6 of the Covenant, which promotes the progressive reduction in the number of crimes subject to capital punishment.82 Fair trial guarantees and the death penalty That procedural safeguards must be respected in all capital trials is without doubt a norm of customary law (or a general principle of law).83 Its universal recognition is confirmed in common Article 3 to the Geneva Conventions of 1949, which proscribes the carrying out of executions ‘without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognised as indispensable by civilized peoples’.84 These minimum standards apply, according 79 80 81 82 83

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Cox v. Canada (No. 539/1993), Individual Opinion of Fausto Pocar. ‘Preliminary Observations on the Third Periodic Report of Peru’, UN Doc. CCPR/ C/79/Add.67, para. 15. ‘Concluding Observations, Lebanon’, UN Doc. CCPR/C/79/Add.78, para. 20; ‘Annual Report of the Human Rights Committee, 1997’, UN Doc. 52/40, para. 350. UN Doc. E/CN.4/1998/68/Add.3, paras. 145 and 156(d). Also UN Doc. E/CN.4/ 1994/7, para. 677; UN Doc. E/CN.4/1994/7/Add.2, para. 74. Theodor Meron considers the ‘core’ of Article 14 of the International Covenant on Civil and Political Rights, which enumerates the procedural safeguards in all criminal proceedings, to be customary law: Theodor Meron, Human Rights and Humanitarian Norms as Customary International Law (Oxford: Clarendon Press, 1989), p. 96. Geneva Convention of August 12, 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (1950) 75 UNTS 31, Article 3; Geneva Convention of August 12, 1949 for the Amelioration of the Condition of Wounded, Sick

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to the Conventions, in armed conflicts not of an international character. The Geneva Conventions of 1949 have been ratified by virtually every state in the world, and common Article 3 has been recognised as expressing norms of customary international law.85 If the norms of common Article 3 are recognised in the extreme conditions of non-international armed conflict as the lowest common denominator of humane conduct, then a fortiori they most surely obtain during international armed conflict and in time of peace. But what are these judicial guarantees that are ‘recognised as indispensable by civilized peoples’? The answer will be found in the more detailed provisions of the international treaties, the ‘soft law’ resolutions of bodies such as the Economic and Social Council and the General Assembly of the United Nations, and declarations by states in their reports to the Secretary-General as well as in their periodic reports to the Human Rights Committee. No person can be sentenced to death without a ‘trial’.86 As elementary as this proposition seems, its importance is understood with reference to the innumerable executions, notably in wartime, that have taken place merely as a result of the superior orders of a head of state, a justice minister or a ranking military officer. In order to merit the name ‘trial’, such proceedings must ensure that the accused is presumed innocent,87 that he or she is entitled to legal counsel88 and adequate time to prepare a defence,89 that the trial is held without undue delay90 and that the tribunal

85 86

87

88

89

90

and Shipwrecked Members of Armed Forces at Sea, (1950) 75 UNTS 85, Article 3; Geneva Convention of August 12, 1949 Relative to the Treatment of Prisoners of War, (1950) 75 UNTS 135, Article 3; Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, (1950) 75 UNTS 287, Article 3. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States) (1986) ICJ Reports 14, paras. 218, 255 and 292(9). International Covenant, Articles 6(2) and 14(1); European Convention, Articles 2(1) and 6; American Convention, Articles 4(2) and 8; African Charter, Article 7; ‘Safeguards’, Article 5; ‘Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty’, ESC Res. 1989/64; ESC Res. 1996/15. International Covenant, Article 14(2); European Convention, Article 6(2); American Convention, Article 8(2); African Charter, Article 7(1)(b); ‘Safeguards’, Article 4. The ‘Safeguards’ add that guilt must be based ‘upon clear and convincing evidence leaving no room for an alternative explanation of the facts’. International Covenant, Article 14(3)(d); European Convention, Article 6(2)(c); American Convention, Article 8(2)(d); ‘Safeguards’, Article 5; ‘Implementation of the Safeguards’, note 86 above; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc E/CN.4/1997/60, para. 81. International Covenant, Article 14(3)(b); European Convention, Article 6(2)(b); American Convention, Article 8(2)(c); African Charter, Article 7(1)(c); ‘Safeguards’, Article 5; ‘Implementation of the Safeguards’, note 86 above. International Covenant, Article 14(3)(c); European Convention, Article 6(1); American Convention, Article 8(1); African Charter, Article 7(1)(d); ‘Safeguards’, Article 5.

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is impartial.91 Many of these specific rights cannot be fully appreciated in the absence of a precise fact situation. For example, the right to counsel may in some cases necessitate state-funded assistance. Yet perfunctory recognition of this right, in the form of poorly remunerated junior attorneys, may in reality be a means to violate the right and to ensure a summary conviction of the accused.92 The right to seek pardon, clemency, reprieve or commutation is widely admitted and rarely poses much of a real problem for states, because it is an inexpensive concession.93 This right is very important because in many states executive clemency has often preceded legislative change and tempered the extremes of public and judicial opinion.94 There should be adequate time between sentence and execution in order to permit a realistic right of appeal or application for clemency. An Economic and Social Council resolution recognises an obligation upon states ‘to allow adequate time for the preparation of appeals to a court of higher jurisdiction and for the completion of appeal proceedings, as well as petitions for clemency’.95 Obviously, execution should not be carried out while appeal or petition for clemency is pending.96 These principles should also apply in the case of communications or applications to international human rights bodies, where the right of petition has been recognised.97 Officials involved in executions must be informed of the status of appeals and petitions for clemency.98 91 92 93

94

95

96 97

98

International Covenant, Article 14(1); European Convention, Article 6(1); American Convention, Article 8(1); African Charter, Article 7(1)(b); ‘Safeguards’, Article 5. Several decisions of the Human Rights Committee have insisted upon this point. See, for example, Little v. Jamaica (No. 283/1988), UN Doc. A/47/40, p. 276. International Covenant, Article 6(4); ‘Safeguards’, Article 7; ‘Implementation of the Safeguards’, note 86 above; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1998/68, para. 118. In Canada, for example, executive clemency abolished the death penalty de facto fourteen years before Parliament took this step. It was even invoked by Canadian officials during presentation of Canada’s initial report to the Human Rights Committee as the major protection against abusive use of the military death penalty: UN Doc. CCPR/C/1/Add.43. ‘Implementation of the Safeguards’, note 86 above. Also ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc E/CN.4/1996/4, para. 556; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1998/68, para. 118; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1998/68/Add.1, para. 178; Geneva Convention Relative to the Treatment of Prisoners of War, Article 101; Geneva Convention Relative to the Protection of Civilians, Article 75. ‘Safeguards’, Article 8. Piandong et al. v. Philippines, UN Doc. CCPR/C/70/D/869/1999, para. 5.1; Mansaraj et al. v. Sierra Leone (Nos. 839/1998, 840/1998 and 841/1998), UN Doc. CCPR/C/72/D/ 840/1998, para. 6.2; Lewis et al. v. AG Jamaica et al., Privy Council Appeals 60, 65 and 69 of 1999 and 10 of 2000, 12 September 2000. ESC Res. 1996/15; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1996/4, para. 556.

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The Human Rights Committee has recognised that the procedural protections of Article 14 of the International Covenant are incorporated into Article 6. This makes them non-derogable in death penalty cases, because Article 6 cannot be suspended in time of emergency.99 The American Convention on Human Rights is the clearest of the three treaties in this respect, being ‘the first international human rights instrument to include among the rights that may not be suspended essential judicial guarantees for the protection of the non-derogable rights’.100 The InterAmerican Court of Human Rights has held that ‘due process’ cannot be suspended in the case of a non-derogable right, such as the right to life, even in emergency situations.101 Under customary international law, the classic procedural guarantees must apply in death penalty cases, because they are the ‘judicial guarantees which are recognised as indispensable by civilized peoples’, in accordance with common Article 3 of the Geneva Conventions. The prohibition against retroactive imposition of the death penalty is without any doubt among those customary norms subsumed in common Article 3 of the Geneva Conventions. It is recognised in all the major international treaties102 and makes up the core of human rights from which there can be no derogation, even in time of war.103 The ‘death row phenomenon’ One of the difficult issues in international law concerns the so-called ‘death row phenomenon’, an expression that refers to the prolonged period of detention of a person sentenced to death prior to execution, often caused by the complexity of various post-conviction procedures. Conditions on death row are often especially harsh. Obviously, all prisoners are entitled to be treated with humanity, whatever their sentence. The Economic and Social Council has urged death penalty states ‘to effectively apply the Standard Minimum Rules for the Treatment of 99

100

101

102 103

International Covenant, Article 4(2). General Comment 6(16), pp. 382–3; Pinto v. Trinidad and Tobago (No. 232/1987), UN Doc. A/45/40, vol. II, p. 69; Reid v. Jamaica (No. 250/1987), UN Doc. A/45/40, vol. II, p. 85. Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of 30 January 1987, Series A No. 8, para. 36. Judicial Guarantees in States of Emergency (Arts. 27(2), 25(1) and 8 American Convention on Human Rights), Advisory Opinion OC-9/87 of 6 October 1987, Series A No. 9, paras. 29–30. International Covenant, Articles 6(2) and 15; European Convention, Article 7; American Convention, Article 9; African Charter, Article 7(2); ‘Safeguards’, Article 5. International Covenant, Article 4(2); European Convention, Article 15(2); American Convention, Article 27(2).

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Prisoners, in order to keep to a minimum the suffering of prisoners under sentence of death and to avoid any exacerbation of such suffering’.104 But it is also argued that prolonged detention of a person awaiting execution is, per se, cruel, inhuman and degrading treatment or punishment. The European Court of Human Rights established the precedent in Soering v. United Kingdom, which involved probable detention of six to eight years between conviction and execution. It held the ‘death row phenomenon’ contrary to the European Convention on Human Rights.105 The European Court’s views were echoed a few years later by the Judicial Committee of the Privy Council.106 However, the Human Rights Committee and the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions have refused to follow the same approach, apparently out of concern that any condemnation of delayed execution can only incite states to accelerate the pace.107 In the mid-1990s, it looked as if a majority of the Human Rights Committee might endorse the case law of the European Court.108 The Inter-American Commission of Human Rights has not pronounced itself clearly on the ‘death row phenomenon’. In Lamey, where a lengthy period of detention prior to execution was alleged to violate Article 5, the Commission found violations of other provisions and did not consider it necessary to rule on whether the delay itself also rendered the executions unlawful.109 But in Andrews v. United States, the Commission found that a prisoner who had spent eighteen years on death row, who was not allowed to leave his cell for more than a few hours every week, who had received notice of at least eight execution dates, and who was executed on the basis of a jury decision tainted with racial bias, had received cruel, infamous or unusual punishment.110 104 105 106 107

108

109 110

ESC Res. 1996/15; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc E/CN.4/1996/4, para. 556. Soering v. United Kingdom and Germany, 7 July 1989, Series A No. 161, 11 EHRR 439. Pratt et al. v. Attorney General for Jamaica et al. [1993] 4 All ER 769; [1993] 2 LRC 349; [1994] 2 AC 1; 14 HRLJ 338; 33 ILM 364 (Judicial Committe of the Privy Council). Errol Johnson v. Jamaica (No. 588/1994), UN Doc. CCPR/C/56/D/588/1994; ‘Report by the Special Rapporteur, Mr Bacre Waly Ndiaye, Submitted Pursuant to Commission on Human Rights Resolution 1993/71’, UN Doc. E/CN.4/1994/7, para. 682. But see ‘Situation of Human Rights in Bosnia and Herzegovina: Report of the Special Rapporteur’, UN Doc. E/CN.4/1998/13, para. 75. See a discussion of how close it really came, presented by a member of the Committee, Martin Scheinin, ‘How to Untie a Tie in the Human Rights Committee’, in Gudmunder Alfredsson et al. (eds.), International Human Rights Monitoring Mechanisms (The Hague, Boston and London: Martinus Nijhoff, 2001), pp. 129–45. Lamey et al. v. Jamaica (Case Nos. 11.826, 11.843, 11.846 and 11.847), Report No. 49/01, 4 April 2001, para. 189; also para. 207. Andrews v. United States (Case No. 11.139), Report No. 57/96, 6 December 1996, para. 178.

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Protected categories Several categories of persons have been excluded from the scope of the death penalty by conventional norms. The prohibition on the execution of pregnant women or of mothers of young children is recognised in virtually all of the international instruments111 and, as the reports to the SecretaryGeneral and the Human Rights Committee attest, this is also consistent with state practice. After birth, the length of any moratorium varies in different states and is sometimes no more than a forty-day confinement period.112 Considerable attention was devoted to this problem at the 1977 Diplomatic Conference when the Additional Protocols to the Geneva Conventions were being negotiated. In practice, the execution of pregnant women or mothers of young children is extremely rare.113 The American Convention on Human Rights is the only international instrument to prohibit execution of the elderly.114 The concept provoked virtually no discussion or debate during the drafting of the Convention. The question did not even arise in the preparation of other international instruments, such as the International Covenant on Civil and Political Rights or the Additional Protocols to the Geneva Conventions. Although proposed for inclusion in the ‘Safeguards’, it was cut from the final draft, only to be added four years later in an Economic and Social Council resolution.115 It is hard to find the requisite elements of custom with respect to execution of the elderly. The same is not the case, however, for the prohibition of execution of persons for crimes committed while under eighteen years of age. State practice, with a few lingering exceptions, is consistent with such a ban. With Pakistan’s decision in 2001 not to execute juvenile offenders, only two countries in the world, the United States and Iran, are reported to continue with the practice. The treaty norm prohibiting such executions, in the Convention on the Rights of the Child, has been ratified without any reservation by all states with the exception of the United 111

112 113 114 115

International Covenant, Article 6(5); American Convention, Article 4(5); Protocol Additional to the 1949 Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), (1979) 1125 UNTS 3, Article 76(3); Protocol Additional to the 1949 Geneva Conventions and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), (1979) 1125 UNTS 3, Article 6(4). ‘Initial Report of Morocco’, UN Doc. CCPR/C/10/Add.10; UN Doc. CCPR/ C/SR.327, para. 8 (Mali). United States v. Rosenberg, 195 F 2d 583 (2d Cir.), cert. denied 344 US 838 (1952). Two boys under five were orphaned by the simultaneous execution of their parents. American Convention, Article 4(5). ‘Implementation of the Safeguards’, ESC Res. 1989/64.

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States (although the latter has signed the instrument).116 The norm was recognised without protest during the adoption of several other international human rights or humanitarian instruments.117 The Human Rights Committee has stated that the prohibition of execution of children constitutes a customary norm, although it did not precisely specify the age cut-off.118 In declaring that the United States’ reservation to Article 6(5) of the Covenant was incompatible with the object and purpose of the instrument, the Committee may have implicitly recognised that execution for crimes committed under the age of eighteen was contrary to a customary norm.119 In 2000, the United Nations Sub-Commission for the Protection and Promotion of Human Rights, an expert body, adopted a resolution declaring that execution for juvenile offences was contrary to customary international law. It also adopted a draft decision for the Commission on Human Rights stating ‘that international law concerning the imposition of the death penalty in relation to juveniles clearly establishes that the imposition of the death penalty on persons aged under 18 years at the time of the offence is in contravention of customary international law’.120 The Commission on Human Rights, which has fifty-three member states, has to date not made such an assertion in its annual resolutions on capital punishment. The issue of whether the prohibition of juvenile executions is a customary norm has been litigated before the Inter-American Commission on Human Rights, which concluded in one of its early decisions that there was such a norm prohibiting execution of children but that a specific age such as eighteen could not be determined as a cut-off for exposure to the death penalty.121 The Commission’s reasoning on this point was unclear, and it seemed more impressed by a different finding, namely, that the United States had protested the emergence of such a norm. But the United States did not protest Article 68(4) of the fourth Geneva Convention or Article 6 of the International Covenant during the drafting of 116 117

118 119 120

121

Convention on the Rights of the Child, GA Res. 44/25, Article 37(a). Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, Article 68(5); International Covenant on Civil and Political Rights, Article 6(5); ‘Safeguards’, Article 3; Convention on the Rights of the Child, Article 37(a). General Comment 24(52), UN Doc. CCPR/C/21/Rev.1/Add.6 (1994) 15 HRLJ 464, para. 8. ‘Initial Report of the United States’, UN Doc. CCPR/C/79/Add.50 (1995), para. 14. ‘The Death Penalty in Relation to Juvenile Offenders’, UN Doc. E/CN.4/Sub.2/ RES/2000/17, para. 6. See also ‘The Death Penalty, Particularly in Relation to Juvenile Offenders’, UN Doc. E/CN/Sub.2/RES/1999/4. Roach and Pinkerton v. United States (Case No. 9647), Res. No. 3/87, reported in OAS Doc. OEA/Ser.L/V/II.71 doc.9 rev.1, p. 147, Inter-American Yearbook on Human Rights, 1987 (Dordrecht, Boston and London: Martinus Nijhoff, 1990), p. 328.

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those instruments, at which it was present. In any event, when the American Convention on Human Rights was being drafted, the United States also urged deletion of paragraph 4, because, it said, ‘the proscription of capital punishment within arbitrary age limits presents various difficulties in law’. However, the United States couched its proposal in abolitionist terms, noting that such a provision weakened the text, given ‘the general trend, already apparent, for the gradual abolition of the death penalty’.122 The United States delegate subsequently withdrew this proposal.123 The International Court of Justice has held that objection to the formation of a customary norm must be made ‘consistently and uninterruptedly’.124 If a state does not protest the formation of a norm in a timely fashion, a subsequent objection is insufficient. A genuinely persistent objector may legitimately argue that the customary norm, even if it exists, is not opposable to it,125 although this rule does not apply if the norm is one of jus cogens. In 2000, the Inter-American Commission ruled that a petition from the United States raising this issue was admissible, suggesting that it will revisit the issue of juvenile executions.126 The Economic and Social Council ‘Safeguards’ added the insane to the list of those who cannot be executed. Insane persons do not normally stand trial, but it is well documented that individuals who are fit to stand trial and be properly convicted sometimes become insane before sentence is carried out. The addition of this category to the ‘Safeguards’ was not challenged, and it is consistent with practice, no state having indicated in any of the reports filed with the United Nations that it will execute the insane. It is therefore a norm of customary law that the insane may not be executed.127 There is some evidence of a prohibitive norm in the distinct though related category of the mentally disabled.128 In 2002, the 122 123

124 125

126 127 128

OAS Doc. OEA/Ser.K/XVI/1.1 Doc.10 (Eng.), p. 9. OAS Doc. OEA/Ser.K/XVI/1.1 Doc.40 Corr.1, p. 170. In Roach and Pinkerton v. United States, as evidence of opposition to the norm concerning execution of juveniles, the United States contended that ‘the United States delegate at the drafting of the American Convention pointed out that the United States had problems with Article 4(5)’s arbitrary age limit of eighteen conflicting with its federal structure’ (at para. 38(f )). Anglo-Norwegian Fisheries Case (United Kingdom v. Norway) (1951) ICJ Reports 116 at 138. Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1979), pp. 10–11; Anglo-Norwegian Fisheries Case, p. 131; North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and v. Netherlands) (1969) ICJ Reports 3 at 46; Nuclear Tests Case (Australia v. France) (1974) ICJ Reports 253 at 286–9. Graham (Shaka Sankofa) v. United States (Case No. 11.193), Report No. 51/00, 15 June 2000. William A. Schabas, ‘International Norms on Execution of the Insane and the Mentally Retarded’ (1993) 4 Criminal Law Forum 95. ‘Implementation of the Safeguards’, note 86 above. Also ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1994/7,

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annual resolution of the United Nations Commission on Human Rights urged states that still maintain the death penalty ‘[n]ot to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person’.129 Method of execution The progressive development of attitudes to capital punishment within national legal systems is perhaps best demonstrated by the attempts to render the execution itself more humane, and to suppress such horrors as public execution. Little attention has been given to these matters by international human rights law. The Human Rights Committee has applied the prohibition on cruel, inhuman and degrading treatment or punishment in ruling the gas chamber, as used in California, to be contrary to the International Covenant on Civil and Political Rights.130 In another case, Cox v. Canada, the Committee found execution by lethal injection, as practised in Pennsylvania, to be acceptable, the Canadian Government having argued that the same procedure was being proposed by advocates ¨ of euthanasia, proof that such a practice was humane. In Ocalan v. Turkey, which is currently pending before the European Court of Human Rights, the applicant is arguing that execution by hanging is not compatible with the European Convention on Human Rights. Nothing in any of the human rights instruments speaks to the issue of public executions. The Human Rights Committee has stated that ‘[p]ublic executions are . . . incompatible with human dignity’.131 Conclusions The death penalty was once imposed by international courts, but it is no longer. A handful of conservative states fought an unsuccessful rearguard action in 1998 with their proposal that capital punishment should be an option available to the new International Criminal Court. For the majority, it was really never in question that a contemporary international tribunal might impose the death penalty.132 Therefore, the standards

129 130 131 132

para. 686; ‘Extrajudicial, Summary or Arbitrary Executions: Report by the Special Rapporteur’, UN Doc. E/CN.4/1998/68, para. 117. ‘Question of the Death Penalty’, Resolution of the Commission on Human Rights adopted 26 April 2002. Ng v. Canada (No. 469/1991), UN Doc. A/49/40, vol. II, p. 189. ‘Concluding Observations, Nigeria’, UN Doc CCPR/C/79/Add.16, para. 16. See: William A. Schabas, ‘Life, Death and the Crime of Crimes: Supreme Penalties and the ICC Statute’ (2000) 2 Punishment & Society 263.

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developed by international law with respect to capital punishment do not apply within the system of international law. They are crafted for and targeted at national legal systems, and essentially at the minority of states that still retain the death penalty. For many, the legal value of such norms is a source of puzzlement. After all, rarely are they of direct application before national courts. Moreover, in states where capital punishment is practised most enthusiastically, judges seem supremely indifferent to any attempts to exert international influence, even if it is only to tar them as judicial pariahs. This is far too static a view, and does not in fact give adequate credit to the role international law has played in promoting abolition, both in the courtroom and on a political level. The norms limiting the death penalty have, in a sense, prepared the ground for more ambitious developments. In Europe, for example, legal considerations were essential in moving the abolitionist curtain eastward following the first breaches in the Berlin Wall. Observance of international standards on the imposition of the death penalty, followed in short order by moratorium and a commitment to sign and ratify Protocol No. 6 to the European Convention on Human Rights, became the litmus test for integration within European institutions. More generally, it is well understood by political leaders around the world that abolition of capital punishment is a prerequisite for any regime aspiring to dissociate itself from those dark forces known for their hostility to democracy, equality and human dignity.

3

Doctors and the death penalty: ethics and a cruel punishment ∗

Robert Ferris and James Welsh

Introduction 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.1 The oscillation between importance and marginality covers the territory of a very important human rights and ethical discussion. In this chapter we discuss the evolution of professional ethics towards a restrictive view of physician participation and examine future challenges posed by the death penalty to the ethics of health professionals. Our viewpoint reflects our belief that the most humane and life-affirming position that could be adopted by health professionals would be to work for the abolition of capital punishment. 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 United States, 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 ∗

1

The opinions expressed in this chapter do not necessarily reflect the views of Amnesty International. We thank Drs Alfred Freedman and Abraham Halpern for helpful comments on an earlier draft of this chapter. The authorities do not need physicians at executions for their technical skills. They clearly desire physicians to be present and the reasons for that will be touched on later in this chapter.

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Guatemala and the Philippines, where the 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.2 This debate has contributed to a clearer understanding of the role of health professionals in various facets of capital punishment. In summary, the information available allows us to define the role of health professionals (including psychiatrists) in the following way: 1. Physicians are involved in the medical care of death row prisoners, in preparations for execution such as certifying fitness, procuring chemicals for lethal injection and sedating the prisoner on the day of execution, advising on or participating in the execution itself, pronouncing death,3 certifying death, removing organs for transplantation, and carrying out an autopsy. 2. Psychiatrists carry out mental state evaluations, provide testimony in a number of contexts related to capital cases (including ‘fitness for execution’ determinations) and give or recommend treatment (see below). 3. Other health professionals, notably nurses and paramedics, may be called upon to carry out a number of the roles requested of doctors where doctors refuse to participate or where the authorities prefer for whatever reason to use non-medical personnel. Not all of these activities are unethical but some undoubtedly are, while the ethical status of others is disputed. In some cases, the ethical requirements may be relatively clear but the context far from unproblematic. In one case in 1995, for example, emergency care physicians in a hospital in Oklahoma were brought a death row prisoner, Robert Brecheen, who had attempted suicide by drug overdose on the eve of execution. After emergency resuscitation and stabilisation, he was taken by guards back to the prison and executed a few hours later.4 A similar case occurred in December 1999. David Martin Long was taken by a medically staffed aircraft (against medical advice) from the intensive care unit in Galveston where he had been admitted following a deliberate overdose 2

3

4

For background, see D. Denno, ‘Getting to Death: Are Executions Constitutional?’ (1997) 82 Iowa Law Review 319–464; Amnesty International, Lethal Injection: The Medical Technology of Execution (London: AI Index: ACT 50/01/98, January 1998) (hereinafter Amnesty International, Lethal Injection). Pronouncing death implies that a physician examines the prisoner for vital signs during or immediately after execution and declares the prisoner to be dead (or not, as the case may be). In the context of executions, certifying death requires a physician to examine a body already known to be dead and then provide formal certification of that death. The former is regarded as unethical since it makes the physician part of the execution process; the latter has been ruled ethical. See Amnesty International, United States of America: Developments on the Death Penalty in 1995 (AI Index: AMR 51/01/96, 1996)

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of anti-psychotic medication two days earlier, to the execution chamber where he was put to death on 8 December.5 The practice of states to ask doctors to save the lives of condemned men in order to allow the state to carry out their execution a matter of hours or days later is an act of considerable cynicism; moreover, the line between acting for the benefit of the acutely ill and acting solely to facilitate the state’s desire to carry out the killing itself is a fine one and imposes a serious strain on medical ethics. Development of ethics against professional participation The section that follows deals substantially with the discussion of ethics taking place within medical professional bodies. We give less attention to a vigorous and important analysis of ethical issues within the wider professional community. For such analysis the reader is referred elsewhere.6 From an 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 figure in any of the codes up to and including the nascent World Medical Association’s Declaration of Geneva (1949),7 subsequent codes have been adopted which are of greater relevance to this issue. In 1975, the World Medical Association (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 5 6

7

‘Texas Inmate is Executed Despite Overdose’, New York Times, 9 December 1999. See, for example, M. G. Bloche, ‘Psychiatry, Capital Punishment, and the Purposes of Medicine’ (1993) 16 International Journal of Law and Psychiatry 301–57; J. K. Boehnlein, R. M. Parker, R. M. Arnold, C. F. Bosk and L. F. Sparr, ‘Medical Ethics, Cultural Values, and Physician Participation in Lethal Injection’ (1995) 23 Bulletin of the American Academy of Psychiatry and Law 129–34; R. J. Bonnie, ‘Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics, and the Needs of the Legal System’ (1990) 14 Journal of Law and Human Behaviour 67–90; R. G. Salguero, ‘Medical Ethics and Competency to be Executed’ (1986) 96 Yale Law Journal 167–86; R. D. Truog and T. A. Brennan, ‘Participation of Physicians in Capital Punishment’ (1993) 329 New England Journal of Medicine 1346–9; J. Groner, ‘Lethal Injection and the Medicalization of Capital Punishment in the United States’ (2002) 6 Health and Human Rights 65–79. The Declaration of Geneva was an attempt by the WMA to modernise the Hippocratic Oath which itself prohibited physicians from ‘administering poisons’ to kill (though clearly the context of this prohibition did not suggest that judicial executions were under consideration).

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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 outside of certifying death.8 The WMA declaration was preceded a year earlier by a position statement adopted by the American Medical Association (AMA) opposing medical participation in executions.9 Public health physicians in the US also adopted statements against capital punishment.10 (The AMA subsequently went on to develop a detailed statement against medical participation in which specific acts were ruled either as proscribed or acceptable; see Table 3.1 below.) Psychiatrists In 1969, the Board of Trustees of the American Psychiatric Association (APA) adopted an anti-death-penalty resolution11 and to the best of our 8

9

10

11

The position started as a press release issued by the then WMA Secretary General, Dr Andr´e Wynen, with some urgency as the date of the first scheduled execution (of Thomas ‘Sonny’ Hayes) approached; it was subsequently approved by the 1981 annual WMA Assembly and for nearly two decades represented WMA policy on the death penalty. It was revised in October 2000, retaining the spirit of the earlier resolution. In the event, Hayes was never executed and died of natural causes. Council on Judicial and Ethical Affairs of the American Medical Association. The decision reads as follows: ‘1. An individual’s opinion on capital punishment is the personal moral decision of the individual. 2. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. 3. A physician may make a determination or certification of death as currently provided by law in any situation.’ The American Public Health Association (APHA) resolved in 1985 ‘that health personnel, as members of a profession dedicated to preserving life when there is hope of doing so, should not be required nor expected to assist in legally authorized executions’, and the following year ‘[called] upon the legislative branches at national and state levels to abolish capital punishment . . . [urged] executive officials to use their power to prevent the imposition or execution of the death sentence; and . . . [and encouraged] professional organisations of health workers to work for the abolition of capital punishment and to discourage their members from participating in or contributing to the carrying out of the death penalty’ (Resolutions 8521 and 8611 respectively). In 1994 and again in 2000, the APHA reiterated its opposition to health professional participation in capital punishment. See: APHA Interim Policy Statement LB-00-9, ‘Participation of Health Professionals in Capital Punishment’, 15 November 2000 (2001) 91 American Journal of Public Health 45–6. L. J. West, ‘Psychiatric Reflections on the Death Penalty’ (1975) 45 Journal of Orthopsychiatry 689–700. On 12 December 1969, on a motion of Dr West, the Board of Trustees adopted the following resolution on the death penalty, to be included in the APA amicus curiae brief submitted to the US Supreme Court in the case of William L. Maxwell v. O.

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knowledge this resolution has never been rescinded (though an attempt to ‘reaffirm’ the resolution in 1998 was unsuccessful12 ). During the 1980s, both the APA and the World Psychiatric Association (WPA) adopted positions against the 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.13

The WPA held that ‘the participation of psychiatrists in any . . . action [connected to] executions is a violation of professional ethics’.14 Both the APA and the WPA were to return to these issues in the following decade (see below). Nurses In 1989, the International Council of Nurses (ICN) adopted a particularly strong statement against the 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’.15 Developments in the 1990s The organised 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

12 13 14 15

E. Bishop. Superintendent of Arkansas State Penitentiary: ‘Resolved: that the APA, through its Board of Trustees, opposes the death penalty and calls for its abolition. The best available scientific and expert professional opinion holds it to be anachronistic, brutalising, ineffective, and contrary to progress in penology and forensic psychiatry.’ 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). American Psychiatric Association, ‘Position Statement on Medical Participation in Capital Punishment’ (1980) 137 American Journal of Psychiatry 1487. World Psychiatric Association, Declaration on the Participation of Psychiatrists in the Death Penalty, 1989. International Council of Nurses, ‘Torture, Death Penalty and Participation by Nurses in Executions’ (Geneva: ICN, 1998). This statement replaces the earlier 1989 statement, ‘Death Penalty and Participation by Nurses in Executions’.

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bodies16 with support from medical and human rights NGOs.17 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). The guidelines prohibit: r any action that would directly cause the death of the condemned; r any action which would ‘assist, supervise or contribute to’ the action of another in bringing about death; and r action which could automatically cause an execution to be carried out (for example, by informing an executioner that an execution has not led to the death of the prisoner).18 The AMA listed in detail specific activities which did and did not breach ethics (see Table 3.1), although they did not deal with key mentalhealth-related issues (certifying and restoring competence to be executed) nor with issues relating to the transplantation of organs from executed prisoners. Persistent reports over several years suggest that Chinese surgeons take organs from executed prisoners for the purposes of transplantation,19 with the likely blurring of roles between executioner and surgeon.20 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, but almost none concerning nearly a hundred other retentionist countries.

16

17

18 19 20

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 (Amnesty International, Lethal injection, note 2 above). For example, Physicians for Human Rights adopted a position against the death penalty in 1994 and subsequently joined other medical and human rights organisations in analysing aspects of the death penalty (Breach of Trust: Physician Participation in Executions in the United States (Boston: PHR, 1994)); 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’). Council on Ethical and Judicial Affairs, American Medical Association, ‘Physician Participation in Capital Punishment’ (1993) 270 JAMA 365–8. See, for example, Thomas Fuller, ‘An Execution for a Kidney: China Supplies Convicts’ Organs to Malaysians’, International Herald Tribune, 15 June 2000. The Transplantation Society, the leading international professional body of its kind, adopted a position in 1995 against the use of organs from executed prisoners, reflecting the case put in a position paper by Professor R. Guttmann, ‘On the Use of Organs from Executed Prisoners’ (1992) 6 Transplantation Reviews 189–93.

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Table 3.1 The 1992 AMA policy on medical participation in the death penalty

Permitted

Not permitted

Undetermined by 1992 AMA policy

r testifying on competence

r prescribing or

r providing evidence

r r r r r

to stand trial testifying on relevant medical issues during the trial testifying during the penalty phase of the trial witnessing an execution in a non-professional capacity relieving the acute suffering of the condemned certifying death (after death has been declared by another)

r r r r r r r

administering tranquillisers or other drugs which are part of the execution procedure monitoring vital signs attending or observing the execution as a physician selecting injection sites starting IV lines to administer LI chemicals prescribing or administering the drugs supervising LI devices or personnel pronouncing death

bearing on competence to be executed r treating incompetent prisoners to restore competence to allow execution r issues relating to transplantation of organs following execution

Mental health and the death penalty The 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,21 whether enshrined in customary international law,22 in common law dating back centuries, in specific statutory provisions or in evolving human rights standards.23

21 22

23

G. Hazard and D. Louisell, ‘Death, the State, and the Insane: Stay of Execution’ (1962) 9 UCLA Law Review, 381. W. Schabas, ‘International Norms on Execution of the Insane and Mentally Retarded’ (1993) 4 Criminal Law Forum 95–117; W. Schabas, The Abolition of the Death Penalty in International Law (Cambridge: Cambridge University Press, 2002). 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 in 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, Res. 1989/64, adopted 24 May 1989). A key ruling in the US was the decision of the US Supreme Court in Ford v. Wainwright, 477 US 399 (1986), that it was unconstitutional to execute insane prisoners. An equivalent ruling has been made against executing the mentally retarded in the case of Atkins v. Virginia (see below, pp. 72–3).

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It is beyond the scope of this review to examine the merits of the arguments advanced as to why the insane or mentally disabled should be spared execution, but wherever they are accepted and taken seriously the psychiatrist (or, perhaps, psychologist) will inevitably be brought in to help identify the insane – those mentally incompetent to be executed – and perhaps to treat them on death row or beforehand. As the psychiatrist is a physician, committed to promoting the health and well-being 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.24 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 the following ways: r Evaluation and testimony bearing on a defendant’s capacity to stand trial. r Treatment to restore or maintain a defendant’s competency to stand trial. r Evaluation and testimony bearing on a defendant’s criminal responsibility. r Evaluation and testimony at the sentencing stage. r Evaluation and testimony bearing on a defendant’s capacity to waive appeals. r Evaluation and testimony bearing on a defendant’s competency to be executed. r Treatment to restore a defendant’s competency to be executed. r Treatment of symptoms not relevant to the defendant’s legal situation. The case of Russell Weston illustrates the ethical conundrums inherent in the most basic of concepts – that of fitness for trial. Weston was accused of shooting dead two police officers in the Capitol Building in Washington DC on 24 July 1998. However, he was adjudged by a forensic psychiatrist to be incompetent to stand trial though ‘there [was] a significant likelihood that competence [could] be restored’ by administration of 24

M. L. Radelet and G. W. Barnard, ‘Treating Those Found Incompetent for Execution: Ethical Chaos with Only One Solution’ (1988) 16 Bulletin of the American Academy of Psychiatry and Law 297–308; K. Heilbrun, M. L. Radelet and J. Dvoskin, ‘The Debate on Treating Individuals Incompetent for Execution’ (1992) 149 American Journal of Psychiatry 596–605.

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antipsychotic medication.25 However, when Weston refused medication and the issue of compulsorily administered drugs was raised, his lawyers took the matter to court, contending that involuntary medication would violate his constitutional rights. At the root of this case is the belief that Weston might be liable to the death penalty if convicted. A Washington Post editorial stated the lawyers’ dilemma clearly: If they allow the treatment – which Mr Weston rejected at a time he was deemed competent to make his own medical decisions – they risk exposing him to a potential death sentence. If they resist, as they have to date, they consign him to indefinite isolation and madness.26

The same dilemma faces psychiatrists. Weston spent more than two years untreated and kept in isolation before US District Judge E. G. Sullivan ruled on 6 March 2001 that the prisoner could be involuntarily medicated.27 This ruling was appealed, but on 27 July 2001 the Appeals Court upheld the lower court’s decision.28 Further legal initiatives to have the Supreme Court review the lower court rulings failed when, on 10 December 2001 the Supreme Court stated it would not hear the case.29 In January 2002, medication commenced and further court rulings in August and November 2002 extended the period of medication.30 In addition to issues around mental illness, there are cases involving inmates who are mentally disabled though not necessarily mentally ill. While ethical dilemmas can also come into play in these cases, the Supreme Court has ruled that mental retardation cannot, in itself, be regarded as a bar to execution. In Penry v. Lynaugh,31 the Supreme Court stated that ‘we cannot conclude today that the Eighth Amendment [of the US Constitution] precludes the execution of any mentally retarded person of Penry’s ability convicted of a capital offence simply by virtue of his or her mental retardation alone’, and that there was insufficient evidence of a consensus in society against executing the mentally retarded.32 The ruling had come exactly one month after the United Nations had adopted a resolution recommending that member states eliminate the death penalty ‘for persons suffering from mental retardation 25 26 27 28 29 30 31

Dr Sally Johnson, quoted in ‘A Living Hell or a Life Saved?’, Washington Post, 23 January 2001, p. A01. ‘Insanity and Law’, Washington Post, 11 March 2001, p. B06. ‘Weston Can be Treated for Trial, Judge Decides’, Washington Post, 7 March 2001, p. A01. US v. Weston, No. 01-3027, US Court of Appeals for Washington DC. ‘Schizophrenic Can be Forced to Take Anti-Psychotics’, St Louis Post-Dispatch, 11 December 2001. See US v. Russell Eugene Weston, Jr, Case No. 98-357, 2 August 2002 http://www. dcd.uscourts.gov/98cr357g.pdf (accessed 16 January 2003). 32 Ibid., 340. Penry v. Lynaugh, 492 US 302 (1989) (Supreme Court).

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or extremely limited mental competence, whether at the stage of sentence or execution’.33 More than a decade later, the Court of Appeals for the Fifth Circuit reconsidered Penry’s death sentence, which was being appealed on a number of issues including Penry’s contention that it was cruel and unusual to execute him because of his mental retardation and severe childhood abuse. The court ruled that ‘this argument . . . fails’ and that earlier court decisions were ‘neither contrary to nor an unreasonable application of clearly established Supreme Court precedent’.34 Penry was scheduled to be executed on 16 November 2000 but the Supreme Court ordered a last-minute halt to his execution because it wanted time to decide whether to review Penry’s claim that jurors in his trial may not have given adequate consideration to his mental condition before voting on a death sentence.35 In July 2002, the state of Texas secured a third death sentence for Penry following a re-trial arising from a ruling of the Supreme Court in June 2001.36 The sentencing jury decided that Penry was not mentally retarded. On 26 March 2001, in the case of Ernest McCarver – a man with learning disabilities who had been scheduled for execution in North Carolina on 2 March 2001 – the Supreme Court agreed to consider his appeal based on the issue of whether the execution of people with mental retardation violates the Eighth Amendment ban on cruel and unusual punishment.37 McCarver’s death sentence was stayed. However, the decision of the North Carolina legislature and governor in August 2001 to approve legislation to bar the execution of the mentally retarded appeared to render the issue moot; the state petitioned the Supreme Court for the case to be dropped while the defence urged the Court to proceed to a ruling on the substantive issue. The new North Carolina law applies retroactively, but sentences are not automatically commuted. Any death row prisoner with a claim of mental retardation had a ninety-day period from 1 October 2001 to appeal against their sentence. A hearing in the trial court will then follow to make a determination. On 25 September 2001, the Supreme Court decided not to rule in McCarver. It chose the case of another prisoner, Daryl R. Atkins, to consider 33 34 35 36 37

UN Economic and Social Council Res. 1989/64, adopted 24 May 1989. Penry v. Johnson, No. 99-20868, (United States Court of Appeals for the Fifth Circuit) 20 June 2000. ‘High Court Halts Texas Execution’, Washington Post, 17 November 2000, P. A04. Penry v. Johnson (00-6677), June 2001. McCarver’s petition in McCarver v. State of North Carolina is available at http://www.capdefnet.org/hat/shared files/pdf/Ernest Paul McCarver NC CertPet.pdf (accessed 16 January 2003)

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the issue of mental retardation in the light of the Eighth Amendment.38 The Court ruled in Atkins v. Virginia that executing a mentally retarded prisoner would be inconsistent with ‘evolving standards of decency’ and reversed the decision of the Virginia court that Atkins be executed.39 Professional ethics It is only in the past ten years or so that the psychiatric ethics debate – prompted in part by the AMA’s 1992 guidelines – has come to grips with the details of the execution process and reflected a genuine attempt to grapple with the very serious moral difficulties posed by the death penalty. Previously, the attention paid to psychiatric involvement was relatively sparse and apparently limited to general discussion or specific elements of the death penalty. This contrasted with the attention paid to physician involvement, as mentioned earlier in this chapter. By 1989, national medical associations in at least nineteen countries had formally stated their opposition to physician ‘participation’ in capital punishment.40 In the same year, the World Psychiatric Association, as noted above, issued a statement declaring that the participation of psychiatrists in any action connected to executions is a violation of professional ethics though without specifying what such actions might comprise. Within Europe, comment and criticism has been understandably limited because the countries of Europe are overwhelmingly abolitionist and, indeed, a commitment to abolition is a condition for entry into the Council of Europe.41 Nevertheless, some European bodies have adopted positions on psychiatrists’ participation in the death penalty. In 1992, for example, the Royal College of Psychiatrists in the United Kingdom passed a series of resolutions, which included the following: A psychiatrist can and should treat a person on a voluntary basis that requires psychiatric care while awaiting execution. The provision of involuntary care is much more problematic and should generally only be undertaken if the psychiatrist has obtained a legal guarantee that the patient has had his or her sentence commuted. Each case should be decided by the psychiatrist according to his/her judgement in the circumstances. 38 39 40 41

‘Justices to Hear Appeal of Virginia Execution’, Washington Post, 25 September 2001. Atkins v. Virginia (00-8452), 536 US (20 June 2002) Amnesty International, Health Professionals and the Death Penalty (London: AI Index: ACT 51/03/89, 1989). Cf. Parliamentary Assembly of the Council of Europe. Res. 1097 (1996), adopted 28 June 1996. See also Council of Europe, Committee on Legal Affairs and Human Rights, ‘Europe: A Death Penalty-Free Continent’ Doc. 8340, 20 May 1999, accessible at www.coe.int.

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On no account should the psychiatrist agree to state, after treatment, that that person is fit for execution. Treatment should never be given for the purpose of co-operating in, or expediting, the execution process.42

The absence of the death penalty in Europe did not inhibit the British Medical Association from adopting a policy that the BMA ‘is opposed to the death penalty worldwide’ at the organisation’s annual meeting in 2001. In the US, the wider ethical debate has been extensive, detailed and prolonged. The need to try to resolve the ethical dilemmas has intensified as the numbers of death sentences and executions has steadily increased. Since 1992, at least thirty prisoners have been executed in the US each year.43 In this regard, it is interesting to note the relative rarity with which, for example, the issue of competency to be executed is reported as being raised in practice.44 Yet all the evidence suggests that issues of mental disability and ‘competence’ are a relatively common occurrence and prisoners who are, by any measure, incapable of understanding their situation are executed notwithstanding federal legal protection for mentally ill prisoners and limited protection in certain states for the mentally disabled. On 24 January 1992, for example, Rickey Ray Rector was executed by lethal injection in Alabama despite clear evidence that he was brain-damaged and incapable of comprehending his situation. Rector had attempted suicide by shooting at the time of his arrest and had sustained serious brain injuries. He was widely reported (see, for example, the London Guardian 12 October 1993) to have deferred eating his dessert at the time of his final meal as he was planning to eat it later (i.e. after the execution). Others remain on death row. John Henry Selvage, a 42

43

44

Royal College of Psychiatrists, ‘Resolution Concerning the Participation of Psychiatrists in Executions’ (1992) 16 Psychiatric Bulletin 457. For a broader statement on the subject, see Royal College of Psychiatrists, ‘Capital Punishment and the Medical Profession’ (1994) 18 Psychiatric Bulletin 250–1. The increase in the execution rate can be seen by comparing the number of executions in the first years after the first post-Furman execution and the number in more recent times. An Amnesty International report noted that the first thirty-five executions from that of Gary Gilmore in Utah by firing squad on 17 January 1977 took some seven years. By contrast, the last thirty-five executions in the period covered by the report (up to September 1997) took place in the space of less than five months. Amnesty International, Lethal Injection: The Medical Technology of Execution (London: AI Index: ACT 50/01/98, 1998), p. 12. In 2000, eighty-four executions took place, all but five by lethal injection. Miller was able to find reference to only four cases in California where the issue of competency had been raised, from a total of 180 cases of people condemned to death between 1942 and 1956. Although the issue is raised more frequently today, it is still dependent to a significant extent on intervention by the attorney of the accused, and in death penalty cases these are frequently inexperienced, poorly funded lawyers. R. D. Miller, ‘Evaluation of and Treatment to Competency to be Executed: A National Survey and an Analysis’ (1998) 145 Journal of Psychiatry and Law 67–90.

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forty-two-year-old black Vietnam veteran at the time of the deferral of his execution in Texas in 1993, had recently stopped taking anti-psychotic medication. His condition immediately deteriorated and his legal status entered a ‘legal limbo’ according to the press reports. The Houston Chronicle (17 July 1993) suggested that: ‘If his mental status remains unchanged, he’ll stay on death row – chanting, barking, hissing, clapping his hands, banging his head into walls, burning himself with cigarettes and doing yoga exercises he thinks give him “special power” to be immune from death by injection.’ At time of writing he remains on death row. In 1998, Anthony Porter, a man with a reported IQ of 51, was scheduled for execution. In an irony of extreme proportions, the deferral of his execution to allow for determination of his mental competence permitted unofficial investigators time to produce unequivocal evidence showing that he was innocent of the crime for which he was about to be executed. He became one of thirteen prisoners released from death row in Illinois over the past decade after their innocence was established.45 In March 2000, the Governor of Illinois, George Ryan, established a commission of inquiry into the death penalty in the state, which reported in April 2002.46 On 11 January 2003, Governor Ryan granted clemency to 167 inmates under sentence of death, stating that ‘the Illinois capital punishment system is broken’,47 and at a stroke emptying the state’s death row. It is beyond the scope of this brief overview to do anything other than summarise the relevant issues. These ethical questions continue to be raised in the literature48 and remain contentious: How can the Hippocratic loyalty of the physician (or psychiatrist) to the patient and adherence to the principles of beneficence and non-maleficence be reconciled with assessment and/or treatment that may facilitate the patient’s death at the hands of the state? Is the relative proximity or remoteness of the psychiatrist’s involvement to the act of execution49 a basis for deciding what is ethically acceptable and what should be corporately 45

46

47 48

49

See ‘Simon Charged with ’82 Murders’, Chicago Tribune, 8 February 1999. This level of legal error led the Illinois Governor, George Ryan, to announce a moratorium on executions in the state: ‘Ryan Orders Stay of Executions’, Chicago Tribune, 31 January 2000. ‘Report of the Governor’s Commission on Capital Punishment’, April 2002, http://www.idoc.state.il.us/ccp/ccp/reports/commission report/index.html (accessed 16 January 2003). Text of Governor Ryan’s speech, New York Times online, 11 January 2003, http://www. deathpenaltyinfo.org/RyanCommuteSpeech.html (accessed 16 January 2003). See, for example, A. M. Freedman and A. L. Halpern, ‘The Erosion of Ethics and Morality in Medicine: Physician Participation in Legal Executions in the United States’ (1996) 41 New York Law School Law Review 169–88; A. M. Freedman et al., ‘Forum – Psychiatrists and the Death Penalty: Some Ethical Dilemmas. A Crisis in the Ethical and Moral Behaviour of Psychiatrists’ (1998) 11 Current Opinion in Psychiatry 1–15. N. Eastman and T. McInerney, ‘Psychiatrists and the Death Penalty: Ethical Principles and Analogies’ (1997) 8 Journal of Forensic Psychiatry 583–601.

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proscribed? And, at a practical level, what would be the real consequences of US psychiatrists refusing en masse on ethical grounds to be involved in assessing and treating the growing number of arguably incompetent death row inmates? To date, the ethical debate has focused heavily on evaluation and treatment of the mentally incompetent death row prisoner, the forms of psychiatric involvement most proximal to the act of execution. The AMA, through its Council on Ethical and Judicial Affairs, attempted in 1992 to define which specific behaviours should be ethically proscribed. The result was the adoption of a detailed statement relating to medical comportment, though not addressing psychiatric issues. Input was sought from the APA but the deep divisions within the psychiatric profession were highlighted by the delay in producing a final report that did not appear until June 1995.50 It concluded, first, that participation in evaluation of competence to be executed is not unethical per se. Secondly, the report stated that treatment to restore competence to be executed is ethically unacceptable, and the incompetent may justifiably receive treatment only to relieve extreme suffering.51 A month later, the Board of Trustees of the APA deferred action in response to the AMA report so that the component structures of the APA could discuss the matter and debate the subject at the APA annual conference in San Diego in May 1997. No consensus was achieved at this meeting, and the matter remains under review.52 Subsequently, the issue of abolition of, or the imposition of a moratorium on, the death penalty was raised. In November 1998, the APA Assembly was asked to affirm the abolitionist position recommended by the Board of Trustees of the APA in 1969 but declined.53 However, on 14 May 2000, the APA Assembly 50

51 52

53

The AMA did reach conclusions in December 1992 and a report was published in 1993 (‘Physician Participation in Capital Punishment’ (1993) 270 JAMA 365–8). This set out the areas in which the AMA believed that physicians would breach professional ethics by assisting the state during an execution. However, there remained some issues within psychiatry which were not resolved at the time. These were addressed in a subsequent report: Council on Ethical and Judicial Affairs, ‘Physician Participation in Capital Punishment: Evaluations of Prisoner Competence to be Executed; Treatment to Restore Competence to be Executed’ (American Medical Association, Report 6-A-95, 1995). This did not settle the matter, though, and debate continues. Ibid. The APA ethics committee did pronounce in 1990 that psychiatrists could give opinions on competence to be executed, though the San Diego discussions suggest that these opinions are not definitive (APA, Section 1-N, ‘Opinions of the Ethics Committee on The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry’, 2001). See also Council on Ethical and Judicial Affairs of the American Medical Association, ‘Ethics: Current Opinions with Annotation’ (1996–7 edition, Chicago: AMA), section 2.06, ‘Capital Punishment’, pp. 11–12. Dr A. Halpern, Personal communication, November 1998.

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voted to instruct the APA Board of Trustees to develop a position calling for a moratorium on the application of the death penalty in the US.54 This position was reiterated in September 2000 when the APA Council on Psychiatry and Law approved a resolution calling for a ‘Moratorium on Capital Punishment in the United States’.55 As to the underlying substantive issue of the death penalty, it is clear that the AMA report has not resolved matters by producing any corporate resolution of a debate that continues to arouse strong feelings within the psychiatric and legal professions.56 While a definitive APA position on the psychiatric role is yet to be enunciated, there is a simple position at an international level. In August 1996, the General Assembly of the World Psychiatric Association adopted, as an appendix to the Declaration of Madrid, the following specific guideline in relation to the death penalty: Under no circumstances should a psychiatrist participate in legally authorised executions nor participate in assessments of competency to be executed.57

It remains to be seen what effect these guidelines will have on the continuing debate and on practice within the US. Of the many other retentionist countries so little is presently known that it will be difficult to measure any changes at all accurately. The division in the US remains unresolved. On one side are those who articulate the ascendancy of Hippocratic values within psychiatry, including forensic psychiatry as practised on death 54 55

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American Psychiatric Association Assembly, Moratorium on Capital Punishment in the United States, adopted at the fourth plenary session, 14 May 2000. The motion was approved by the Board of Trustees on 24 October 2000 and subsequently by the APA Assembly on 10 November 2000 (Dr A. Halpern, personal communication, 14 November 2000). The key passage of the resolution states that the APA ‘endorses a moratorium on capital punishment in the United States until jurisdictions seeking to reform the death penalty implement policies and procedures to assure that capital punishment, if used at all, is administered fairly and impartially in accord with the basic requirements of due process’. The American Psychological Association also voted, in August 2001, to call for a moratorium on the carrying out of executions in states in which they are imposed until procedures are adopted which rectify current weaknesses in the death penalty. By contrast, the American Medical Association decided in mid-2000 not to endorse a call for a national moratorium on executions (‘American MDs Reject Moratorium on Capital Punishment’ (2000) 163 CMAJ 197) and a further resolution to this end was defeated at the 2001 annual meeting (A. Halpern, ‘AMA Wrong on Capital Punishment’ Psychiatric News, 17 August 2001). In addition, the matter of how professional bodies should respond to breaches of ethics has never been addressed adequately. We know of no case of a physician who has been disciplined for participation in an execution in breach of professional ethics, though such cases are numerous. Declaration of Madrid, adopted by the General Assembly of the WPA, 25 August 1996. This statement does not explicitly address the issue of treating mentally ill prisoners to restore competence and thus allow execution.

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row.58 From this perspective, there is an irresolvable tension between the duty to further the best interests of the patient and the potential to do fatal damage to those interests by performing competency evaluations or treating to restore competency for execution, in order to further the interests of justice or the state. Certainly the latter, and probably the former, become untenably problematic. On the other side are those who assert the primacy of objectivity or truth-finding in forensic psychiatry even where this is at the expense of the subject’s interests.59 The APA has arguably opted for a Hippocratic understanding of the psychiatric role, even in forensic psychiatry.60 Nevertheless, a recent forum on psychiatry and the death penalty61 demonstrates that the difference of views remains clearly drawn; the death penalty ensures that the line has a very sharp edge. Legal action by health professionals While in the 1980s there were cases of professional associations contributing amicus curiae submissions to courts on death penalty issues,62 in the 1990s there have been cases brought by doctors themselves, as interested parties, to modify death penalty policy or practice. In 1990, Charles Walker was executed by lethal injection in Illinois. It was the first execution in the state for twenty-four years. When it was reported that three doctors were going to participate in the execution, doctors’ organisations protested. To protect participating doctors from peer scrutiny, the state government adopted temporary measures guaranteeing the doctors anonymity. In the following year, a Bill was passed by the Illinois legislature requiring doctors to be present at executions and ensuring that their identities would be kept confidential. The Bill was widely opposed by medical professionals and human rights groups. It specified that the ‘execution shall be conducted in the presence of 2 physicians’ and that the ‘identity of executioners and other persons who participate or perform 58 59 60

61 62

M. G. Bloche, ‘Psychiatry, Capital Punishment, and the Purposes of Medicine’ (1993) 16 International Journal of Law and Psychiatry 301–57. P. S. Appelbaum, ‘The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm’ (1990) 13 International Journal of Law and Psychiatry 249–59. Freedman et al., note 48 above. See the response of Freedman and Halpern citing the former chair of the APA Ethics Committee: ‘Psychiatrists are physicians and physicians are physicians at all times.’ Ibid., p. 13. Ibid. See, notably, the amicus curiae brief of the American Psychiatric Association in Barefoot v. Estelle, 463 US 880 (1983). The American Psychological Association also submitted an amicus curiae brief in this case.

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Table 3.2 Elements of death penalty policy of selected professional associations Association International bodies World Medical Association

World Psychiatric Association

International Council of Nurses

Selected national organisations American Medical Association American Psychiatric Association American Nurses Association American Public Health Association

British Medical Association Guatemala Medical Association Philippines Medical Association Nordic Medical Associations

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Policy

It is unethical for physicians to participate in capital punishment, in any way, or during any step of the execution process (Resolution on Physician Participation in Capital Punishment, 2000, revising 1981 resolution). A psychiatrist [should never] participate in legally authorised executions nor participate in assessments of competency to be executed (Declaration of Madrid, 1996). Opposes nurses’ participation; calls on national nurses’ associations to work for abolition (1989, restated 1998 as [Statement on] Torture, Death Penalty and Participation by Nurses in Executions. Opposes all medical participation except certifying death (see Table 3.163 ). Calls for moratorium (2000). Opposes nurses’ participation (1984). Health personnel ‘should not be required nor expected to assist in legally authorized executions’ (1985); calls for abolition (1986); reiterates opposition to health professional participation in executions (1994, 2000). Opposes the death penalty worldwide (2001). Opposes medical participation in judicial execution (1997). Opposes medical participation in judicial execution (1997). Oppose all participation by doctors in the death penalty (1986).

The definitive AMA policy is given in section E-206 of ‘Current Opinions of the Council on Ethical and Judicial Affairs’, http://www.ama-assn.org/ama/pub/article/43014409.html#C. Importantly, it now addresses the issue of removal of a prisoner’s organs for transplantation, ruling that it would be permissible if ‘(1) the decision to donate was made before the prisoner’s conviction, (2) the donated tissue is harvested after the prisoner has been pronounced dead and the body removed from the death chamber, and (3) physicians do not provide advice on modifying the method of execution for any individual to facilitate donation’.

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ancillary functions in an execution and information contained in records that would identify those persons shall remain confidential’. To maintain confidentiality, ‘the Department may make payments [to participating physicians] in cash’.64 In March 1995, Illinois law was amended again to provide that the medical regulatory law ‘does not apply to persons who carry out or assist in the implementation of a court order effecting the provisions . . . of the Code of Criminal Procedure’. Furthermore, according to the revised law, ‘assistance, participation in, or the performance of ancillary or other functions pursuant to this Section, including but not limited to the administration of the lethal substance or substances required by the Section, shall not be construed to constitute the practice of medicine’.65 The Medical Practice Act (MPA) provides a number of avenues for the discipline of doctors who commit ‘dishonourable, unethical or unprofessional conduct’. In 1994, a number of doctors submitted to a Chicago court that medical personnel involved in executions were in breach of the MPA and that the Act prohibited physician participation. The action was lost and, although the doctors considered an appeal, changes to the law removed the legal grounds for a challenge. In California, thirteen state-licensed doctors undertook legal action in 1996 to ensure that doctors do not participate in executions in the state. This followed changes in the law that resulted in the introduction of execution by lethal injection. In 1994, the US District Court for the Northern District of California ruled that execution by lethal gas (then the method of execution) constituted ‘cruel and unusual punishment’ in violation of the Eighth Amendment and in violation of California’s constitution. This was the first court ruling in the US that any method of execution constituted cruel and unusual punishment.66 In an attempt to circumvent the ban, which was seen as setting a worrying precedent for those in favour of the death penalty, California introduced a new law allowing inmates to choose to be executed by lethal gas rather than by lethal injection thus, presumably, demonstrating that 64

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Illinois Code of Criminal Procedure, chapter 38, section 119-5. See B. Merz, ‘Illinois Execution Bill Signed over Medical Groups’ Protests’ American Medical News, 23–30 September 1991. See also Physicians for Human Rights, Breach of Trust: Physician Participation in Executions in the United States (Boston: PHR, 1994). Other states also keep the identities of execution staff confidential. House Bill 204, amending the Illinois Medical Practice Act, section 4 (exemptions), and the Illinois Code of Criminal Procedures, section 119-5(g). The judge found that prisoners suffered ‘excruciating pain for between 15 seconds and several minutes’ and that a gas chamber execution violates ‘evolving standards of human decency and has no place in a civilized society’ (Fierro v. Gomez, 865 F supp 1367 (ND Cal. 1994)).

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the prisoner was exercising his (or her) own will and that the execution method could not, therefore, be deemed to be cruel. This line of argument failed. The state government went ahead with the introduction of lethal injection executions and, on 23 February 1996, William Bonin became the first prisoner to be executed by lethal injection in the state. The doctors’ legal action sought a ruling that licensed physicians would not be required to be participants in lethal injection executions.67 The initial action was rejected by the judge without a hearing and a subsequent appeal was rejected in October 1998.68 Medical bodies continue to contribute expert opinion as friends of the court. In January 2000, several organisations joined in the submission of an amici curiae brief to the US Supreme Court in the case of Anthony Braden Bryan. The prisoner sought reversal of his death sentence on the ground that Florida’s execution method was cruel and unusual and in breach of the Eighth Amendment. Physicians for Human Rights, Global Lawyers and Physicians, the Society of General Internal Medicine, the American Nurses Association and the American Public Health Association submitted that execution by electrocution had the potential to cause serious pain to the condemned prisoner.69 The court ruled that the issue was moot and did not rule on the substantive issue; the issue became irrelevant as Bryan was executed on 24 February 2000 by lethal injection. (This method of execution had been adopted in Florida the previous month following fears on the part of the authorities that the use of the electric chair may be found to be incompatible with the US Constitution.) Issues of further concern A number of issues connecting doctors with the death penalty give rise to concern as we survey the current landscape. The issues identified 67

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Thorburn, et al. v. California Department of Corrections, et al. (Court of Appeal for the First District, State of California). Thirty-eight eminent medical ethicists contributed to an amicus curiae brief in this case submitted by Professor George J. Annas. The text is available at the Boston University School of Public Health, Department of Health Law website, http://www.bumc.bu.edu/www/sph/lw/amicus.html (accessed 3 August 2000). Thorburn et al. v. California Department of Corrections (Court of Appeal of the State of California, First Appellate District, Division Three, A076423). See http://caselaw. findlaw.com/data2/californiastatecases/a076423.pdf (accessed 3 August 2000). Bryan v. Moore, (US Supreme Court 99-6723), Brief of Physicians for Human Rights et al. as Amici Curiae. Available online at http://supreme.lp.findlaw.com/supreme court/briefs/99-6723/99-6723fo3/brief.pdf (accessed 19 April 2001). Amicus curiae briefs were also submitted by Minnesota Advocates for Human Rights et al., the Louis Stein Center for Law and Ethics et al., and the National Association of Criminal Defense Lawyers.

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below are inter-linked and poorly documented. That in itself is a cause for concern. Continuing practice of executing those with learning disabilities There is a growing international consensus that those with learning disabilities (‘mentally retarded’ persons in the language of US jurisprudence) who have been convicted of a capital crime should not be executed.70 Nevertheless, in a small number of jurisdictions, notably the US,71 such executions continue. The ethical dilemmas posed by the presence on death rows of prisoners with learning disabilities are different in nature to those posed by mentally ill prisoners, but they are real nevertheless. The principal problem arises because, as is the case with mental illness and competency cases, the cost to the prisoner of having the ‘wrong’ competency evaluation is the prisoner’s death. In the case of mental retardation, the issue in question is likely to be a psychometric measure of intelligence (IQ), an evaluation of the prisoner’s capacity for independent thinking and reasoning, or both. In the US, eighteen states prohibit the execution of the mentally retarded, as does the federal government.72 ‘Mental retardation’ is typically defined as ‘significantly subaverage general intellectual functioning resulting or associated with impairment in adaptive behaviour which is manifested 70

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‘Protections for Persons under Sentence of Death’ ECOSOC Res. 1984/502, 5 May 1984, endorsed by the UN General Assembly in Res. 39/118, adopted without a vote on 14 December 1984, and supplemented by ‘Eliminating the Death Penalty for Persons Suffering from Mental Retardation or Extremely Limited Mental Competence, Whether at the Stage of Sentence or Execution’, ECOSOC Res. 1989/64, adopted on 24 May 1989. The sixth UN quinquennial report on the death penalty covering the years 1994–8 recorded that, among the retentionist countries which replied to the UN questionnaire, only Togo had laws allowing the execution of the mentally ill and mentally retarded. The report noted, however, that the defence of mental illness or retardation ‘depends a great deal upon the availability of expert psychiatric testimony’ which was frequently lacking. UN Economic and Social Council, ‘Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty: Report of the Secretary General’, Doc. E/2000/3, 31 March 2000, para. 96. Although the US Supreme Court decision in Atkins v. Virginia prohibits the execution of mentally retarded prisoners, the subsequent verdict of the jury in the Penry re-trial, that Penry should be executed because he was not mentally retarded (see above), reveals the potential for US courts to continue to condemn to death mentally retarded prisoners (not to mention courts failing to receive relevant information on prisoners’ mental incapacity). See also D. R. Olvera, R. B. Dever and M. A. Earnest, ‘Mental Retardation and Sentences for Murder: Comparison of Two Recent Court Cases’ (2000) 38 Mental Retardation 228–33. At time of writing, the states are Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee and Washington. Other states will have to revise their statutes to make them compatible with the Supreme Court’s decision in Atkins v. Virginia.

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during the developmental period’ (Georgia) or is based on a presumption that an IQ of 70 or less may be regarded as an indicator of such impaired functioning (e.g. Kentucky, Maryland and Nebraska).73 In some cases, prisoners are reported to have mental retardation and to suffer mental illness simultaneously. The case of Joseph Cannon illustrates such a scenario (with the additional factor that he carried out the crime for which he was convicted when he was under eighteen). Cannon sustained head injuries when he was hit by a truck at the age of four; he subsequently exhibited hyperactive behaviour and spoke with a speech impediment. He was expelled from school at the age of seven and from age ten was diagnosed as suffering from a variety of mental illnesses: organic brain disease at ten, severe depression with suicide attempt at fifteen, and schizophrenia: he was also diagnosed as borderline mentally retarded. From age seven to seventeen, he was sexually abused by male relatives. He committed murder at seventeen and was executed at twenty-six in 1998.74 At the time of the Penry ruling in 1989, only one state had legislation in place preventing the execution of mentally retarded prisoners,75 though there has been a progressive increase in the adoption of such laws, culminating in the 2002 Supreme Court ruling against executing the mentally retarded. The introduction of laws proscribing the execution of those with mental retardation does not put an end to the problem of executing the retarded. Olvera and colleagues76 describe two court cases in Indiana in which prisoners with similar profiles were adjudged, in one of the cases to be mentally retarded and thus exempt from the death penalty, and in the other case not to be mentally retarded (though the death penalty had not been imposed in this case). The authors’ conclusion, that ‘equal application of sentencing limitation laws requires greater involvement of [qualified] professionals’, underlines the conflict between ethics, the restriction of the death penalty on mental health or development grounds 73 74

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Cited in American Bar Association, A Gathering Momentum: Continuing Impacts of the American Bar Association Call for a Moratorium on Executions (2000), Appendix G. See Amnesty International, USA: Abandoning Justice: The Imminent Execution of Alexander Williams, Mentally Ill Child Offender (London: AI Index: AMR 51/121/00, 2000), Appendix 2, p. 21. The state was Georgia. The Supreme Court argued in Penry v. Lynaugh, 492 US 302 (1989), that ‘there [is not] sufficient objective evidence today of a national consensus against executing mentally retarded capital murderers, since [Penry] has cited only one state statute that explicitly bans that practice and has offered no evidence of the general behaviour of juries in this regard. Opinion surveys indicating strong public opposition to such executions do not establish a societal consensus, absent some legislative reflection of the sentiment expressed therein.’ At the time of the Penry judgment, Maryland also had passed similar legislation but it was only due to take effect on 1 July 1989, shortly after the Supreme Court’s judgment was delivered. D. R. Olvera, R. B. Dever and M. A. Earnest, ‘Mental Retardation and Sentences for Murder: Comparison of Two Recent Court Cases’ (2000) 38 Mental Retardation 228–33.

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(cf. competency evaluations) and the increased professional participation in the processes of capital punishment. Spread of lethal injection and potential for wider medicalisation of executions As noted above, it was the introduction of lethal injection legislation which prompted professional associations to examine the implications of this development and to respond to it. Major inquiries into aspects of the carrying out of the death penalty in the US (New York) and the UK (in 1888 and 1949–53 respectively) both concluded that the use of such medical skills for execution by lethal injection would be unacceptable (at least to medical professionals). US legislators in the late 1970s had no such qualms, however, and went ahead with laws providing for lethal injection execution. Up until 1992, the US was the only country to have lethal injection legislation and up until 1997 was the only country to practise lethal injection executions. Taiwan introduced legislation to allow for execution by lethal injection in 1992 but appears never to have used this method to carry out executions (which continue to be by shooting).77 China legislated in 1996 to allow for lethal injection executions from 1997, and a small number of such executions were reported to have been carried out in the first year under the new law (around two dozen of the 1,876 executions publicly reported to have taken place in China in 1997).78 The thinking behind the introduction of lethal injection was set out in a press release issued by the Chinese embassy in the UK in 1998: ‘Lethal injection is adopted to reduce the suffering of the condemned criminal. With the advent of a more civilized society, an increasingly complete legal system and the people’s growing legal awareness, it is already time for China to replace the old way of execution with a more advanced method in a spirit of humanitarianism.’79 On 31 August 2000, the English-language People’s Daily (online version) reported that China intended to introduce lethal injection as the standard execution protocol nationwide, though execution by shooting would continue.80 77

78 79 80

Amnesty International, Lethal Injection: The Medical Technology of Execution (London: AI Index: ACT 50/01/98, January 1998); Amnesty International, Lethal Injection: The Medical Technology of Execution. An Update, September 1999 (London: AI Index: ACT 50/08/99, September 1999). Amnesty International, Developments in the Death Penalty in 1997 (London: AI Index: ACT 50/04/98, 1998). ‘China Formulating Regulations on Execution by Lethal Injection’, Press Release, Chinese Embassy, London, 2 March 1998. ‘Lethal Injection Introduced as form of Execution in China’, People’s Daily http://english.peopledaily.com.cn/200008/31/eng20000831 49455.html (accessed 28 September 2001). See also ‘China to Adopt Lethal Injections Nationwide’ CNN Online,

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The practical implications of (potentially) thousands of executions being carried out by lethal injection have yet to be evaluated.81 Guatemala carried out its first executions for thirteen years in 1996, when a televised shooting was botched and led to pressure for a different execution method. On 10 February 1998, Manuel Martinez Coronado was executed by lethal injection making Guatemala the third country to employ this execution method. His execution was botched, in part because, apparently, the technicians establishing the intravenous line were nervous, possibly as a result of the audible emotion being expressed by Martinez’s soon-to-be widow and the couple’s children, who were present at the execution. There also was a power failure during the execution, which made the injection apparatus malfunction. Witnesses said that Martinez’s arms were bleeding during the execution, which was televised, and broadcast ‘live’. The government made an evaluation of the execution in order to avoid similar problems in the future and there has been a call for a ban on televising executions. No further executions were carried out in 1998. The medical association of Guatemala made public on several occasions its opposition to the participation by physicians in a lethal injection execution. On 29 June 2000, the second and third such executions took place at La Granja Penal Pavon ´ prison when gang members Amilcar Cetino and Tomas Cernate were executed one after the other. As with the first execution, the execution team (described by Agence France Presse as ‘nurses’) were dressed in full green surgical gowns and facemasks. As there can be no clinical reason for such dress when carrying out the killing of a prisoner, it can only be presumed that the ‘cover-up’ was to protect the identity of the team members, arguably made more necessary by the fact that the execution was televised ‘live’ and retribution by gang members was the subject of rumour and speculation.82

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31 August 2000, http://www.cnn.com/2000/ASIANOW/east/08/31/china.injection.ap/ index.html (accessed 22 January 2001); ‘Stewed Pig’s Feet, a Case of Coke and a Lethal Jab’, Independent (London), 5 September 2000. An article in the People’s Daily, 27 September 2001, suggested that the Chinese authorities intend to implement a radical extension of the use of lethal injection as the method of execution. See ‘Death Sentence Implemented by Injection: A Top Secret Subject of Law Court’, http://english.peopledaily.com.cn/200109/27/eng20010927 81178.html (accessed 28 September 2001). Also ‘Execution Row Centres on Organ Theft’, Guardian (London), 15 September 2001. On 11 March 2002, the People’s Daily reported that ‘China is spreading the use of lethal injection in death execution of condemned criminals, a civilized way of law enforcement’ (emphasis added). See http://english.peopledaily.com.cn/200203/11/eng20020311 91850.shtml (accessed 17 January 2003). This speculation was lent credence by President Portillo, who sent his family to Canada in the period immediately prior to the execution, reportedly to avoid any possibility of kidnapping.

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The Philippines legislated for execution – by lethal injection – in 199683 and the number of prisoners on death row escalated over the subsequent years at a startling rate, caused in part by the number of crimes for which the death penalty applies. Of the 1,000 prisoners under sentence of death in the Philippines at the time of writing, a minority have been convicted of murder; most have been convicted of rape or other ‘heinous’ offences (mainly related to drugs). Many have been convicted after trials lacking basic protections. For example, five men currently under sentence of death were convicted in 1999 after trials based on evidence alleged to have been extracted under torture.84 The first lethal injection execution (of Leo Echegaray, a poor house painter, for the rape of his step-daughter) took place on 5 February 1999 in what journalists described as an ‘execution fiesta’ and a ‘circus’. Echegaray’s wife, present as a witness, sobbed ‘uncontrollably’ and collapsed as he was pronounced dead. On 25 June 1999, a fifty-one year-old man was executed, despite a last-minute decision by the President to stay the execution. The presidential order for a stay of execution was communicated to the execution team after the execution had commenced and the prisoner died.85 In total, six prisoners were executed in 1999 before President Estrada called a halt to executions until a ‘committee of conscience’ was established to review each death row case. This committee was established in late 1999 but lacked transparency, did not appear to address issues of law and acted in an arbitrary way. A church figure who was an early member resigned in view of the working procedures of the committee, which had been criticised on human rights grounds.86 One further execution, on 4 January 2000, took place before President Estrada announced a year-long moratorium on executions.87 President Estrada resigned on 20 January 2001, to be replaced by the former Vice-President, Gloria Macapagal-Arroyo. Before leaving office, the former President commuted 103 death sentences and declared his support for repeal of the death penalty law. After coming to power, President Arroyo commuted at least eighteen death sentences and on 30 September 2002 ordered the indefinite suspension of all executions until Congress debates a Bill on abolition. 83 84 85 86 87

Amnesty International, Lethal Injection: The Medical Technology of Execution (London: AI Index: ACT 50/02/98, 1998). Amnesty International, The Rolando Abadilla Murder Inquiry – An Urgent Need for Effective Investigation of Torture (London: AI Index: ASA 35/08/00, October 2000). Amnesty International, ‘Urgent Action, Eduardo Agbayani, Philippines’ (ASA 35/23/99, 25 June 1999). Amnesty International, Report 2000 (London: Amnesty International, 2000). Moratorium proclaimed 24 March 2000.

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The most recent state to signal its intent to use lethal injection as a mode of execution is Thailand, whose parliament approved the necessary Bill on 20 November 2002.88 While prisoners are just as dead following electrocution, shooting or hanging as they are following lethal injection, this last method has worrying implications both from an ethical perspective and with regard to reform of the death penalty. The major international health professional organisations are explicitly opposed to medical and nursing participation in executions; equally, some states clearly find medical participation useful for ensuring ‘quality control’ and are reluctant to give up the major attraction of lethal injection – that it can be promoted as more humane than other methods. However, the US experience has demonstrated that the lethal injection method can cause considerable suffering and can require a high level of medical intervention, as when a venous cut down is required to attach an intravenous line. Such a case was that of Bennie Demps who was executed on 7 June 2000 by lethal injection after he had spent nearly a quarter of a century on death row in Florida. The team carrying out the execution attempted to establish intravenous lines in each arm but only succeeded with the left arm. They attempted to attach a line in his groin and via an incision in his right ankle but eventually gave up trying to establish the second line. Dr David Thomas, the Director of the Department of Corrections Health Services, was quoted as saying that ‘the inmate suffered no undue discomfort’.89 In some cases, the prisoner himself has assisted in his own execution. Rickey Ray Rector was executed during then-Governor Bill Clinton’s first campaign for the presidency in 1992; Rector was the crucial ‘member’ of the execution team, being the one whose help in establishing an intravenous line avoided the necessity for a venous cut down.90 The suffering is by no means only related to the painful process of prodding various parts of the body to find a point to attach the line. In the case of Thomas Provenzano (Florida), having been twice within twenty-four hours of execution in 1999, he was strapped to the gurney on 21 June 2000 with catheters attached to both arms while his lawyers battled for a stay of execution. He was ten minutes away from execution when the Eleventh US Circuit Court of Appeals imposed a stay of execution. The needles were removed and he was returned to his death cell for a week 88 89 90

Bangkok Post, 21 November 2002. http://www.bangkokpost.com/211102 News/ 21Nov2002 news07.html (accessed 17 January 2003). ‘Questions Raised by Lethal Injection May Reach High Court’, Miami Herald, 9 June 2000. British Medical Association, Medicine Betrayed: The Participation of Doctors in Human Rights Abuses (London: Zed Books, 1992), pp. 113–14.

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when he was again put through the same procedure, this time with the execution being carried out. A judge is reported to have accepted at an earlier hearing that Provenzano believed that he was being executed because he was Jesus Christ, but that such a belief was not sufficient reason under Florida law to spare him, since he was aware that he had carried out a murder.91 These cases underline the attraction to governments of having the presence of a skilled medical practitioner at the execution, both to give technical assistance as well as to confer on the procedure a certain level of legitimacy. Limited detail on medical/psychiatric participation in capital punishment around the world Apart from the US, little is known of the role of physicians or psychiatrists in the death penalty. In order to address, in part, this deficit, a survey on the actual and potential role of psychiatry in capital punishment was carried out in 1995 by the authors of this chapter. Individual psychiatrists or associations in some fifty-five countries were sent a questionnaire in one of four languages: English, Spanish, Arabic or Russian. Of these, replies were received from twenty-three countries, a return rate of 42 per cent. The US, about which a great amount is already known, was deliberately excluded. Countries from which replies were received varied greatly in size and population, and in the level and character of mental health services provided. The numbers of reported death sentences imposed over the previous five years varied from three to more than one thousand; the number of executions carried out from none (five countries) to forty, and the average time delay between sentence and execution from forty-eight hours to many years. Only two countries reported that defendants were never examined by psychiatrists at any stage of criminal justice proceedings in capital cases. Most countries reported that psychiatrists only ‘sometimes’ examined defendants; most commonly, this was before sentencing and least commonly after arrest. A smaller number indicated that defendants were ‘mostly or always’ examined at the various stages of proceedings. The defendant’s mental state at the time of the crime was reported as the most frequent focus of psychiatric testimony, followed by determination of criminal responsibility and then predictions of future dangerousness. Concerning the ethically contentious questions of psychiatric assessment of mental competence to be executed and treatment to restore competence, replies from several countries suggested that in a small 91

Associated Press, 21 June 2000.

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number of cases, not only were assessments of competency carried out but treatment to restore competence given, in some cases involuntarily. Although the questionnaire did not include a direct enquiry concerning the link between an assessment of mental incompetence, treatment to restore competence, and any decision to commute the death penalty to life imprisonment, the replies given suggested that in four of the responding countries the incompetent were not treated and did not have their sentences commuted. This suggests that execution of defendants known to be mentally incompetent had taken place. For five other countries, replies suggested that defendants who were deemed mentally incompetent were sometimes treated (to restore competence) but did not always have their sentences commuted. This suggests that defendants were being executed in some cases after having their mental competence restored by psychiatric treatment. Although 80 per cent of respondent countries had a psychiatric association, the number of psychiatrists in each country varied enormously from one (two countries) to twelve thousand. More than 80 per cent of respondents reported little or no active discussion on capital punishment in their country, and a similar proportion reported the absence of any declared position or the issuing of ethical guidelines on the part of their national psychiatric association. Only four countries affirmed any law or policy excusing psychiatrists on grounds of conscience from assessment or treatment of defendants, which could facilitate an execution. The modest return rate means that the survey cannot claim to be representative of countries retaining the death penalty. By its nature, and considering the methodological limitations, only basic information has been gathered. However, a picture emerges of psychiatric personnel shortages in a significant number of countries, depriving defendants in capital cases and death row inmates of assessment and treatment, of the ethically contentious practice of assessment of competence to be executed and treatment to restore competence (in a small number of countries) and of a major dearth of ethical discussion or corporate guidance from professional associations in the great majority of retentionist countries. There is clearly cause for concern and a need for more detailed information.92 Potential rupture between law and ethics The clearest breach of the working consensus between the state through its legislators and the medical profession and its ethical framework has been seen in the state of Illinois where, prior to the 2000 moratorium on 92

Among the countries from which no response was received was China, the state with by far the highest execution rate in the world.

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executions, doctors who participated in executions in breach of state, national and international medical ethics were protected from scrutiny and discipline by their employer, the state authorities. As mentioned above, the state had adopted a number of means to keep secret the identity of doctors assisting in executions in Illinois, including making payments in cash rather than in traceable forms and legislating that the identity of participants in executions shall be kept confidential. The rupture of ethics and law is not wholly a matter of the intrusion of the state into ethical matters. Within the medical profession there appears to be – at least at present – a gulf between the increasingly rigorous framing of ethical principles and the understanding of what is and is not permissible or desirable by working physicians. A survey of physician attitudes to capital punishment was published in 2000 showing an apparent gulf between the standards of the profession – the article listed eight activities connected to the death penalty which are proscribed by the AMA – and the beliefs of the doctors polled. Eighty per cent indicated that at least one of the disallowed actions was acceptable, 53 per cent indicated that five or more were acceptable, and 34 per cent approved all eight disallowed actions. The percentage of respondents approving of disallowed actions included 43 per cent in favour of injecting lethal drugs.93 The authors conclude that, despite medical society policies, the majority of physicians surveyed approved of disallowed actions involving capital punishment, indicating that they believed it is acceptable in some circumstances for physicians to kill. They suggest that it is possible that the lack of stigmatisation by colleagues allows physicians to engage in such practices.94 Maintaining medical ethics by the displacement of the medical role onto other health professionals or technicians States in the US have signalled, through legislation and comment, their continuing desire to have medical personnel intimately involved 93

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N. Farber, E. B. Davis, J. Widern, J. Jordan, E. G. Boyer and P. A. Ubel, ‘Physicians’ Attitudes About Involvement in Lethal Injection for Capital Punishment’ (2000) 160 Archives of Internal Medicine 2912–16. A second paper by the authors presented similar findings. See N. J. Farber, B. M. Aboff, J. Weiner, E. B. Davis, E. G. Boyer and P. A. Ubel, ‘Physicians’ Willingness to Participate in the Process of Lethal Injection for Capital Punishment’ (2001) 35 Annals of Internal Medicine 884–8. Others clearly agree. Sikora and Fleischman argued that ‘it is important for professional groups and medical societies to impose sanctions upon members who participate in capital punishment, while these organizations work to support legislation prohibiting physician involvement in execution’. A. Sikora and A. R. Fleischman, ‘Physician Participation in Capital Punishment: A Question of Professional Integrity’ (1999) 76 Journal of Urban Health 400–8. See also J. I. Groner, ‘Lethal Injection: A Stain on the Face of Medicine’ (2002) BMJ 1026–8, http://bmj.com/cgi/content/full/325/7371/1026 (accessed 16 January 2003).

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in executions. More than half the states that impose the death penalty involve doctors in executions in some statutory or procedural way.95 At the same time, there has been a perceptible downward shift in the level of expectation that a doctor will play an active role in an execution. This has opened up the possibility – and indeed the reality – that the former medical role will be displaced onto other health workers (as well as onto corrections staff with no particular medical skills). Of course, it may well transpire that eventually personnel having no connection at all with health care will be entrusted with certain quasi-medical procedures during execution, and health professionals need to reflect on whether this would end medical concerns and responsibilities with respect to the death penalty. Conclusion The death penalty is a cruel punishment, which inflicts psychological and, in some cases, gross physical suffering on the condemned. It places family members and loved ones of the condemned in a position of psychological and emotional suffering, which continues after the execution. It is a punishment in which a medical role is not necessary and, we would argue, stretches medical ethics to breaking point. We suggest that the range of ethical dilemmas posed by the death penalty could be effectively resolved by non-participation. However, this does not address the wider moral issues raised by capital punishment and we believe that the most life-affirming position for individual professionals and for the organised profession is to oppose the application of the death penalty. 95

Physicians for Human Rights, Breach of Trust (Boston: PHR, 1994).

4

Replacing the death penalty: the vexed issue of alternative sanctions Andrew Coyle

Introduction In recent centuries, there has been a gradual move away from judicial punishments of a physical nature. Modern democracies have generally abolished any notion of corporal punishment, and in recent years this process has been linked to an increasing impetus to abolish the death penalty. To date, more than half of the nations in the world have broken with hundreds of years of penal tradition to join the ranks of countries that have abolished the death penalty.1 However, abolition of the death penalty is only a first step on the road to reform. Newly abolitionist states then have the task of creating a system of punishment for prisoners who would previously have been executed which is both humane and capable of satisfying the public that these offenders are securely held and are being appropriately punished. This is an exceedingly difficult balance to achieve. The task poses special difficulties in those countries that have relinquished the death penalty under political pressure and with great reservations on the part of their citizens. Even in countries which have long since ceased to execute offenders the public’s unease about what happens to convicted murderers and other very serious offenders does not dissipate of its own accord. Many states have not been very good at educating members of the public about alternatives and uncertainty still lingers. Will murderers be let out on parole? Can they escape from prison? Would there be less crime if the death penalty were to be reinstated? One has only to consider the fact that even in countries with long-standing, sophisticated and successful alternative penalties and fairly low murder rates, a popular vote would probably bring back the death penalty tomorrow. For example, a MORI poll published in the News of the World in the United Kingdom on 6 August 1995 found that 76 per cent of all respondents believed that the 1

Amnesty International, The Death Penalty Worldwide: Developments in 1999 (London: Amnesty International, 1999).

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death penalty was justified in certain circumstances. According to another MORI poll published in the Independent on Sunday and the Sunday Mirror on 6 April 1997, only 24 per cent of respondents were certain, very likely or fairly likely to switch their political allegiances if the local candidate of their preferred party supported the reintroduction of capital punishment. Sixty-seven per cent were not very likely, not at all likely or certain not to switch. Nine per cent did not know. Advocates for abolition cannot content themselves with arguing against the negative aspects of capital punishment. They must also have a clear idea about what should happen to people who commit terrible offences. This must cover the cases of the vast majority of murderers, whose single victims were previously known to them. It must also deal with those few notorious cases that remain in the collective consciousness of nations for years – crimes by people such as Ian Brady and Myra Hindley (known in the UK as the ‘Moors murderers’), who between 1963 and 1965 kidnapped, tortured, sexually assaulted and murdered four children and one teenager before burying their bodies on Saddleworth Moor; Ted Bundy, who was convicted of killing thirty-six women in the United States between 1974 and 1978 and who was executed in 1989; and Anatoly Onoprienko, who killed fifty-two people in Ukraine, including forty in six months, before being arrested in 1994. My personal approach to the question of alternatives to the death penalty has been influenced by my experience as governor of a number of prisons in Scotland and England. For most of my professional career, I had many men in my care who had committed terrible crimes. Some of these were men who, in another country or another era, might well have received the death penalty. For twenty-five years it was my responsibility to keep these men within prison walls and to work with them on a daily basis. My perspective is also informed by visits to prisons in many parts of the world, often as a member of a team of international monitors. These experiences have confirmed my opinion that on practical grounds, leaving aside for a moment the ethical issues, there is no longer any need to have a death penalty. There are better ways to protect our citizens, deter crime and punish offenders. This chapter will begin with a discussion of the different kinds of criminal sanction that can be imposed on people who have been convicted of serious crimes like murder. It will then turn to the problem of how to counter arguments in favour of retaining the death penalty in countries considering abolition. Finally, it will make an argument in favour of the principles of the humane management of long-term prisoners. I will conclude with some observations about the particular challenges facing

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newly abolitionist countries with undeveloped prison systems and precarious economies. Rethinking how we deal with serious offenders: what are the alternatives? In countries which have abolished the death penalty, a convicted murderer can expect to spend many years in prison. The nature and duration of this imprisonment, however, is likely to vary widely from country to country. In some jurisdictions, offenders who would formerly have been sentenced to death now receive a long determinate sentence. For example, Azerbaijan’s parliament has recently approved a proposal by its President to abolish the death penalty, and all 128 people on death row had their sentences commuted to lengthy determinate prison terms. In other countries, such as the United Kingdom, the death penalty has been replaced by an indeterminate sentence of ‘life’ imprisonment. In a few countries, prisoners may receive ‘whole’ or ‘natural’ life sentences, and can expect to spend the rest of their days in prison. Other punishments may accompany a long term of imprisonment, such as the seizure of the offender’s assets, an order that the offender should make restitution to the victim’s family or a requirement that the offender should work to pay his debt to society. Life imprisonment Many countries have replaced the death penalty with the punishment of life imprisonment. The term ‘life sentence’ is an ambiguous one, which has different meanings in different countries. In some, a life sentence means quite simply imprisonment for life, staying in prison until death. This is the case in many states in the United States. It is difficult to establish precise statistics for this group. However, according to the Survey of State Prison Inmates 1991 (published by the Bureau of Justice Statistics in 1991), 0.7 per cent of both black and white and 0.4 per cent of Hispanic prisoners were serving a sentence of life without parole in 1991. From the racial/ethnic breakdown of the total prison population of 711,000 prisoners, this leads to a total figure of 4,516 prisoners. The US prison population is estimated to have increased by 73 per cent between 1991 and 1999, which yields approximately 7,800 state prisoners serving life without parole in 1999. According to the Federal Bureau of Prisons (see www.bop.gov/fact0598.html), there were 3,285 federal prisoners serving life which, when added to the number of state prisoners, gives a total well in excess of 10,000. In most countries, however, few life sentence

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prisoners will actually be kept in prison until they die. Most become eligible for release after a certain period. Once released, life sentence prisoners are often supervised for the rest of their lives and are subject to recall to prison at any time. There are great variations in the length of time such life sentence prisoners actually spend in prison. In Poland, for example, those convicted of certain murders can expect to serve twenty-five years. In Sweden, on the other hand, life sentence prisoners spend on average about nine years before release under supervision.2 While the number of years that life sentence prisoners spend in prison varies from country to country, a common feature of the life sentence is that it is ‘indeterminate’. This means that prisoners will stay in prison until they are considered safe to be released. In the United Kingdom, a perceived advantage of the indeterminate sentence over a long fixed sentence is that it allows the appropriate authorities to detain a prisoner beyond the minimum term recommended by the sentencing judge if the offender is still considered to be a threat to the public. At first sight, ‘life sentence’ may seem a strange description for a period of imprisonment that does not last for life and, indeed, sometimes results in the criminal spending less time in prison than others serving a determinate sentence. In a number of respects, however, it remains an accurate description. First, the life sentence is unique in the degree to which it represents a moral condemnation of a particular act. In the absence of the death penalty, the life sentence carries great symbolic weight. It is regarded as the ultimate punishment. It is society’s way of saying that a person has done something the consequences of which should follow him around for the rest of his days. Life can mean life in a more concrete sense as well. In many countries, life sentence prisoners have no right to release. Their fate is entirely within the discretion of a judicial authority, a government minister or an administrative board, which may decide to keep them in prison. Even after release, they are closely monitored by the probation service. They may be required to check in with police daily, to live in a certain area, and to occupy their time in a prescribed manner. They will be required to disclose to employers, new friends and even potential personal partners their identity as a released life sentence prisoner. There is also the constant threat of being sent back to prison for a breach of licence, or even the appearance of a potential breach. In this sense, even though a lifer may be released from prison, the consequences of his actions remain with him until the day of his death. 2

Life Imprisonment – A Comparative Study undertaken on behalf of HM Chief Inspector of Prisons (London: International Centre for Prison Studies, 1998), p. 16.

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History of the life sentence It is important to understand just how relatively recent the concept of a life sentence, or indeed any very long-term prison sentence, is in penal history. Until the late 1840s, the longest sentences passed down by English judges were rarely more than three years.3 Evidence was given to the 1826 Select Committee of the House of Commons on Scottish Prisons that periods of imprisonment in Scotland rarely exceeded one year.4 Most imprisoned offenders of this period were petty thieves or debtors who served six months or less. Those convicted of more serious crimes were either hanged or transported. Public opinion in those days would have thought it a very strange arrangement for society to have the burden of feeding and clothing a criminal for twenty or thirty years and very cruel to condemn him to the deprivations of prison life for such a long period. In a speech to Parliament in 1837, Lord Russell referred to a ten-year sentence of imprisonment as a ‘punishment worse than death’.5 The imposition of very long sentences can often be related directly to the abolition of the death penalty. ‘Life’ is a lot closer to life than it used to be, as data from England and Wales show. Between 1900 and 1950, the average period served by life-sentenced prisoners in England and Wales was eight years.6 A few ‘life sentence’ prisoners served less than three years during this period. By contrast, the average length of time served by lifers released in 1999 was nearly fifteen years.7 Which crimes call for the life sentence When newly abolitionist states replace capital punishment with the life sentence, one of the first questions to arise is what the scope of this punishment should be. What kind of crime merits the imposition of society’s ultimate sanction? International texts recommend that the most severe punishments should be reserved for the worst crimes. The United Nations, for example, has recommended the establishment of penal policies which ensure that ‘life imprisonment is imposed only when strictly needed to protect society and to ensure justice and . . . only on offenders 3 4 5 6 7

M. Ignatieff, A Just Measure of Pain (New York: Columbia University Press, 1978), pp. 200–1. Report of the Select Committee of the House of Commons on Scottish Prisons 1826 (London: HMSO, 1826), p. 46. M. Ignatieff, A Just Measure of Pain (New York: Columbia University Press, 1978), p. 201. HM Inspectorates of Prisons and Probation, Lifers: A Joint Thematic Review (London: Home Office, 1999), p. 27. Prison Statistics for England and Wales 1999 (London: Home Office, 2000), p. 96.

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who have committed the most serious crimes’.8 Many abolitionist countries have not heeded the UN’s recommendation and significantly more people now receive life imprisonment than did before abolition of the death penalty. Their number increased greatly particularly in the final ten years of the twentieth century. England and Wales now hold the dubious honour of having more lifesentenced prisoners than the rest of Western Europe combined. In this jurisdiction, the increase in prisoners serving a life sentence over the past decade has been particularly dramatic and the numbers continue to rise. Between 1987 and 1997 there was a 58 per cent increase in the male and an 85 per cent increase in the female life sentence population.9 Whereas thirty years ago England and Wales had 730 people serving life sentences, there were over 4,200 people serving life sentences at mid-1999.10 The number of prisoners serving life sentences is predicted in some quarters to increase to just below 6,000 by the year 2007. This steep increase in life-sentenced prisoners in England and Wales is partially a consequence of new laws that have expanded the number of crimes for which life imprisonment is a potential punishment. For example, the criminal law was amended in 1997 to require judges to give life sentences to people convicted of a second, serious violent crime or sex offence, unless there are exceptional circumstances relating either to the offence or the offender.11 Until recently one could be relatively certain on coming across a life-sentenced prisoner that he or she would have been convicted of murder. This is no longer true in England and Wales. According to the Home Office’s most recent figures, about one in four life sentence prisoners has been convicted of crimes other than murder.12 The situation has changed even more in the United States, where mandatory minimum sentencing laws impose automatic life sentences on certain repeat serious offenders. In New York, for instance, what are known as the Rockefeller drug laws have meant that first time drug offenders, many of them young women with children, are going to prison for life.13 It remains the case though that in most jurisdictions the majority of prisoners serving life sentences have been convicted of murder. It was noticeable that, in the UK, in the years immediately following the enactment of the Murder (Abolition of the Death Penalty) Act 1965, the criminal 8 9 10 11 12 13

United Nations, Life Imprisonment (Vienna: United Nations, 1994), p. 16. HM Inspectorates of Prisons and Probation, Lifers: A Joint Thematic Review (London: Home Office, 1999), p. 26. Prison Statistics for England and Wales 1999 (London: Home Office, 2000), p. 97. Crime (Sentences) Act 1997, section 2. Prison Statistics for England and Wales 1999 (London: Home Office, 2000), p. 101. Families Against Mandatory Minimums, ‘Facts on New York’s Rockefeller Drug Laws’, http://www.famm.org/facts on new york.htm.

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statistics show that the number of convictions for homicide in the UK rose considerably. This was used as by some public commentators as an argument that abolition of the death penalty had removed an important deterrent to murder. This was not necessarily the case. Instead, it could be that juries, which had previously been unwilling to convict an accused person of murder in the knowledge that the likely consequence would be execution, now had this inhibition removed. For many years, the existence of the death penalty meant that, at least in theory, the worst punishment that society had to offer was reserved for what were regarded as the worst crimes. The expansion of the scope of the life sentence has weakened its symbolic strength. Now, we have returned to a system where the ultimate punishment is meted out for many different crimes of varying magnitude. Mandatory and discretionary life sentences In some countries, there is a distinction between the mandatory and the discretionary life sentence. If a person is found guilty of an offence that carries a mandatory life sentence, the judge has no option but to impose that sentence. In England and Wales, Scotland and New Zealand, for example, courts are required to impose life sentences in all cases of murder. In other countries, such as Sweden, a judge is not required to hand down a sentence of life imprisonment for murder but he or she may choose to do so. In this case the life sentence is described as ‘discretionary’. In some jurisdictions the law also allows judges to impose a discretionary life sentence for serious crimes such as manslaughter, rape or arson if the circumstances of the crime are very serious. In England and Wales, there is a strong body of opinion, led by some senior judges, which is opposed to the principle of mandatory life sentences. The argument against mandatory life sentences is that they do not allow for any distinction between different kinds of murder; they deal in a crude way with a whole spectrum of crimes. The judge must pass the same sentence on someone who has killed a person in a drunken brawl, on someone who has committed murder in a domestic setting under extreme provocation and on a person who has committed a series of premeditated murders. Critics of the mandatory life sentence, including former Lord Chief Justice Bingham, have argued that the judge should be able to pass sentence according to the individual features of each case, with life imprisonment reserved only for the most serious crimes.14 14

See, for example, the Newsam Memorial Lecture, ‘The Mandatory Life Sentence for Murder’, given on 13 March 1998 by Lord Chief Justice Bingham at the Police Staff College, Bramshill, Hook, Hampshire, http://www.open.gov.uk/lcd/judicial/speeches/ mansent.htm.

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Arguments surrounding the mandatory life sentences gained momentum in England after the controversy surrounding the conviction of Tony Martin in April 2000. Martin, a farmer from Norfolk, was sentenced to life imprisonment for murder after he shot a teenage burglar whom he had discovered in his home. His conviction spurred outrage in some sections of the community and led the leader of the Conservative Party to call for the abolition of the mandatory life sentence for murder.15 Authority for release Because the life sentence is indeterminate, someone or some body has to decide when life-sentenced prisoners should be released. In some countries, authority for the release of prisoners who have been sentenced to life imprisonment for very serious crimes lies in the hands of a publicly accountable government minister. In others, release decisions are made by parole boards. The involvement of a government minister in the determination of release dates of life-sentenced prisoners is at its most intense in England and Wales. In the case of mandatory life sentence prisoners, it is the Home Secretary (the equivalent of the Minister of the Interior in other European countries) who determines the ‘tariff ’, that is, the punitive element of the life sentence, which must be served before release will be considered. Tariffs are set to reflect the length of imprisonment deemed necessary for purposes of retribution and deterrence. Arguments that the lifer is no longer a risk to the public and that he or she has made great progress in prison cannot be raised until the tariff period expires. In setting the tariff, the Home Secretary may consider the recommendations of the trial judge and the Lord Chief Justice, but he need not abide by them. There is now a growing public debate about the correctness of a politician having the power to set the length of sentence. The concern is that a politician may set very high tariffs in order to appear tough on crime. In the case of juveniles sentenced to life imprisonment, the European Court of Human Rights has recently declared that the Home Secretary cannot set the tariff longer than the one the judge recommended.16 Until quite recently, few prisoners were told the length of their tariff until just before their release date. Even prison governors were kept in the dark about how long lifers under their care would be imprisoned. In 1994, the High Court ordered the Home Secretary to change this policy, as a result of which the Home Office must now inform all life sentence 15 16

‘Hague Shifts on Life Sentences: U-Turn Pledge to End Mandatory Term for Murder’, Guardian, 28 April 2000. T and V v. United Kingdom (Application Nos. 24724/94 and 24888/94, 16 December 1999) [2000] 2 All ER 1024; (2000) 30 EHRR 121.

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prisoners of the length of their tariff, along with the judge’s recommendation and any reason for departing from it.17 Many prisoners discovered that their tariffs had been set significantly higher than the judicial recommendation. This becomes a major issue in the case of ‘whole-life’ tariffs, which I will discuss shortly. In Canada and the United States, on the other hand, government ministers are not so closely involved in the release of life sentence prisoners. Instead, the release of life-sentenced prisoners is usually the direct responsibility of a parole board. This is a group of people whose function is to make decisions about when to release life and other long sentence prisoners from prison. Parole boards usually include people from different walks of life (for example, judges, psychologists, lawyers and members of the general public) and they are usually appointed by government ministers and are often bound by statutory law which gives eligibility dates for certain crimes. In the United States, parole boards review and assess every life sentence prisoner once they have served the minimum term imposed by the judge. The potential weakness of a system such as this is that parole boards may come under political pressure to keep prisoners locked up – especially in the aftermath of well-publicised crimes. Indeed, research from the United States shows that the tremendous surge in that country’s prison population is due in large part to the fact that the discretion of parole boards to grant early release has been severely reduced.18 Life imprisonment without the possibility of parole The last thirty years of the twentieth century saw the development of a new kind of punishment which had been used very rarely, if at all, before then: that of life imprisonment without the possibility of release. This punishment was based on the premise that some people have committed acts so heinous that they should spend the rest of their lives in prison. Although at some time in the future old age might render these offenders incapable of posing any threat to public safety, they would remain in prison until the day of their death. There are a number of countries that now imprison people for natural life, taking the view that there are some crimes for which an offender must suffer, if with not physical pain, then at least with the psychological pain of the certainty of life-long imprisonment. The dilution of the life 17 18

R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. US Bureau of Justice Statistics, ‘Truth in Sentencing’, www.ojp.usdoj.gov/bjs/pub/ ascii/tssp.txt.

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sentence per se as a unique form of punishment may be partly to blame for the increasing popularity of the ‘whole-life’ sentence. There is a feeling that those who commit the worst crimes, such as serial murderers and paedophiles who kill children, must suffer more than those who murder in a fit of rage or in the course of a drunken brawl. The whole-life sentence in England and Wales England has recently joined the ranks of those countries in the world that keep people in prison for natural life. The issue came to a head when a number of murderers who had served the tariff part of their sentence as described above came to be considered for possible release. The most notorious of these cases was that of Myra Hindley, which has already been mentioned. Along with her former partner, Ian Brady, Hindley was sentenced to life imprisonment in 1966 after being convicted of several notorious child murders. The details of the murders were quite gruesome: the couple lured children to their home, tortured and then murdered them, burying them on Saddleworth Moor in the north of England.19 When Hindley and Brady were caught, police found in their possession books on torture, pornographic photographs, and recorded tapes of child victims pleading for mercy. Over the years, the ‘Moors murderers’, as they have come to be known, have occupied a unique place in the public consciousness as perpetrators of some of the most harrowing crimes in living memory. Some years into his prison sentence, Brady was found to be insane and has since then been held in a secure mental hospital. He has made it clear that he wishes never to be considered for release. After serving nearly thirty years of her life sentence, Myra Hindley asked the Home Secretary to advise her as to when she could expect to be informed of her release date. Convicted long before the Doody decision, which required the Home Office to tell prisoners the length of their tariff, Hindley had never been told the length of her tariff. She was not aware that for years she had been the subject of confidential exchanges between judges and the Home Office debating the question of the ‘wholelife tariff’. In the course of these discussions, several judges argued that the whole-life tariff was necessary in the absence of the death penalty to satisfy public confidence in the criminal justice system. In 1978, for example, Lord Chief Justice Widgery advocated this view in a letter to the Home Office:

19

Hansard, House of Lords, 4 May 2000 (Lord Bassam of Brighton, Parliamentary UnderSecretary of State, Home Office), cols. 1180–92.

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I think that we must face up to the question of whether ‘life’ should ever mean whole-life. I think the public are given the impression that it does in really bad cases and I believe the pressure to restore capital punishment would increase sharply if this impression is dispelled.20

In the years that followed, those involved in the debate about what to do with Hindley took an increasingly hard-line view. In 1982 and again in 1985, the Lord Chief Justice, Lord Lane, recommended a tariff of at least twenty-five years.21 Home Secretary Leon Brittan provisionally set a thirty-year tariff in 1985.22 Finally, in 1990, Home Secretary David Waddington made the decision to give Hindley the ultimate punishment in a society without the death penalty – a whole-life tariff.23 Hindley was not to learn of this decision until four years later. It was not until 1994 – twenty-eight years after her conviction – that Home Secretary Michael Howard ended Hindley’s hope of parole with the public announcement that she was to be among the first whole-life prisoners.24 There were some public objections to the manner in which Hindley learned of her fate. She was not the only prisoner to be affected. There were others who served more than twenty years, only then to learn by means of written communication that they would never be released from prison. In practice, only a small number of whole-life tariffs have been set in England and Wales. There are at present just twenty-three whole-life prisoners.25 These prisoners cannot expect to gain release by virtue of their progress in prison or the fact that they are no longer deemed to be a danger to society. They are considered to have committed crimes so heinous that in the interests of appropriate retribution they must be kept in prison until death. It has been suggested that the position of the whole-life sentence may change as a result of the incorporation of the European Convention on Human Rights into English law under the Human Rights Act 1998, which came into force in October 2000. For instance, the Lord Chief Justice, Lord Woolf, has suggested that the present arrangements by which the Home Secretary can increase the tariff for life-sentenced prisoners above that set by the court contravenes the Convention.26 The High Court dismissed (albeit reluctantly) an application by two life-prisoners for a declaration to that effect, although the prisoners were granted leave to appeal.27 In November 2002, the House of Lords ruled that the Home 20 21 25 26 27

R. v. Secretary of State for the Home Department, ex parte Myra Hindley, CO/1413/1997. 22 Ibid. 23 Ibid. 24 Ibid. Ibid. Hansard, House of Lords, 4 May 2000 (Lord Bassam of Brighton, Parliamentary UnderSecretary of State, Home Office), cols. 1180–92. ‘Lifers Get Chance of Sentence Reviews’, Guardian, 7 June 2000. ‘Minister Can Set Life Terms, Court Rules’, The Times, 23 February 2001.

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Secretary’s tariff-setting powers for mandatory life sentenced prisoners amounted to a breach of Article 6(1) of the Convention, which guarantees a fair and public hearing by an independent and impartial tribunal.28 Mr Blunkett, the Home Secretary, must have had mixed feelings when he learnt of the death in hospital of Myra Hindley within days of this judgment, thus relieving him of the highly controversial task of releasing her. In addition to the debate about the correct procedural guarantees for whole-life prisoners, a more fundamental question has been posed about the extent to which the whole-life sentence can ever be regarded as a morally acceptable punishment. Some would argue that it is not. In 1977, the Council of Europe’s Committee on Crime Problems expressed in no uncertain terms its feeling that it was inhuman to imprison a person for life without any hope of release.29 More recently, similar objections were made during discussions of the appropriate punishment for those convicted of the crime of genocide under the International Criminal Court (ICC) Statute.30 Natural life in the United States While war criminals convicted under the ICC Statute of the most terrible crimes will eventually be released from prison, many persons convicted in the US of crimes such as armed robbery and drug dealing will be dealt with more severely. The United States leads the world in the number of prisoners sentenced to life without the possibility of parole. All but eight states have now enacted life without parole statutes.31 In the United States, life without parole means exactly that. In a number of states, there remains a possibility, however slim, of clemency after serving many years. In other states, like Alabama, there is no such chance. There, even the governor has no statutory power to grant clemency to life-sentenced prisoners, unless there is sufficient evidence of innocence of the crime.32 Recently enacted sentencing laws targeting recidivist criminals have resulted in the growing numbers of prisoners sentenced to spend the 28 29 30

31 32

R. v. Secretary of State for the Home Department, ex parte Anderson [2002] 3 WLR 1800; [2002] 4 All ER 1089. Council of Europe, Treatment of Long-Term Prisoners (Strasbourg: Council of Europe, 1977), p. 22. W. Schabas, ‘Life, Death and the Crime of Crimes’ (2000) 2 Punishment & Society 263. See especially the East German delegate’s strong resistance to codification of whole-life imprisonment: ibid., p. 266. Death Penalty Information Centre, ‘Life Without Parole’, http://www. deathpenaltyinfo.org/lwop.html. Death Penalty Information Centre, ‘The Death Penalty in Alabama’, http://www. deathpenaltyinfo.org/Alabama.html.

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whole of their lives in prison. As of 1996, twenty-four states had adopted some form of ‘three strikes’ legislation aimed at making sentences harsher for repeat offenders.33 In Georgia, life without parole is the mandatory punishment for all persons convicted twice of serious crimes including murder. Enacted in 1995, the statute has caused the number of persons serving life without parole to rise significantly.34 With a population of about 7.8 million,35 Georgia has about one-seventh the number of citizens as England and Wales,36 but about ten times as many prisoners serving life without parole. Consequences of whole-life sentences Aside from the legal and moral questions involved in imprisoning people for natural life, there are distinct management difficulties in dealing with the concept of whole-life imprisonment. The most obvious problem is that this alternative offers the prisoner no hope of release, and reduces the incentive to rehabilitate and to strive for self-improvement. The wholelife sentence is difficult to reconcile with the English system for dealing with long-term prisoners, which involves a gradual progression to less secure conditions in preparation for release. Much of this incentive to progress is removed in the case of whole-life prisoners. There is a much more pragmatic issue, that of cost. The state of Georgia estimates that just to pay for those now under sentence, most of whom are in their twenties, will cost about US$1 million per prisoner if they live to age 65.37 The abundance of life sentence prisoners in the United States has meant that some prisons are beginning to take on many of the features of nursing homes. A few states have so many elderly prisoners that they have created special correctional facilities to deal with the problems of old age. Alabama’s Hamilton Correctional Facility for the Aged and Infirm provides twenty-four-hour nursing care.38 Hamilton’s inmates include paraplegics, heart and lung patients, and prisoners suffering from Alzheimer’s disease, diabetes and cancer. At Louisiana’s Angola State Prison, about 88 per cent of the 5,100 prisoners are lifers who will die

33 34 35 36 37 38

Austin, Clark, Hardyman and Henry, ‘The Impact of “Three Strikes and You’re Out” ’ (1999) 1 Punishment & Society, 133. ‘Cook, Life Without Parole’, Atlanta Journal-Constitution, 11 March 2000. US Census Bureau, ‘Georgia – People Quick Facts – Population 1999 Estimate’, http://quickfacts.census.gov/qfd/states/13000.html. Government Actuary’s Department, ‘1998-Based National Population Projections’, http://www.statistics.gov.uk/themes/population/articles/governmentactuarys dept.pdf. Cook, ‘Life Without Parole’, Atlanta Journal-Constitution, 11 March 2000. ‘Where Alabama Inmates Fade into Old Age’, New York Times, 1 November 1995.

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in prison.39 Angola has its own funeral industry. At the prison workshop, prisoners construct coffins for unclaimed bodies of those who die behind bars. England and Wales has not yet reached this stage but provision has been made in Kingston Prison, which holds only life sentence prisoners, to accommodate wheelchairs and other special aids for elderly and disabled prisoners. In the public debate about the need to incapacitate some prisoners until they die the inevitable consequences that accompany this form of punishment are sometimes overlooked. Long fixed prison sentences Not all countries see the need for life imprisonment and some instead impose lengthy determinate sentences. In 1999, Nepal formally removed the death penalty from the country’s laws, replacing it with a maximum term of twenty-five years’ imprisonment and confiscation of assets. In Turkmenistan, where the death penalty was also abolished in 1999, the most severe punishment is also a prison term of twenty-five years. In Spain, the maximum sentence is one of thirty years. Long determinate sentences appeal to those who favour honesty in sentencing. The period to be spent in prison is set by the sentencing court and is clear to everyone from the outset. Such sentences obviate the need to involve a parole board or a government minister who might be influenced by public opinion. A long fixed sentence lacks the symbolic significance of life imprisonment but it does not necessarily mean a shorter time in prison. I remember meeting a prisoner during a visit to Stateville Prison in Illinois a number of years ago. I asked him how long he had left to serve. With a wry smile he responded: ‘My sentence is 2,000 years, but I am eligible for parole after one third of that.’ Sentencing an offender to a term of years far in excess of a human life span condemns the person to life imprisonment without the legal protections that come with the life sentence. It circumvents the legislative definition of the sort of crime that deserves life imprisonment. Making the transition: overcoming resistance to abolition Having explored possible alternatives for dealing with people who have committed serious crimes, we have to deal with the difficulties involved in making the transition to an abolitionist society. There are practical 39

‘America’s Aging Lifers Turn Jails into “Geriatric Home” ’, Sunday Telegraph, 25 April 1999.

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considerations involved in abandoning the death penalty. The concept of a very long term of imprisonment is still foreign in a number of jurisdictions and there may be no infrastructure to support such a system. Government ministers may baulk at abolition because of the cost and perceived management difficulties associated with it, and there is the real concern that, without the death penalty, prisoners in countries with undeveloped prison systems will spend years and years in abysmal conditions.

The costs of long-term imprisonment There is another very pragmatic argument in favour of retaining the death penalty that is not often heard in debates about capital punishment in the Western democracies: the issue of cost. In December 1999, the Council of Europe organised a conference in Kiev to remind the government of Ukraine of its obligation to move towards abolition of the death penalty following its accession to the Council of Europe. In the course of a powerful speech explaining why this was very difficult, a member of the Parliamentary Commission Against Organised Crime voiced the opinion that the Ukraine could not abolish the death sentence because it could not afford to keep life sentence prisoners in a special colony. A similar argument was advanced by a senior Russian official at a conference in 1997, with the brutal comment: ‘A bullet is so much cheaper than life imprisonment.’ In many countries in Eastern Europe and Central Asia, when passing a sentence of imprisonment, the court determines not only the length of the sentence but also the conditions in which the prisoner should be held. The severity of the regime reflects, among other things, the perceived seriousness of the offence. For long-term prisoners convicted of serious offences, the court will stipulate what is known as ‘severe regime’ and this may include a long period of solitary confinement. These arrangements rest in part on an assumption that all long-term prisoners are dangerous people who present an ongoing threat to prison staff and fellow prisoners. In England and Wales, following the suspension of the death penalty in 1965, members of the prison service made similar assumptions about the dangerousness of life sentence prisoners. The Prison Officers’ Association of England and Wales was strongly opposed to abolition and at their annual conference in 1965, members of the organisation unanimously voted to call for reinstatement of capital and corporal punishment for prison offences. They felt that abolition left them unprotected from long-term prisoners who had nothing to lose, and that abolition would

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make them ‘guinea pigs for a dangerous social experiment’.40 During this same period, the Scottish Prison Officers’ Association lobbied the Prison Service to build a segregation facility to house dangerous prisoners who were thought to constitute more of a threat after abolition.41 Assumptions about the dangerousness of long-term prisoners have not been supported by experience. Life sentence prisoners do not as a whole present disciplinary problems in prison – in fact they often have better disciplinary records than prisoners serving much shorter sentences. There is no evidence that prisoners serving life sentences are likely to be more disruptive or to pose a threat to good management merely because of the nature of their sentence. It is not uncommon for directors of prisons for those serving long sentences to ask that a number of life sentence prisoners should be allocated to their prison since they can have a stabilising influence on other prisoners. There are several possible explanations for this phenomenon. Frequently, life sentence prisoners are older than the mainstream population and they are often first time offenders who have never previously committed violent acts. Typically, their victim will be someone they have known previously.42 Since their final date of release will at least in part depend on how they respond in prison, they have an interest in not causing disturbances. In England, life sentence prisoners are housed in sixty-eight prisons, including a number of low security facilities. Not only do life sentence prisoners tend to be better behaved than other prisoners inside prison walls, they also tend to have lower re-conviction rates upon release. In England and Wales, just 9 per cent of the 1,587 life sentence prisoners released between 1972 and 1994 had been reconvicted of any offence within two years.43 This group includes the 1 per cent who were convicted of a grave offence such as murder. This rate is in stark contrast to the overall figures, which show that 57 per cent of all prisoners discharged in 1996 were re-convicted of an offence within two years of release.44 An important consequence of all of this is that there are strong arguments for holding prisoners in the same accommodation and under the same conditions as other prisoners who are serving long sentences. There 40 41

42 43 44

B. P. Block and J. Hostettler, Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (Winchester: Waterside, 1997), p. 258. Scottish Prison Service, Current Issues in Scottish Prisons: Systems of Accountability and Regimes for Difficult Prisoners (SPS Occasional Paper No. 2/1989, Edinburgh: Scottish Prison Service, 1989). Information on the Criminal Justice System in England and Wales Digest 4 (London: Home Office Research, Development and Statistics Directorate, 1999), p. 16. Prison Statistics for England and Wales 1999 (London: Home Office, 2000), p. 100. Ibid., p. 150.

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is no requirement for newly abolitionist countries to go to the expense of creating new prisons and colonies to hold these prisoners separate from all others in conditions of extremely high security and with very restrictive internal regimes. It is important that prison staff should undertake individual assessments of life-sentenced prisoners to separate those few who require restrictive regimes from those who can function in the ordinary prison environment. Regimes and programmes for life sentence prisoners The complexities involved in setting up a humane regime for long-term prisoners in newly abolitionist states are well illustrated by the situation in Russia. When President Yeltsin commuted the remaining death sentences in 1999, it was decided that special prison colonies would be created where the reprieved prisoners would serve long sentences in harsh conditions. These were men who would otherwise have been executed; there was an expectation that their prison regimes should reflect this fact. An article in the London Sunday Times described what has become of these reprieved prisoners.45 About half of them are held at Penal Colony 56 in Lozva, Russia, a small settlement 1,500 miles from Moscow. According to the newspaper report, the infernal conditions in which the prisoners are held are absolutely inhumane. Six prisoners are crammed into cells built for two. They have no work or other occupation. Toilet facilities consist of a communal bucket that is slopped out every twenty-four hours. There is no running water. No natural light penetrates the cells and a naked light bulb is kept on day and night. Food consists of buckwheat and tea, occasionally supplemented by a bowl of fish entrails mixed with water. Before abolition of the death penalty, those under sentence of death lived in constant apprehension of their impending execution, a procedure typically carried out without warning at night by means of a single shot in the head. Tragically, prison conditions are so bad that some men formerly sentenced to death have written to the Russian state prosecutor formally requesting execution, rather than endure the appalling conditions and relentless boredom of Russia’s harshest prison for twenty-five years or more. The practice of singling long-term prisoners out for harsh treatment is prevalent in many countries that are in the process of adjusting their penal policy to deal with a group of prisoners who would have formerly been dealt with by the noose or the gun. In addition to being poorly managed, these regimes fly in the face of international standards for the treatment of prisoners. 45

‘Living Hell of Russia’s Death Row’, Sunday Times, 6 August 2000.

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International standards for the treatment of long-term prisoners One of the key documents governing the treatment of long-term prisoners is the ‘United Nations Recommendations on Life Imprisonment’.46 The United Nations recommends that states should provide life sentence prisoners with ‘opportunities for communication and social interaction’, as well as ‘opportunities for work with remuneration, study, and religious, cultural, sports, and other leisure activities’. In a similar vein, the Council of Europe’s report on the ‘Treatment of Long-Term Prisoners’ states that life sentence prisoners should be given ‘opportunities of doing something useful’ and ‘must be treated having regard to possible release and reintegration into the outside world’.47 In many countries, life sentence prisoners and others serving long terms have the same work responsibilities and educational opportunities as other prisoners. They are allowed to take meals with other prisoners, to participate in cultural activities and to receive visitors just like other prisoners. Allowing life sentence prisoners access to the same regimes as other prisoners has many advantages. At a pragmatic level, it reduces the number of prison staff and the amount of resources required to look after prisoners in the highest security status. In addition, prisoners serving long and indeterminate sentences are especially likely to experience isolation and de-socialisation. They frequently lose contact with family and friends on the outside. Regular work, educational activities and access to the normal facilities of the prison will provide them with much needed mental and intellectual stimulation. A full programme of activities will also assist them to adjust to their long sentences and in due course to prepare for eventual release. Initial planning after sentence In many countries, prisoners who have just been sentenced to life imprisonment undergo an initial assessment process. In Scotland, for example, all prisoners serving life and determinate sentences of over ten years go initially to the National Induction Centre, which is within the country’s main high security prison. The aim of the centre is to facilitate the entry of prisoners to the mainstream prison system and the average stay is less than three months. Prisoners are placed in a security category based on an assessment of dangerousness before being transferred to other 46 47

United Nations, Life Imprisonment (Vienna: United Nations, 1994). Council of Europe, Treatment of Long-Term Prisoners (Strasbourg: Council of Europe, 1977), p. 22.

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prisons.48 In England and Wales, male life sentence prisoners begin their sentences in one of five Main Lifer Centres before being transferred to another secure prison.49 In Sweden, life sentence prisoners go first to the national Reception Unit through which all long-term prisoners pass and then to a secure prison for assessment. Thereafter, they may be transferred very quickly to a prison with a lower security level. In Canada, life sentence prisoners also begin their sentence in a high security prison. One of the factors taken into account when deciding the category of these prisoners is the determination of serious harm – if the victim was caused serious harm then the offender is usually classed as high risk.50 In many jurisdictions, initial assessment leads on to a sentence management process in which the needs of the prisoner will be identified through an examination of factors such as criminal history, family and background, employment history, specific offence-related problems such as anger, drink and drugs, as well as reports from the police, probation service and the courts. From this, a lifer sentence plan is drawn up. This plan includes an assessment of risk based on both qualitative and quantitative analysis. The overriding consideration in the process of risk assessment is the protection of the public, and it therefore looks at factors which might threaten public safety such as criminal history and lifestyle. The sentence plan also includes the various activities and programmes in which the prisoner is likely to be involved throughout his sentence. Work, education and other activities In the vast majority of prison systems convicted prisoners are required to work. There is no reason why this should not also apply to life sentence prisoners. The same provision should also apply in respect of education and cultural activities – indeed, given the length of time that they are likely to have to spend in prison, it can be argued that life sentence prisoners should be given priority for these activities when resources are scarce. In Canada, for example, the objective is to encourage prisoners to obtain educational qualifications from external bodies, and many of their industries are managed by private industrial concerns. In recent years, there has been an expansion in the number of courses and programmes, which encourage prisoners to consider the behaviour 48 49 50

HM Chief Inspector of Prisons for Scotland, Report for 1999–2000 (Edinburgh: The Stationary Office, 2000). HM Chief Inspector of Prisons for England and Wales, Report for 1998–1999 (London: The Stationary Office, 2000). Interim Standard Operating Practices – Security Classification of Offenders (700-14) (Ottawa: Correctional Service of Canada, 1998).

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which either led them to commit their offence or at least contributed to it. There are courses to tackle violent tendencies, abuse of drugs or alcohol and sex offending. Contacts with family and the outside world If a person who has been sentenced to a long term of imprisonment is to maintain emotional and physical health while in prison and eventually to return safely to the community, he or she needs to be able to maintain and develop family links and contact. There is, of course, another important justification for the need to allow this contact – that is that the other members of the family, spouses, children and others, who have not committed any crime are entitled to have contact with the family member who is in prison. In an ideal situation, the prisoner would be allowed home to stay with his or her family for short periods of time at regular intervals. When this is not possible for security reasons, there are a number of possible alternative methods of helping family bonds to remain strong. In most countries in Eastern Europe and Central Asia, for example, prisoners may have what are known as family visits three or four times a year. Near the entrance to each prison or colony there will be a small building divided into a series of apartments, each will have one or two bedrooms, and there is generally a communal sitting room, kitchen and bathroom. Prisoners are allowed to stay there with their families for up to seventy-two hours. Similar arrangements exist in Canada. Progress through the system Most life sentence prisoners begin their sentences in high security prisons from which they will then proceed to prisons with a medium level of security; in the case of what are known as domestic murderers, in which the prisoners present little risk to the community, this may happen quite quickly. Several years before his or her anticipated release, the prisoner will be transferred to a low security prison or hostel where he or she will have the opportunity to leave the prison from time to time, sometimes for days at a time, as part of final preparation for return to the community. This latter part of the sentence is usually monitored by the parole board or other releasing authority. Difficult and disruptive prisoners While the great majority of life sentence prisoners want to serve their sentences quietly, a small minority of prisoners do not accept the need

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for control and good order in prisons. There are two extreme models for the management of such prisoners. The first is illustrated by the Scottish tradition of housing problem prisoners in small units. These units are based on the premise that it is possible to provide a positive regime for disruptive prisoners by confining them to ‘group isolation’ rather than individual segregation.51 Instead of building a separate structure to house all of the most difficult prisoners in single cells, the Scottish Prison Service has decided to house its most difficult prisoners in small groups around the prison system.52 The units are not mere holding cells for warehousing prisoners, as they are able to move relatively freely within the units and to have a normal prison routine. Small regimes have been in operation since the 1950s, but the unit that attracted the most international attention was the Barlinnie Special Unit. Opened in 1973, the Barlinnie Unit was created for the treatment of prisoners likely to be detained in custody for very long periods and prisoners with violent propensities towards staff.53 The Barlinnie Unit was described as a ‘bold penal experiment’54 where, rather than being confined to cells, prisoners had great freedom of movement within a secure perimeter. There was no structured programme of work and the main community activities centred on a series of regular meetings at which prisoners were invited to give their opinion as to how the unit should be run. When internally agreed procedures were broken, the prisoner had to explain his actions to other members of the community. Prisoners were encouraged to develop interests in art, sculpting, education, woodwork, physical training or other hobbies. Another distinguishing characteristic was that prisoners were allowed regular and frequent visits from family and friends and to establish links outside the prison. Despite the boldness of the experiment at Barlinnie, the Unit attracted criticism in both the national and the regional press. The Daily Express described it as ‘porridge with cream: a life of luxury behind bars’. The Sunday Mail asked: ‘Why not Butlins for the prison toughies?’ The Glasgow Evening Times headline read: ‘The Nutcracker Suite, more freedom for the danger men.’ In 1990, a new unit was opened within Shotts Prison, and five years later the Barlinnie Unit was closed to allow redevelopment of the main Barlinnie Prison. At the other end of the spectrum from the Barlinnie Unit lies the ‘Supermax’ prison that is increasingly becoming a feature of imprisonment in the United States. Supermax facilities subject prisoners to a 51

52

Scottish Prison Service, Opportunity and Responsibility: Developing New Approaches to the Management of the Long Term Prison System in Scotland (Edinburgh: HMSO, 1990), p. 55. 53 Ibid., p. 56. 54 Ibid. Ibid., p. 48.

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highly isolated regime devoid of programmes, association with others, exercise or recreation. In 1998, about 20,000 prisoners were held in supermaxes where they typically spend about twenty-four hours a day alone in a cell.55 This compares to fewer than fifty prisoners held in the very highest security in the prison system of England and Wales at the beginning of 1999.56 Some of those 20,000 in supermaxes are allowed books or television; others have nothing at all to do. They may be allowed an hour of solitary recreation in an empty outdoor exercise cage. They are strip searched and shackled every time they leave their cell and prisoners spend years in this kind of regime. It is reasonable to conclude that prisoners are likely to be damaged in some way by years of near complete isolation in such an environment.57 I remember one prisoner at Peterhead Prison whose experience illustrated the effects of a solitary regime. This man had committed murder many years before and had been found to be criminally insane. He had escaped from a mental hospital where he was confined, killing three people who were in his way. If there is such a thing as a psychopath, he was one, and clearly the system had to take steps to deal with him. He was transferred to the prison system and, when I arrived as Governor of Peterhead Prison in the late 1980s, he had already been held in isolation for ten years in a small unit with sleeping, living and working rooms, with three members of staff for constant company. He coped with his isolation by creating a cocoon from which he refused to emerge. This included stopping going to outside exercise entirely, saying that he did not wish to feel the ground under his feet. At one point, he developed acute back problems and was in terrible pain so the prison doctor recommended that he be transported to the local community hospital. He refused, as he could not bear to leave his cocoon and face the outside world. He decided instead to learn to live with excruciating back pain. Conclusions A further argument advanced in favour of the death penalty has to do with the ability of over-strained under-funded prison systems to look after prisoners serving very long sentences. Separate from the issue of cost, so the argument goes, it is better in the name of humanity to end a person’s life rather than to subject him for the rest of his life to the kinds 55 56 57

King, ‘The Rise and Rise of Supermax: An American Solution in Search of a Problem’ (1999) 1 Punishment & Society 163. Ibid., p. 164. See, for example, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997).

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of conditions one is likely to find in many of the world’s prisons. This argument was raised at a Council of Europe sponsored conference in the Ukraine at which I was invited to speak on the subject of alternatives to the death penalty. After I said my piece, a sceptical Ukrainian member of parliament stood up. ‘It is all very well for you to talk’, he said. ‘Prisons in the United Kingdom are like Black Sea spas. Have you ever been to a Ukrainian prison? Conditions are so bad that prisoners prefer to die.’ In part, of course, he was correct. In too many countries, prison conditions fall well below the internationally recognised minimum standards for the treatment of prisoners. No one should be forced to spend long sentences in the conditions in some of the prisons I have visited in Russia, Ukraine and other countries, where eighty prisoners are crammed in a space built for twenty in conditions that defy description. Sanitation consists of buckets or a hole in the ground, showers are allowed once per week and prisoners sleep in shifts with the weakest or youngest sleeping during the day. The rooms are iceboxes in the winter, cauldrons of heat in the summer and are breeding grounds for infectious diseases. But this cannot be accepted as a reason to retain the death penalty. There is something logically and morally wrong with the argument that criminals should be exterminated to save them the inevitable suffering that accompanies long sentences in overcrowded prisons. While a thorough discussion of the problem of prison conditions and overcrowding is beyond the scope of this essay, the issue of prison conditions is undoubtedly relevant to the question of alternatives to the death penalty. In a recent joint thematic review of the lifer system in the Prison Service in England and Wales, HM Chief Inspectors of Prisons and Probation noted that: ‘A system which originally was designed to cope with less than 1,000 lifers is now struggling to meet in excess of 4,000. This situation will not improve given the recent legislation, which will result in an increase in the number of life sentences passed.’58 The Council of Europe has recently issued a useful publication about the problem of overcrowding in prisons.59 It details the ills that overcrowding begets, including restricted living space, poorer standards of hygiene, poor sanitation arrangements and little time for outdoor exercise. These in turn lead to tension between prisoners and increased violence, and it has to be remembered that such an institution is a miserable place for staff too. 58 59

‘Foreword’, in Lifers – A Joint Thematic Review by Her Majesty’s Inspectorates of Prisons and Probation (London: Home Office, 1999). Council of Europe, ‘Recommendation No. R (99) 22 on Prison Overcrowding and Prison Population Inflation’ (1999), http://cm.coe.int/ta/rec/1999/99r22.htm.

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There are two ways to tackle the problem of overcrowding.60 One is to reduce the number of admissions to prison through restrictions on the use of pre-trial detention and the introduction of non-custodial measures. In some countries with the worst levels of prison overcrowding pre-trial prisoners make up 50–70 per cent of the prison population. One of the largest prison complexes in the world, Tihar Jail in New Delhi, has over 10,000 prisoners, 80 per cent of whom are awaiting trial. The other way to respond to overcrowding is to reduce the length of imprisonment through reduction of sentences, prison leave and work outside prisons. Many people in prison are petty criminals who have committed minor public order offences and, while their offending cannot be ignored, particularly if it is persistent and a public nuisance, and while they may require some restriction on their liberty and some form of supervision, surely they do need to be held in prisons or colonies surrounded by fences 3 or 4 metres high, guarded by armed staff and dogs, in isolated locations? Instead, arrangements should be made to give such offenders some form of supervision in the community. If this happens, then prison staff can turn their attention to what they are professionally trained to do, which is to look after those people who have committed serious crime, from whom society needs to be protected, in a decent and humane manner. Among this number will be those who might previously have been sentenced to death and who, having paid their debt to society, might one day return to it as honest citizens. What is clear is that the abolition movement cannot rest until the punishments which have replaced the death penalty have become decent and humane and based on notions of restoration and reparation rather than merely on retribution. 60

Ibid.

5

Religion and the death penalty in the United States: past and present James J. Megivern

Organised movements of protest against capital punishment have been a regular feature in the history of the United States. As the society itself has changed, cycles of abolitionism have had different characteristics. One such characteristic is the role which religion played in each era. The purpose of this chapter is to review some of this strange history in the hope of seeing whether it may hold lessons for promoting a better future, an America that might finally ‘catch up with itself ’.1 Early efforts at abolition In the ‘First Abolitionist Era’, running from the 1830s through to the 1850s, a few states, such as Michigan (1846), Rhode Island (1852) and Wisconsin (1853) succeeded in abolishing capital punishment, but a more widespread legacy of that age was the elimination of public hangings. These were abandoned in at least fifteen states during this period. The removal of executions from public squares to prison yards was a strangely ambiguous social move, since it seemed to hit at the very heart of the alleged deterrent purpose of capital punishment by veiling its reality from the general public. In any event, it certainly changed the setting and tone of executions, which were no longer the popular spectacles of old, and this may have played an ironic role in actually delaying full abolition, ‘the final resolution of the issue’.2 From a religious perspective, this alteration in format automatically diminished the role of the clergy by depriving them of a large public audience. In colonial days, the ‘gallows piety’ imported from Europe had 1

2

Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda (Cambridge: Cambridge University Press, 1986), p. 165: ‘Executions in America are an anomaly . . . We have in fact already outgrown the social and political conditions in which capital punishment can continue to be practiced . . . In the end, by discarding capital punishment, American society will be catching up with itself.’ Herbert Haines, Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972–1994 (New York: Oxford University Press, 1996), p. 9.

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as a regular feature the placing of clergymen on the scaffold to play a dual role: to urge the convict to repent and to call on the spectators to take to heart the lessons of the execution. In a sense, executing inside the prison walls made such killings more ‘secular’ in that their ritual role was greatly diminished. But this prominent alteration did not seem to make much difference in the public discussion of the time, which continued to be characterised by prominent use of the Bible, both by those who sought to justify the practice and by those who sought to terminate it. This was illustrated in a famous series of debates held in Manhattan in early 1843, which can be viewed as representative of the age. The Reverend George B. Cheever, arguing in favour of capital punishment, and John O’Sullivan, arguing for its abolition, both spent much of their time disagreeing over what the Bible did or did not teach about the propriety of the death penalty. They also disagreed just as completely over its alleged deterrent value.3 And, as was to happen in future cycles as well, this first abolitionist movement declined with the approach of war. In this instance agitation for achieving the ‘other abolition’, that of human slavery, took precedence as the Civil War neared.4 A ‘Second Abolitionist Era’ began toward the end of the nineteenth century and extended through the early decades of the twentieth. In this period, the great change was that the legal responsibility for executions was transferred from local to state authorities, with the growth and centralisation of state penal institutions. One feature of this increasing ‘modernisation’ was the introduction of the electric chair, first in New York state in 1890. Another was the marked decline in use of the Bible in the public conversation, and a greater focus on empirical grounds in the debate for and against. Between 1897 and 1917, ten more states banned executions, but ‘the abolitionist spirit fell victim to the generally violent and nativist atmosphere surrounding World War I’.5 In the years following that war, however, several controversial trials captured broad public attention and gave new life to abolitionism. The 3

4

5

Texts and commentary can be found in Philip E. Mackey (ed.), Voices Against Death (New York: Burt Franklin, 1976) and Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989). Frederick Douglass was one who saw the dire need for the two abolitionist movements, since they were both defending basic human dignity. See his 1858 address at a Rochester, NY, rally protesting an execution, ‘Capital Punishment is a Mockery of Justice’ in John W. Blassingame (ed.), The Frederick Douglass Papers (New Haven, CT, and London: Yale University Press, 1985), vol. 3, pp. 242–8. Bryan Vila and Cynthia Morris (eds.), Capital Punishment in the United States: A Documentary History (Westport, CT: Greenwood Press, 1997), p. 10.

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defence counsel in the Leopold and Loeb case in 1924 was ‘the great mouthpiece’, Clarence Darrow, who was involved in another famous debate, which can be seen as representative of this second cycle. It too was held in Manhattan and featured Darrow against Judge Alfred J. Talley. But their exchange was strikingly different from the Cheever v. O’Sullivan clash of eight decades earlier. Negative publicity about aspects of popular religion in the 1920s, such as were seen in Sinclair Lewis’ Elmer Gantry (1927) and H. L. Mencken’s coverage of the Scopes trial (1925), affected the national mood. Ready recourse to the Bible was not so automatically acceptable as earlier, and it became quite possible to leave it aside altogether in the death penalty debate as philosophical and empirical arguments tended to displace the religious ones in public debate. Judge Talley built his case on the contention that no state could survive politically without the power to kill its worst offenders. He declared that he would not favour abolishing capital punishment until ‘the murderers of the country abolish its necessity’, and not before. Darrow, on the other hand, believed there was ‘not a single admissible argument in favour of capital punishment. I am against it because it is inhuman . . . I believe that it has no effect whatever to stop murder.’6 The American League to Abolish Capital Punishment (ALACP) was formed in 1925 to try to sustain a movement that was hoping to increase its victories. The largest boost of membership it ever received came in 1927 when the Sacco and Vanzetti case produced an unprecedented ‘hurricane of protest’ around the world. Much of this protest, however, was due to the widespread belief in the innocence of the two men rather than to any principled opposition to the death penalty itself. Nine years later, when Gallup polling about the question was done for the first time, 61 per cent of the American public said they were in favour of capital punishment for murderers, 39 per cent against.7 The churches by and large were not much involved nor very active on the issue in this era, but their traditional, even if largely tacit, support for capital punishment contributed to the fact that the 1930s were the peak period, the time of the greatest number of state executions in all of United States history, averaging over 165 a year.8 At the time, of course, there were plenty of other countries using capital punishment in similar fashion. 6 8

7 Ibid., pp. 89f. Ibid., pp. 79–81, has excerpts from both speakers. William J. Bowers, Legal Homicide: Death as Punishment in America, 1864–1982 (Boston, MA: Northeastern University Press, 1984), p. 54. In the 1890s, the rates were certainly higher since in that decade ‘three out of five executions in America were conducted outside any legal authority’ (by lynching), and ‘the existing record surely under-represents the number of lynchings that actually took place’, and that record acknowledges at least 1,540 lynchings just for the decade of the 1890s. Ibid., p. 56.

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Post-Second World War developments General interest in abolitionism waned once again with the advent of the Second World War. When the ‘Third Abolitionist Era’ began to grow in the 1950s, however, it was in a very different atmosphere. Influenced by European developments in the aftermath of the Nazi Holocaust, state killings were being subjected to a closer scrutiny than had ever before been the case.9 Two highly publicised capital cases in the United States brought the issue to unparalleled prominence and served to galvanise opposition: the 1953 federal execution of Julius and Ethel Rosenberg as Cold War traitors raised unusual international as well as domestic criticism, and the execution of Caryl Chessman by the state of California in 1960. Chessman had not killed anyone and the celebrity status which he built as an accomplished writer from his prison cell, raised new questions for many people about the propriety of such state killings. But an even greater novelty marked this period. Church groups began to formulate and adopt formal statements of opposition to capital punishment and direct them to the authorities. The full history of this phenomenon has yet to be written, but some factors can certainly be identified. The conclusions of a study of the experience of the Presbyterian Church in Canada are undoubtedly applicable more widely than to that particular church. Three basic changes were found to be gradually making their impact, leading to ‘a complete reversal of its [earlier] position: 1) a new understanding of “how Scripture is to be used”, 2) a new understanding of what the principle of justice demands, and 3) a concern about the collapse of the previously central deterrence theory which has been disproved by every study that has been done’.10 This is the description of a truly radical revolution in religious thinking, and in retrospect one may ask whether the church leaders responsible for these documents were moving too rapidly for their followers to keep up. Whatever the explanation, it seems safe to say that these statements of opposition never received much attention at the level of the ordinary membership, and thus had little impact. In the United States, the Methodist Church, with its 1956 Social Creed, seems to have been the first of the major denominations to reverse its position and openly advocate the abolition of capital punishment. The chief reason given for taking this move was that ‘we stand for 9

10

When the new constitution of West Germany specified that ‘the death penalty is abolished’ (Article 102, 1949), it sparked the first full-scale public theological debate about the issue in Christian history. See Gerhard Gloege, Die Todesstrafe als theologisches Problem (Cologne: Westdeutscher Verlag, 1966). Mary Templer, ‘The Right to Life and Death: What Do Presbyterians Say?’ (MA thesis, University of Windsor, Ontario, 1992), pp. 11, 44 and 133.

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the application of the redemptive principle to the treatment of offenders against the law’.11 The Chessman case probably influenced more church leaders than any other single factor. The United States Episcopal Church, the Presbyterian Church, the Unitarians and the Universalists, and a handful of others, were provoked to issue explicit statements opposing the death penalty.12 Some of them were little more than simple affirmations of opposition without much elaboration of the grounds for doing so, but several of them in retrospect are quite astonishing. One of the most striking was that of the American Baptist Church (Northern) in 1958. Nowhere is it more obvious how deeply the geographical factor is an absolutely crucial component in trying to understand the strange history of the quasi-addiction to state killings in the United States. On this issue, Northern Baptist and Southern Baptist, with so much in common in denominational origins and beliefs, continue to reflect two extremely different religious worldviews for reasons all tied up with race and war.13 The 1958 Northern Baptist statement spelled out no less than seven fundamental reasons for advocating total abolition of capital punishment at that time: a) the sacredness of life and the obligation to ‘overcome evil with good’ as taught in the scriptures; b) the hope and possibility of all to come under the redeeming and transforming action of God; c) the fallibility of human agencies and legal justice; d) the immorality and injustice of capital punishment for persons later proven innocent; e) some inexcusable inequities before the law, enabling many persons of higher status and resources to avoid the death penalty while some persons without these resources are unable to avoid the penalty; f) the lack of clear support through the available evidence that capital punishment has a deterrent effect; g) the conviction that the emphasis in penology should be upon the process of creative, redemptive rehabilitation, rather than on primitive retribution.14 11 12

13

14

‘Methodist Church Social Creed (1956)’, in J. Gordon Melton, The Churches Speak On: Capital Punishment (Detroit, MI: Gale Research, 1989), p. 135. Chessman was convicted of kidnapping in 1948 and was sentenced to death under the ‘little Lindbergh’ law. In his twelve years in San Quentin he studied law, wrote his own briefs and received eight stays of execution. Five times his case was reviewed by the United States Supreme Court, and from his prison cell he wrote four books which won him a wide sympathetic following. For the various statements mentioned, see Melton’s collection, note 11 above. This does not even begin to take account of the extremely complex history of white Baptist and black Baptist in the South, a delicate realm that Donald Mathews broaches in ‘Religion and the South: Authenticity and Purity – Pulling Us Together, Tearing Us Apart’, in W. H. Conser & S. B. Twiss (eds.), Religious Diversity and American Religious History (Athens, GA: University of Georgia Press, 1997), pp. 72–101, especially pp. 86ff, on the religious character of racial segregation, achieving ‘the highest stage of white supremacy’, that even sanctioned lynching as a sacred part of the religious system to maintain ‘the purity and holiness’ of the divinely willed order, including the taboo on any kind of interracial sex. Melton, note 11 above, pp. 53f.

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This impressive theological case against the death penalty occurred at a time when executions nationwide were significantly declining.15 Besides the array of opposition coming from liberal Protestant Church leaders, the Union of American Hebrew Congregations also spoke out in an eloquent and straightforward 1959 statement, saying: We believe that in the light of modern scientific knowledge and concepts of humanity, the resort to or continuation of capital punishment either by a state or by the national government is no longer morally justifiable . . . It serves no practical purpose [because] it is not effective as a deterrent to crime . . . it debases our entire penal system and brutalizes the human spirit . . . It lies as a stain upon civilization and our religious conscience.16

The Presbyterian Church (USA), in a 1965 statement, gave two chief reasons to reject the death penalty: ‘We believe in the sovereignty of God’s grace and in his power to redeem and restore the lost to meaningful and useful life’, and ‘We believe in the ultimate significance of each individual person as one for whom Christ died.’ All the practical objections to the system which had come to the fore in the previous cycle were then added to these religious reasons and a final appeal was made directly to ‘the legislatures of those states in which capital punishment is still practiced to hasten to eliminate this punishment from their penal code’.17 These church leaders were speaking in tune with what was going on in much of Europe. In 1965, the United Kingdom in effect abolished the death penalty by suspending it for an initial five-year experimental period, after which it did not return.18 In 1966, there was only one execution in the United States,19 followed by an interim period free of executions, beginning in 1967. This was the one and only time in American history since European colonisation when no state killings occurred on United States soil. A symbolic climax came the next year when the leadership of the National Council of Churches of Christ unanimously (103–0) adopted a statement giving ten reasons why Christian churches should not endorse capital punishment.20 15

16 17 18 19 20

The 1930s saw the highest number of executions in the entire century, with a total of 1,670. In the 1940s, they declined to 1,288, and the 1950s brought a further decline to 716, while the total for the 1960s was 191. See William J. Bowers, Legal Homicide: Death as Punishment in America, 1864–1982 (Boston, MA: Northeastern University Press, 1984), p. 54. Melton, note 11 above, p. 143. Ibid., p. 122. Meanwhile, Canada had held its last execution in December 1962, even though full abolition was not achieved until 1976. See Amnesty International USA, When the State Kills (London: Amnesty International, 1989), p. 226. The United Kingdom’s last two executions took place in August 1964. James D. French was executed by the state of Oklahoma on 10 August. See Bowers, note 8 above, p. 488. Melton, note 11 above, p. 120.

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In retrospect, however, it is clear that these religious statements and protests did not really play a very significant role in changing either opinion or practice. Most people in the pews were not interested in their denominational leaders’ abolitionism. Many were avid supporters of state executions, considering the very idea of its abolition a sign of secularism invading society. Despite the deep divide, this third cycle of abolitionism saw a steady decline in executions. The previously unattainable ideal of actually stopping the state from engaging in premeditated killings suddenly materialised. But when it did, this success was not the work of theologians, preachers or church administrators. Rather, it was the direct result of a small band of hard-working lawyers and academics who devised and implemented an ingenious strategy. They ‘for the first time shifted the debate to question the basic constitutionality of capital punishment’.21 Their work led in 1967 to a moratorium, halting executions for the next nine-and-a-half years. Opposition to the war in Vietnam may have played a role in increasing anti-death penalty sentiment. In any event, the Gallup poll in 1966 ‘reported the lowest level of public support for the death penalty’ in its thirty years of polling, with 42 per cent in favour, 47 per cent against, and 11 per cent with no opinion.22 To this was added, in 1967, the Report of the Presidential Commission on Law Enforcement and Administration of Justice, which came to the unanimous conclusion that ‘the present situation in the administration of the death penalty in many states . . . [is] intolerable’.23 This was the atmosphere in which the National Association for the Advancement of Colored People and the Legal Defense Fund conducted an unprecedented campaign to provide counsel to all prisoners on all death rows around the country, enlisting hundreds of cooperating attorneys, providing a ‘last aid kit’ of litigation strategies for them to use in tying up the courts to achieve a singular national moratorium.24 They highlighted the fact that the use of the death penalty in the United States, whatever other functions it might serve, was still inextricably intertwined

21

22 24

Vila and Morris, note 5 above, p. 121. Lawyer Gerald Gottlieb first ‘suggested in 1960 that the Eighth Amendment prohibition of cruel and unusual punishment could provide the basis for a legal challenge to capital punishment’. 23 Ibid., p. 130. Ibid., pp. 127f. Ibid., p. 131. Anthony Amsterdam and Jack Himmelstein played key roles in managing the campaign. Haines, Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972–1994 (New York: Oxford University Press, 1996), p. 42, notes that this ‘third wave of abolitionism was rooted more in the civil rights movement than in prior anti-death penalty struggles’.

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with profound racial prejudice. Over 400 black men had been executed between 1930 and 1960 for allegedly raping white women.25 It is not surprising that the death penalty so used was often characterised as little more than ‘legal lynching’.26 The Furman decision The beginning of the ‘Fourth Abolitionist Era’ in United States history is dated very specifically: 29 June 1972, the day the Supreme Court handed down its decision in Furman v. Georgia.27 This 5–4 decision, finding the death penalty unconstitutional as it was being applied, brought the country temporarily into line with most other modern industrial democracies. For one thing, the blatant racism of the system, centred as it was in the old South, had been widely recognised as being in dire need of being addressed. Despite the variety in their opinions, ‘the Justices asserted the preciousness of life despite claims advanced by forces far more powerful than the condemned that violence is necessary and wise. They acted to limit the human capacity for destructiveness against the strong tide of the urge to punish . . . Reverence for life – even life stunted, twisted, violent, or vexed – illuminated them all.’28 This was the first time the Supreme Court had heard arguments questioning the legality of the very use of the death penalty as such. The issue was thereby ‘constitutionalised’, opening up an entirely new era of debate. There was obviously no consensus, and the nine justices all wrote separate opinions, clustered into three categories: abolitionist (William Brennan and Thurgood Marshall); strict constructionist (Harry Blackmun, Warren Burger, Lewis Powell and William Rehnquist); and neutral (William Douglas, Potter Stewart and Byron White). It was the joining of the first and third groups which provided the fragile 5–4 majority. It is clear that neither religious groups nor religious arguments played any major role in bringing about this unexpected success. Nonetheless, it is worth noting that many religious organisations filed amicus curiae 25

26 27 28

When the Supreme Court later declared 7–2 that death was unconstitutional as excessive and disproportionate punishment for rape (Coker v. Georgia, 433 US 425, 97 SCt 2861 (1977)), Georgia was the only state in which rape of an adult was still a capital crime. For the full text, see Barry Latzer, Death Penalty Cases: Leading US Supreme Court Cases on Capital Punishment (Boston, MA: Butterworth-Heinemann, 1998), Chapter 4, ‘Rape and the Death Penalty’, pp. 61–8. For fuller details, see W. Fitzhugh Brundage, Lynching in the New South (Urbana, IL: University of Illinois Press, 1993). See Jesse Jackson, Legal Lynching: Race, Injustice and the Death Penalty (New York: Marlowe & Co., 1996). Haines, note 24 above, p. 14. Michael Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (New York: Wm Morrow & Co., 1974), p. 316.

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briefs in the days before Furman. The Synagogue Council of America had canvassed its constituency, asking for the best ethical arguments against the death penalty, which could be derived from ancient Jewish tradition. Spokespersons also came forward from the National Council of Churches of Christ and nearly a dozen other Christian organisations,29 taking a stand in support of the value of life. Two other religious groups that filed briefs were harbingers of something new and important for the future. The National Catholic Conference for Interracial Justice and the National Coalition of American Nuns were the first American Catholic groups to speak out publicly against the death penalty. In taking this stand in 1971, they were on the cutting edge of the social-justice renewal movement sparked by the Second Vatican Council (1962–5). In 1974, the United States Catholic Bishops, even though they could not agree on a full-scale statement explaining the change, adopted by a substantial majority (108–63) a resolution opposing the death penalty.30 A massive historical change was in full swing. Given that the Supreme Court’s decision in Furman was handed down at a time when executions had already been suspended for five years, many thought that, as in the United Kingdom, the United States would never again resort to the use of the death penalty. But this was not to be the case. In July 1976, four years after Furman, the same Court (with only one personnel change in the interim – John Paul Stevens for William Douglas) ruled, seven to two, in Gregg v. Georgia, that the death penalty could be constitutional if imposed with ‘guided discretion’. Before long, some three-dozen states accordingly drafted new statutes, and the way was cleared for resuming state killings. The execution of Gary Gilmore by a Utah firing squad on 17 January 1977 returned the United States to the company of nations still using death as an instrument of law. For a while, it did not seem to make much difference. There were no other executions in 1977, none at all in 1978, and only two in 1979. There were none in 1980, when Ronald Reagan was elected president, and only one in 1981 and two in 1982.31 As long as they were so infrequent, they were easily overlooked and did not raise enough concern to draw significant numbers of new people to the abolitionist movement. The fact that neighbouring Canada had succeeded in abolishing capital punishment in the very month in which 29 30 31

Ibid., p. 256. See Thomas J. Reese SJ, A Flock of Shepherds: The NCCB (Kansas City, MO: Sheed & Ward, 1992). See the Death Penalty Information Center website, www.deathpenaltyinfo.org, for historical details and continuously updated statistics and news.

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the Gregg decision restored it in the United States was anomalous, but little was made of it at the time. The conversion of the Roman Catholic Church The decade of the 1970s was thus a doubly strange era with the Supreme Court zigzag and the Roman Catholic ‘conversion’. The wholesale turnaround of the leadership of the Roman Catholic Church from the traditional position of being among the most ardent supporters of the death penalty to the stance of radical opposition, all in a few short years, was unanticipated and a cause of considerable confusion, obliterating the fault lines of earlier coalitions. The quarter-century from 1970 to 1995, when most of the Catholic shift occurred, understandably was a time when individual Catholics occupied many different positions. What was formerly a non-question – the propriety of the state’s standard use of capital punishment – was thrown open, with the majority of the leaders who addressed the issue becoming increasingly vocal opponents of executions, while a minority of retentionists for a while tried to hold back the tide. Any adequate historical explanation for this highly unusual development would have to include the major influence of the post-Second World War evolution of the human rights movement, associated with the origins of the United Nations. Symbolic moments may be noted in Paris in 1948, Rome in 1963 and Washington in 1980. Adopted in Paris in 1948, the Universal Declaration of Human Rights, as studies associated with its fiftieth anniversary have amply documented, represented an historic achievement of a dedicated group of ‘visionaries’ determined to do something that had never before been done, that is, formulate an international statement of norms or standards of human rights for all human beings, ‘a declaration designed to create and then proclaim a vision’.32 This ambitious enterprise, undertaken in the aftermath of the Nazi Holocaust, the atomic incinerations, and all the other assaults on human dignity at the time, was nothing less than a call for a universal re-education of heart and mind, setting aside the post-war nihilism that provided no hope for any kind of human future. A major contributor to the formulation of the text was the French jurist, Ren´e Cassin, who numbered among his conversation partners not only the Catholic political philosopher Jacques Maritain, but also the papal nuncio to Paris, Archbishop Angelo Roncalli, who ten years later was 32

Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia, PA: University of Pennsylvania Press, 1998).

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elected Pope John XXIII, and who soon afterwards convened the Second Vatican Council (1962–5). Pope John XXIII’s Encyclical Letter, Pacem in Terris, issued in Rome in 1963, proved to be the Magna Carta for human rights in Catholic social thought. ‘Written while the Second Vatican Council was in progress, Pope John’s list of human rights closely paralleled that of the Universal Declaration.’33 This linkage provides a partial explanation as to why the Catholic Church today stands so opposed to the death penalty, in quite striking contrast to its stance in earlier centuries. Pope John XXIII ‘took the Catholic Church into the heart of the United Nations human rights debates . . . For Pacem in Terris, the foundation and purpose of all rights is the dignity of the human person . . . [It] set the horizon within which the debate has occurred for the last thirty years.’34 The most crucial teaching came early in the document when he stated without reservation that ‘any human society . . . must lay down as a foundation this principle: every human being is a person . . . By virtue of this he has rights and duties of his own . . . which are universal, inviolable, and inalienable. If we look upon the dignity of the human person in light of divinely revealed truth, we cannot help but esteem it far more highly.’35 Traditional justifications for the death penalty were embarrassingly incompatible with such a perspective and have thus, for the most part, been gradually set aside. In Washington, in 1980, the National Conference of Catholic Bishops, at its annual November meeting, endorsed a comprehensive statement repudiating the use of capital punishment. Even though at first it was not unanimous, the resolution drew a significant majority that clearly demonstrated the direction for the future. This happened in the same month when Ronald Reagan was elected president. Since the national mood was swinging in the other direction, the bishops’ statement was a decidedly counter-cultural proclamation that many simply did not want to hear. It affirmed unequivocally that there were ‘serious considerations which should prompt Christians and all Americans to support abolition of capital punishment’. Four values were singled out ‘that would especially be promoted by abolition’: it would ‘send a message that we can break 33 34

35

J. Milburn Thompson, Justice & Peace: A Christian Primer (Maryknoll, NY: Orbis Books, 1997), p. 94. J. Bryan Hehir, ‘Religious Activism for Human Rights: A Christian Case Study’, in John Witte Jr and Johan D. van der Vyver (eds.), Religious Human Rights in Global Perspective: Religious Perspectives (The Hague: Martinus Nijhoff, 1996), p. 103. The remark refers to the human rights issue, but holds just as true for the death penalty debate. Pope John XXIII, Pacem in Terris, paras. 9–10. See Peter Riga, Peace on Earth: A Commentary on Pope John’s Encyclical (New York: Herder & Herder, 1964), p. 74: ‘Such a forceful elucidation of the infinite worth of the human person and of his sacred rights cannot be found in any previous papal document.’

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the cycle of violence, we need not take life for life’; it would manifest ‘our belief in the unique worth and dignity of each person from the moment of conception, a creature made in the image and likeness of God’; it would testify to our conviction that ‘God is indeed the Lord of life’; and it would be ‘more consonant with the example of Jesus’. The bishops then stepped back to address the broader picture, pointing out six major difficulties inherent in the flawed United States penal system, and urged those who still supported executions to reconsider ‘the evils associated with them’ and the fact that abolition was much more in harmony ‘with the values of the Gospel’.36 The bishops’ position was clear and well formulated, but in its relative newness it was still tempered in impact by the fact that the essential campaign needed to re-educate both Catholic clergy and laity was extremely slow in getting organised. Another United States religious body that took the time and trouble to address capital punishment in a truly comprehensive way in this period was the Christian Reform Church in North America, which in 1981 produced a remarkably ‘sensitive and broadly based study . . . unrivalled in its depth and thoroughness by any similar official documents produced by churches which have adopted an abolitionist stance’.37 After detailed biblical and theological exploration, they concluded that ‘the government has the power and permission to execute those convicted of capital crimes, but it is not obliged to use that power’. In fact, contrary to what was going on, ‘it is not desirable that capital punishment be routinely inflicted upon persons guilty of murder in the first degree. Only under exceptional circumstances should the state resort to capital punishment.’ Elsewhere they called for ‘judicial restraint’ and spoke of execution as ‘a rarely used weapon of last resort’.38 Revival of capital punishment in the 1980s But just as in the case of the Catholic bishops’ statement, that of the Christian Reform Church was a small raft attempting to sail into a heavy gale, and a sour public mood was being fed by newly prominent talk-radio hosts and televangelists in pursuit of ‘an eye for an eye’. A significant realignment was altering the landscape. ‘The major divisions in American religion now revolve around an axis of liberalism and conservatism rather than the denominational landmarks of the past. The new division 36 37 38

NCCB Statement of November 1980, available on the website of the US Catholic Conference, www.nccbuscc.org. Melton, p. 96. The full text of the study is on pp. 64–96. Melton, note 11 above, pp. 94f.

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parallels the ideological cleavage that runs through American politics.’39 This phenomenon left many religious leaders who had freed themselves from support for the death penalty facing a massive problem as their lay followers went marching off in the other direction, thereby leaving public policy concerning the death penalty to the forces of political opportunism. By the end of 1983, there had been a grand total of eleven executions around the country, and therefore it was still relatively easy to regard them as occasional oddities. Moreover, the Supreme Court, in the first seven years after Gregg, ‘ruled in favour of 14 out of the 15 death-sentenced inmates whose appeals were fully argued before it’. One could therefore easily be left with the impression that proper safeguards had indeed been put in place and that the ‘guided discretion’ of the new system was working. But ‘suddenly, in late 1982, the Court reversed itself ’, essentially announcing that ‘it was going out of the business of telling the states how to administer the death-penalty phase of capital murder trials . . . After 1983, the death penalty rulings were a string of defeats for the defence bar.’40 President Reagan’s ‘southernisation of American politics’ had made itself dramatically felt in this judicial retreat, ‘deregulating’ the death penalty, leaving it open henceforth to all the defects of vestigial racism, especially in the states where slavery and lynchings had flourished.41 Ironically, this was also the year in which Joseph Cardinal Bernardin of Chicago furthered the cause of abolition with a significant lecture at Fordham University, arguing the need for ‘a consistent ethic of life’. His forthright contention was that the burden of proof in our day had shifted, ‘the presumption against taking human life has been strengthened and the exceptions made ever more restrictive’.42 The irony of timing was uncanny. Bernardin was by no means alone. The next year, 1984, the bishops of Tennessee, for example, issued an eloquent plea for church members who still favoured the death penalty to turn around and think anew, reminding them that ‘a position founded in any way on revenge is at serious variance with the gospel call to suffering love. Revenge is a cancer which destroys us.’ A number of other state Episcopal conferences issued similarly impressive statements, and a few launched active programmes to help both clergy and laity to make the called-for turnaround, but it was 39 40 41

42

Robert Wuthnow, The Struggle for America’s Soul: Evangelicals, Liberals, and Secularism (Grand Rapids, MI: Wm B. Eerdmans, 1989), p. 178. Haines, note 24 above, pp. 74f. See Robert Weisberg, ‘Deregulating Death’ (1983) Supreme Court Review 305. Also Hugo Adam Bedau, Death is Different (Boston, MA: Northeastern University Press, 1987), p. 152: ‘In supporting the death penalty, as he has for 20 years or more, President Reagan has made [it] respectable as no public figure before him ever has.’ Joseph Cardinal Bernardin, Consistent Ethic of Life (Chicago, IL: Sheed & Ward, 1988).

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an agonisingly slow counter-cultural process, given the vindictive public mood.43 1984 saw the ‘bloodgates’ begin to open more widely, as sixteen persons were executed. In 1985, the number went up to eighteen, and that number was repeated in 1986, then rose to twenty-five in 1987. This increasing frequency understandably brought greater attention with it. In February 1987, Amnesty International published an unprecedented report, summarising for the world to see the highly questionable quality of what was being done in the United States in the name of ‘justice’. It documented no less than eighteen areas of concern from a contemporary human rights perspective, and expressed bewilderment over how to explain this development in light of the declared principles of the United States. Lacking alternative explanations, Amnesty’s speculation turned in a benign direction, suggesting that perhaps it was due to public ignorance. Popular support for such obviously unjust practices as those pointed out, ‘may not be based on accurate information about the actual use of the death penalty and its effects on society. Were the public fully aware of the sound moral and practical reasons for not using the death penalty and of the alternative measures needed to protect society from violent crime, its support for the penalty would be likely to diminish.’44 This was akin to the argument of Justice Thurgood Marshall in Furman. He was confident that, if possessed of ‘knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand.’45 But not only was it still standing in 1987, its use was accelerating in an ominous way. In McClesky v. Kemp, the Supreme Court showed how far it had removed itself from doing anything about the systemic racism still evident in the system. This was another 5–4 decision, with Justice Lewis F. Powell casting the swing vote for the majority, a vote which he identified as his chief regret a few years later when he admitted he had lost all faith in the system and had come to the conclusion that capital punishment should be abolished.46 The United States Catholic Conference joined with many other critics in protesting that ‘the evidence submitted 43

44 45 46

For a sampling of these episcopal statements, see James J. Megivern, The Death Penalty: An Historical and Theological Survey (Mahwah, NJ: Paulist Press, 1997). The Tennessee bishops’ statement is excerpted on pp. 385f. Amnesty International, USA: The Death Penalty (London: AI Publications, 1987). Concurring Opinion of Justice Marshall in Furman v. Georgia, in Latzer, note 25 above, p. 34. See John C. Jeffries Jr, Justice Lewis F. Powell, Jr (New York: Charles Scribner’s Sons, 1994), p. 451.

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in the McClesky case strengthens our conviction that the death penalty is frequently applied in an irrational and discriminatory fashion’.47 The late 1980s increasingly saw the death penalty issue become a political football. Vice-President George Bush introduced the case of Willie Horton into his campaign against Michael Dukakis in October 1988, and being in favour of swift and angry executions somehow seemed to become an essential qualification for running for public office. It was not long before this mentality led to the United States further distancing itself from the international community, first opposing and then entering reservations to provisions of international human rights instruments limiting use of the death penalty.48 This anomaly helped bring together a group of religious organisations in a noteworthy attempt to apply more serious ethical reflection to the situation. A campaign called ‘Lighting the Torch of Conscience’ began in Atlanta with the issuance of a statement which noted that the religious community’s opposition to capital punishment had been on record for years, but that ‘now it is time for it to be on fire’. One of their most publicised events was a 330-mile march from the state prison housing death row in Starke, Florida, to the King Centre in Atlanta, Georgia, in May 1990.49 Into the 1990s Then in rapid succession the country lost the only two Supreme Court justices committed to abolition, William Brennan in 1990 and Thurgood Marshall in 1991. The loss of Marshall was especially sad. He retired ‘as much out of disgust as ill health’. His parting volley complained about his colleagues’ loss of vision and predicted what was to come. ‘Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this will squander the authority and the legitimacy of this Court as a protector of the powerless.’50 But in his fifteen years of scrutinising the continuing defects of the post-Gregg record he kept insisting that the constitutionality of the death penalty had to be ‘measured by what the states actually do, and not by general musings about what they could or should do’.51 47 48 49 50

51

Monsignor Daniel Hoye (1987) 16 Origins 818. See William A. Schabas, The Abolition of the Death Penalty in International Law (3rd edn, Cambridge: Cambridge University Press, 2002). See Haines, note 24 above, pp. 105f. Timothy M. Phelps and Helen Winternitz, Capitol Games (New York: Hyperion, 1992), p. 162. See also Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (Boston, MA: Little, Brown & Co., 1993). Jordan Steiker, ‘The Long Road up from Barbarism: Thurgood Marshall and the Death Penalty’ (1993) 71 Texas Law Review 1163.

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Late that same year, the Evangelical Lutheran Church in America adopted an unusually elaborate social-practice statement which affirmed that ‘we would be a better society by joining the many nations that have already abolished capital punishment . . . It is because of the church’s commitment to justice that we oppose the death penalty.’52 Despite such efforts, the pace of state killings continued to grow. With thirty-one in 1992 and thirty-eight in 1993, it was clear that, as a political football, the death penalty had become fully bipartisan, embraced by both Republicans and Democrats. Any hope for change was apparently going to have to come from elsewhere. Nonetheless, at this time, some Catholic opponents attempted to move the abolitionist cause forward. In 1992, Catholics Against Capital Punishment was founded by Frank and Ellen McNeirney to ‘disseminate more widely the teachings of the Roman Catholic Church . . . which characterize capital punishment as inappropriate and unacceptable in today’s world’.53 Their conviction was that at least in part the yawning gap between this teaching and what the majority of United States Catholics said in the opinion polls had to be due to a massive failure of communication. The accumulation of statements and stories that have appeared in the newsletter of Catholics Against Capital Punishment has made it indispensible as a veritable treasuretrove of educational material. It was also in 1992 that the ‘Journey of Hope’ travelled for seventeen days throughout the state of Indiana and in cities in neighbouring states, protesting executions, and making known their message that healing lies with forgiveness, not revenge. Much of the power of that message came from the fact that the organisers were members of a group known as Murder Victims Families for Reconciliation, who were joined by members of seventeen other organizations in an exceptional appeal to higher values by people whose lives had been touched by tragedy.54 In 1993, Sister Helen Prejean’s book, Dead Man Walking, which was subsequently made into an award-winning film, helped many to see some of the religious dimensions of the problems created by the statekilling system. The extraordinary response to her presentations around the country became a promising phenomenon in itself. In 1994, the English-language edition of the new Catholic Catechism called for a different spirit, giving priority to the God-given dignity of the human person being punished. ‘If non-lethal means are sufficient 52

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ELCA Social Statement on the Death Penalty (Minneapolis, MN: Augsburg Press, 1991). See the comments of Gardner C. Hanks, Against the Death Penalty: Christian and Secular Arguments Against Capital Punishment (Scottsdale, PA: Herald Press, 1997), pp. 150ff. CACP News Notes, January 1992, Arlington, VA. See their website for history, activities and events: www.mvfr.org.

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to defend and protect people’s safety from an aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person.’55 One example of a grassroots response to the peculiar American situation was the founding in 1994 of People of Faith Against the Death Penalty, sponsored by the North Carolina Council of Churches, to try to mobilise faith communities around the state. Before long, it would prove to be a model to which many others looked for advice, ideas and inspiration.56 1994 was also the year in which Supreme Court Justice Harry Blackmun, who had voted in favour of the death penalty in both the Furman and Gregg decisions, made known his belated conversion. After spending some two decades trying to find a way to make the death penalty function in a constitutional manner, he acknowledged defeat. The twin goals of consistency and individualisation, which were what Furman had concluded would be required for constitutionality, simply could not be achieved simultaneously. ‘The death penalty experiment has failed’, he declared, ‘it cannot be administered in accord with our Constitution.’ And therefore, in his final term on the bench, he announced: ‘I will no longer tinker with the machinery of death.’57 That statement provided the title for a work published by Amnesty International USA in 1995, which with good reason was subtitled ‘A Shocking Indictment of Capital Punishment in the United States’.58 The pointed contributions of more than three dozen well-informed critics, both domestic and international, cumulatively presented a devastating picture of what was going on as ‘justice’ in the United States. If, as had been suggested, the American people would do away with the death penalty if they ever learned the truth about it, here was more concrete 55

56 57

58

Catechism of the Catholic Church, para. 2267 (as revised in 1997 after Evangelium Vitae). Roberto Toscano, ‘The UN and the Abolition of the Death Penalty’, in The Death Penalty: Abolition in Europe (Strasbourg: Council of Europe, 1999), Chapter 7, p. 100, observes that ‘this argument is basically flawed since self-defence has an intrinsically preventive function (avoiding unjust harm) and is not applicable post factum, so that self-defence is improperly used in this context’. Stephen Dear, ‘Report from North Carolina’, The Vision, April 2000 (newsletter of Religious Organizing Against the Death Penalty), p. 3. See Randall Coyne, ‘Marking the Progress of a Humane Justice: Harry Blackmun’s Death Penalty Epiphany’ (1995) 43 University of Kansas Law Review 367. Also David J. W. Vanderhoof, ‘The Death Penalty and Justice Blackmun’, in Laura E. Randa (ed.), Society’s Final Solution (Lanham, MD: University Press of America, 1997), p. 179: ‘Justice Blackmun expressed the hope that the Court would realize that the effort to administer the death penalty fairly and consistently was “doomed to failure”.’ The Machinery of Death (New York: Amnesty International USA, 1995).

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information than had ever before been available to the public. There was no longer any excuse for anyone being uninformed.59 On 30 March 1995, Pope John Paul II’s Encyclical, The Gospel of Life, was released. Among other things, it solidified and advanced the changed view that had been under way since Vatican II. He counted as among the ‘signs of hope’ in today’s world ‘the growing public opposition to the death penalty’ (paragraph 27), and advised that punishment of criminals ‘ought not go to the extreme of executing the offender except in cases of absolute necessity’ and that today ‘such cases are very rare if not practically nonexistent’ (paragraph 56).60 The routine practice of killing criminals was clearly judged to be no longer morally acceptable. Ironically, the worst domestic crime of terrorist killing in United States history occurred less than a month later when a federal building in Oklahoma City was bombed and 168 people lost their lives. Understandably, the man arrested for the crime, Timothy McVeigh, became the focus of a passionate national debate about terrorism and the death penalty.61 In June of the same year, the interim Constitutional Court in South Africa abolished the death penalty as unconstitutional, describing it as a form of cruel and unusual punishment that does not deter crime and cheapens the value of human life in a society already plagued with violence. With the elimination of the stigma of apartheid, the former pariah nation quickly turned the tables on its former critics, managing to abolish the punishment that two decades earlier the universal human rights movement had stigmatised as unworthy of any modern state. The profound irony of these developments could not be missed, as the United States came under criticism for its increasing violation of standards. That year, the total number of executions in the United States rose to fifty-six, with numerous worldwide protests of individual cases of irregularities, especially in Texas, Florida and Virginia.62 But in early 1996 the ‘hardening of the attitudes’ increased even more significantly, as the United States Congress passed and President Clinton signed into law the so-called ‘Anti-Terrorism and Effective Death 59

60 61 62

Several of the emerging websites soon began to give notice of and information about the contents of these works as part of their educational service for those who wished to stay abreast. English translation in Origins: CNS Documentary Service, vol. 24, No. 42 (6 April 1995), pp. 689–730. Over two years later, the 6 June 1997 issue of Time magazine had McVeigh on its cover and provided a variety of stories as the trial progressed. Mark Costanzo, Just Revenge: Costs and Consequences of the Death Penalty (New York: St Martin’s Press, 1997), pp. 154f: ‘More than 75% of executions are carried out in five southern states: Texas, Virginia, Florida, Louisiana and Georgia . . . [T]hey will probably be the last to allow the practice of killing to die out.’

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Penalty Act’. This regressive legislation ‘eviscerated the great writ of federal habeas corpus, the mechanism used for almost 200 years by state prisoners who wanted a federal court to review the justice of their state convictions’.63 The general public seemed singularly unaware that these moves further made ‘our capital punishment system so fundamentally unfair that its continued operation, at least in anything resembling its current form, cannot be countenanced’.64 Shortly afterwards, the Geneva-based International Commission of Jurists issued a 265-page report, describing and lamenting the ‘grossly flawed’ death penalty system in use in the United States, noting that ‘prosecutors have unbridled discretion, victims’ relatives have too much influence, juries are skewed, judges are unduly swayed because they are often elected, public defenders are scarce and inexperienced . . . and death sentences are inadequately reviewed by federal courts’.65 An account that revealed another ugly side of the system was told by insider Donald A. Cabana, who, as warden of the Mississippi State Penitentiary, had found himself after years in routine corrections work suddenly having to take up the role of executioner when the death penalty was restored. He narrated the terrible toll taken by the two executions he had to supervise before he resigned from the position. ‘For those few who are actually authorized by the state to kill another human being, the death penalty becomes a chilling expos´e of the darkest emotions of the citizenry.’66 After a total of forty-five executions nationwide in 1996, the number escalated to seventy-four in 1997, to the further embarrassment and frustration of many. At its February 1997 meeting in San Antonio, the American Bar Association’s House of Delegates took note of the deteriorating situation and adopted Resolution 107, by a vote of 280 to 119, calling for a moratorium on executions until the major problems with the system could be addressed.67 63

64

65 66 67

Barry Scheck, Peter Neufeld and Jim Dwyer, Actual Innocence (New York: Doubleday, 2000), p. 219. The quote continues thus: ‘The 1996 law gives condemned prisoners six months after their state appeals to ask for federal intervention, and sets a one-year time limit for all other cases. This “reform” legislation also requires federal courts to presume state courts are right about many things that state courts are often wrong about. Everyone agrees that it is a terrible thing for an innocent person to be imprisoned. Far worse, though, would be for a politician to take a moderate line on crime.’ Ronald J. Tabak, ‘What’s Happened to Habeas?’ (1996) 23 Human Rights (journal of the Section on Individual Rights and Responsibilities, American Bar Association) 13, reprinted from (1996) 27 Loyola University of Chicago Law Journal 523. Dateline Geneva, AP wire, 16 July 1996. Donald A. Cabana, Death at Midnight: The Confession of an Executioner (Boston, MA: Northeastern University Press, 1996), p. xi. The autumn 1998 issue of the journal of the School of Law of Duke University, Law and Contemporary Problems (vol. 61, No. 4), edited by James E. Coleman Jr, is

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Much attention, however, was centred at this same time on the McVeigh trial as it progressed to conclusion. Seventy-eight per cent of Americans told the pollsters they wanted to see him get the death penalty, but 60 per cent at the same time said they did not think vengeance was a legitimate reason to do so. Hence, the gnawing question remained: why kill? ‘If faith in deterrence is dying (and faith in rehabilitation is virtually dead), belief in retribution is alive and well . . . [But] the question is what form retribution should take.’68 When the death verdict came down, Cardinal Law of Boston and Bishop Skylstad of Spokane issued a response on behalf of the Catholic bishops of the United States, expressing regret over the sentence. ‘The crime for which he has been found guilty is a horrible and brutal tragedy . . . [but] we oppose the death penalty because of what it represents for our society. It perpetuates a pervasive cycle of violence and further diminishes respect for life. Killing a killer is no way to stop the killing in our land . . . Our faith calls us to seek justice, not vengeance.’69 The American Friends Service Committee, in light of the way in which capital punishment had taken centre stage, initiated a special project known as ‘Religious Organizing Against the Death Penalty’. Its first gathering, in Washington DC in November 1997, dedicated to the theme of ‘Envisioning a World Without Violence’, brought together representatives from a broad spectrum of faiths to discuss strategies for building a more effective coalition of the many people opposed to the death penalty on religious grounds. The impressive statements made by the church leaders back in the 1950s and 1960s were dusted off and re-examined, and one of the questions asked was why these solid religious criticisms had never made a significant impact on the people in the pews, and whether bringing them back to public attention might be a helpful way to start raising greater awareness of the doleful situation into which the nation had sunk. There were sixty-eight executions in 1998, and ample reason to believe from the general climate that the number would continue to climb, since the population of death rows had skyrocketed to more than 3,500, an unprecedented multitude, more than six times greater than in the days before Furman. Yet there was no significant public outcry and the sour political mood for exacting revenge prevailed.70

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devoted to ‘The ABA’s Proposed Moratorium on the Death Penalty’, with nine major articles. Eric Pooley, ‘Death or Life?’, Time, 16 June 1997, p. 33. The full statement is available on the website of the US Catholic Conference, www.nccbuscc.org. See Keith Harries and Derral Cheatwood, The Geography of Execution: The Capital Punishment Quagmire in America (London: Rowman & Littlefield, 1997), p. 58: ‘Attempting

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Shift in momentum in the late 1990s One of the most publicised cases was that of Karla Faye Tucker, executed by the state of Texas on 3 February 1998. A special controversy touching on religion and the death penalty surrounded her case, stemming from the fact that she had become an evangelical Christian and had spent some fourteen years as a respected and rehabilitated prisoner. It was no surprise that Pope John Paul II and many Protestant denominational leaders called on Governor George W. Bush to grant her clemency. But even the usually pro-death-penalty televangelists Jerry Falwell and Pat Robertson called for clemency. The latter stated his reason thus: ‘She is not the same person who committed those heinous axe murders. She is totally transformed, and I think to execute her is more of an act of vengeance than it is appropriate justice.’71 Her execution undoubtedly served to raise greater concern, especially in some circles where the death penalty had previously been little questioned. The editorial in the same issue of the conservative weekly that contained the above story raised eyebrows by challenging its readers to do some serious rethinking, especially in order to ‘rebuke the spirit of vendetta’. The gospel demands that ‘Christians work more for reconciliation than for retribution’ and this includes working ‘against the spirit of revenge so cruelly displayed by the crowds outside many sites of execution’. Any realistic assessment of the current American scene, it suggested, would have to conclude that ‘the death penalty has outlived its usefulness. It has not made the United States a safer country or a more equitable one.’72 In September 1998, another critical study by Amnesty International catalogued the ‘persistent and widespread pattern of human rights violations in the USA’. Chapter 6, entitled ‘The Death Penalty: Arbitrary, Unfair and Racially Biased’, enumerated many deviations from international norms, and called for at least some minimal improvements, such as not executing the mentally impaired, and ‘ensuring that capital defendants are represented by attorneys who are adequately trained . . . in the complexities of capital proceedings’. The study’s Chapter 7 focused specifically on the broader problem of ‘Double Standards: The USA and International Human Rights Protection’. Before making its minimal recommendations, it noted the strange

71

to execute the full population on death row . . . in the next few years will strain the credibility of even the most hard-line proponents of the death penalty. Yet releasing all of them into the general prison population would create a public furor, and releasing some of them, no matter how selectively, could produce a legal, administrative and constitutional nightmare.’ 72 Ibid., p. 16. Christianity Today, 6 April 1998, p. 19.

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paradox that ‘the nation that did so much to articulate and codify human rights in its foundation documents has so consistently resisted the effective functioning of an international framework to protect these principles and values’.73 The shift in momentum was given additional force at this time by the publicity given to the overturning of convictions of people on death row. The National Conference on Wrongful Convictions and the Death Penalty, held in November 1998 at the Northwestern University Law School in Chicago, featured the presence of thirty out of the eighty-seven such persons who had had their cases overturned since Gregg. They told their stories, one after the other, of being deprived of basic rights, often by blatantly corrupt conduct of those in the system. As a result of this conference, and the discovery of four more such cases in the following year, Governor George Ryan, on 31 January 2000, declared a moratorium on executions in Illinois. These events helped to sensitise the public as never before to the alarming number of innocent persons sentenced to death by the flawed system. In his 1998 Christmas message, Pope John Paul II made a special appeal for an end to all executions worldwide. In January 1999, he brought the same message to Mexico City and to St Louis, Missouri, where he repeated once again that ‘a sign of hope is the increasing recognition 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 definitively denying criminals the chance to reform. I renew the appeal . . . to end the death penalty, which is both cruel and unnecessary.’74 He petitioned Governor Carnahan to halt the execution of a prisoner who had initially been scheduled to die on the very day of his visit, and to general surprise Carnahan granted clemency, incurring both criticism and praise for doing so. The year 1999 nonetheless saw a record total of ninety-eight executions, and over 80 per cent of them took place in a few states in the old South, many marked by such flaws that questions were being raised about the impact on the country as a whole.75 Nonetheless, in a striking instance of religious leadership, in late March 1999 the National Jewish–Catholic Consultation issued some conclusions 73 74 75

United States of America – Rights for All (New York: Amnesty International USA, 1998), quotes from pp. 149, 122 and 133, respectively. Text available on the website of the US Catholic Conference, www.nccbuscc.org. See, e.g., J. Simon and C. Spaulding, ‘Tokens of Our Esteem’, in Austin Sarat (ed.), The Killing State: Capital Punishment in Law, Politics and Culture. (New York: Oxford University Press, 1999), p. 101: ‘A politics that makes executions the very stuff of political authority is a clear and present danger to the persistence of the republican form of government.’

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of their ‘remarkable confluence of witness on how best in our time to interpret the eternal word of God. Both traditions begin with an affirmation of the sanctity of human life. Both acknowledge the theoretical possibility of a justifiable death penalty. Yet both have, over the centuries, narrowed those grounds until, today, we would say together that it is time to cease the practice altogether.’76 As the year 2000 opened, the call for a moratorium was on the rise. Television specials highlighted the plight of prisoners who were denied access to DNA evidence that might have proved their innocence. The stories of the people who had been freed from death row received wide coverage. Reports of prosecutorial abuse and incompetent counsel in capital cases received unparalleled publicity. The change in momentum was tangible, as many defenders of the death penalty lowered their voices in response to the negative publicity. In May 2000, the Constitution Project announced the appointment of a National Committee to Prevent Wrongful Convictions. Vermont Senator Patrick Leahy introduced the Innocence Protection Act of 2000 (S. 2073), designed to minimise the chances of more innocent people being executed, and Wisconsin Senator Russell Feingold introduced the Death Penalty Moratorium Act of 2000 (S. 2463). The same month, Cardinal Roger Mahony of Los Angeles was invited to address the National Press Club on the death penalty. In his talk, he gave support to all these Bills while also announcing that he had just written to Governor Davis of California calling for a moratorium there. ‘The time is right for a genuine and reasoned national dialogue . . . A nation that destroys its young, abandons its elderly, and relies on vengeance is in serious moral trouble . . . This is a time for a new ethic – justice without vengeance. We cannot defend life by taking life. We cannot contain violence by using state violence.’77 Then in June 2000 Columbia University Professor James Liebman’s study, ‘A Broken System: Error Rates in Capital Cases, 1973–1995’, was released. It found that, of 4,578 death sentence appeals in that period, two-thirds of them were successful in state or federal court, largely due to the multiplicity of errors by incompetent defence lawyers or overzealous police and prosecutors who withheld evidence. And ‘in 75 per cent of the retrials, the defendants were handed sentences less than death . . . The system was collapsing under the weight of its own mistakes.’78 76

77 78

‘To End the Death Penalty: A Report of the National Jewish/Catholic Consultation’ (23 March 1999), co-chaired by Cardinal William Keeler and Rabbi Joel Zeiman. See www.deathpenaltyinfo.org. Cardinal Roger Mahony, ‘A Witness to Life: The Catholic Church and the Death Penalty’, CACP News Notes, vol. 9, No. 3 (5 June 2000), pp. 3–4. See Robert Jay Lifton and Greg Mitchell, Who Owns Death?: Capital Punishment, the American Conscience, and the End of Executions (New York: HarperCollins, 2000), p. 243.

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In August 2000, at its annual convention, the conservative Catholic Knights of Columbus adopted a resolution that ‘firmly upholds’ the position taught in the new Catholic Catechism that justifiable executions today are ‘rare, if not practically nonexistent’, thus embracing the position of Pope John Paul II.79 In November 2000, the largest abolitionist gathering of its kind met in San Francisco, co-sponsored by Death Penalty Focus of California, the National Coalition to Abolish the Death Penalty, the American Friends Service Committee, and the Community of Sant’ Egidio of Rome, Italy. The theme was ‘Committing to Conscience’, and drew more than 1,000 abolitionists. Even as this event was underway, another development helped galvanise a broad range of people to form Citizens for a Moratorium on Federal Executions. 5 August 2000 had been set as the date for the first federal execution in thirty-seven years. Hispanic-American murderer and drug-dealer Juan Raul Garza was the individual singled out for that event. But the release of the required federal regulations had been delayed, so President Clinton granted a temporary reprieve, postponing the date to December 2000. But on 12 September 2000, a review released by the United States Justice Department itself found disturbing racial and geographical disparities in the five years of imposing the federal death penalty. Attorney General Janet Reno admitted that she was ‘sorely troubled’ by it. Citizens for a Moratorium on Federal Executions immediately took action, delivering a letter to President Clinton, urging him to declare a moratorium pending a review of the evidence of gross unfairness (seventeen of the twenty-one inmates on federal death row were black or Hispanic; six of them were from the state of Texas, already the execution capital of the country). Major voices from all segments of society quickly joined in on requesting an immediate moratorium. On 4 December 2000, Bishop Joseph Fiorenza, in his capacity as President of the National Conference of Catholic Bishops, asked President Clinton not only for a moratorium. He urged him to commute the sentences of all twenty-one prisoners in the spirit of the Jubilee Year. This, he said, ‘would demonstrate to the nation and the world that Americans are turning away from death and toward life by protecting even the lives of those who failed to demonstrate a similar respect for life’.80 The clamour grew yet louder as the European Union called on the President to grant clemency for Garza, as did Pope John Paul II, former President Jimmy Carter, Senators Leahy and Feingold, the Black Leadership Forum, the League of United Latin American Citizens, ad hoc groups of over 79 80

See CACP News Notes, vol. 9, No. 4 (25 August 2000), pp. 1–3. See USCC website, www.nccbuscc.org.

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500 United States law school professors, and more than seventy religious leaders, including the top Jewish rabbis in the country. But on 7 December 2000 they all had to settle for less than half a loaf. President Clinton agreed to grant a six-month stay so that some of the questions could be answered, but steadfastly refused both clemency for Garza and a moratorium for the country, leaving it for the next president to decide what to do, to the bitter disappointment of many. The Institute on Religion and Public Policy issued a statement expressing dismay that the president ‘did not take the courageous path, but instead, opted for the easier one’, but they also let it be known that ‘the religious community in this country will not reduce its pressure’ to end the disgraceful use of the death penalty.81 Many of the same activists were on hand at the United Nations on 18 December 2000 for the climactic presentation, by Sister Helen Prejean to United Nations Secretary General Kofi Annan, of over three million signatures of people seeking a Moratorium 2000. He responded that ‘the forfeiture of life is too absolute, too irreversible for one human being to inflict it on another . . . I believe future generations throughout the world will come to agree.’ This unprecedented proliferation of activities and events led the Death Penalty Information Center to entitle its year-end report, ‘The Death Penalty in 2000: A Watershed Year of Change’. In an eight-page summary of the incidents sketched above, it noted the dramatic shift in public opinion (a Gallup poll in February 2000 found a drop of 14 per cent from a high of 80 per cent in favour of death in 1994 to 66 per cent in 2000, the lowest level in nineteen years). The report ended with a reminder that ‘the international community has for some time been calling upon the US to live up to its commitment to human rights by confronting the injustices of the death penalty. Now national religious leaders, civil rights organizations, and legal experts are joining with former proponents of capital punishment to call for a radical re-thinking of executions as a legitimate form of punishment in the US.’ Concluding observations Despite the widespread ‘myth of inevitability’ of eventual abolition, that is not likely to happen without many more efforts similar to those that made the year 2000 so special. The broken system clearly inflicts a ‘crippling expense’ on the nation, both financially and morally. It is a colossal and 81

See the statements of all of the above on the website of Citizens for a Moratorium on Federal Executions, www.federalexecutions.org.

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demonstrable failure that does not enhance public safety, and the availability of ‘alternative measures for addressing violent crime’ is beyond doubt.82 But, as the abstract ideal of a ‘justice’ system is forced to give way to the concrete reality of injustice being done in the name of that hallowed ideal, there is hope for change. Consider, for example, recent events in the ultra-conservative Southern Baptist Convention. A resolution renewing support for the death penalty was adopted at its annual meeting in June 2000. But, compared to earlier ones, this was a thoroughly chastened statement, so cautiously worded that one could easily use it to argue the need for a moratorium. In specifying the conditions to be guaranteed before any use of execution could be morally justifiable, it called for ‘clear and overwhelming evidence of guilt, . . . profound respect for the rights of the individual, . . . [and assurance] that it be applied justly and fairly without reference to the race, class, or status of the guilty’.83 The cases in which these conditions are anywhere near to being fulfilled in the present United States system are, to paraphrase the Pope, exceedingly rare, indeed virtually non-existent. The problem, however, is that the careful statement will not be read this way by most Southern Baptist Convention members, but will simply be seen as a reaffirmation of their traditional support for the status quo. And, as southern church historian Samuel Hill has forcefully argued, the problems endemic to the region and the denomination, especially its fundamentalism and provincialism, constitute (as his final chapter describes it) the great ‘Danger of Irresponsibility’. He admits that there are ‘ways out’ of the problem, but that, among other things, it would demand the difficult acquisition of a ‘keen sense of being part and parcel with historical and contemporary world Christianity’.84 This may well be the key to any positive religious contribution. In contemporary American society, there are few enough sources that encourage any vision superior to the thoughtless violence and untutored emotionalism promoted by much of the media. The desirability, the moral necessity, of abolishing capital punishment as entrenched in the United States can be persuasively shown from both legal and philosophical arguments, but because of the humane worldview and deep commitment to justice which characterise at least some of the religious traditions, a strong case can be made that such ‘people of faith’ especially represent a ‘sleeping giant’ that could, if awakened and organised, bring about abolition of state killing 82 83 84

Haines, note 24 above, p. 168. Resolution No. 5, Southern Baptist Convention, www.sbcannualmeeting.org. Samuel S. Hill, Southern Churches in Crisis Revisited (Tuscaloosa, AL: University of Alabama Press, 1999), p. 207.

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as an essential part of any commitment to human rights and a just social order.85 Indeed, the year 2000 illustrated this as never before. The most recent statement of the United States Catholic Bishops put it thus: Capital Punishment should no longer be used since there are better ways to protect society, and the death penalty diminishes respect for human life. We are encouraged by small but growing signs that support for the death penalty is eroding and that capital punishment is being reconsidered . . . It is time to abandon the death penalty – not just because of what it does to those who are executed, but because of how it diminishes all of us . . . We seek to build a society so committed to human life that it will not sanction the killing of any human person.86

Just as in earlier struggles against slavery, torture, segregation, and other violations of human and civil rights, belief in the call to a higher ideal of justice assures one of being ‘on the right side of history’, no matter how long it takes to advance beyond practices of barbarism and injustice such as capital punishment. 85 86

See several of the essays in John Witte Jr and Johan D. van der Vyver (eds.), Religious Human Rights in Global Perspective (The Hague: Martinus Nijhoff, 1996). US Catholic Bishops, Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice (Washington, DC: US Catholic Conference, 2000), pp. 33–4.

6

On botched executions Marian J. Borg and Michael L. Radelet

Introduction On 21 February 1930, convicted murderer Eva Dugan, 52, was hanged from the gallows of the Arizona State Prison in Florence, Arizona. Witnesses were repulsed when Dugan sprang through the trap door on the gallows with such force that her head snapped off and rolled into a corner of the room. Public outcry over the botched execution was so loud that within four years the Arizona legislature abolished hanging and replaced it with a more ‘humane’ way of killing: the gas chamber. Six decades later, the public and policy makers admitted that death by asphyxiation had its own problems. In April 1992, the Arizona gas chamber was mothballed after a horrifying spectacle during the gassing of death row inmate Donald Eugene Harding. Witnesses were sickened by the execution, calling it ‘violent’ and ‘ugly’, and reported that Harding was in great pain before his death mercifully came.1 Consequently, Harding’s was the last mandated asphyxiation in Arizona. In November 1992, Arizona voters passed a ballot initiative that gave prisoners then on its death row a choice between gas and lethal injection and authorised lethal injection as the only means of execution for those sentenced to death thereafter.2 One might think that in the United States, where technology exists to send astronauts to the moon with perfection, we should be able to shoot people to the hereafter with similar precision. The purpose of the research reported in this paper is to determine whether botched executions are rare events today, or if they are endemic features of the modern practice of capital punishment. We answer that question by examining reports of all executions in the US in the last twenty-five years and assessing whether evidence of botched executions exists. For each apparent case, we record 1 2

A more complete description of the Harding execution will be found in the Appendix to this chapter. Abraham Kwok, ‘Injection: The No-Fuss Executioner’, Arizona Republic, 28 February 1993, p. 1.

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the precise ways in which the executions were botched. By documenting the explicit evidence of pain, delay or lingering that occurred during these ‘mishaps’, we offer an inductive analysis of how the death penalty as currently practised in the US risks violating contemporary standards of moral decency, as well as the constitutional ban against cruel and unusual punishments. Insofar as this analysis substantiates the argument that botched executions are common, the research may be useful to those who support the total abolition of the death penalty. That is, one route towards the demise of the executioner is to document and publicise the inhumanity and barbarity of the ways in which his work is conducted. People who otherwise support the death penalty may grow uncomfortable with their positions if confronted with direct evidence that executions are bloody, painful and/or torturous. For this research, we define ‘botched executions’ as those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner. Aside from the obvious personal relevance for the condemned prisoner, his loved ones, and witnesses, the larger significance of botched executions rests in their relationship to the constitutional ban on cruel and unusual punishment. This ban is enunciated in the Eighth Amendment: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.’ Although the Supreme Court has upheld the constitutionality of death as a punishment for certain criminal homicides, it has left open the question of the constitutionality of particular execution methods. The invitation to challenge execution methods was first issued by the Court over a century ago, when, in the first case ever to challenge the death penalty on Eighth Amendment grounds, the Court ruled that the constitutionality of a particular method of execution depended on its ability to guarantee an ‘instantaneous and therefore painless death’3 and that ‘punishments are cruel when they involve torture or a lingering death’.4 But, aside from offering this characterisation, the Court has provided little additional guidance through the years for determining when a method of execution can be considered ‘cruel and unusual’. In fact, the Court historically has been reluctant to hear cases, which would have provided an opportunity to clarify the ‘cruel and unusual’ clause.5 Some appellate courts, however, seem willing to revisit the question of the constitutionality of various execution methods. In 2001, for example, 3 5

4 Ibid., p. 447. In re Kemmler, 136 US 436 at 443–4 (1890). Roberta M. Harding, ‘The Gallows to the Gurney: Analysing the (Un)Constitutionality of the Methods of Execution’ (1996) 6 Boston University Public Interest Law Journal 153 at 157–61.

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the Georgia Supreme Court, in a 5–4 decision, found that death by electrocution violated that state’s constitutional ban on cruel and unusual punishment.6 In federal court, in a 1996 decision that focused on the constitutionality of the gas chamber, the US Court of Appeals for the Ninth Circuit attempted to specify precise criteria for determining whether an execution method violates the cruel and unusual punishment prohibition.7 This unanimous decision – ‘the first time in this country’s history that a federal appeals court has held any method of execution unconstitutional’8 – specified three criteria for judging the constitutionality of a particular execution method. In order to be within constitutional limits, the means of execution must provide a death that is (1) instantaneous, (2) painless and (3) not ‘lingering’.9 Below, we examine our examples of botched executions to judge the extent to which they violate these three criteia.

Methods Between 1977 and 31 December 2001, some 749 inmates were executed in the United States. We have been tracking botched executions during those years, clipping relevant newspaper articles, collecting correspondence from witnesses to executions, and making notes for our files whenever we heard reports about possible blunders and mishaps.10 These files, which primarily consist of eyewitness accounts of the executions published in news media, provide the foundation for our analysis. Our list of cases is undoubtedly an underestimate of the true number of state killings that have been botched since 1977.11 Given the relative privacy in which executions are carried out and the reluctance of prison

6 7

8 9 10

11

Dawson v. State, 274 Ga 327 (5 October 2001). Fierro v. Gomez, 865 F Supp 1387 (ND Cal. 1994), affirmed, 77 F 3d 301 (9th Cir. 1996). The decision was later vacated by the Supreme Court, not because of any disagreement with the ruling that the gas chamber constituted cruel and unusual punishment, but because California had changed its statute and began to allow inmates to choose between asphyxiation and lethal injection. Fierro v. Gomez, 117 S.Ct 285 (1996). Deborah W. Denno, ‘Getting to Death: Are Executions Constitutional?’ (1997) 82 Iowa Law Review 319 at 324. A more elaborate five-factor test for assessing the constitutionality of particular methods of execution has also been developed. Ibid. Brief vignettes of the botches have been published in various journalistic outlets. Elizabeth Fernandez, ‘All Forms of Execution Produce Horror Stories’, San Francisco Examiner, 22 April 1992, p. A14; Michael Radelet, ‘A Slow, Brutal Way to Kill’, Guardian (London), 6 April 1995, p. 10; Michael L. Radelet, ‘Poorly Executed’, Harper’s, June 1995, pp. 21–2. Deborah W. Denno, ‘Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century’ (1994) 35 William & Mary Law Review 551 at 662–3.

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personnel to admit and publicise bungles, other cases of botched executions for which no public record exists (or none that has come to our attention) are quite possible. As an increasing number of states allow non-prison personnel to witness their executions, the accuracy of recording botches seems likely to improve. On the other hand, since the vast majority of today’s executions in the US are by lethal injection, and few (if any) states allow witnesses to observe the executioners inserting the catheters (when most botches occur), the public may continue to be uninformed about what really happens while prisoners are strapped to the gurneys. While acknowledging the potential under-count in our compilation, we regard our data as being as complete as possible given the public information sources available during the timeframe of our research. In addition, including more cases of botched executions by using an expanded conceptualisation of ‘botched’ is conceivable. Indeed, researchers could construct continua of executions ranging from the instantaneous to the prolonged and from the painless to the most distressing, and then debate where to draw the line between those that are and are not ‘botched’. The drawback of such an endeavour rests in its focus on the trees and not the forest. From our viewpoint, the more pertinent issue is the existence of botched executions, not whether a given borderline case should or should not be classified as botched. Other researchers have cast their nets more widely and included in their catalogues of botched executions cases that we do not,12 and some readers will undoubtedly disagree with our view that a given execution was indeed bungled. Again, because of such reasonable differences, we consider our compilation of cases a catalogue of examples of botched executions, not a definitive list compiled with entirely objective criteria. Findings In June 1972, executions in the United States were halted when the Supreme Court ruled that capital punishment, as then practised, was arbitrary and capricious, and hence ‘cruel and unusual’ punishment, a violation of the Eighth Amendment.13 The decision emptied America’s death rows. But four years later, the Court approved revised death penalty

12

13

For additional examples of recent executions that were unusual or botched, see Deborah W. Denno, ‘Getting to Death: Are Executions Constitutional?’ (1997) 82 Iowa Law Review 319 at 412–38; Deborah W. Denno, ‘When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us’ (2002) 63 Ohio State Law Journal 63–261. Furman v. Georgia, 408 US 238 (1972).

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Table 6.1 Botched executions in US capital cases, 1977 to 31 December 2001 Execution method used and state where botch occurred

Year

Electrocution State

1982 1 1983 1 1984 1 1985 1 1986 0 1987 0 1988 0 1989 1 1990 2 1991 1 1992 0 1993 0 1994 0 1995 0 1996 0 1997 1 1998 0 1999 1 2000 0 2001 0 Total 10

VA AL GA IN

Lethal injection State

0 0 0 1 1 1 1 AL 1 FL, VA 1 VA 0 4 0 1 1 2 FL 2 3 FL 0 2 1 22

Asphyxiation State Total

0 1 0 TX 0 TX 0 TX 0 TX 0 TX 0 IL 0 0 AK, OK, TX (2) 1 0 IL 0 MO 0 IN, VA 0 OK, SC 0 NV, TX (2) 0 0 FL, MO 0 GA 0 2

MS

AZ

1 2 1 2 1 1 1 2 3 1 5 0 1 1 2 3 3 1 2 1 34

laws in Texas, Florida and Georgia,14 and in early 1977 the moratorium on executions ended when Gary Gilmore dropped his appeals and was granted his wish to face a Utah firing squad. Between then and 31 December 2001, 749 executions have occurred in the US. From these, our research identifies thirty-four examples of executions involving unanticipated problems or delays that caused, or could have caused, unnecessary agony for the prisoner. Appendix 1 to this chapter provides brief descriptions of each case, and our analysis below offers an empirical summary of some of their more significant features. Tables 6.1 to 6.5 pertain to each of our specific goals: (1) documenting the frequency of botched executions and (2) summarising how the cases were botched and the extent to which they involved cruel and unusual conditions of punishment. We address these issues in turn. 14

Jurek v. Texas, 428 US 262 (1976); Proffitt v. Florida, 428 US 242 (1976); Gregg v. Georgia, 428 US 153 (1976).

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Patterns of botched executions Tables 6.1, 6.2 and 6.3 describe the frequency of botched executions. The thirty-four blunders in our catalogue constitute 4.5 per cent of all postFurman executions. Approximately one out of twenty-two executions in the US in the last twenty-five years has been botched. Table 6.1 lists all of these botches chronologically with the state where they took place as well as the method of execution involved. The data show that the number of errors is remarkably consistent over time. That is, the botched executions are not concentrated in any given time period, but rather are spread throughout the years of the study. After Gilmore’s death in 1977, only four additional executions in American jurisdictions occurred through to the end of 1981. Since then, with the exception of 1993, the US has hosted at least one botched execution per year. Multiple botches have taken place in nine of the twenty years since 1981. All of the flawed killings in Texas involved lethal injections, while in Virginia, Florida and Georgia both electrocutions and lethal injections have been bungled. Alabama, Georgia, Illinois, Indiana, Missouri and Oklahoma have each botched two executions; Arizona, Arkansas, Mississippi, Nevada and South Carolina have botched one each. Even with the publicity that some of these botched executions have received, the data do not support arguments that executioners are becoming more skilled or that the number of bungled executions is undergoing significant change. And, interestingly, each time states change the ‘preferred’ method of execution, usually in response to public demands for a more ‘humane’ execution method or to constitutional challenges, the number of botches increases under the new method. Table 6.1 documents no botched executions by hanging or firing squad, two botched asphyxiations, ten botched electrocutions and twenty-two botched lethal injections. The information in Table 6.2 focuses primarily on states where botched executions have occurred, and provides a closer look at the number of total executions and botches by state. These data show more clearly that botched executions have occurred in a wide array of jurisdictions, rather than being concentrated in one or two states or in a single region of the country. Fourteen states executed ten or more prisoners between 1 January 1977 and 31 December 2001. Eleven of those fourteen hosted at least one botched execution. The only exceptions among the fourteen ‘highfrequency’ states are Louisiana (twenty-six executions with no known botches), North Carolina (fifteen executions with no known botches) and Delaware (ten executions with no known botches). As Table 6.2 shows, Texas, Virginia and Florida, which are three of the top four executing

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Table 6.2 Rate of botched executions by state, 1977 to 31 December 2001

States where botches have occurred

Total executions

Total botched executions

Botches as a percentage of total executions

Texas Virginia Missouri Florida Oklahoma Georgia South Carolina Alabama Arkansas Arizona Illinois Nevada Indiana Mississippi Total, botch states (14) Total, remaining states (18) Total all states

256 83 53 51 48 27 25 23 24 21 12 9 9 4 645 104 749

9 4 2 4 2 2 1 2 1 1 2 1 2 1 34 0 34

3.5% 4.8% 3.80% 7.80% 4.20% 7.4% 4.0% 8.7% 4.2% 4.8% 16.7% 11.1% 22.2% 25.0% 5.3% 0.0% 4.5%

Note: Counts are based on the thirty-two states (and federal government) that performed at least one execution between 1977 and 31 December 2001. Of these, fourteen had hosted at least one botched execution in that time period.

states, lead the US in botched executions. Texas has botched at least nine of the 256 executions carried out in its Huntsville death house, Virginia has four botches among its eighty-three executions, and Florida has at least four among the fifty-one death sentences it has administered. In states where bungled executions have occurred, the ‘botch rate’ is 5.3 per cent. As noted earlier, these mishaps comprise about 4.5 per cent of all executions performed in the United States from 1 January 1977 to 31 December 2001. Besides occurring across geographic borders, botches occur regardless of the method of execution used. Table 6.3 compares the number of botches with the number of executions by method since 1977. We found no examples of botched hangings or firing squads, but these techniques combined have taken the lives of only five inmates in the last twenty-five years. The gas chamber is also rarely used, with only eleven prisoners seated in them since 1977. Still, almost 20 per cent of executions by asphyxiation have been botched. Perhaps because of this, no state presently mandates this method. Instead, all inmates condemned to death in states

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Table 6.3 Total executions and botched executions by method, 1977 to 31 December 2001

Execution method

Number of executions

Number of botches

Hanging Firing squad Asphyxiation Electrocution Lethal injection Total

3 2 11 149 584 749

0 0 2 10 22 34

Botches as a percentage of total by this method

Method used as a percentage of all botches (n = 34)

0.0% 0.0% 18.2% 6.7% 3.8%

0.0% 0.0% 5.9% 29.4% 64.7%

that have gas chambers are permitted to opt for alternative means of execution. Clearly, the gas chamber is an execution method that is on its way to joining the guillotine and the rack as an historical artefact. The remaining data in Table 6.3 show that the two most commonly used methods of execution in the US today, electrocution and lethal injection, are also the most frequently botched. Our data show a total of ten post-Furman botched electrocutions, most often because the inmate did not die instantaneously and needed the application of multiple jolts of electricity. This represents about 6 per cent of all electrocutions carried out in the US since 1977 and almost one-third of our botched execution cases. Since 1982, when lethal injection was first used to execute a prisoner, at least twenty-two cases of bungled executions have involved this method. This represents approximately 4 per cent of all executions by lethal injection and 65 per cent of all the examples of botched executions in our catalogue. As we will discuss in more detail below, the most common reason for these botches is difficulty finding a vein for insertion of the catheter. Taken together, our data so far suggest that botched executions are not rare. They have occurred regardless of method, in a wide array of jurisdictions, and throughout the twenty-five years of our study. Furthermore, the patterns regarding execution method do not suggest change in the likelihood of such occurrences. Botched executions are indisputably an inherent component of the modern practice of capital punishment. An instantaneous, painless and non-lingering death? The second goal of our analysis is to evaluate the extent to which and in what ways the botched executions we document violate the Eighth Amendment’s ban on cruel and unusual punishment. Three criteria have

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been identified by the courts as indicative of a method’s ability to provide a death within constitutional limits. The criteria pertain to whether or not death is (1) instantaneous, (2) painful and (3) lingering. Table 6.4 provides data relevant to the first two of these elements and Table 6.5 to the last. The criteria of an ‘instantaneous’ and ‘painless’ death are typically discussed together, under the assumption that if an execution is not instantaneous, then the prisoner is also likely to suffer pain. Moreover, some of the factors that cause non-instantaneous deaths also cause excessive pain for the inmate. Although the two criteria are clearly interconnected, we discuss them separately below. Evidence of a non-instantaneous death As the left-hand panel of Table 6.4 suggests, the type of evidence indicative of a non-instantaneous death is often related to the method of execution employed. When the electric chair is used, multiple jolts of electricity indicate a slow death. Eight of the ten botched electrocutions in our catalogue involved the application of multiple jolts because the initial surge failed to kill the prisoner (case Nos. 1, 2, 4, 6, 11, 12, 14 and 15). The origins of some of these bungles have been identified, but the causes of most remain hotly debated, if not a total mystery. In two cases involving multiple jolts of current (case Nos. 11 and 12), ‘human error’ on the part of prison officials was to blame. Horace Dunkins’ death (case No. 11) was not instantaneous because prison officials improperly connected the cables conducting the electric current. The inappropriate substitution of a synthetic for a natural sponge was the ‘inadvertent human error’ that contributed to Jesse Tafero’s bungled execution (case No. 12). Three jolts of electricity were needed to finally stop his breathing, and these surges caused him to catch fire. In the six remaining electrocutions requiring multiple jolts, the reason why the first surge of electricity failed to kill the inmate was not identified in available information published after the executions. When lethal injection is the execution method, unanticipated disruptions in the flow of drugs to the inmate is frequently the cause of a prolonged death. Lethal injections typically involve three steps. First, an anaesthetic drug is administered to render the inmate unconscious. Next, a drug is injected that produces paralysis of the respiratory system and muscles. Finally, a drug is given that stops the individual’s pulmonary functions. We identify five cases (case Nos. 9, 13, 21, 22 and 28) in which this process was interrupted after the first dose of anaesthetic drugs was administered, thereby causing a gradual rather than an instantaneous death. In Charles Walker’s case (case No. 13), the delay was caused by a kink in the plastic tubing and the improper insertion of

Multiple jolts of electricity

n/a 8 n/a 8

Execution method

Asphyxiation (n = 2) Electrocution (n = 10) Lethal injection (n = 22) Total cases n/a n/a 5 5

Breakdown in drug sequence 2 2 6 10

Gasping for breath

Evidence of a non-instantaneous death

n/a 6 n/a 6

Burns or smoke

2 2 9 13

Audible distress

2 0 6 8

Violent movements

Evidence of a painful death

n/a n/a 12 12

Missing a vein

Table 6.4 Number of cases involving evidence that a non-instantaneous and/or painful death occurred (n = 34 botches)

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the intravenous needle. In John Wayne Gacy’s case (case No. 21), it was due to flawed administration of the drugs leading to a chemical reaction that clogged the tubes. And in Emmitt Foster’s case (case No. 22), the delay occurred because Foster had been strapped too tightly to a gurney. In the last two cases (case Nos. 9 and 28), the syringe came out of the inmates’ arm after the chemicals started to flow. The first of these was Raymond Landry’s execution (case No. 9). A spokesperson for Texas Attorney General Jim Mattox attributed the cause to a ‘mechanical and physical problem. Landry was very muscular and had “Popeye-type” arms. When the stuff was flowing, it wouldn’t go into the veins and there was more pressure in the hose than his veins could absorb.’15 In the second case (case No. 28), a vein in the arm of Joseph Cannon collapsed and the needle popped out after his execution had begun. A fifteen-minute delay followed while the needle was reinserted. A third sign of prolonged death, gasping for breath, has occurred across all three types of botched execution methods. A total of ten cases in our catalogue involve inmates who spent a period of time gasping for air before being pronounced dead. Signs of suffocation were observed in both botched asphyxiation cases (case Nos. 3 and 17), in six bungled lethal injections (case Nos. 10, 18, 20, 22, 26 and 33) and in two botched electrocutions (case Nos. 4 and 25). Evidence of a painful death In addition to producing a prolonged death, delays involving multiple jolts of electricity, drug sequence mishaps, and suffocation increase the odds that an inmate will suffer pain while being executed. Assessing pain during execution is somewhat complicated for a number of reasons. As Hillman notes: ‘It is difficult to know how much pain the person being executed feels or for how long, because many of the signs of pain are obscured by the procedure or by physical restraints, but one can identify those steps which are likely to be painful.’16 Hillman lists the following as signs of pain and/or factors occurring during an execution that are likely to cause pain:17 shouts or screams, perspiration, dilated pupils, withdrawal from stimulus, violent movements, contraction of facial muscles, micturition, defecation, heat, skin burns, asphyxia, and missing or going through a vein. Of these, the right-hand 15 16 17

‘Murderer Executed After a Leaky Lethal Injection’, New York Times, 14 December 1988, p. 29A. Harold Hillman, ‘The Possible Pain Experienced During Execution by Different Methods’ (1993) 22 Perception 745 at 745. This list is based on information regarding the physiology and pathology of various capital punishment methods ‘derived from observations on the condemned persons, postmortem examinations, physiological studies on animals undergoing similar procedures, and the literature on emergency medicine.’ Ibid.

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side of Table 6.4 shows the categories for which we found evidence in our eyewitness accounts of botched executions. We discuss these categories, namely, ‘burns or smoke’, ‘audible distress’, ‘violent movements’ and ‘missing a vein’, as they occurred in botched asphyxiations, electrocutions and lethal injections. Again, we must keep in mind the (very strong) potential that these accounts are incomplete for a number of reasons, including witnesses’ reluctance to report a specific condition (most witnesses work for the prisons and/or strongly support the execution); their inattentiveness, shock or distraction during the execution process; their inability to see the distress signal; and/or the prisoners’ inability to physically communicate the sign. The two cases of asphyxiation (case Nos. 3 and 17) we identify involved deaths that were agitated and distressing. Witnesses to each reported both audible sounds of distress from the inmates as well as violent spasms and movements. The death of Jimmy Gray (case No. 3) was described in these words: ‘Jimmy Lee Gray died banging his head against a steel pole . . . while reporters counted his moans.’18 In the second case, witnesses described Donald Eugene Harding (case No. 17) thrashing and struggling violently for over six minutes against the straps restraining him in the gas chamber. In six of the ten botched electrocutions, eyewitnesses reported burning flesh and smoke (case Nos. 1, 2, 6, 12, 25 and 31). In Virginia in 1982, Frank J. Coppola’s (case No. 1) head and leg caught on fire, filling the death chamber with a smoky haze. When John Evans (case No. 2) was electrocuted in Alabama in 1983, sparks and flames erupted from an electrode attached to his leg and from under the hood near his left temple. In Indiana, the same fate was suffered by William E. Vandiver (case No. 6) in 1985. Three similar cases have occurred more recently in Florida. When Jesse Tafero (case No. 12) was executed in 1990, six-inch flames erupted from his head. In Pedro Medina’s 1997 execution (case No. 25), a crown of foot-high flames shot from under the headpiece. Similar to Tafero’s case, the flames were reportedly caused by the improper application of a sponge to Medina’s head. Aside from the errors associated with the improper application of sponges in the Tafero and Medina cases, no explanations have ever been reported for the burning and smoking of Coppola’s, Evans’ or Vandiver’s bodies. In 1999, after introducing a new electric chair, Florida executed Allen Lee Davis (case No. 31). According to an autopsy report, the electrocution left burns on Davis’ head, face and leg. In addition, the event was marked by audible signs of distress, as Davis began moaning while blood oozed from his nose, spread onto his chest, and left a stain the 18

David Bruck, ‘Decisions of Death’, New Republic, 12 December 1984, pp. 24–5.

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size of a dinner plate on his shirt.19 Florida officials claimed the blood was due to a ‘typical nosebleed’. In an appeals case brought by the next intended victim of Florida’s new electric chair, Florida Supreme Court Justice Leander Shaw offered an alternative opinion. After reviewing evidence regarding the electrocution procedure, including the tightness and positioning of leather straps placed against Davis’ nose, mouth and then entire face, Shaw commented that ‘the color photos of Davis depict a man who – for all appearances – was brutally tortured to death by the citizens of Florida’.20 One final electrocution case involved audible signs of distress. When Virginia executed Wilbert Lee Evans (case No. 14), moans were heard as blood veins exploded from the electrical surge, drenching Evans in blood as he died. Corrections officials offered various explanations for the bungle, including Evans’ large nose and his high blood pressure, supposedly worsened by a pork-rich diet during the week before his execution. Ultimately, the mishap was attributed to a nosebleed brought on by Evans’ high blood pressure. During lethal injections, pain is a likely consequence of missing or going through a vein during insertion of the catheter that delivers the lethal drugs. This has occurred in twelve of the twenty-two botched lethal injections in our catalogue (case Nos. 5, 7, 8, 16, 19, 23, 24, 27, 29, 30, 32 and 34). In three cases (case Nos. 5, 7 and 19), the inmates had a history of drug abuse that had damaged their veins. In Rickey Ray Rector’s case (case No. 16), the damaged veins were caused by a long history of taking prescribed antipsychotic medications. Two other inmates, Elliot Rod Johnson (case No. 8) and Richard Townes Jr (case No. 23), had collapsed veins, and another, Tommie J. Smith (case No. 24), simply had veins that were too small for an easy injection. In Michael Eugene Elkins’ case (case No. 27), the procedure was botched because Elkins’ body had become swollen from liver and spleen problems, making it extremely difficult to find a good vein. In the executions of Roderick Abeyta (case No. 30) and Bennie Demps (case No. 32), prison technicians described ‘having trouble finding a vein’ in which to insert the intravenous drips. Aside from the pain caused by their veins being repeatedly jabbed, inmates in several cases of botched lethal injections have exhibited other signs of distress. In six cases (case Nos. 10, 18, 20, 22, 26 and 33), witnesses observed violent movements including spasms, convulsions and heaving during the execution process. Audible sounds of distress were heard in nine cases (case Nos. 9, 10, 16, 18, 20, 26, 28, 32 and 33) as inmates died groaning, moaning, choking and/or weeping. The causes identified for some of these bungles have already been discussed (case 19

Provenzano v. State, 744 So 2d 413 at 440 (Fla 1999).

20

Ibid.

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Table 6.5 Evidence of a lingering death: time of execution (n = 31) Execution method Minutes until death

Asphyxiation

Electrocution

Lethal injection

Total

Percentage of total

4 to 5 minutes 6 to 10 minutes 11 to 15 minutes 16 to 20 minutes 21 to 30 minutes 31 to 45 minutes over 45 minutes Total

0 1 1 0 0 0 0 2

2 2 3 2 0 0 0 9

1 1 3 2 3 3 7 20

3 4 7 4 3 3 7 31

10% 13% 23% 13% 10% 10% 23% 100%

Note: The data in Table 6.5 are based on thirty-one cases. Given available information, we could not determine the time until death for three cases in our catalogue (case No. 1, an electrocution, and case Nos. 7 and 10, both lethal injections).

Nos. 9, 16, 22, 28 and 32) and include trouble finding veins, problems inserting needles into large, damaged or swollen veins, or strapping the inmate too tightly to the gurney. In other cases (case Nos. 10, 18 and 20), state officials vaguely attributed the bungles to the prisoners’ ‘unusually violent reactions’ to the lethal drugs. No explanations were ever offered for the mishaps in the cases of Carpenter (case No. 26) and Hunter (case No. 33). Evidence of a lingering death In addition to being noninstantaneous or painful, deaths that are ‘lingering’ may also violate the Eighth Amendment. Although this standard may seem analogous to the ‘instantaneous’ criterion, the courts have distinguished between the two. According to Harding, the prohibition against a lingering death ‘actually augments the instantaneous death requirement. When examining the constitutionality of a particular method, a court must examine objective evidence, primarily the amount of time that passes before an individual actually expires.’21 On the basis of a prior case dealing with the lingering death standard, the Ninth Circuit Court of Appeals ruled in Fiero v. Gomez that execution procedures lasting for more than two minutes were in violation of the constitutional ban against cruel and unusual punishment.22 The data in Table 6.5, therefore, focus on the time interval 21

22

Roberta M. Harding, ‘The Gallows to the Gurney: Analyzing the (Un)Constitutionality of the Methods of Execution’ (1996) 6 Boston University Public Interest Law Journal 153 at 162. Ibid., p. 169.

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that passed between the start of the execution method and the inmate’s reported time of death. In three of the cases (case Nos. 1, 7 and 10), we could not locate sufficient information to determine the amount of time that passed during the execution process. Information from the remaining thirty-one cases indicates that the shortest executions among these took approximately four minutes to complete (Medina, case No. 25, and Hunter, case No. 33). Hence, even the shortest cases in our catalogue appear to have violated the ‘lingering death’ criteria as defined in Fiero v. Gomez. The two longest executions among our cases are those of Tommie J. Smith (case No. 24) and Jose High (case No. 34). The states of Indiana and Georgia needed sixty-nine minutes to perform these lethal injections. In approximately 77 per cent of the cases (twenty-four out of thirty-one), death took longer than ten minutes to occur; in one-third (ten out of thirty-one, or 32 per cent), the inmate was still alive for over half an hour after the execution began. With regard to each method, the patterns in Table 6.5 suggest two general conclusions: first, no method is immune from causing a lingering death; and, secondly, lethal injection produces the most lingering of deaths. Among our cases, the longest asphyxiation lasted eleven minutes (Harding, case No. 17), the longest electrocution lasted nineteen minutes (Dunkins, case No. 11), and the longest lethal injections (Smith, case No. 24, and High, case No. 34) took sixty-nine minutes to complete. With two exceptions (May, case No. 20, and Hunter, case No. 33), all of the lethal injection cases for which we have data involved deaths that took longer than ten minutes to occur. Sixty per cent (twelve out of twenty) lasted longer than twenty minutes, and in half (ten out of twenty), the inmates were alive for more than thirty minutes after the lethal injection procedure had begun. Although the concept of ‘lingering’ is certainly open to interpretation, the time intervals in all thirty-one cases clearly fall outside of the Court’s two-minute objective definition in Fiero v. Gomez. Hence, even if one were to discount the evidence of pain and of a non-instantaneous death already discussed, each of these thirty-one executions appears to have violated the Eighth Amendment on the lingering death standard alone. Conclusions The data presented in this analysis lead to two significant conclusions. First, botched executions take place with regular frequency. Their occurrence in different jurisdictions, at different times, and regardless of execution method indicates that they are endemic to the modern practice of

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capital punishment, and they will continue to be for as long as the punishment remains in use. The second noteworthy conclusion is that these botches are not simply minor flaws indicating a ‘less than perfect’ execution. Rather, the cases are major blunders that often cause prolonged and painful deaths, and usually after relatively long periods of time once the execution process has begun. With approximately one out of every twenty-two executions botched, America’s executioners cannot guarantee their ability to cause deaths that are instantaneous, painless and non-lingering. These three criteria were adopted by the Ninth Circuit Court of Appeals for its test of the constitutionality of the gas chamber in 1996.23 Should the Supreme Court do likewise today, the inevitability of botched executions will present a very serious threat to the constitutionality of capital punishment. Of course, the inevitability of botched executions does not mean that a particular method of execution violates the Eighth Amendment unless and until the US Supreme Court says it does. Possibly, then, botched executions will have their most important consequence in the arena of public opinion. Already the public has voiced a strong preference for lethal injection over other methods of execution,24 but this support will undoubtedly erode as the public becomes more aware of the inevitability, and increased likelihood, of serious botches with this ‘humane’ method of killing. This could lead to new execution methods; if the death penalty survives for another two or three decades our children may find themselves debating death by laser or by some other novel method. Then again, our children may come to believe that no humane way to execute can be found. As with evidence that documents the pervasiveness of racial bias in the administration of the death penalty25 and the pervasiveness of innocent prisoners on death rows,26 the above evidence of botched executions shows yet again that the death penalty involves making godlike decisions and taking godlike actions without godlike wisdom or skills. 23 24

25 26

Fierro v. Gomez, 77 F 3d 301 (9th Cir. 1996). For example, a 1998 opinion poll in Florida conducted for the New York Times Regional Newspapers found that just over half of the respondents favoured replacing electrocution with lethal injection, while only 22 per cent advocated keeping the electric chair. Alan Judd, ‘Poll: Most Favour New Execution Method’, Gainesville Sun, 18 February 1998, p. 1. United States General Accounting Office, ‘Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities’, GAO/GGD-90-57 (1990). Michael L. Radelet, William S. Lofquist and Hugo Adam Bedau, ‘Prisoners Released from Death Rows Since 1970 Because of Doubts About Their Guilt’ (1996) 13 Thomas M. Cooley Law Review 907.

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Appendix 1 Descriptions of botched executions 1. 10 August 1982, Virginia, Frank J. Coppola, electrocution. Although no media representatives witnessed the execution and no details were ever released by the Virginia Department of Corrections, an attorney who was present later stated that it took two 55-second jolts of electricity to kill Coppola. The second jolt produced the odour and sizzling sound of burning flesh, and Coppola’s head and leg caught fire. Smoke filled the death chamber from floor to ceiling with a smoky haze.27 2. 22 April 1983, Alabama, John Evans, electrocution. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans’ leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans’ left temple. Two physicians entered the chamber and found a heartbeat. The electrode was re-attached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again, the doctors found a heartbeat. Ignoring the pleas of Evans’ lawyer, a third jolt of electricity was applied. The execution took fourteen minutes and left Evans’ body charred and smouldering.28 3. 2 September 1983, Mississippi, Jimmy Lee Gray, asphyxiation. Officials had to clear the room eight minutes after the gas was released when Gray’s desperate gasps for air repulsed witnesses. His attorney, Dennis Balske of Montgomery, Alabama, criticised state officials for clearing the room when the inmate was still alive. Death penalty defence attorney David Bruck stated: ‘Jimmy Lee Gray died banging his head against a steel pole in the gas chamber while the reporters counted his moans (eleven, according to the Associated Press).’29 Later, it was revealed that the executioner, Barry Bruce, was drunk.30 4. 12 December 1984, Georgia, Alpha Otis Stephens, electrocution. ‘The first charge of electricity . . . failed to kill him, and he struggled to breathe for eight minutes before a second charge carried out his death sentence.’31 After the first two-minute power surge, there was a 27

28

29 30 31

Deborah W. Denno, ‘Is Electrocution an Unconstitutional Method of Execution? The Engineering of Death over the Century’ (1994) 35 William & Mary Law Review 551 at 664–5. For a description of the execution by Evans’ defence attorney, see Russell F. Canan, ‘Burning at the Wire: The Execution of John Evans’, in Michael L. Radelet (ed.), Facing the Death Penalty: Essays on a Cruel and Unusual Punishment (Philadelphia, PA: Temple University Press, 1989), p. 60; see also Glass v. Louisiana, 471 US 1080 at 1091–2 (1985). David Bruck, ‘Decisions of Death’, New Republic, 12 December 1984, pp. 24–5. Ivan Solotaroff, ‘The Last Face You’ll Ever See’ (August 1995) 124 Esquire 90 at 95. ‘Two Charges Needed to Electrocute Georgia Murderer’, New York Times, 13 December 1984, p. 12.

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5.

6.

7.

8. 9.

32 33 34 35 36 37 38

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six-minute pause so his body could cool before physicians could examine him (and declare that another jolt was needed). During that sixminute interval, Stephens took twenty-three breaths. A Georgia prison official said: ‘Stephens was just not a conductor [of electricity].’32 13 March 1985, Texas, Stephen Peter Morin, lethal injection. Because of Morin’s history of drug abuse, the execution technicians were forced to probe both of Morin’s arms and one of his legs with needles for nearly forty-five minutes before they found a suitable vein.33 16 October 1985, Indiana, William E. Vandiver, electrocution. After the first administration of 2,300 volts, Vandiver was still breathing. The execution eventually took seventeen minutes and five jolts of electricity.34 Vandiver’s attorney, Herbert Shaps, witnessed the execution and observed smoke and the smell of burning. He called the execution ‘outrageous’. The Department of Corrections admitted the execution ‘did not go according to plan’.35 20 August 1986, Texas, Randy Woolls, lethal injection. A drug addict, Woolls helped the execution technicians find a useable vein for the execution.36 24 June 1987, Texas, Elliot Rod Johnson, lethal injection. Because of collapsed veins, it took nearly an hour to complete the execution.37 13 December 1988, Texas, Raymond Landry, lethal injection. Pronounced dead forty minutes after being strapped to the execution gurney and twenty-four minutes after the drugs first started flowing into his arms.38 Two minutes after the drugs were administered, the syringe came out of Landry’s vein, spraying the deadly chemicals across the room towards witnesses. The curtain separating the witnesses from the inmate was then pulled, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein. Witnesses reported ‘at least one groan’. A spokesman for the Texas Department of Correction, Charles Brown, said, ‘There was something of a delay in the execution because of what officials called a

Editorial, New York Times, 17 December 1984, p. 22. ‘Murderer of Three Women is Executed in Texas’, New York Times, 14 March 1985. ‘Killer’s Electrocution Takes 17 Minutes in Indiana Chair’, Washington Post, 12 October 1985, p. A16. ‘Indiana Executes Inmate Who Slew Father-In-Law’, New York Times, 17 October 1985, p. 22. ‘Killer Lends a Hand to Find a Vein for Execution’, Los Angeles Times, 20 August 1986, p. 2. ‘Addict Is Executed in Texas for Slaying of 2 in Robbery’, New York Times, 25 June 1987, p. A24. ‘Drawn-out Execution Dismays Texas Inmates’, Dallas Morning News, 15 December 1988, p. 29A.

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“blow out”. The syringe came out of the vein, and the warden ordered the [execution] team to reinsert the catheter into the vein.’39 10. 24 May 1989, Texas, Stephen McCoy, lethal injection. He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, back arching off the gurney, etc.) that one of the witnesses fainted, crashing into and knocking over another witness. Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyse a chain reaction. The Texas Attorney General admitted the inmate ‘seemed to have a somewhat stronger reaction’, adding ‘[t]he drugs might have been administered in a heavier dose or more rapidly’.40 11. 14 July 1989, Alabama, Horace Franklin Dunkins Jr, electrocution. It took two jolts of electricity, nine minutes apart, to complete the execution. After the first jolt failed to kill the prisoner, the captain of the prison guard opened the door to the witness room and stated: ‘I believe we’ve got the jacks on wrong.’41 Because the cables had been connected improperly, it was impossible to dispense sufficient current to cause death. The cables were reconnected before a second jolt was administered. Death was pronounced nineteen minutes after the first electric charge. At a post-execution news conference, Alabama Prison Commissioner Morris Thigpen said: ‘I regret very, very much what happened. [The cause] was human error.’42 12. 4 May 1990, Florida, Jesse Joseph Tafero, electrocution. During the execution, six-inch flames erupted from Tafero’s head, and three jolts of power were required to stop his breathing. State officials claimed that the botched execution was caused by ‘inadvertent human error’ – the inappropriate substitution of a synthetic sponge for a natural sponge that had been used in previous executions.43 They attempted to support this theory by sticking a part of a synthetic sponge into a ‘common household toaster’ and observing that it smouldered and caught fire.44 39 40 41 42 43

44

‘Landry Executed for ’82 Robbery-Slaying’, Dallas Morning News, 13 December 1988, p. 29A. ‘Witness to an Execution’, Houston Chronicle, 27 May 1989, p. 11. John Archibald, ‘On Second Try, Dunkins Executed for Murder’, Birmingham News, 14 July 1989, p. 1. Peter Applebome, ‘2 Jolts in Alabama Execution’, New York Times, 15 July 1989, p. 6. Cynthia Barnett, ‘Tafero Meets Grisly Fate in Chair’, Gainesville Sun, 5 May 1990, p. 1; Cynthia Barnett, ‘A Sterile Scene Turns Grotesque’, Gainesville Sun, 5 May 1990, p. 1; Bruce Ritchie, ‘Flames, Smoke Mar Execution of Murderer’, Florida Times-Union (Jacksonville), 5 May 1990, p. 1; Bruce Ritchie, ‘Report on Flawed Execution Cites Human Error’, Florida Times-Union (Jacksonville), 9 May 1990, p. B1. Bill Moss, ‘Chair Concerns Put Deaths on Hold’, St Petersburg Times, 18 July 1990, p. 1B.

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13. 12 September 1990, Illinois, Charles Walker, lethal injection. Because of equipment failure and human error, Walker suffered excruciating pain during his execution. According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the state of Illinois to assist with Walker’s execution, a kink in the plastic tubing going into Walker’s arm stopped the deadly chemicals from reaching Walker. In addition, the intravenous needle was inserted pointing at Walker’s fingers instead of his heart, prolonging the execution.45 14. 17 October 1990, Virginia, Wilbert Lee Evans, electrocution. When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans’ face, drenching Evans’ shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.46 15. 22 August 1991, Virginia, Derick Lynn Peterson, electrocution. After the first cycle of electricity was applied, and again four minutes later, prison physician David Barnes inspected Peterson’s neck and checked him with a stethoscope, announcing each time ‘He has not expired.’ Seven-and-a-half minutes after the first attempt to kill the inmate, a second cycle of electricity was applied. Prison officials later announced that in the future they would routinely administer two cycles before checking for a heartbeat.47 16. 24 January 1992, Arkansas, Rickey Ray Rector, lethal injection. It took medical staff more than fifty minutes to find a suitable vein in Rector’s arm. Witnesses were kept behind a drawn curtain and not permitted to view this scene, but reported hearing Rector’s eight loud moans throughout the process. During the ordeal, Rector (who suffered from serious brain damage) helped the medical personnel find a vein. The administrator of the state’s Department of Corrections medical programmes said (paraphrased by a newspaper reporter): ‘the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein.’ The 45 46

47

‘Niles Group Questions Execution Procedure’, United Press International, 8 November 1992 (LEXIS/NEXUS file). Mike Allen, ‘Groups Seek Probe of Electrocution’s Unusual Events’, Richmond TimesDispatch, 19 October 1990, p. B1; Mike Allen, ‘Minister Says Execution Was Unusual’, Richmond Times-Dispatch, 20 October 1990, p. B1; DeNeen L. Brown, ‘Execution Probe Sought’, Washington Post, 21 October 1990, p. D1. Karen Haywood, ‘Two Jolts Needed to Complete Execution’, Free-Lance Star (Fredericksburg, VA), 23 August 1991, p. 1; ‘Death Penalty Opponents Angry About Latest Execution’, Richmond Times-Dispatch, 24 August 1991, p. 1; ‘Virginia Alters its Procedure for Executions in Electric Chair’, Washington Post, 24 August 1991, p. B3.

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administrator said: ‘That may have contributed to his occasional outbursts.’ The difficulty in finding a suitable vein was later attributed to Rector’s bulk and his regular use of antipsychotic medication.48 17. 6 April 1992, Arizona, Donald Eugene Harding, asphyxiation. Death was not pronounced until ten-and-a-half minutes after the cyanide tablets were dropped.49 During the execution, Harding thrashed and struggled violently against the restraining straps. A television journalist who witnessed the execution, Cameron Harper, said that Harding’s spasms and jerks lasted six minutes and thirtyseven seconds. ‘Obviously, this man was suffering. This was a violent death . . . an ugly event. We put animals to death more humanely.’50 Another witness, newspaper reporter Carla McClain, said: ‘Harding’s death was extremely violent. He was in great pain. I heard him gasp and moan. I saw his body turn from red to purple.’51 One reporter who witnessed the execution suffered from insomnia and assorted illnesses for several weeks; two others were ‘walking vegetables’ for several days.52 18. 10 March 1992, Oklahoma, Robyn Lee Parks, lethal injection. Parks had a violent reaction to the drugs used in the lethal injection. Two minutes after the drugs were dispensed, the muscles in his jaw, neck and abdomen began to react spasmodically for approximately fortyfive seconds. Parks continued to gasp and violently gag until death came, some eleven minutes after the drugs were first administered. Tulsa World reporter Wayne Greene wrote that the execution looked ‘painful and ugly’, and ‘scary’. ‘It was overwhelming, stunning, disturbing – an intrusion into a moment so personal that reporters, taught for years that intrusion is their business, had trouble looking each other in the eyes after it was over.’53 19. 23 April 1992, Texas, Billy Wayne White, lethal injection. White was pronounced dead some forty-seven minutes after being strapped 48

49 50 51 52 53

Joe Farmer, ‘Rector, 40, Executed for Officer’s Slaying’, Arkansas Democrat-Gazette, 25 January 1992, p. 1; Joe Farmer, ‘Rector’s Time Came, Painfully Late’, Arkansas Democrat Gazette, 26 January 1992, p. 1B; Sonja Clinesmith, ‘Moans Pierced Silence During Wait’, Arkansas Democrat Gazette, 26 January 1992, p. 1B; Marshall Frady, ‘Death in Arkansas’, New Yorker, 22 February 1993, p. 105. ‘Gruesome Death in Gas Chamber Pushes Arizona Toward Injections’, New York Times, 25 April 1992, p. 9. Charles L. Howe, ‘Arizona Killer Dies in Gas Chamber’, San Francisco Chronicle, 7 April 1992, p. A2. Ibid. Abraham Kwok, ‘Injection: The No-Fuss Executioner’, Arizona Republic, 28 February 1993, p. 1. Wayne Greene, ‘11-Minute Execution Seemingly Took Forever’, Tulsa World, 11 March 1992, p. A13.

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to the execution gurney. The delay was caused by difficulty finding a vein; White had a long history of heroin abuse. During the execution, White attempted to assist the authorities in finding a suitable vein.54 20. 7 May 1992, Texas, Justin Lee May, lethal injection. May had an unusually violent reaction to the lethal drugs. According to one reporter who witnessed the execution, May ‘gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze’.55 Associated Press reporter Michael Graczyk wrote: ‘Compared to other recent executions in Texas, May’s reaction was more violent. He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down. After he stopped breathing, his eyes and mouth remained open.’56 21. 10 May 1994, Illinois, John Wayne Gacy, lethal injection. After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tube that led into Gacy’s arm, and prohibiting any further passage. Blinds covering the window through which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minutes later, the blinds were then reopened and the execution process resumed. It took eighteen minutes to complete.57 Anaesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in ‘IV 101’ would have prevented the error.58 22. 3 May 1995, Missouri, Emmitt Foster, lethal injection. Seven minutes after the lethal chemicals began to flow into Foster’s arm, the execution was halted when the chemicals stopped circulating. With Foster gasping and convulsing, the blinds were drawn so that the witnesses could not view the scene. Death was pronounced thirty minutes after the execution began, and three minutes later the blinds were reopened so that the witnesses could view the corpse.59 According 54 55 56 57

58 59

‘Another US Execution Amid Criticism Abroad’, New York Times, 24 April 1992, p. B7. Robert Wernsman, ‘Convicted Killer May Dies’, Item (Huntsville, TX), 7 May 1992, p. 1. Michael Graczyk, ‘Convicted Killer Gets Lethal Injection’, Herald (Denison, TX), 8 May 1992. Scott Fornek and Alex Rodriguez, ‘Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction’, Chicago Sun-Times, 11 May 1994, p. 5; Rich Chapman, ‘Witnesses Describe Killer’s “Macabre” Final Few Minutes’, Chicago SunTimes, 11 May 1994, p. 5. Rob Karwath and Susan Kuczka, ‘Gacy Execution Delay Blamed on Clogged IV Tube’, Chicago Tribune, 11 May 1994, p. 1 (Metro Lake section). Because they could not observe the entire execution procedure through the closed blinds, two witnesses later refused to sign the standard affidavit that stated they had witnessed

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to William ‘Mal’ Gum, the Washington County Coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; they were so tight that the flow of chemicals into the veins was restricted. Foster did not die until several minutes after a prison worker finally loosened the straps. The coroner entered the death chamber twenty minutes after the execution began, diagnosed the problem, and told the officials to loosen the strap so the execution could proceed.60 In an editorial, the St Louis Post-Dispatch called the execution ‘a particularly sordid chapter in Missouri’s capital punishment experience’.61 23. 23 January 1996, Virginia, Richard Townes Jr, lethal injection. This execution was delayed for twenty-two minutes while medical personnel struggled to find a vein large enough for the needle. After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Townes’ right foot.62 24. 18 July 1996, Indiana, Tommie J. Smith, lethal injection. Because of unusually small veins, it took one hour and nine minutes for Smith to be pronounced dead after the execution team began sticking needles into his body. For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called.63 Smith was given a local anaesthetic and the physician twice attempted to insert the tube into Smith’s neck. When that failed, an angio-catheter was inserted in Smith’s foot. Only then were witnesses permitted to view the process. The lethal drugs were finally injected into Smith forty-nine minutes after the first attempts, and it took another twenty minutes before death was pronounced.64 25. 25 March 1997, Florida, Pedro Medina, electrocution. A crown of foot-high flames shot from the headpiece during the execution, filling the execution chamber with a stench of thick smoke and gagging the two dozen official witnesses. An official then threw a switch

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the execution. ‘Witnesses to a Botched Execution’, St Louis Post-Dispatch, 8 May 1995, p. 6B. Tim O’Neil, ‘Too-Tight Strap Hampered Execution’, St Louis Post-Dispatch, 5 May 1995, p. B1; Jim Slater, ‘Execution Procedure Questioned’, Kansas City Star, 4 May 1995, p. C8. ‘Witnesses to a Botched Execution’, St Louis Post-Dispatch, 8 May 1995, p. 6B. ‘Store Clerk’s Killer Executed in Virginia’, New York Times, 25 January 1996, p. A19. The involvement of this anonymous physician violated the rules of both the American Medical Association and the Indiana State Medical Association. Sherri Edwards and Suzanne McBride, ‘Doctor’s Aid in Injection Violated Ethics Rule: Physician Helped Insert the Lethal Tube in a Breach of AMA’s Policy Forbidding Active Role in Execution’, Indianapolis Star, 19 July 1996, p. A1. Ibid.; Suzanne McBride, ‘Problem with Vein Delays Execution’, Indianapolis News, 18 July 1996, p. 1.

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to manually cut off the power and prematurely end the two-minute cycle of 2,000 volts. Medina’s chest continued to heave until the flames stopped and death came.65 After the execution, prison officials blamed the fire on a corroded copper screen in the headpiece of the electric chair, but two experts hired by the governor later concluded that the fire was caused by the improper application of a sponge (designed to conduct electricity) to Medina’s head. 26. 8 May 1997, Oklahoma, Scott Dawn Carpenter, Carpenter was pronounced dead some eleven minutes after the lethal injection was administered. As the drugs took effect, Carpenter began to gasp and shake. ‘This was followed by a guttural sound, multiple spasms and gasping for air’ until his body stopped moving, three minutes later.66 27. 13 June 1997, South Carolina, Michael Eugene Elkins, lethal injection. Because Elkins’ body had become swollen from liver and spleen problems, it took nearly an hour to find a suitable vein for the insertion of the catheter. Elkins tried to assist the executioners, asking ‘Should I lean my head down a little bit?’ as they probed for a vein. After numerous failures, a usable vein was finally found in Elkins’ neck.67 28. 23 April 1998, Texas, Joseph Cannon, lethal injection. It took two attempts to complete the execution. After making his final statement, the execution process began. A vein in Cannon’s arm collapsed and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, ‘It’s come undone.’ Officials then pulled a curtain to block the view of the witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed.68 65

66 67 68

Doug Martin, ‘Flames Erupt from Killer’s Headpiece’, Gainesville Sun, 26 March 1997, p. 1. Medina was executed despite a life-long history of mental illness, and the Florida Supreme Court split 4–3 on whether to grant an evidentiary hearing because of serious questions about his guilt. This puts to rest any conceivable argument that Medina could have been guilty ‘beyond a reasonable doubt’. Medina v. State, 690 So 2d 1241 (1997). The family of the victim had joined in a plea for executive clemency, in part because they believed Medina was innocent. Ibid., p. 1252, n. 6. Even the Pope appealed for clemency. Martin, above. Michael Overall and Michael Smith, ‘22-Year-Old Killer Gets Early Execution’, Tulsa World, 8 May 1997, p. A1. ‘Killer Helps Officials Find a Vein at His Execution’, Chattanooga Free Press, 13 June 1997, p. A7. Cannon was executed for a crime committed when he was seventeen years old. ‘1st Try Fails to Execute Texas Death Row Inmate’, Orlando Sentinel, 23 April 1998, p. A16; Michael Graczyk, ‘Texas Executes Man Who Killed San Antonio Attorney at Age 17’, Austin American-Statesman, 23 April 1998, p. B5.

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29. 26 August 1998, Texas, Genaro Ruiz Camacho, lethal injection. The execution was delayed approximately two hours due, in part, to problems finding suitable veins in Camacho’s arms.69 30. 5 October 1998, Nevada, Roderick Abeyta. It took twenty-five minutes for the execution team to find a vein suitable for the lethal injection.70 31. 8 July 1999, Florida, Allen Lee Davis. ‘Before he was pronounced dead . . . the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair.’71 His execution was the first in Florida’s new electric chair, built especially so that it could accommodate a man of Davis’ size (approximately 350 pounds). Later, when another Florida death row inmate challenged the constitutionality of the electric chair, Florida Supreme Court Justice Leander Shaw commented that ‘the color photos of Davis depict a man who – for all appearances – was brutally tortured to death by the citizens of Florida’.72 Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (qv), calling the three executions ‘barbaric spectacles’ and ‘acts more befitting a violent murderer than a civilized state’.73 Justice Shaw included pictures of Davis’ dead body in his opinion.74 The execution was witnessed by a Florida state senator, Ginny Brown-Waite, who at first was ‘shocked’ to see the blood, until she realised that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution.75 32. 8 June 2000, Florida, Bennie Demps. It took execution technicians thirty-three minutes to find suitable veins for the execution. ‘They butchered me back there’, said Demps in his final statement. ‘I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder.’ The executioners had no unusual problems finding one vein, but because Florida protocol requires a second alternate intravenous drip, they 69 70 71 72 73 75

Michael Graczyk, ‘Reputed Marijuana Smuggler Executed for 1988 Dallas Slaying’, Associated Press, 27 August 1998. Sean Whaley, ‘Nevada Executes Killer’, Las Vegas Review-Journal, 5 October 1998, p. 1A. ‘Davis Execution Gruesome’, Gainesville Sun, 8 July 1999, p. 1A. Provenzano v. State, 744 So 2d 413 at 440 (Fla 1999). 74 Ibid., pp. 442–4. Ibid. Mary Jo Melone, ‘A Switch is Thrown, and God Speaks’, St Petersburg Times, 13 July 1999, p. 1B.

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continued to work to insert another needle, finally abandoning the effort after their prolonged failures.76 33. 28 June 2000, Missouri, Bert Leroy Hunter. Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness.77 An attorney who witnessed the execution reported that Hunter had ‘violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth like this repeatedly . . . He suffered a violent and agonizing death.’78 34. 7 November 2001, Georgia, Jose High. High was pronounced dead some one hour and nine minutes after the execution began. After attempting to find a useable vein for ‘15 to 20 minutes’, the emergency medical technicians under contract to do the execution abandoned their efforts. Eventually, one needle was stuck in High’s hand, and a physician was called in to insert a second needle between his shoulder and neck.79 According to records from the Georgia Department of Corrections, it took a total of thirty-nine minutes to insert the IV. 76

77 78 79

Rick Bragg, ‘Florida Inmate Claims Abuse in Execution’, New York Times, 9 June 2000, p. A14; Phil Long and Steve Brousquet, ‘Execution of Slayer Goes Wrong; Delay, Bitter Tirade Precede His Death’, Miami Herald, 8 June 2000. David Scott, ‘Convicted Killer Who Once Asked to Die is Executed’, Associated Press, 28 June 2000. Letter from attorney Cheryl Rafert to Missouri Governor Mel Carnahan, 31 December 2001. Rhonda Cook, ‘Gang Leader Executed by Injection’, Atlanta Constitution, 7 November 2001, p. 1B.

7

Death as a penalty in the Shari’¯a M. Cherif Bassiouni

The Shari’¯a, Islamic law, is based on two sources, the Qu’r¯an and the Sunna (sayings and deeds of the Prophet Muhammad). The Qu’r¯an contains the ‘words of Allah’ (God) inspired upon the Prophet and uttered by him in the presence of others who memorised these utterances and wrote fragments of them at that time.1 The Qu’r¯an was definitively transcribed some forty years after the death of the Prophet Muhammad by the third Khalifa, Uthman ibn Affan. It was completed in 651 AD. The work on that compilation commenced under the first Khalifa, Abu Bakr. Four copies were made in 651 AD (some say seven) and the text was verified by the Prophet’s surviving companions, the sahaba. One copy was kept in Makkah, one was sent to Damascus, another to Iraq, and the fourth to Yemen. These four master copies were called ‘Imam’, and all subsequent books containing the Qu’r¯an were based on them. No one ever questioned the authenticity or accuracy of that original transcription. The Qu’r¯an, meaning readings, is arranged in 114 Sura or chapters of unequal length and numbered consecutively. Each Sura differs in the number of Ayat or verses, which range from three to 286 verses. The Qu’r¯an is the principal source of the Shari’¯a, which is supplemented by the Sunna.2 The complete record of the Sunna was compiled 1 2

There are many verses attesting to the divine origins of the Qu’r¯an: 42:51, 26:192, 42:7, 16:102, 17:106 and 41:11-12-99. The most reliable sources of the Sunna are Imam Muhamad al-Bukhari, Al-Sahih alBukhari (Imam al-Nawawi ed., 6 vols., 1924) which contains 7,275 confirmed hadith, and Imam Muslim ibn Ha¯aag, Al-Sahih Muslim (n.d.). Imam al-Bukhari and Imam Muslim were contemporaries: they died respectively in AH 257 and AH 261 and their works have endured through the passage of time. Al-Bukhari notes that there is agreement concerning the 7,275 hadith contained in his sahih, though, because of repetition and overlaps, there are actually only 2,762 separate hadith. At that time, there were 200,000 alleged hadith in circulation. The Bukhar¯a work was translated into French in Les Traditions Islamiques (O. Hondas and W. Mar¸cais trans., multi-volume work, 1903–14). The debate over what hadith is sahih, meaning true, is as extensive as the one over the interpretation of each hadith. The reconciliation of inconsistent and contradictory hadith is another complex issue which is best addressed in Ibn Qutayba, Ta’W¯al Mukhtatafat al-Hadith (Interpretation of Differences in the Hadith, 1936), translated as Le trait´e des Divergences du Hadith d’Ibn

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by Ishaq ibn Yassar 136 years after the death of the Prophet, in 11 AH.3 While the Qu’r¯an is the controlling source, both constitute the primary sources of Islamic law.4 The prescriptions contained in these two primary sources of Islamic law, however, require interpretation. In fact, many of the Prophet’s sayings, or hadith (which are part of the Sunna), interpret some of the Qu’r¯an’s verses. After the Prophet’s death, the need for interpretation became more acute, due to the fact that the number of alleged hadith proliferated, reaching 200,000.5 This led in turn to the need for supplemental sources of law to apply whenever the two primary sources were inconsistent or silent on a given question. These sources of law include urf (custom), istihsan and istihlas (equity), maslaha (public interest) and ijtihad (best reasoning).6 Since the Shari’¯a is God-given law to humankind, it has to be integral. Consequently, doctrinal concepts, legal approaches, techniques of interpretation, and judicial decisions cannot be conflicting, or

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Qutayba (G. Lecomte trans., 1962). For a contemporary work, which however covers only 632 hadith, see Mulana Muhammad Ali, A Manual of Hadith (1983). This is based on the Qu’r¯an. See Surat al-Nissa’a, 4:59. This was due to the fact that the number of alleged hadith proliferated and reached 200,000, but also because several hadith were inconsistent, and some were inconsistent with the Qu’r¯an. See Ibn Qutayba, note 2 above. This required the development of a new technique to reconcile or explain away these divergences. See Ahmad Hassan, The Early Development of Islamic Jurisprudence (1991). This required the development of a new technique to reconcile or explain away these divergences. See Ahmad Hassan, The Early Development of Islamic Jurisprudence (1991). A mainstream approach in ilm usul al-fiqh distinguishes between principal sources (the Qu’r¯an, the Sunna, the Ijm’¯a, or consensus of opinion of learned scholars and judges, and Qiyas, or analogy) and supplemental sources. The latter consist of: Istislah or Maslaha, consideration of the public good; Al-istihsan, reasoning based on the best outcome, or equity; Al-urf, custom and usage; the practices of the four first ‘wise’ Khalifas, a form of authoritative precedent; the edicts of the Khalifas and local rulers; the jurisprudence of judges; treaties and pacts; contracts (the Shari’¯a considers a contract to be binding in law between the parties, so long as it does not violate the Shari’¯a): and Ijtihad (see note 24 below). An early illustration of the ranking of the sources of the Shari’¯a and recognition of ijtihad is a dialogue – though more like an interview – between the Prophet and Muadh ibn-Jabal whom he appointed a judge in Yemen. The hadith is essentially as follows: The Prophet: ‘How wilt thou decide when a question arises?’ Muadh: ‘According to the Book of Allah’ (the Qu’r¯an). The Prophet: ‘And if thou findest naught therein?’ Muadh: ‘According to the Sunna of the messenger of Allah.’ The Prophet: ‘And if thou findest naught therein?’ Muadh: ‘Then I shall apply my own reasoning.’ (Meaning Ijtihad) The hadith indicates the Prophet’s agreement with this approach. It should be noted however that not everyone is capable of Ijtihad. There are several conditions and qualifications concerning who may exercise that function. See also note 24 below.

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contradictory, but merely different as to one another.7 All of this gave rise to fiqh. Al-fiqh is the science or knowledge of the prescriptions of the Shari’¯a which derive from its specific sources. It includes all prescriptive norms, judgments and learned opinions. This also led to the development of the science of interpretation of the Shari’¯a, ilm usul al-fiqh8 (the science of the principles of interpretation of the law). Ilm usul al-fiqh developed in the second century of hejira in part after Muslims from many different cultures whose language was not Arabic needed to be guided by certain rules of interpretation to avoid the confusion that different linguistic and cultural perspectives can bring to the interpretation of the Shari’¯a. Thus, it is the science of the rules through which to ascertain the prescriptions of the Shari’¯a. It includes the ranking of sources of law and sources of interpretation, and linguistic and other substantive rules of interpretation. For example, the Qu’r¯an has precedence over all other sources, followed by the Sunna. For the Qu’r¯an, the latest verse in time has precedence, and the same goes for the hadith. The specific verse or hadith has precedence over the general verse or hadith, and so on. Several schools of jurisprudence have developed, known as madh¯ahib (plural of madh¯ab).9 After the fourth Khalifa, Ali, who was the Prophet’s nephew, a political dispute arose as to whether the Khalifa (ruler) would be elected from among the Muslims or chosen from the descendants of the Prophet. Proponents of the latter established the Shi’`a movement. The Sunni (now comprising some 90 per cent of the world’s estimated 1.2 billion Muslims) recognise four schools,10 each one of them 7 8

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For a contemporary perspective, see, e.g., Bernard G. Weiss, The Spirit of Islamic Law (1998). The first text on ilm usul al-fiqh was compiled by Iman Mohammed ibn Idriss elShafe’i (d. 204 AH) in his authoritative text Al-Risal¯a. See Risal¯a-el-Shafe’i (Majid Khadduri trans., 1961). See also Mahammad Abu Zahra, Usul al-Fiqh (1958); AbdelWahab Khallaf, Ilm Usul al-Fiqh (8th edn, 1947); Zakaria el-Berri, Usul al-Fiqh al-Islami (The Principles of Islamic Law) (1980). See, e.g., Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (1991); Joseph Schacht, An Introduction to Islamic Law (1964); N.J. Coulson, A History of Islamic Law (1965). They are as follows: Maliki, for Imam Abu Abdulla Malek ibn Anas (d. AH 179), Imam Malek was the first to have gathered all the fatawa (plural of fatwa) from the first Khalifa, Abou Bakr (11 AH) to approximately 170 AH. This was done at the request of the then Khalifa el-Mansour. Abou Hanifa, for Imam Nu’man ben Thabit who was referred to as Abu-Hanifa (which means, literally, father of the upright religion) (d. AH 150). Shafe’i, for Imam Muhammad bin Idriss al-Shafe’i, see note 7 above. Hanbali, for Imam Ahmad ibn Hanbal (d. AH 240). For a contemporary perspective on these schools, see Christopher Melchert, The Formation of the Sunni Schools of Law, 9th–10th Centuries CE (1997); Norman Calder, Studies in Early Islamic Jurisprudence (1993); Mohammad Kamali Hashim, Principles of Islamic Jurisprudence (1997); Joseph Schacht, An Introduction to Islamic Law (1964); and N.J. Coulson, A History of Islamic Law (1965). See also, e.g.,

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subsequently spawning one or more sub-schools. For example, the AbuHanifa school had two sub-schools founded by Abu Yusuf Ya’qub alAnsari and Muhammad al-Shaibani. Al-Shaibani was the first scholar to compile Muslim teachings on international law.11 The Hanbali school, which is the most orthodox of the four, spawned the Wahabi school, named after its founder, Abdel Wahab, whose views are even stricter than those of Imam Ahmad ibn Hanbal. That school is followed mainly in Saudi Arabia. The Shi’`a also developed several schools and sub-schools. Iran is the only Muslim state that is almost entirely Shi’`a. It follows the school known as the Ithna-Asharia (the ‘twelfth’, named after the twelfth Shi’`a-recognised Imam, ruler who, in their belief, was ‘occulted’ while in a cave, and who is expected to ‘reappear’ at some time to lead the righteous to the right path).12 Other jurisprudential schools have also emerged from certain religious or political movements throughout the history of Islam.13 These madh¯ahib rank the secondary and tertiary sources of law differently, and pursue separate analytical approaches and methods to the Shari’¯a’s interpretation.14 Ilm usul al-fiqh recognises this diversity within a holistic framework. One of the great doctrinal debates among all schools of jurisprudence, but more so between Sunni and Shi’`a, is whether the Qu’r¯an and the Sunna are to be interpreted literally, or on the basis of the intent and purpose of the text, or both.15 Whether one approach or the other is

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David A. Funk, ‘Traditional Islamic Jurisprudence: Justifying Islamic Law and Government’ (1993) 20 Southern University Law Review 213; Gamal Moursi Badr, ‘Islamic Law: Its Relation to Other Legal Systems’ (1974) 26 American Journal of Comparative Law 187. For a different perspective, see George Makdisi, ‘The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court 1’ (1984) Zeitschrift f¨ur Geschichte der Arabisch-Islamischen Wissenschaffen 233. It should be noted that these four schools or madhahed are considered not to be contradictory to one another, but different in a way that is not inconsistent with the Qu’r¯an and the Sunna. See Majid Khadduri, Siyyar al-Shaybani: The Law of War and Peace in Islam (1955). See e.g. Seyyed Hossein Nasr et al. (eds.), Shi’Ism: Doctrines, Thought and Spirituality (1988). The Qu’r¯an, however, specifies that only Jesus of Nazareth who has been elevated alive to the side of Allah is to return to earth before judgment day to lead the people of the world to the righteous path of Islam. Among these are the mu’tazala, the Khawarij and the sufi whose movement spawned several branches in different Muslim countries at different periods. See C. Glass´e, The Concise Encyclopedia of Islam (1984). For a classic authoritative Muslim approach using a historical analytical technique, see Ibn Khaldoun, Al-Muqaddima (F. Rosenthal trans., 3 vols., 1958); and Ibn Khaldoun, Kitab al-’Ibar. For an analysis of Ibn Khaldoun’s philosophy of history, see Muhsein Mahdi, Ibn Khaldoun’s Philosophy of History (1971). Another leading Muslim historian is al-Tabari: see El-Tabari, Kitˆab Ikhtilˆaf al Fuqaha’a (The Book on the Differences of Scholarly Interpretation) (F. Kern ed., 1902). For a short contemporary analysis, see Joseph Schacht, ‘The Schools of Law and Later Developments’, in Majid Khadduri and Herbert Liebesny (eds.), Law in the Middle East (1955). This debate is characterised by the great debate between al-zaher, the obvious or literal meaning, and al-baten, the hidden meaning or the purpose. The Sunni support the

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followed will determine whether the unstated legislative policies of the many different aspects of the Shari’¯a will be deemed relevant to the textual interpretation of the Qu’r¯an and the Sunna.16 It is probably in this respect that there exists the greatest divergence of views between what I would consider the three broad categories of thinking and practice. The first is the ‘traditionalists’, representing the prevailing religious establishments in the Sunni and Shi’`a worlds.17 The influence of these two establishments is controlling, in part because of their dominant role in education. Their teachings at Islamic universities, like Al-Azhar (which is the Sunni’s foremost academy) and Najaf and Qum (which are the Shi’`a’s foremost academies), as well as in schools throughout most of the Muslim world, make their views the most popularly disseminated and accepted ones. Sunni ‘traditionalists’ are essentially literalists, but inexplicably their approach also includes the recognition that the Prophet and his first four successors, called the ‘wise ones’, relied on the purposes of the Shari’¯a in their interpretations of the letter of the Qu’r¯an. The second category is the ‘fundamentalists’, who are essentially dogmatic, intransigent and literal. They seek the solutions of earlier times as a panacea for complex contemporary problems, some even turning to political activism and violence as ways of propagating their views.18

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al-zaher approach unless the purpose or hidden meaning is evidenced in some aspect of the Qu’r¯an or Sunna. The Shi’`a allow resort to the al-baten meaning for interpretation of the literal text. For a contemporary perspective, see Bernard G. Weiss, note 7 above. That debate is characterised by whether the Shari’¯a is dynamic or static. For a contemporary ‘traditionalist’ reformist approach, see Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (1986). See also Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (1951). For a ‘traditionalist’ view, see M. Mawdudi, Toward Understanding Islam (A. Ghandi trans., 5th edn, 1954). The Shi’`a have an established hierarchical religious structure that gives its clergy even more authority over followers than the Sunni. This is due to the fact that the Shi’`a clergy originated in southern Iraq and in Iran where, particularly in Iran, the historical role of organised clergy in prior ‘religious’ regimes was well entrenched. Suffice it to recall the Zoroastrian tradition and its dominant hierarchical clergy. For an early history of Iranian society, see J. M. Cook, The Persian Empire (1983); see also R. Frye, Islamic Iran and Central Asia (7th–12th Centuries) (1979). This was not, however, always the case. In fact, the term ‘fundamentalist’ has its origins in several reform movements which have sprung up at different times and places over the last seven centuries. What these movements have in common is their search for a more ascetic, orthodox and simpler way. The muwahhidun was a fundamentalist movement in Morocco in the twelfth century AD, while a similar movement was developed by Ibn Taymiya in Syria (1263–1328 AD), and Ibn Khaldoun in Egypt (1332–1408 AD). This gave rise to the al-Salaf al-Salih (the right path) movement in Egypt at the turn of the twentieth century AD, spurred by Sheikh Mohammad Abdou, Mufti, who was a disciple of Jamal el-din el-Afghani, a reformist of the mid-1800s. However, these were reform movements grounded in established ‘traditionalist’ Sunni doctrine. Contemporary movements are a reaction to, or a consequence of, corruption, bad government and poverty in different Muslim countries. As a result, they have also developed a political

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The third is a category consisting of a few secular reformists and a few forward-thinking ‘traditionalists’, which the mainstream ‘traditionalists’ and ‘fundamentalists’ refer to (in varying degrees of disapproval) as the ilmani, meaning those who use ilm or knowledge. The ilmani seek to achieve the legislative goals of the Shari’¯a by recognised jurisprudential techniques, including ijtihad, in light of scientific knowledge.19 The ilmani also search for the purposes and policies of the Shari’¯a in order to address contemporary problems. Those opposed to this approach argue that the use of scientific knowledge to re-examine the assumptions, interpretations and applications of the Shari’¯a is either inappropriate, unacceptable or anathema depending upon one’s degree of intellectual closeness and religious fanaticism. But the ilmani approach has been advocated by no lesser scholars than Ibn Taymia and Ibn Khaldoun.20 Writings by Muslim scholars will usually reflect the views represented by these three categories. Consequently, the reader, whether Muslim or non-Muslim, who is unfamiliar with these distinctions and with the

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movement, and some groups believe in carrying out a jihad or holy war by use of violent means. See, e.g., W. Montgomery Watt, Islamic Fundamentalism and Modernity (1988); John L. Esposito, Islam and Politics (2nd edn, 1987); Hassan Hanafi, ‘The Origin of Modern Conservatism and Islamic Fundamentalism’, in Ernest Gellner (ed.), Islamic Dilemmas: Reformers, Nationalists and Industrialization (1985); and Martin S. Kramer, Political Islam (1980). See also M. Cherif Bassiouni, ‘A Search for Islamic Criminal Justice: An Emerging Trend in Muslim States’ in Barbara Freyer Stowasser (ed.), The Islamic Impulse (1987), p. 244. That book also contains several contributions on various aspects of Islamic fundamentalism. Muhammad T. Amini, Fundamentals of Litihad (1986); Fazlur Rahman, Islam and Modernity; Transformation of an Intellectual Tradition (1980); and Hassan Hanafi, ‘The Origin of Modern Conservatism and Islamic Fundamentalism’, in Ernest Gellner (ed.), Islamic Dilemmas: Reformers, Nationalists and Industrialization (1985). For two contemporary scholarly views, see Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (1986); and Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (1951). The twentieth century had such leading reformists from among the ranks of ‘traditionalist’ clergy, such as Sheikh Mohammad Abdu of Egypt and later in the 1940s, Sayed Qutb of Egypt who was the intellectual light of the Muslim Brotherhood. See, e.g., Sayed Qutb, Social Justice in Islam (there are several translations that were published in several countries in different years). The present rector of al-Azhar, Sheikh Hassan Tantawi, has become among the Sunni clergies a mild reformist. A few years ago, as Egypt’s Mufti, he issued a statement that bank interests are not riba (usury). This was the first time that such a statement had been issued by a leading Mufti since Imam Ahmad Abdou ruled, in the 1930s, that postal savings passbooks could bear a ‘fixed profit’. Since the 1970s, a new concept called ‘Islamic banking’ has developed to get around the problem of usury and banking interests. See M. Cherif Bassiouni and Gamal Badr, Interests and Banking in Islam (1990), p. 34. For a reformist view of Islamic criminal justice and contemporary standards of human rights, see M. Cherif Bassiouni, ‘Sources of Islamic Law and Protection of Human Rights in the Islamic Criminal Justice System’, in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (1982), p. 3. It should be noted that ilmani is to be distinguished from almani which refers to agnostics.

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complexities of the Shari’¯a, will face difficulties in understanding all these theories and their applications.21 Islam spread to regions with cultures that were different from the Arabic one where Islam was first rooted. The problems that the Shari’¯a had to address in the simple Bedouin desert society of the Arabian peninsula offered few precedents for more complex societies in the Indian subcontinent and other societies.22 But, since the Qu’r¯an is God-given and cannot be altered, these jurisprudential and doctrinal differences have had to be reconciled. This has given rise to a great deal of sophistry and strained arguments. In time, all of this became very complicated and it limited knowledge of the fiqh and ilm usul al-fiqh to those who could devote many years to studying it. To become a graduate of the main Sunni Islamic university, al-Azhar, and receive the degree of islamia, equivalent to a doctorate, requires twelve years of study after secondary school. The Shi’`a, for reasons stated above,23 always had a hierarchical clergy from prior civilisations that kept a tight grip on their followers. This is true even today, and Iran is the prime example. The fact that the Iranian people’s language is Farsi makes it even more difficult for ordinary Iranian Muslims to learn Arabic and consult the Qu’r¯an in its original language. Thus, the Iranian clergy is the necessary intermediary between the faithful and the Shari’¯a, as well as its interpreter, and this explains their power. This is also why the excesses committed by the Iranian revolution, particularly the legal and judicial abuses – all done with the approval of the religious-political leadership of the Ayatollahs – went mostly unchallenged. One example is the seizure of US diplomats in Teheran in 1979.24 The knowledgeable became the elite, the advisers to the rulers, and the teachers of the masses. This may explain why the Sunni ‘traditionalist’ clergy, in order to preserve their power, decided in the fifth century AH or twelfth century AD to foreclose resort to ijtihad or best reasoning as 21

22

23 24

For general works on Islam, see John L. Esposito, Islam: The Straight Path (1988); Gerhard Endress, An Introduction to Islam (1988); J. Hodgson, The Venture of Islam: Conscience and History in a World Civilization (3 vols., 1973). For a contemporary perspective, see Martin Gerber, Islamic Law and Culture (1999); and Ira M. Lapidus, A History of Islamic Societies (1988). See also Laurence Rosen, The Justice of Islam (2000) pp. 154–86. See note 17 above. See M. Cherif Bassiouni, ‘The Protection of Diplomats in Islamic Law’ (1980) 74 American Journal of International Law 609. There were also numerous other excesses by the revolution, which summarily executed many persons, and tortured and arbitrarily detained many others, in complete violation of Islamic precepts of criminal justice. See M. Cherif Bassiouni, ‘The Protection of Human Rights in the Islamic Criminal Justice System’ in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System 1 (1989).

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a source of law and as a method of interpretation.25 Since ijtihad is the basic source of progressive development, its closure preserved the past and condemned the future to follow that past.26 No Muslim country has so far dared to officially re-open the door to ijtihad, even though the need to resort to it in light of so many scientific and technological developments is obvious. To understand the Shari’¯a in all its complexities requires knowledge of its jurisprudential and scholarly interpretations and applications not only over time – a span of fifteen centuries – but also throughout the many regions of the Muslim world that are characterised by different cultures, customs and mores, all of which have influenced the way they interpret and apply the Shari’¯a. Crimes and penalties in the Shari’a¯ 27 The Shari’¯a contains three categories of crimes: Hudud,28 Qesas29 and Ta’`azir.30 Their sources of law vary, and frequently multiple sources of law have to be combined to complete the definition of a given crime, arrive at its elements, and establish its evidentiary requirements. The Sunni and Shi’`a jurisprudential schools differ as to some of the elements of the crimes contained in these three categories and their evidentiary requirements, making their study more difficult. Hudud crimes The Hudud (Hudud means the limits, or the limits proscribed by Allah) are established in the Qu’r¯an and are supplemented by the Sunna. They consist of seven specific crimes: one requires the penalty of death (haraba), three allow the death penalty as an option (ridda, zena and baghi) and three carry other corporal penalties. The legislative policy of these crimes is general deterrence, which explains the severe penalties of 25 26 27

28 29

30

See note 19 above. But see Wael B. Hallaq, ‘Was the Gate of Ijtihad Closed’ (1984) 16 International Journal of Middle East Studies 3. See M. Cherif Bassiouni, ‘L’Islam Face a` la D´eviance’, in A. Bouhdiba and M. Ma’ruf alDawalibi (eds.), Les Diff´erents Aspects de la Culture Islamique (1995), p. 303; Muhammad Abu-Zahra, Al-Jarima Wal-Uquba fil Islam (Crime and Punishment in Islam) (1974). Aly Aly Mansour, ‘Hudud Crimes’, in M. Cherif Bassiouni (ed.), The Islamic Criminal Justice System (1982), p. 195. M. Cherif Bassiouni, ‘Qesas Crimes’, in Islamic Criminal Justice, note 28 above, p. 203. See also M. Cherif Bassiouni, ‘Les Crimes relevant du pr`ecepte de Qesas’ (1989) 4 Revue Internationale de Criminologie et de Police Technique 485. Ghauti Benmelha, ‘Ta’azir Crimes’, in Islamic Criminal Justice, note 28 above, p. 211; Abdul-Aziz Amer, Al-Ta’azir fil Shari’¯a al-Islami¯a (1969) (Ta’azir in the Islamic Shari’¯a).

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death and corporal punishment. To evidence the intended general deterrent policy, as opposed to pure retribution, each crime has specific elements and stringent evidentiary requirements that must be proven to an extent that goes beyond a doubt. Muslim scholars refer to evidentiary standards in different terms, but they all agree that in case of doubt, the Had penalty shall not be applied. In a hadith the Prophet admonished against doubtful evidence.31 The policy goals of these crimes were developed in the days of the Prophet and the first four succeeding khulaf¯a (khulaf¯a is the plural of khalifa) in their interpretation of the elements of these crimes and their evidentiary requirements. Subsequently, however, these and other enlightened interpretive approaches were narrowed by rigid formalism that precluded progressive interpretation. The seven Hudud crimes and their elements, evidentiary requirements and penalties will be described briefly. They are not listed in any order of priority. In fact, the various schools of jurisprudence list them in different orders. They also differ as to their exact number, some holding that there are only five.32 It must be emphasised that these crimes reflect policy goals that differ as to each crime. However, all of them share the characteristics of the theory of general deterrence reflected in the severity of the penalty and the specificity of the evidentiary requirements. Ridda Ridda or apostasy is the renunciation of Islam. Whether ridda should be deemed a had is questionable because it is not specifically mentioned in the Qu’r¯an.33 Ridda means more than a change of heart about religious belief in Islam as most ‘traditionalists’ and all ‘fundamentalists’ believe. Some ‘traditionalists’ and the ‘fundamentalists’ mistakenly equate blasphemy to apostasy. One controversial case concerned a Muslim author, a United Kingdom citizen of Indian origin, Salman Rushdie, who was condemned by Iranian Mullas for blasphemy because his book, The Satanic Verses, contained blasphemous statements. Some secular Muslims disagreed, as did some traditionalist ulama (religious scholars).34 31 32 33

34

See Ma’amoun Salama, ‘General Principles of Criminal Evidence in Islamic Jurisprudence’, in Islamic Criminal Justice, note 28 above, p. 109. By excluding the two crimes established in the Sunna and not specifically mentioned in the Qu’r¯an. The verse of the Qu’r¯an, Surat al-Baqarah, 2:127, which touches upon this subject, refers to Abraham and is quite general. It does not specifically criminalise ridda, which led some scholars to deem ridda a Sunna-created crime that should be deemed part of Ta’azir and not part of Hudud. Thus, its penalty should not be deemed obligatory. See M. Cherif Bassiouni, ‘Remarks’ (1989) Proceedings of the American Society of International Law 432. For a contrary view, see Alaa-El-Din Kharoofa, Hukm Al-Islam Fi Jara’im Salman.

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Another recent case occurred in Egypt, when an associate professor of Arabic literature at the Faculty of Arts of the University of Cairo, Dr Nasr Hamad Abu Zeid, wrote a booklet entitled, Naqd al-Khitab al-Dini (A Critique of the Divine Language).35 This work, and other writings of his which dealt with the Qu’r¯an from a literary perspective, took the position that divine discourse should not be taken literally. Instead, he posited that it intended to convey an impression with words that evokes certain images in the minds of people. The approach falls within the category of those who do not view the Qu’r¯an as requiring, in all instances, a literal interpretation. This is contrary to the basic precepts of fundamentalism. Egypt has a secular criminal code which does not contain ridda. But Egypt’s domestic relations laws apply the Shari’¯a to Muslims. A group of persons were thus able to successfully bring a civil action in domestic relations court to force a divorce of Abu Zeid from his wife, as nonMuslim men cannot marry a Muslim woman. Abu Zeid appealed, first to the Appellate Court of Cairo, which surprisingly ruled against him and upheld the trial court’s judgment.36 Abu Zeid then appealed to the Egyptian Supreme Court, arguing that ridda was a crime, and its elements are established in the Shari’¯a, that he never intended to reject Islam or to commit blasphemy, and that the trial court lacked the power to order his divorce (the enforcement of which was suspended). To everyone’s surprise, the Supreme Court’s Chamber on Civil, Commercial and Domestic Relations Matters, consisting of five judges, affirmed the Appellate Court’s judgment in a decision dated 5 August 1996.37 Apostasy in the early days of Islam meant that the person left or was about to leave the realm of Islam to join the enemies of Islam. In contemporary terms, this is equivalent to high treason. Thus, the simplistic approach to apostasy by the ‘fundamentalists’ and among some of the ‘traditionalists’ is not in keeping with the legislative purpose of the Shari’¯a. A revealing indication of that is the fact that the four Sunni schools of jurisprudence differ as to when ridda shall be deemed conclusive. Each school provides for different elements that need to be proven and each also allows for different periods of time for the transgressor to change his mind about ridda, which range from one to ten days. Thus, if it is a question of time, it also has to be reconciled with another overarching principle of Islam, namely, that there can be no compulsion in Islam.38 Consequently, I submit that the natural lifetime of the transgressor is as good a criterion as the range of one to ten days.39 35 36 38 39

(Cairo: Madbouli Press, 1995). 37 30 Rabe’e Awal 1417 AH. Decision No. 287, 14 June 1995. No compulsion in religion is specifically stated in the Qu’r¯an, Surat al-Baqara, 2:256. M. Cherif Bassiouni, ‘L’Islam Face a` la D´eviance’, in A. Bouhadiba and M. Ma’ruf al-Dawalibi (eds.), Les Diff´erents Aspects de la Culture Islamique (1995), pp. 315–16.

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Of greater relevance, however, to this interpretation is a hadith which recounts that a person was brought before the Prophet for committing ridda. The Prophet dealt with the question as follows: the Prophet asked what he had done, and was told that the transgressor had been found throwing his spear into the sky saying ‘I want to kill you, God’. The Prophet asked the transgressor ‘Why?’ The reply was to the effect that his loved one, whom he was to marry, had died of a sudden illness, and that he was angry at God for having taken her away from him. The Prophet looked at his companions and opined: ‘Is it not enough for you that he believes in God to want to kill him?’. Ridda was found not to have been established, and thus no penalty was applied. The meaning imparted by this authoritative hadith is self-evident. Yet, surprisingly, that meaning has been lost on the ‘fundamentalists’ and other proponents of the simplistic, primitive and atavistic response of killing those who disagree with their un-Islamic orthodoxy – and by the standards of these extremists, this writer is probably included, for some of the progressive views stated herein. Baghi Baghi, or transgression or uprising, is based on a verse of the Qu’r¯an which reveals that the proscribed conduct is in the nature of a rebellion because the word ‘aggression’ is used in the relevant verse of the Qu’r¯an.40 The Qu’r¯an does not provide a penalty for baghi. The four Sunni schools differ as to the elements of that crime, but the consensus is that it is equivalent to an armed uprising against the legitimate ruler. The death penalty is optional and a range of penalties other than death can be applied, including for example exile. Sariqa Sariqa, or theft, is punishable by cutting off the hand of the offender. That is prescribed in the Qu’r¯an.41 But the elements of that crime are very stringent.42 They require, inter alia, a trespassory taking by breaking into a restricted or protected or private area and the taking must be of some value reaching the nissab, or required level, and this differs in the four Sunni schools. The second Khalifa, Umar ibn el-Khattab,43 in a period of drought that was called the year of famine, suspended the penalty and his ruling remains to date a jurisprudential landmark. Yet, his decision was unilateral, unfounded on any precedent, and not based on the literal words of the Qu’r¯an. His rationale was that an unarticulated element of that crime is that the theft occurs in a just Islamic society. Thus, 40 42 43

41 Surat al-Ma’ida, 5:38. Surat al-Hujurat, 409:9. See Ma’amoun Salama, ‘General Principles of Criminal Evidence in Islamic Jurisprudence’, in Islamic Criminal Justice, note 28 above, p. 109. Fazal Ahmad, Umar: The Second Caliph of Islam (1965).

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whenever a society cannot provide for the needs of its people, or be just, then the penalty should not apply. This enlightened approach can only be characterised as predicated on the purposes of the Shari’¯a and not on the letter of the proscription. Consequently, enlightened contemporary legislation can follow the same approach, and many states have done so.44 Haraba Haraba, or brigandage, refers to those who wage war against Allah and the Prophet, and by extension against the legitimate rulers of Islamic societies. Transgressors may be executed, or have their hands and feet from the opposite side cut off, or be exiled.45 Thus, there is no mandatory death penalty unless, according to scholars, the haraba results in a homicide. In that case, they interpret the Qu’r¯an’s provision on haraba as requiring the death penalty. Zena The penalty provided in the Qu’r¯an for zena, or adultery, is flogging.46 However, the Prophet imposed the death penalty by stoning for the married transgressor. This preceded the advent of the Qu’r¯an’s provision that provides for flogging,47 leading some scholars to say that the Prophet’s practice was overridden by the Qu’r¯an. Others distinguish between the married and the unmarried, holding that the verse in the Qu’r¯an applies to the latter, while the Prophet’s summa applies to the former. The evidentiary requirements to prove this crime are very stringent. Specifically, four eyewitnesses must testify that a hypothetical thread could not pass between the two bodies – in other words, actual sexual penetration is required. The requirement of four eyewitnesses means that what is really proscribed is an act of sexual intercourse performed publicly; otherwise, it is difficult to see how there could be four eyewitnesses. But in cases adjudicated by the Prophet, it was clear that the penalty should not be applied in cases of doubt, and that the satisfaction of the evidentiary requirements made proof of that crime very difficult. In one of these cases, a woman came to the Prophet to confess her adultery. The Prophet asked if there were witnesses, but there were none. She insisted that her confession be received, but the Prophet insisted that she 44

45 47

Algeria, Egypt, Iraq, Jordan, Lebanon, Morocco, Syria and Tunisia have all eliminated the cutting off of the hand for theft and instead impose a prison sentence of relatively short duration. Other states such as Afghanistan, Iran, Pakistan, Saudi Arabia and the Sudan have not done so. 46 Surat al-Nur, 24:2. Surat al-Ma’ida, 5:33. The Prophet’s imposition of this penalty raised questions with some scholars about whether the penalty for Zena for unmarried persons is not in the nature of Ta’azir instead of Had.

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return four times in order for her reiterated confessions to be deemed equivalent to four eyewitnesses. When she did that, he still insisted that she corroborate her confession with external evidence. She then confessed to being pregnant. The Prophet, clearly wanting to avoid applying the penalty, deferred it until she gave birth, because otherwise the penalty would affect her unborn child. Eight months later, she returned, but the Prophet again refused to apply the penalty because she had to breastfeed the child, and he asked her to return nine months later. When she returned, he asked her if she wanted to recant her confession, but she confirmed it. He then felt that he had no choice but to order the penalty carried out. When his companions returned from the stoning, he asked them if they had heard her recant. They asked why and he said that, if she had, they should have stopped the stoning. This hadith of the Prophet reveals the intended deterrence policy of the penalty, the stringent nature of its proof and the lenient approach of the Prophet in the interpretation of the crime and in the application of the penalty. Badhf Badhf means slander, but it is essentially the defaming of the character and reputation of a chaste woman.48 This crime is found in the Qu’r¯an, and the penalty for it is flogging.49 It does not include the death penalty. Scholars disagree as to whether the defamation should be made in public or not since proof of the crime requires four witnesses. Shorb al-Khamra Shorb al-Khamra or drinking alcohol is referred to in the Qu’r¯an in three successive verses, which were revealed in three stages over a nine-year period.50 Only the last revelation stated a clear prohibition against the drinking of alcohol, but it did not include a penalty. This question has historically been debated by all schools of jurisprudence. The lengthy debates have addressed what substances constitute alcohol, whether fermented grain, fruit and grapes fall into this category or not, and the point at which fermentation develops into the 48

49 50

This verse of the Qu’r¯an was revealed after it was rumoured during a caravan trip that the Prophet’s youngest wife, A¨ıcha, who was many years younger than him, was attracted to a young warrior-leader among the Prophet’s close followers. Surat al-Nour, 24:4. That verse specifically requires four witnesses. Surat al-Baqarah, 2:219, then Surat al-Nissa, 4:43, then Surat al-Ma’ida, 5:90–1. The Arab desert tribes drank the liquor of fermented dates. The habit was so prevalent that the Qu’r¯an gradually prohibited the drinking of alcohol while praying, then admonished the drinking of alcohol, and finally prohibited the drinking of alcohol as something induced by the devil. Several years elapsed between the first and the last pronouncement of the Qu’r¯an on this question. This gradualism is recognised as having its basis in the Qu’r¯an’s legislative policy, which took into account customs and mores.

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type of alcohol that is prohibited. Since the Qu’r¯an does not provide a penalty, the Prophet declared that it would be flogging. The madhahib disagree as to how many floggings and by what means they are to be administered, i.e. caning or whipping, or whether another penalty can be designed to prevent future drinking of alcohol. Consequently, the penalty does not exclude rehabilitation for alcoholics. This aspect of the penalty is more akin to Ta’azir than to a had. Qesas crimes The Qesas are based on verses of the Qu’r¯an which establish certain principles to be applied whenever certain transgressions against the physical integrity of the person occur.51 These include homicide and the infliction of physical injury. These verses are more in the nature of principles, because they do not contain the elements of the crimes which fall into that category or their evidentiary requirements.52 The Sunna and other sources complement these provisions. The verses in the Qu’r¯an that deal with this subject provide that the victim has the right to inflict or have inflicted upon the perpetrator the same harm as the victim suffered, and that may include death.53 Alternatively, however, they provide for diyya or victim compensation, which the Qu’r¯an deems preferable to the first alternative. Lastly, these verses conclude with the preferred option, namely, forgiveness by the victim, and of course the heirs of the victim. 51

52

53

Surat al-Baqarah, 2:178–9. One of the meanings of the word qesas is ‘equivalence’. Thus, a person who has suffered a wrong is entitled to redress by its equivalence. The Madhaheb have interpreted the crimes falling into the category of Qesas, as being different from those deemed to be subject to diyya. See Ahmad Fathi el-Bahnassi, Al-Diyya fil Shari’¯a al-Islamia (1967) (Diyya in the Islamic Shari’¯a; and Ahmad Fathi el-Bahnassi, Al-Qesas fil Fiqh al-Islami (Qesas in the Fqh of Islam). It is the opinion of this writer that this is not the only interpretation of the Qu’r¯an, which did not establish two categories of crime, but only one, for which the penalties range from the infliction of the same harm, or qesas, to diyya to forgiveness. See Surat al-Baqarah, 2:178–9; Surat al-Ma’ida, 5:45; and Surat al-Nisa¯a, 4:92. See also M. Cherif Bassiouni, ‘Qesas Crimes’, in Islamic Criminal Justice, note 28 above, p. 203; M. Cherif Bassiouni, ‘Les Crimes Relevant du Pr`ecepte de Qesas’, (1989) 4 Revue Internationale de Criminologie et de Police Technique 485. The position of this writer is based on the verses of the Qu’r¯an cited above. See Surat al-Baqarah, 2:178–9; Surat al-Ma’ida, 5:45; and Surat al-Nisa¯a, 4:92. The right to request the death of the perpetrator who killed a victim is inherited by certain heirs of the victim. The verses cited in notes 51–2 above respond to the customary law of the desert tribes calling for ‘an eye for an eye, and a tooth for a tooth’. That law, known as Talion law, is originally found in the Torah. The Qu’r¯an mentions it specifically in Surat al-Ma’ida, 5:45. But, in pre-Islam Arab society, it led to a cycle of revenge that went on for generations. Thus, the purpose of the Qu’r¯an was to reduce the resort to such practices, and to induce victims to accept compensation instead of seeking revenge. That such a clear purpose of the Qu’r¯an, supported by the Prophet’s hadith and other commentaries, has been ignored for centuries attests to the primacy of human atavism over the express policy of the Qu’r¯an whose relevant verses lead to this writer’s interpretation.

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This reveals the enlightened legislative policies of victim compensation as an alternative to any penalty, and of the encouragement of reconciliation between victim and transgressor.54 Furthermore, the last portion of the verse exhorts the victim to forgive the transgressor and clearly states that forgiveness is to be prefered to the other alternatives, namely: infliction of equivalent harm as that which was wrongly perpetrated, or victim compensation. These verses speak for themselves, even though their historical interpretation has given greater emphasis to the first two alternatives, probably because this was the custom of the time in the Arab culture, as well as in other cultures which accepted Islam. In light of the purposes of Qesas, many countries, including those which have declared in their constitutions to be subject to the Shari’¯a as their supreme source of law, have interpreted Qesas as permitting its codification in a way that allows the state to prosecute and punish these crimes in lieu of any of the Qesas’s alternatives, namely, diyya and forgiveness. These states have enacted criminal laws providing for the death penalty in certain types of premeditated or intentional murders and imprisonment for other homicides and for physical injury.55 Thus, these laws have curtailed the death penalty in some cases, where, under a strict interpretation of Qesas, this would have had to be subject to the victim’s consent. Presumably, states can eliminate the death penalty if they choose and impose alternative punishment instead. But, in this case, it is the belief of this writer that victim compensation should be paid as a form of diyya which is the Shari’¯a’s alternative to other sanctions against the perpetrator. Ta’azir crimes Ta’azir crimes are also referred to as offences instead of crimes insofar as they represent lesser crimes. These crimes or offences derive from conduct analogous to that which is prohibited by Hudud and Qesas crimes. Ta’azir offences can also be established by secular legislation. Their penalties, according to several of the jurisprudential schools of the Sunni and Shi’`a traditions, can be the same penalties as provided for Hudud and Qesas crimes.56 However, since Ta’azir crimes can be legislated, they can be the subject of penalties other than death. It is entirely optional and 54 55

56

Muhammad Moheiddin Awad, Bada’il al-Jaza’¯at al-Jina’i¯a fil Mojtama’ al Islami (The Substitute Criminal Penalties in Islamic Societies) (1991). These countries include Algeria, Egypt, Iraq, Jordan, Lebanon, Morocco, Syria and Tunisia. The late scholar (who was a leader of the Muslim Brotherhood organisation), Abdel Qader Oda, in Al-Tashri’ al-Jina’i al-Islami (2nd edn, 1969) acknowledges the validity of secular legislation for Qesas and Ta’azir crimes, though he takes the position that Qesas in homicide carries the penalty of death if the victim’s heir insists on it. Ahmad Abdel Aziz al-Alfi, ‘Punishment in Islamic Criminal Law’, in Islamic Criminal Justice, note 28 above, p. 927.

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nothing in the Qu’r¯an requires the application of the death penalty.57 The choice of penalties for these crimes reflects cultural perspectives and social policy choices. Repentance as a bar to punishment58 Repentance and forgiveness are two consistent themes throughout the Qu’r¯an. Since Islam is a holistic religion, repentance and forgiveness are not limited to the Hereafter, but apply also to this world. The Qu’r¯an specifically provides that an offender who has committed a crime may repent and, if the repentance is made and is genuine, that person should not be punished.59 Repentance, as a bar to punishment, will vary depending upon the crime, but it cannot be considered if it is the result of fear of apprehension or discovery. For example, in Hudud crimes: sariqa (theft) requires repentance and restitution before discovery of the fact or apprehension; the had of haraba is specifically mentioned in the Qu’r¯an, as subject to repentance;60 zena (adultery) is also subject to non-applicability of the penalty in case of repentance;61 for sariqa (theft), the Qu’r¯an also specifically provides for repentance.62 Repentance is surely grounds for remission of all penalties. Why repentance is not recognised and applied by contemporary Muslim legal systems which apply the Shari’¯a, as part of contemporary theories of rehabilitation of offenders, can only be attributed to selective application of the letter of the law taken without regard for Shari’¯a’s enlightened spirit. Conclusion In conclusion, the Shari’¯a mandates the death penalty for only two of the Hudud crimes, as discussed below, provided that the stringent elements of the crimes and their evidentiary requirements are met.63 In Hudud crimes, 57 58 59 60

61 62 63

Several Muslim states apply the death penalty for legislative crimes, or on the basis of ta’azir. But that is a policy choice, and is not mandated by the Shari’¯a. See Ibn Rushd, Bidayat al-Mogtabid (n.d.), vol. 2, p. 488; Ibn Taymia, Al-Fatawa al-Kobra (n.d.), vol. 4, p. 200. A trial should, however, be held to determine the positive and sincere nature of the repentance. Surat al-Ma’ida, 5:34, where it is stated: ‘Save those who repent before ye overpower them. For know that Allah is Forgiving, Merciful.’ The Glorious Qu’r¯an by Muhammad Marmaduke Picktball (1977) p. 106. See also Surat a¯ l-Imran, 3:159. See Surat al-Nissa’a, 4:16. Among the many verses on this question, see Surat al-Ma’ida, 5:3 and Surat al-Imran, 3:159. See Ma’amoun Salama, ‘General Principles of Criminal Evidence in Islamic Jurisprudence’, in Islamic Criminal Justice, note 28 above, p. 109.

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the penalty of death is specifically required in the Qu’r¯an for haraba, or brigandage, and then only if a death occurs. It is questionable whether in ridda (apostasy) and zena (adultery) the death penalty provided by the Sunna is mandatory. Baghi allows the death penalty as an option, but does not mandate it. These and other Hudud crimes must satisfy all evidentiary requirements, and doubt is always interpreted in favour of the accused. Where there is doubt, the penalty cannot be applied. Repentance under certain conditions is also a bar to the application of the penalty, or a basis for its mitigation. There is no requirement for the death penalty in any Ta’azir offences, but it is optional. The death penalty in Qesas is either conditional or optional.64 Muslim states can therefore curtail the death penalty by legislation and remain consistent with the Shari’¯a.65 The existence of the death penalty for several crimes in Muslim states is a policy choice, but not one which is necessarily mandated by the Shari’¯a. Most of the Muslim states that apply the death penalty for a variety of crimes rely on the optional alternatives provided for Hudud, Qesas and Ta’azir crimes. The Qu’r¯an offers ample guidance to enlightened legal policy for the purposes of establishing a just and humane society. The Muslim opens every prayer, and should start every deed, with the words from the Qu’r¯an in the Fatiha, the opening of the scripture: ‘In the name of Allah, the source of mercy, the Merciful.’ It is mercy that is Islam’s hallmark because it is Allah’s foremost characteristic. The just, el-Adel, is also one of Allah’s divine characteristics.66 How Muslim societies have managed to stray so far from these and other noble characteristics of Islam can only be explained by reasons extraneous to Islam.

64 65 66

See Mohammad S. el-Awa, Punishment in Islamic Law: A Comparative Study (1982). Libya, for example, reduced the application of the death penalty in 1980 to only four crimes. Allah is referred to in the Qu’r¯an with eighty-nine names or characteristics. Among them: The Merciful, The Compassionate, The Beneficent, The Exonerating, The OftForgiving, The Oft-Pardoning, and The Just. See Muhammad A. Zimaity, The Most Magnificent Names of Allah (1971).

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Abolishing the death penalty in the United States: an analysis of institutional obstacles and future prospects Hugo Adam Bedau

At any given time in the history of a society, its preferred policy on a given controversial issue can be understood to be a function of the attitudes of a wide variety of different (but overlapping) constituencies – governmental and non-governmental organisations as well as interest groups and professional associations, both local and national. The power to make and alter policy is not equally distributed among these constituencies. Anyone who hopes to change current policy needs to be able to identify exactly where each of these distinguishable constituencies stands, in the hope of finding a lever to influence that constituency in favour of the reformer’s preferred policy. I propose to exploit this general idea in examining the recent history, current status and possible future developments of death penalty policy in the United States, as seen from the perspective of those who (like me) want to see the death penalty entirely abolished. Let us begin by identifying the several constituencies whose views and behaviour are relevant to the present task; I make no claim that the following list is exhaustive, but the order in which I discuss them is designed to take us from those most intimately involved in administering the death penalty to those whose involvement is more remote. My survey concludes with a brief examination of the most current abolition strategy: a national moratorium on executions. Many groups – especially in the business community (such as bankers, developers and investment fund managers) as well as several professions (such as architects, dentists and actuaries) and many public employees (such as street repair crews, post office employees and elementary school teachers) – as a matter of empirical fact have played no role, so far, in shaping the nation’s death penalty policies. They are unlikely to do so in the future. For that reason, all such constituencies can safely be ignored. In any case, many of those who are members of such groups will often be found in one or more of the constituencies that do play a role in shaping policy; as school teachers they stand on the sidelines, but as churchgoers they have a potential interest in policy. 186

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Many relevant constituencies turn out on closer inspection to be a nest of smaller included groups, allowing for the possibility of divergent views within a larger constituency. Thus, the position of religious denominations divides as between their professional leadership (the clergy) and the vastly larger membership (the laity); and Protestantism divides into the established mainline churches (Methodists, Presbyterians) and the fundamentalist or evangelical churches (Jehovah’s Witnesses, Mormons).

Prison guards and officials No one has a closer involvement in the death penalty than those who actually carry out execution orders and their superiors who manage the prisons where executions occur. Two of the most prominent opponents of the death penalty earlier in the past century were New York’s Lewis E. Lawes, warden of Sing Sing Prison, and California’s Clinton Duffy, warden of San Quentin Prison; both of these professional prison administrators lent their names and prestige to the fight against the death penalty. Both wrote books attacking capital punishment, based on their extensive experience supervising executions in the prisons they directed and their even more extensive experience managing convicted murderers and other violent criminals in the general prison population.1 With the conspicuous exception of Don Cabana, a former warden at Parchman Prison in Mississippi, whose recent book Death at Midnight (1996) details his experiences and opposition to executions, the public has heard little in recent years from professional correctional officials on this subject. It is too much to expect open reluctance, much less rebellion, among prison administrators and prison guards at their lethal duties; but it is troubling that there seem to be so many employed in this job who take it in their stride. Articles published in the New York Times late in 2000, based on interviews with prison guards and officials in Texas – the nation’s busiest death penalty jurisdiction – brought to the surface some of the anxieties and stress experienced by those who actually carry out the death sentence.2

1 2

L. E. Lawes, Man’s Judgment of Death (New York: G. P. Putnam’s, 1924); and C. T. Duffy with A. Hirshberg, 88 Men and 2 Women (Garden City, NY, 1962). S. Rimer, ‘In the Busiest Death Chamber, Duty Carries Its Own Burdens’, New York Times, 17 December 2000, p. 1; B. Herbert, ‘Death Penalty Victims’, New York Times, 12 October 2000, p. A31.

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Prosecutors State prosecutors are in the front line of the use, and often the public defence, of the death penalty. As a plea-bargaining tool, the death penalty is a powerful lever in the prosecution’s hands. In states such as Texas and Virginia, where the death penalty is entrenched and executions are frequent, prosecutors routinely seek a death sentence in every first-degree murder case. An unusually (but not uniquely) prominent example of such a prosecutor is Philadelphia’s district attorney Lynne Abraham, of whom it is said that ‘no prosecutor in the country uses the death penalty more’ than she does.3 In other states, however, where the death penalty has only recently been restored (New York) or where re-enactment was recently defeated (Massachusetts), many prosecutors are on record as being against its use. Yet, as long as prosecutors obtain their posts by popular election and the candidates for this office believe the public wants death sentences (see below), most prosecutors will oblige. They are likely to believe that their career security and future prospects leaves them little choice. For the past quarter-century, federal prosecutors have had little or no occasion to consider using the death penalty, because all but a tiny handful of capital cases were prosecuted under state law. In the late 1990s, however, this began to change. Congress enacted criminal statutes authorising the death penalty for many new homicidal as well as a few non-homicidal crimes, and federal prosecutors were given authority to seek indictments and carry out prosecutions under federal jurisdiction in cases arising in abolition jurisdictions. In the process the death penalty was ‘nationalised’ in a manner never before seen. How deeply attached the Department of Justice is to exploiting these new opportunities to use the death penalty is unclear. It seems safe to say that under the Clinton administration (1992–2000), with an Attorney General (Janet Reno) who declared her personal disapproval of the death penalty, capital punishment has not been used as aggressively as it could be (and probably will be under the Bush administration beginning in 2001). Forty years ago, the then-Attorney General (Ramsey Clark) argued before Congress for repeal of all federal capital statutes.4 Congress chose to ignore his advice. There is no immediate prospect of any Attorney General in the near future resuming a leadership role in the federal government for abolition. What we can imagine is an Attorney General 3 4

T. Rosenberg, ‘The Deadliest DA’, New York Times Magazine, 16 July 1995, p. 20. R. Clark, Crime in America (New York: Simon and Schuster, 1970), pp. 330–7; see also R. Clark, ‘Hearings . . . on S.1760, A Bill to Abolish the Death Penalty . . . July 2, 1968’, pp. 91–8.

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who endorses a moratorium on executions pending a thorough and extensive review of the administration of the death penalty (see below). Trial juries Along with prosecutors, trial juries are the central players in the death penalty arena, because in all but a few states their verdicts and sentencing decisions in capital cases are final. (Some states permit the trial judge to treat the jury’s sentence as a recommendation; other states permit the judge only to reduce a jury’s sentence of death to life in prison.) Despite the fact that all capital trial juries are ‘death qualified’ (that is, no otherwise eligible juror will be seated if on the voir dire it emerges that he or she is categorically opposed to the death penalty), out of the 2,000–4,000 ‘death eligible’ murder defendants each year that these ‘death qualified’ juries convict, only around 10 per cent are sentenced to death. Thus trial juries (along with prosecutors, whose willingness to accept a plea bargain forecloses a death sentence) deem that the vast majority of convicted murderers should not be sentenced to death. As between life in prison without the possibility of parole (LWOP) and the death sentence, America’s capital trial juries prefer the former.5 But they also want the death penalty in some cases (roughly 275 annually in recent years). In some jurisdictions (Florida is one) juries greatly reduced their volume of death sentences once the legislature enacted the option of LWOP. A more radical move would be for capital trial juries to refuse to bring in guilty verdicts of first-degree murder, even in cases that under the law clearly warrant such a conviction. Such a form of ‘jury nullification’ is highly unlikely at present. Historically, jury nullification in capital cases was intelligible (as in England prior to 1965 and in the United States in the nineteenth century) primarily because the death penalty was mandatory upon conviction of a capital crime. Support for jury sentencing discretion in capital cases can be viewed as a tactic to pre-empt jury nullification and to discourage commutation of death sentences. As things stand at the beginning of the current century, recent research by the Capital Jury Project has shown that capital trial juries have a very poor understanding of their powers and duties. They frequently do not understand the judge’s instructions, and even when they do, they often ignore them.6 These widespread failures, hitherto undocumented, 5 6

R. C. Dieter, Sentencing for Life: Americans Embrace Alternatives to the Death Penalty (Washington, DC: Death Penalty Information Center, 1993). W. J. Bowers, M. Sandys and B. D. Steiner, ‘Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial Experience, and Premature Decision Making’ (1998) 83 Cornell Law Review 1476–556; ‘Symposium: The Capital Jury Project’ (1995) 70

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aggravate the well-known flaws elsewhere in the system and defeat claims that ‘the system is fair, and it works’. Trial judges The trial judge in a capital case is supposed to be, and usually desires to be perceived to be, neutral on the question of the defendant’s guilt and no less neutral on the decision to send the guilty defendant to death or to life in prison. As noted earlier, in some jurisdictions the trial judge has the power to over-ride the jury’s recommended sentence (the Supreme Court’s ruling of June 2002 in Ring v. Arizona held this practice to be unconstitutional, thereby affecting the death sentences of several hundred prisoners in nine states). Research has shown that this power is used more frequently to nullify a jury’s life-sentence recommendation than it is to nullify a jury’s death-sentence recommendation.7 In most states, trial judges stand for election, and they begin their careers as prosecuting attorneys. Whatever neutrality they might have under a different system tends to dissipate under ours. Although it is possible to imagine that at some future date trial judges experienced in presiding over capital cases might publicly protest the procedural deficiencies allowed under law in the defence of a defendant being tried in their courts, the prospect is unlikely. Unlikely though it may be, it nonetheless happened in July 2002 in New York when federal District Court Judge Jed S. Rakoff ruled the federal death penalty unconstitutional because enforcing it posed ‘an undue risk of executing innocent people’. Whether other District Court judges will similarly rule is unlikely; that a higher court will reverse this ruling is virtually certain. Appellate courts State appellate courts have interpreted the Supreme Court’s decision in Gregg v. Georgia (1976) as mandating their review of the conviction and death sentence in each capital case under their jurisdiction. Generally the state and federal appellate courts uphold trial court verdicts in criminal cases. In federal courts under habeas corpus review (which is not a mandatory review), however, the death sentence or the underlying

7

Indiana Law Review 1033–270; W. J. Bowers and P. H. Dugan, ‘In Their Own Words: How Capital Jurors Explain Their Life or Death Sentencing Decisions’ (memorandum, Capital Jury Project #12, Boston, MA: Northeastern University, 1993). M. Mello and R. Robson, ‘Judge Over Jury: Florida’s Practice of Imposing Death Over Life in Capital Cases’ (1985) 13 Florida State University Law Review 31–75.

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murder conviction has been overturned in a surprisingly large number of cases. Research has shown that ‘[appellate] courts found serious, reversible error in nearly 7 out of 10 of the thousands of capital sentences [investigated between 1973 and 1995] . . . After state courts threw out 47% of death sentences due to serious flaws, a later federal review found “serious error” undermining the reliability of the outcome in 40% of the remaining sentences.’8 Restrictions on federal appellate review of capital cases imposed by Congress and the Supreme Court since 1994 are likely to reduce the number of such reversals in the future and to increase the likelihood of grave miscarriages of justice. If we turn to the highest appellate court in the land, the United States Supreme Court, we encounter a body of nine Justices none of whom has publicly or officially opposed the death penalty on constitutional grounds as currently authorised by statutes and as administered. Yet nationwide repeal of the death penalty at one stroke is possible only by a decision of the Supreme Court (the few state supreme court decisions that have interpreted their state constitution to bar the death penalty (California and Massachusetts) have been reversed by referendum or other means). How stable is the current Supreme Court’s judgment that the death penalty is not in violation of the federal Bill of Rights, i.e. neither violates ‘due process of law’ nor ‘equal protection of the law’, nor is it a ‘cruel and unusual punishment’? Hard-line supporters of the death penalty controlling the Senate Judiciary Committee have virtually guaranteed that no nominee in recent years to the Court will be approved if there is any evidence that he or she is ‘soft’ on the death penalty. Neither the Clinton administration nor the two Bush administrations (1988–92 and 2000 to the present) that flanked it have shown any inclination even to consider nominating a death penalty opponent. On the other hand, recent policy pronouncements by the House of Delegates of the American Bar Association in support of a nationwide moratorium (see below) may be a significant straw in the wind, because they are aimed directly at the toleration extended by state and federal appellate courts to large-scale procedural shortcomings in capital cases. Whether, when and how these appellate courts will respond to this challenge remains to be seen. It is possible that the widespread publicity given to these flaws will cause some of those who hold the highest judicial office to change their minds, even if the same information fails to persuade those who control federal judicial appointments.

8

J. S. Liebman, J. Fagan and V. West, ‘A Broken System: Error Rates in Capital Cases, 1973–1975’ (memorandum, New York: Columbia University Law School, 2000), p. i.

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Still, anyone who hopes for eventual abolition of the death penalty in the United State must pin those hopes on future decisions of the Supreme Court. Any alternative either will require staggering resources for public education, state by state, or will fail to secure nationwide abolition. Chief executives State governors and the President have considerable potential political power to affect the abolition movement. From exercising executive clemency in capital cases (by granting reprieves or commutations of sentences), appointing anti-death penalty officers to head departments of justice, recommending appropriate legislation (and vetoing Bills that would re-introduce or expand the death penalty), or creating commissions to study the death penalty, to educating the public in various ways, chief executives could play a vital role in a nationwide campaign to abolish the death penalty. However, no president in the past century has indicated any strong opposition to executions. Every Republican president since Richard Nixon (Gerald Ford, Ronald Reagan, George H. W. Bush, and especially George W. Bush) has made known his support for capital punishment. Of the two Democrats, one (Bill Clinton) gave visible support to the death penalty, and the other (Jimmy Carter) managed largely to avoid the issue while in office. Historically, the death penalty in the United States has never been of much concern to the federal government; most capital crimes do not fall under federal jurisdiction. In this country, the death penalty has always been largely a matter for state criminal justice systems. Perhaps a dozen or more governors in the past century in states scattered across the nation (Edmund G. ‘Pat’ Brown in California, Endicott ‘Chub’ Peabody and Michael Dukakis in Massachusetts, Michael DiSalle in Ohio, Robert Holmes in Oregon and Mario Cuomo in New York, to name but a few) have used various of their powers to abolish or prevent the return of capital punishment and to commute death sentences. They have been in the minority. The most recent example of gubernatorial initiative against the death penalty is the decision (early in 2000) by Governor George Ryan of Illinois to declare a moratorium on executions in his state until such time as he is assured that the terrible miscarriages of justice in more than a dozen of Illinois’ capital cases will not be repeated (see below).9 In May 2002, Maryland’s Governor Parris Glendening declared a moratorium on executions in his state, pending a review of death penalty procedures, and 9

D. Mass, ‘Gov. Ryan Declares Moratorium in Illinois’, Lifelines, No. 83 (Washington, DC: National Coalition to Abolish the Death Penalty, January/March 2000), p. 1.

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moratorium Bills are under consideration in more than a dozen other states and in Congress. In January 2003, Governor Ryan announced that he was pardoning four death row prisoners and commuting the prison sentences of 167 death row prisoners – a gubernatorial assault on the death penalty unprecedented in its scope in American history. Conspicuous in the past three decades has been the rarity with which governors (and the clemency boards of which they are typically members) have exercised their clemency powers.10 To the degree that a governor is the sole or dominant figure on a clemency board, and with the electorate in many states perceived to support carrying out duly awarded death sentences, we are not likely to see any important change of direction here. Wholesale commutation of all of a state’s death row prisoners is rare but not unknown; Governor Winthrop Rockefeller of Arkansas did it at a time (1970) when it appeared that the Supreme Court might declare the death penalty unconstitutional, and when he had no desire for future political office (he knew he was dying of cancer). Governor Tony Anaya of New Mexico did the same thing more recently (1986), as he was leaving office. Functional nullification of the death penalty without actual statutory repeal, by the route of mass commutations, is politically very unlikely in the immediate future even though it remains a possibility. Legislatures Capital punishment is authorised and administered through statutory enactments by state and federal legislatures. In the aftermath of Furman v. Georgia (1972), in which the Supreme Court ruled that the death penalty as then administered was unconstitutional, all American legislatures examined their death penalty statutes in light of the Court’s requirements. In most states, the legislatures rushed to re-enact the death penalty; within a few years only a dozen state jurisdictions (plus the District of Columbia and Puerto Rico) had no death penalty statutes. Earlier in the twentieth century, several state legislatures abolished their death penalties, and prior to the 1960s it was generally assumed that if this mode of punishment were to be abolished it would be by piecemeal action of the several state legislatures repealing their own capital statutes. Such 10

D. T. Kobil, ‘The Evolving Role of Clemency in Capital Cases’, in J. R. Acker, R. M. Bohm and C. S. Lanier (eds.), America’s Experiment with Capital Punishment (Durham, NC: Carolina Academic Press, 1998), pp. 531–46; M. L. Radelet and B. A. Zsembik, ‘Executive Clemency in Post-Furman Capital Cases’ (1993) 27 University of Richmond Law Review 289–314; H. A. Bedau, ‘The Decline of Executive Clemency in Capital Cases’ (1990–1) 18 New York University Review of Law and Social Change 255–72.

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reforms as distinguishing degrees of murder, authorising jury-sentencing discretion in capital cases, reducing the variety of capital statutes, abolishing hanging – each was adopted over the years, state by state. Between Furman (1972) and McCleskey v. Georgia (1987), hope for abolition by one fell swoop nationwide by a decision of the Supreme Court was the dominant abolitionist strategy.11 This strategy did not succeed, though during those years hundreds on death row were re-sentenced to prison. For reasons mentioned earlier, this route to abolition is at least temporarily blocked. There seems little likelihood that the death penalty can be abolished in the United States by statutory repeal, jurisdiction by jurisdiction, in the near future. In addition, there is constant risk to varying degrees of probability that one or another jurisdiction currently in the abolition column will restore the death penalty. For example, in 1997 the Massachusetts legislature failed to do so by the margin of a single vote. Law enforcement personnel For decades the organisations that claim to speak for the police – such as the International Association of Chiefs of Police – have publicly supported the death penalty; their position has been regularly recorded in many public hearings in Congress and in state legislatures. A recent poll, however, showed that chiefs of police place a very low value on the death penalty as a crime-fighting tool. And the National Black Police Officers Association has gone on record against the death penalty.12 Would wholesale abolition of the death penalty lead to ‘justice in the streets’, as disgruntled police officers took the law into their own hands and meted out curbstone justice without regard to arrest, indictment and trial? There seems little reason to cultivate this worry; no such problem has plagued criminal justice in the abolition states during the past century, and there is little reason to believe that in this respect Ohio (with the death penalty), for example, is any different from Michigan (without it). Texas and Florida, however, might be a different story. Much would turn on the kind of political leadership in those jurisdictions, especially if abolition were achieved by judicial decree from Washington, DC, rather than by any local action. It is reassuring to remember that, when the Supreme Court held the death penalty for rape unconstitutional in Coker v. Georgia (1977), in Texas, Florida and several other states no such lawless police action erupted. 11 12

M. Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment (New York: Random House, 1985); B. H. Wolfe, Pileup on Death Row (Garden City, NY: 1973). R. C. Dieter, On the Front Line: Law Enforcement Views on the Death Penalty (Washington, DC: Death Penalty Information Center, 1995).

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Murder victims’ families No other constituency is as close to the victims of capital crimes as are the surviving family members. Every year in the 1990s about a hundred thousand persons are added to this group; the current total of family members of murder victims must be well over a million. Although no organisation speaks for all these typically angry and frustrated survivors, individual voices are regularly heard (thanks to media interviews) demanding a first-degree murder conviction, a death sentence and a prompt execution for the defendant accused of killing their loved one, in order to bring ‘closure’ to their grief. A few persons among these survivors with national visibility, notably Coretta Scott King (widow of the assassinated Rev. Martin Luther King Jr) and Kerry Kennedy Cuomo (daughter of the assassinated Senator Robert F. Kennedy and niece of the slain President John F. Kennedy), have spoken often and eloquently against the death penalty. The organised voice of such survivors who oppose the death penalty – Murder Victims Families for Reconciliation (MVFR) – is small and often drowned out by the shouts of other survivors who are not embarrassed to demand vengeance. As voices such as those of members of MVFR are more effectively marshalled and become more conspicuous, they may be able to mute some of the agitation from other survivors and elicit a more thoughtful response from the general public. Testimony from angry surviving family members, thanks to a ruling by the Supreme Court (Payne v. Tennessee, 1991), may now be introduced as ‘victim impact statements’ by the prosecution in the penalty phase of a capital trial. Such testimony typically presents to the jury a touching account of how important and loved the deceased victim was. Commenting in dissent in Payne, Justice John Paul Stevens pointed out that this ruling permits the prosecution to ‘introduce evidence that sheds no light on the defendant’s guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life [in prison] on the basis of their emotions rather than their reason’.13 It remains to be seen just how extensive and damaging such testimony will prove to be. The Bar No other profession has a stake in the death penalty controversy to compare with the Bar. In developing its Model Penal Code in the 1950s, the 13

Justice John Paul Stevens, dissenting opinion in Payne v. Tennessee, 501 US 808 (1991).

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prestigious American Law Institute was divided over whether to recommend abolition of the death penalty. After Furman and Gregg, several legal associations – the National District Attorneys Association, the National Association of Attorneys General, and the Washington Legal Foundation, among others – have come out in support of the death penalty. Arrayed against them are, for instance, the National Bar Association, the National Lawyers Guild, and the National Legal Aid and Defender Association. As for the American Bar Association (ABA), by far the largest and most influential legal organisation in the nation, it has no official position on the death penalty. However, since 1979 it has shown concern over the inadequacy of defence counsel in capital cases at the trial and appellate levels. During the early 1990s, its recommendations went largely unheeded. All that changed abruptly in 1997, when the ABA’s House of Delegates voted overwhelmingly for a nationwide moratorium on executions until further notice, because the constitutional rights of capital defendants were so chronically violated in trial and appellate courtrooms across the nation.14 The reasons presented by the ABA on behalf of a moratorium were not new; they were virtually the same as those advanced in earlier reports by Amnesty International (1987 and 1995) and by the International Commission of Jurists (1996). The ABA’s criticisms are proving to be less easily disregarded than those that came from abroad. Political parties For many years the Republican Party has been on record in support of the death penalty. This issue was first politicised in 1966, when Ronald Reagan ran for governor of California on a ‘law and order’ ticket; his support of the death penalty was conspicuous in the campaign and throughout his tenure of office. Two years later, Richard Nixon focused his presidential campaign against incumbent Democrats who were ‘soft on crime’. The Democratic Party has never taken a position on the death penalty, but over the past three decades many of its candidates have moved with the times in its support. The party’s presidential candidate in 1988, Michael Dukakis, was defeated in part because Republican strategists exploited his record of opposition to executions. The party’s nominee in 1992, Governor Bill Clinton of Arkansas, avoided any perception that he, too, was ‘soft on crime’ by taking time out while on the campaign 14

American Bar Association, House of Delegates, ‘Recommendation [of a national moratorium on executions until such time as policies are adopted] to (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons may be executed’ (1998) 61 Law and Contemporary Problems 219–31.

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trail to authorise in his capacity as the state’s chief executive the execution of a brain-damaged death row convict.15 In the public debates prior to the election of 2000, Governor George W. Bush of Texas confidently defended his state’s record of frequent executions, while his opponent, Vice President Al Gore, agreed that he, too, ‘believed in’ the death penalty. The death penalty, like abortion and physician-assisted suicide, perhaps ought not to be an issue on which political parties divide. But it has become one in the United States, and there is no indication that it will soon cease to be and that one or the other of the two major political parties in the nation will position itself in support of abolition (slightly more possible is support by Democrats in Congress for a nationwide moratorium on executions). The most one can hope for at present is that the Democrats will not join the Republicans in openly embracing the executioner, and that the role of this issue in contemporary political debates will steadily diminish. Medical profession Two developments in recent years have brought the death penalty before the medical profession in novel ways. One is the perception that the nation’s volume of violent crime and especially our homicide rate can be viewed as a public-health menace, calling for public-health measures as the remedy.16 On this view, punishing murderers with death is as ineffective as punishing with death patients who suffer from polio. This approach to the homicide problem has yet to receive much support. The other is the development of execution by lethal injection, because it calls upon the talents of medically trained professionals. Several medical organisations have taken a position opposing the death penalty on various grounds: Physicians for Human Rights, the American Psychiatric Association (to which we might add the quasi-medical organisation, the American Orthopsychiatric Association) and the American Public Health Association. Physician opposition (also supported by the American Medical Association) to participating in execution by lethal injection has succeeded mainly in replacing doctors at executions with specially trained medical assistants not bound by the Hippocratic Oath. In a recent related development, in June 2002, the Supreme Court, by a vote of six to three in the case of Atkins v. Virginia, ruled that execution 15 16

M. Frady, ‘Death in Arkansas’, New Yorker, 22 February 1993, pp. 105ff. J. B. Weisbuch, ‘The Public Health Effects of the Death Penalty’ (1984) 5 Journal of Public Health Policy 305–11.

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of the mentally retarded violated the constitutional ban on ‘cruel and unusual punishment’. Academic organisations Professional associations with an interest in corrections and the role of punishment in the criminal justice system, such as the American Society of Criminology (ASC) and the National Council of Crime and Delinquency (NCCD), have long been on record as being against the death penalty. In 1997, they were joined by the Eastern Division of the American Philosophical Association (APA), where a majority of the members voted in a mail ballot to oppose the death penalty. Philosophers and criminologists, it might be conceded, do have a professional interest in the norms and conditions governing punishment in a constitutional democracy, and therefore their collective voice on the issue of the death penalty is worthy of notice. Outside their own membership, however, these organisations have had little influence nor has the general public taken much notice of their position. As for other professional organisations, few if any are likely to join those mentioned above – although it is possible to imagine that societies such as the American Sociological Association and the American Political Science Association might at some future date take a position like that of the ASC, the NCCD and the APA. To be sure, no professional organisations (excepting the lawenforcement societies, mentioned earlier) are on record in support of the death penalty, and none is likely to be in the future. One has the impression (for which there is no hard evidence available) that academics of every stripe generally oppose the death penalty even though they do not use their professional associations as an instrument of public persuasion on the issue. It is difficult to believe that a vote against the death penalty by a majority of the members of the American Chemical Society or the American Mathematical Society, or any of several hundred other scholarly organisations, would carry any weight with legislators or the general public. Religious denominations For several decades, all mainstream Protestant and several Jewish religious communities have been on record as being against the death penalty. But these churches have not been very effective in getting that message presented regularly and forcefully from the pulpit, and if we can trust public opinion surveys (see below), most Protestant Christians in the United States today give nominal support to the death penalty in some cases, whatever may be the abolitionist views of their clergy.

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Undoubtedly, the most important voice against the death penalty in the American religious community of late is the Roman Catholic Church. Its newly vocal opposition dates from the papal encyclical, Evangelium Vitae (1995), calling for abolition in all but the most unusual of circumstances. The new Catholic Catechism has been accordingly changed to reflect the Vatican’s current position.17 How rapidly and effectively an anti-death penalty outlook will come to dominate among the clergy is one thing; how quickly it will come to dominate in the lay parishioners is another. Be that as it may, the official position of the Catholic Church against the death penalty in America is a major development, and one that is likely to grow in strength and effect. At the same time, however, evangelical and fundamentalist Christian sects (especially those in which the membership is predominantly white Americans) give their wholehearted support to the death penalty. Using the vehicle of the Republican Party to advance their views, these organisations (successors to the Moral Majority of the 1970s and more recently the Christian Coalition) present a strident voice in favour of keeping, expanding and using the death penalty – not least because they believe it is authorised by the Bible. The defection of Rev. Pat Robertson, founder of the Christian Coaltion and a staunch public voice for the death penalty but recently persuaded to advocate for a moratorium, may herald a more cautious and reflective attitude from this direction.18 In an attempt to bridge the gap between clergy and laity, and between pro- and anti-death penalty congregations and sects, the American Friends Service Committee undertook in 1999 to coordinate the creation of a new group, Religious Organizing Against the Death Penalty Project. How successful this group will be in accomplishing its goals remains to be seen. Were the American religious community to speak with one voice against the death penalty, it would be rapidly abolished. Few would choose to stand (or vote, or speak) against such a demand. Civil liberties and civil right groups Since the early 1960s, the most active, visible and sustained opposition to the death penalty has come from civil rights and civil liberties organisations, notably the American Civil Liberties Union (ACLU) and the NAACP Legal Defense and Educational Fund (LDF). To their number 17

18

‘Executions Never Justified When Governments Have Other Ways to Protect Public, New Catechism Says’, News Notes, vol. 6, No. 4 (Arlington, VA: Catholics Against Capital Punishment, 1997), p. 1; J. J. Megivern, The Death Penalty: An Historical and Theological Survey (New York: Paulist Press, 1997). B. A. Masters, ‘Pat Robertson Seeks Moratorium on US Executions’, Washington Post, 8 April 2000, p. 1.

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must be added Amnesty International (AI), today undoubtedly the organisation whose opposition to the death penalty is most conspicuous because it is worldwide. All three organisations are active on many other issues, but each has paid a price in loss of support from those members who do not see that the death penalty raises civil rights and civil liberties issues, or who believe that if it does a low priority is all this issue deserves. AI is also the only anti-death penalty organisation with a presence on college and university campuses at a time when recent surveys of freshmen entering college show that they favour the death penalty by a wide margin. Providing the umbrella for the scores of local, state and national organisations opposing the executioner is the National Coalition to Abolish the Death Penalty (NCADP), founded in 1976 in the wake of the Supreme Court’s ruling in Gregg. The NCADP has grown in strength during the 1990s and promises to play an increasingly visible and influential role in the abolition movement of the immediate future. Its resources have increased impressively, but the demands placed on the organisation still outstrip its capacity to deal effectively with all of them. The media Many newspapers, including several of national note (the Boston Globe, the New York Times, the Washington Post and the Chicago Tribune) have long displayed editorial opposition to the death penalty. Their Op-Ed pages and letters columns are an important locus of ongoing dialogue on this subject. In recent years, assignment editors of these papers have sent reporters to cover a wide variety of stories focused on the death penalty; those stories rarely if ever support the death penalty. But it is difficult to gauge the influence of these editorials, letters and news reports, as the ‘hot’ media increasingly command the public’s attention. In 1990, the Death Penalty Information Center (DPIC) was created in Washington, DC. Its stated purposes are ‘to be a reliable source of death penalty information for the media, and to map out and implement a pro-active campaign to educate the media about the evils of the death penalty’.19 Creation of this organisation marks a major step forward in providing information for the media that to some extent offsets the endless stories of gruesome murders that regularly appear in the news media and encourage public support for the death penalty. At the same time, books on the death penalty spill forth from the presses in unprecedented number, more often than not from authors newly 19

NCADP, Lifelines, #49 (May/June/July 1990), p. 6.

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interested in the American death penalty system.20 Recent monographs defending the death penalty are unknown. Abolitionists have long ago won the battle of words; it remains to win the hearts and minds of the public. Public information (along with entertainment) about crime and punishment is largely conveyed through television and to a lesser extent radio, not print. Although neither the networks nor most local stations take positions on public policy issues, many radio talk show hosts and phone-in programmes repeatedly address the death penalty. The level of public education contributed by such programmes, however, leaves much to be desired. Few talk-show hosts convene a forum in which an articulate criticism of the death penalty is presented to the listener or viewer. The largest media event involving the death penalty in the United States during the past half-century is the film, Dead Man Walking, an adaptation of the book of the same title and widely viewed and discussed in 1996 and 1997. The movie, unlike the book, was hardly an unqualified attack on the death penalty. Nevertheless, the film caused theatre audiences to talk and think about the merits of capital punishment. Will Hollywood tackle this subject again and produce a less ambiguous critique of the death penalty? We must wait and see. Viewing fictional portrayals of murder and the death penalty is one thing. Would televising real executions tend to persuade viewers to oppose the death penalty? Abolitionists have debated this question for some years without reaching any consensus. So far, the issue is moot because courts have not been sympathetic to demands by news organisations to allow cameras into the execution chamber. Labour unions Some of the most flagrant death penalty cases in American history during the past century have involved labour strife – the Haymarket anarchists in Chicago, Joe Hill in Utah, Tom Mooney and Warren Billings in San Francisco, to mention but three. Occasionally, a local labour union will go beyond support for a defendant in a particular death penalty case and protest capital punishment as such. But the major national unions have never taken a position for or against abolition. Nor are they likely to do so in the future. 20

R. J. Lifton and G. Mitchell, Who Owns Death (New York: William Morrow, 2000); B. Scheck, P. Neufeld and J. Dwyer, Actual Innocence (New York: Doubleday, 2000); W. S. McFeeley, Proximity to Death (New York: W. W. Norton, 2000); R. M. Bohm, Deathquest (Cincinnati, OH: Anderson Publishing Co., 1999).

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International human rights organisations At the greatest remove from the death penalty in American states are international human rights law and the bodies, such as the United Nations Commission on Human Rights and the Human Rights Committee, that interpret and enforce that law. In April 1999, the Commission on Human Rights voted thirty to eleven in favour of a worldwide moratorium on executions. A dozen countries abstained. Among those that voted against the resolution was the United States.21 In 1995, the Human Rights Committee declared that the reservations made by the United States when it ratified the International Covenant on Civil and Political Rights in 1992 were unlawful. These reservations amounted to a refusal to outlaw the execution of anyone under eighteen at the time of the crime and of pregnant women. Meanwhile, the Second Optional Protocol to the Covenant was adopted by the UN General Assembly in 1989, declaring that ‘No one within the jurisdiction of a State party to the present Optional Protocol shall be executed’, and that ‘Each State party shall take all necessary measures to abolish the death penalty within its jurisdiction.’ This Protocol entered into force in 1991.22 What role in abolishing the death penalty in the United States can these international human rights bodies have? Will embarrassment over the way the United States is out of step with all the nations of western and central Europe cause officials and the public to reflect on and revise our death penalty law and policy? International human rights law is bound to turn out to be more important as time passes. So far, however, there is little acknowledgment from American courts and legislatures that these laws have any force whatever in American domestic law on the death penalty. It remains true that American lawyers, American courts and the American media are all substantially ignorant of and indifferent to the claims made on our practices by human rights principles from abroad. The general public Looming behind all the other constituencies whose views and actions have been reviewed so far is the general public, the electorate. Does the public support the death penalty because the politicians they elect support it? Or do politicians support it because they believe the public wants it? 21 22

‘UN Panel Votes for Ban on Death Penalty’, New York Times, 29 March 1999, p. A4. W. A. Schabas, The Abolition of the Death Penalty in International Law (2nd edn, Cambridge: Cambridge University Press, 1997), pp. 147–81.

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The evidence suggests that both are true. Public anger over a particularly gruesome murder encourages elected officials to demand the harshest punishment for the offender. At the same time, seeing trusted politicians give their support to the death penalty encourages the citizenry to follow their lead. It seems doubtful that the death penalty will be abolished in the United States without conspicuous political leadership in support of abolition – a desideratum woefully absent at the time of writing. Survey research for the past three decades has shown substantial public approval of the death penalty, in the neighbourhood of 75–80 per cent. Abolitionists, desperately looking for some glimmer of hope in that distressingly large percentage, claim that, although the support is a mile wide, it is only an inch deep. And, they add, polls in 2000 show the first significant decline in public support in nearly forty years – a decline that began in the late 1990s but was not noticed until 2000.23 The thinness of popular support for the death penalty emerges if respondents are asked to state their preference for punishing murder with a death sentence or with LWOP. Given this choice, support for executions drops dramatically. If respondents are then asked to state their preference as between LWOP and LWOP plus restitution by the offender, support for the death penalty falls below a majority.24 Unfortunately, many states in recent years have kept the death penalty and enacted LWOP laws, rather than enacting such laws and abolishing the death penalty. Nevertheless, it remains true that had such states not enacted LWOP, they would have more convicted murderers on death row than they now do. Hidden in the controversy over LWOP as an alternative to the death penalty is the fact that LWOP has already been widely adopted in the form of ‘three strikes and you’re out’ – that is, laws committing to life behind bars any person convicted of a third felony. If one believes in the principle that the worst crime ought to get the severest punishment, and that first-degree murder is worse than, say, three burglaries, then these ‘three strikes’ laws make it impossible to act on that principle and still abolish the death penalty in favour of LWOP. What can be done to change public opinion? Would a widely publicised execution of an innocent person be sufficient? Several recent cases – including Jesse Tafero in Florida, Roger Keith Coleman in Virginia and 23

24

J. A. Farrell, ‘Majority for Death Penalty Slips in Poll’, Boston Globe, 15 September 2000, p. A4; S. R. Gross and P. C. Ellsworth, ‘Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century’, in S. P. Garvey (ed.), Beyond Repair? America’s Death Penalty (Durham, NC: Duke University Press, 2003). W. J. Bowers and M. Vandiver, ‘A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer’ (1994) 22 American Journal of Criminal Law 77– 150.

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Leonel Herrera in Texas – appear to be such cases, but each is controversial and the public has not been convinced in any recent case that an innocent person was executed. Many supporters of the death penalty – those who think God demands the death penalty for murderers, and those who think an occasional wrongful execution is a reasonable price to pay for deserved retribution and enhanced deterrence – would still be unlikely to change their views. But it would be very influential on the general public. We have evidence for this from the effect on the public, beginning in 1998, of the discovery of many wrongful death sentences in Illinois (see below). Had any of those sentences been carried out, it is quite possible that Illinois would have abolished the death penalty by now rather than just suspending it. Will changing demographics affect death penalty support? In the years ahead, non-white Americans – Hispanics, Asians and AfricanAmericans – will increase as a proportion of the public; and survey research shows that non-white Americans do not favour the death penalty, or favour it less widely than white Americans. Will the fact that capital punishment is – fiscally speaking – a luxury item that few hard-pressed jurisdictions can afford make death penalty supporters reject this mode of punishment in order to use their limited tax resources in more constructive ways? So far, there is evidence that the cost factor can cause voters and politicians to switch from supporting to opposing the death penalty.25 But any major political opposition to the death penalty based on this consideration alone is doubtful, as long as politicians think a large majority of the public believes executions are necessary and deserved. Nevertheless, this factor, if integrated with other considerations, may prove persuasive in some quarters as the number on death row (at the end of 2002, about 3,700 prisoners) continues to grow. What about persuading the public that LWOP is more severe than (or just as good as) a punishment of death? Near the end of the eighteenth century, Cesare Beccaria in Italy and France and Jeremy Bentham in England – influential opponents of the death penalty in their day – believed that a life spent at hard labour in close custody was a much more severe punishment than a brief moment or two on the scaffold. Although this was not their main reason for seeking to replace hangings with hard labour, it was aimed to show their skeptical audiences that opposition to executions need not be based on sentimental tenderness towards convicted criminals. From time to time, one encounters the view that life in 25

R. C. Dieter, Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty (Washington, DC: Death Penalty Information Center, 1992).

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prison is worse than death (especially by lethal injection),26 but there is no evidence that the public is persuaded. A moratorium strategy As we enter the new century, a movement to suspend executions has emerged as the strategy of choice. Advocacy for a national moratorium has come from several quarters, beginning with the ABA in 1997 and developed by two citizens’ groups – Moratorium 2000 and Moratorium Now. Moratorium 2000, under the leadership of Sister Helen Prejean, author of Dead Man Walking (1993), called for petitions to be presented to the United Nations late in 1999 seeking a UN resolution in favour of a worldwide moratorium on executions. Moratorium Now, organised by Equal Justice USA of the Quixote Center in Maryland, has obtained resolutions from more than a thousand groups across the nation in favour of a moratorium in their own localities.27 More than two dozen local governments, from Atlanta to San Francisco, have endorsed this effort. Claiming that ‘63% of registered voters’ support the idea, Moratorium Now aims to suspend all executions ‘at least until [the] state and nation implement policies and procedures which: Ensure that death penalty cases are administered fairly and impartially in accordance with basic due process. Eliminate the risk of executing innocent people. Prevent the execution of mentally disabled persons and people who were under the age of 18 at the time of their offenses.’28 Since it is impossible to have a death penalty system that will ‘eliminate’ the risk of executing the innocent, defenders of the death penalty are bound to view supporters of the moratorium as thinly veiled abolitionists. No doubt practices and procedures can be implemented that would make the death penalty less vulnerable to criticism. But most proponents of the moratorium do not want a cleaner, fairer death penalty; they want no death penalty at all. Can they get it by the route of a moratorium? It is difficult to say, for several reasons. First, it is worth remembering that abolition in Canada and the United Kingdom was preceded by a moratorium. On the other hand, at no time in the past century in the United States was legislative abolition preceded by a moratorium on executions. Secondly, the taste for the death penalty in the United States was not reduced, much less 26 27 28

H. A. Bedau, ‘Imprisonment vs Death: Does Avoiding Schwarzschild’s Paradox Lead to Sheleff’s Dilemma?’ (1990) 54 Albany Law Review 481–95. S. Rimer, ‘Support for a Moratorium in Executions Gets Stronger’, New York Times, 31 October 2000, p. A16. ‘Model Resolution’, in Moratorium Now! (Hyattsville, MD: Quixote Center, n.d.).

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eliminated, by the de jure moratorium on executions imposed by the federal courts during the years devoted to debating the constitutional status of the death penalty (1967 to 1976). Finally, the moratorium effort is piecemeal – one city, one state at a time. By the end of 2000, only one state – Illinois – had adopted a moratorium, and Illinois (with its many documented recent cases of innocent defendants sentenced to death) may be a special case.29 A moratorium in Texas, for instance – whether adopted by the legislature, created by the governor, or ordered by the courts – is almost as unthinkable as outright statutory abolition. Maryland, with its moratorium of 2002, only fifteen prisoners on death row, and no cohort of innocent men sentenced to death, is typical of many death penalty states and unlike either Illinois or Texas. So far in the other death-penalty states like Maryland, there has been no rush to suspend the death penalty pending scrutiny of the system and the consideration of desirable reforms. On the other side the coin looks brighter. Media attention to the death penalty has reached an all-time high; virtually none of the publicity encourages support for executions. As of the end of 2000, several towns in North Carolina – a state with a long history of active use of the death penalty – have voted for a moratorium, a step seemingly quite unlikely only a few years earlier. Even if there is no smooth and direct path from a moratorium to abolition, the moratorium movement gives a haven for those who have doubts about the death penalty – based especially on the grave risk of executing the innocent30 – but who are not yet ready to oppose it outright. And there is no doubt that the moratorium movement has invigorated long-standing opponents of the death penalty. Whether this will change in the aftermath of the terrorist attacks in New York and Washington DC on 11 September 2001 remains to be seen. Conclusion Surveying the results of this examination of the recent and current position on the death penalty in more than a dozen constituencies in the United States, we have to ask: How encouraging is the prospect for abolition in the near future? It remains true that only the Supreme Court 29 30

J. Wilgoren, ‘Citing Issue of Fairness, Governor Clears Out Death Row in Illinois’, New York Times, 12 January 2003, pp. 1 and 22. Grassroots Investigation Project, ‘Reasonable Doubts: Is the US Executing Innocent People?’ (Hyattsville, MD: Quixote Center, 2000); M. L. Radelet, H. A. Bedau and C. E. Putnam, In Spite of Innocence (Boston: Northeastern University Press, 1992–4); H. A. Bedau and M. L. Radelet, ‘Miscarriages of Justice in Potentially Capital Cases’ (1987) 40 Stanford Law Review 21–179.

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is in a position to rid the nation of the death penalty by the stroke of a pen, and there is no evidence at the end of 2002 that the Court is moving in that direction – unless one optimistically thinks the Court’s rulings in Atkins and Ring are the beginning of a trend. Yet there are other forces at work, even if their power and effect are difficult to predict. The extensive national and international documentation of the abuses of our system of capital punishment, on display every day in every death penalty jurisdiction in the country, and widely reported, are bound to weaken the public’s attachment to the death penalty.31 It has often been said that even the Supreme Court reads the headlines. Those headlines today concern the death penalty with unprecedented frequency, and the stories beneath the headlines point up the futility, expense and immorality of the American death penalty system. Is it too much to hope (to put a spin on a comment of Winston Churchill) that we are now watching the beginning of the end of the death penalty in America, and not just the end of the beginning? 31

See e.g. ‘Symposium: How the Death Penalty Works: Empirical Studies of the Modern Capital Punishment System’ (1998) 83 Cornell Law Review 1431–1875; S. B. Bright, Capital Punishment on the 25th Anniversary of Furman v. Georgia (Atlanta, GA: Southern Center for Human Rights, 1997); ‘Conference: The Death Penalty in the TwentyFirst Century’ (1995) 45 American University Law Review 239–352.

9

Capital punishment in the United States: moratorium efforts and other key developments Ronald J. Tabak Introduction

There have been two diverging characteristics of capital punishment in the United States in the last several years. On the one hand, the actual implementation of capital punishment has become even less fair. On the other hand, press reportage and public awareness about pervasive problems with the death penalty system have greatly increased. These developments are not unrelated. The increasing unfairness of the United States’ death penalty system is a major reason why that system has undergone increased scrutiny. In view of these developments, support has grown for efforts to implement a moratorium on executions, and to use the time during which a moratorium is in place to undertake a comprehensive study of the capital punishment system and decide whether to retain it and, if so, in what form. In addition, support has grown for specific legislative and judicial reforms. Such support has increasingly come from what previously would have been extremely surprising sources. There is an increasing potential for dealing with capital punishment non-ideologically, by focusing not on whether one would support a non-existent, hypothetically idealised capital punishment system but rather on what we should do about the actual death penalty system. There is a growing recognition that when one looks at capital punishment pragmatically, it is like Hans Christian Anderson’s ‘emperor’s new clothes’: there is nothing positive there in reality (as opposed to the idealised fantasy). If this trend continues, more United States jurisdictions could initiate moratoriums, and some might abolish capital punishment. The increasing unfairness of the death penalty as implemented in the United States Numerous systemic problems with the implementation of capital punishment in the United States – most of which the American Bar Association 208

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(ABA) cited in calling in February 1997 for a moratorium on executions – have become even more aggravated in recent years. The following is a brief discussion of some of the most egregious of these problems. Counsel Trial attorneys The inadequacies of the manner in which trial counsel are appointed in capital cases, and the problems with the legal review of ineffectiveness of counsel claims, have remained egregious. Moreover, the difficulties in finding any counsel to represent people on death row in the often-crucial post-conviction proceedings have substantially increased. The problems with trial counsel are not limited to Southern ‘death belt’ states. Thus, in August 2001, the Seattle Post-Intelligencer reported that ‘many counties’ in the state of Washington ‘have failed to provide decent legal representation for poor defendants, even in deathpenalty cases’ and that in nearly 20 per cent of capital cases since 1981, the ‘court-appointed lawyers had been, or were later, disbarred, suspended or criminally prosecuted’.1 The Tennessean reported in July 2001 that ‘[d]ozens of lawyers who have defended clients facing the death penalty in Tennessee have been in trouble themselves – disciplined by the state for unethical, unprofessional or illegal activities’, and eleven remain eligible for appointment in capital cases.2 The Mercury News reported in April 2002 that California, which touts itself as a national model in legal resources for capital defendants, has scores of ‘trials marred by the same types of problems found in states known for spending less on capital cases . . . : lawyers who put on perfunctory defenses; prosecutors who concealed evidence; and mistake-prone trial judges’.3 Court-appointed counsel representing poor people in capital cases frequently fail to develop any persuasive evidence – even when it is readily available with proper investigation – about factors in the defendant’s background that could persuade the jury to impose a sentence other than death.4 These include such things as the defendant being a decorated veteran who now suffers from post-traumatic stress disorder or having been battered by an abusive parent.5 1 2 3 4 5

Lise Olsen, ‘Defence for Capital Crimes Often Done on the Cheap’, Seattle PostIntelligencer, 8 August 2001, p. A1. John Shiffman, ‘Troubled Lawyers Still Allowed to Work Death Cases’, The Tennessean, 25 July 2001. Howard Mintz, ‘Death Penalty Reversals Cast Doubt on System’, Mercury News, 13 April 2002. Lise Olson, ‘One Killer, Two Standards: Experts Say Some Inconsistency is Expected’, Seattle Post-Intelligencer, 7 August 2001. Ibid.

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A recent, perhaps fatal, example of the failure to present important mitigating evidence involved Ronald Wayne Frye, whom North Carolina executed on 31 August 2001. His trial lawyer subsequently ‘admitted he was drinking heavily during the case, downing nearly a pint of 80-proof rum every afternoon’, and that he had been ‘in a car wreck about the same time and was found with a near-lethal blood-alcohol level of 0.44% – at 11 a.m.’. The jury heard virtually nothing about Frye’s ‘nightmarish childhood’, during which ‘his alcoholic parents gave him away at a diner’ at age four; he was beaten ‘with a bullwhip’ by his new father, leaving extreme scars, and he was ‘shuffled from family to family, six changes in all’.6 A major reason why death row inmates such as Mr Frye do not get relief is the stringent standard set forth by the United States Supreme Court in Strickland v. Washington, 466 US 668 (1984), under which an inmate must demonstrate not only that his trial counsel performed so ineffectively that counsel was operating below the norm for attorneys in the community, but also that there is a reasonable probability that, but for counsel’s ineffectiveness, the outcome would have been different. But, even when a death row inmate does make that showing to the satisfaction of the federal courts, he can still be denied relief in light of the misleadingly entitled Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which requires deference to erroneous but ‘reasonable’ state court rulings. For example, the en banc US Court of Appeals for the Fifth Circuit denied habeas corpus relief to Mississippi death row inmate Howard Monteville Neal in 2002, despite concluding that Mr Neal had been deprived of his constitutional right to effective assistance of counsel and that the Mississippi Supreme Court had erred in not granting Mr Neal relief. The court held that, under the AEDPA, it was precluded from granting relief because, when the Mississippi Supreme Court erroneously held that Strickland’s prejudice prong had not been satisfied, it had not applied Strickland ‘unreasonably’ (Neal v. Puckett, No. 99-60511 (5th Cir. 15 March 2002) (en banc)). Post-conviction counsel In order for a death row inmate to raise claims that are not apparent from the face of the trial record – such as ineffective assistance of counsel or the prosecution’s failure to turn over important evidence – these claims must be raised in a state postconviction proceeding. But the Supreme Court has held that there is no constitutional right for a poor person to be assigned capable counsel, or indeed any counsel at all, to handle such proceedings (Murray v. 6

Jeffrey Gettleman, ‘Execution Ends Debatable Case’, Los Angeles Times, 31 August 2001.

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Giarratano, 492 US 1 (1989)). Consequently, it is frequently necessary to find lawyers willing to handle these matters for free. Unfortunately, the supply of lawyers available to handle these cases is increasingly falling short of the demand.7 In Alabama, the situation had deteriorated so greatly by June 2001 that thirty of the state’s 188 death row inmates lacked counsel.8 This raised the possibility that inmates without counsel could be deemed to have waived all their constitutional claims, no matter how meritorious. Under the AEDPA, such claims must be raised in federal court within one year of the conclusion of one’s direct appeal, unless one is litigating the claims in a state post-conviction proceeding. In December 2001, the Equal Justice Initiative filed a federal lawsuit seeking redress for the complete lack of representation in many post-conviction cases, the severe limits on client access and the US$1,000 expense limits for lawyers handling post-conviction proceedings.9 Texas has a statute requiring the appointment of counsel for death row inmates in state post-conviction proceedings. But, in January 2002, the Texas Court of Criminal Appeals held in a 6–3 decision that the law only ‘concerns the initial appointment of counsel and continuity of representation rather than the final product of representation’ and thus does not require that the appointed counsel perform effectively. In dissent, Judge Tom Price said that the court should have recognised the right to postconviction counsel who is ‘more than a human being with a law license and a pulse’.10 Incomprehensible or misleading jury instructions Jurors’ ability to decide on the penalty in capital cases in accordance with the law is badly undermined when the instructions provided to the jury are incomprehensible or misleading. Sadly, this is often the case. For example, in a Virginia case, the jury did not understand that if substantial mitigating evidence existed, it could sentence the defendant to something other than death. The confused jurors asked the judge to clarify whether the death penalty was mandatory in that situation but instead of answering them, the judge merely referred them back to the judge’s original 7 8 9 10

Crystal Nix Hines, ‘Lack of Lawyers Hinders Appeals in Capital Cases’, New York Times, 5 July 2001, p. A14. David Firestone, ‘Inmates on Alabama’s Death Row Lack Lawyers’, New York Times, 16 June 2001, p. A11. See ‘Death Row Inmates Sue State – Lawsuit Denounces Lack of Legal Help: Pryor Defends System’, Birmingham News, 29 December 2001. Ed Timms and Diane Jennings, ‘Court Limits Death-Row Appeals: State Panel: Appointed Attorneys Need Not Be Effective’, Dallas Morning News, 3 January 2002.

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instructions. The jury thereafter sentenced the defendant to death. The United States Supreme Court held that this did not violate the Constitution (Weeks v. Angelone, 528 US 225 (2000)). ‘Automatic death penalty’ jurors involved in imposing sentence The Supreme Court has held that jurors who would, upon a conviction for capital murder, always vote for the death penalty, are so inherently biased that they should be automatically excluded if challenged ‘for cause’ (Morgan v. Illinois, 504 US 719 (1992)). However, analysis by the National Jury Project has shown that many people who actually sit on capital juries are ‘automatic death penalty’ jurors, at least by the end of the guilt/innocence phase of the trial. One way to prevent this would be to have more probing questioning of the jury before the trial starts. Also, there should be questioning at the end of the guilt/innocence phase about whether jurors have already made up their minds about the sentence. Those who have irrevocably decided to vote for death, without yet having heard any evidence about the defendant’s background (which typically is presented in the penalty phase), should be removed and replaced by alternates. Geographic and racial inconsistencies in imposing the death sentence A growing number of studies show that the likelihood that one will be sentenced to death can be affected more by where within a state one is prosecuted than by how severe the crime was. ABC News’ Nightline broadcast on 13 September 2000 showed that the side of a street on which a crime occurs – the side in the city of Baltimore, Maryland, or the side in the county of Baltimore, Maryland – can determine whether the death penalty is sought, because of the vastly differing views of the prosecutors in those jurisdictions. Similar inconsistencies were reported during 2001 by newspapers in Washington state,11 Texas12 and Alabama,13 and in a draft report by a legislative commission examining Virginia’s implementation of capital 11 12

13

See Olson, note 1 above. Mike Tolson, ‘A Deadly Distinction’, Houston Chronicle, 3 February 2001; Steve Brewer, ‘DA Can Afford to Prosecute with a Vengeance: Harris County Focuses on Capital Murder, and Has What It Takes to Make the Case’, Houston Chronicle, 3 February 2001; Mike Tolson, ‘Between Life and Death: Borderline Capital Cases Raise Questions of Justice’, Houston Chronicle, 5 February 2001. Jeb Phillips, ‘Talladega: Death Row Country: Is Fairness Missing from the State’s Use of Capital Punishment?’, Birmingham Post-Herald, 11 December 2001.

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punishment.14 Moreover, the United States Justice Department found both geographic and racial inconsistencies in the implementation of the federal death penalty, in an initial study released in late 2000.15 And geographic inconsistencies, which apparently led to race-of-victim inconsistencies in seeking the death penalty, were found in a Special Master’s June 2001 report to the New Jersey Supreme Court.16 Race-based inconsistencies in North Carolina’s implementation of capital punishment were found in a study completed in 2001.17 And The Tennessean reported that one-quarter of all African-Americans sentenced to death in Tennessee since 1977, and one-half of those sentenced outside of Shelby County, were sentenced by all-white juries.18 In December 2002, Professors Raymond Paternoster and Robert Brame issued a report finding substantial disparities in Maryland’s death penalty implementation, based on geography and the race of the victim.19 The continuing existence of these types of problems, and the failure to rectify them, is due, in large part, to the failure of appellate courts to conduct meaningful proportionality review, in which the courts would determine whether there are inconsistencies in life-or-death outcomes 14

15

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Commission Draft, Joint Legislative Audit and Review Commission, The Virginia General Assembly, ‘Review of Virginia’s System of Capital Punishment’, 10 December 2001, p. iv: ‘[T]he findings are equally clear that whether a defendant charged with a capitaleligible crime actually faces the death penalty is more related to the location in the State in which the crime was committed than the actual circumstances of the capital murder.’ United States Department of Justice, ‘The Federal Death Penalty System: A Statistical Survey (1988–2000)’, released 12 September 2000. In June 2001, the Justice Department (now headed by Attorney General John Ashcroft) announced that there was no evidence of bias in implementing the federal death penalty. That announcement was based on an analysis that did not seek to determine why there were such huge racial and geographic statistical differences in federal prosecutors’ decisions on whether to seek capital punishment. On 13 June 2001, the Justice Department, under pressure from a Senate Judiciary Subcommittee, said it would do a thorough study on whether the federal death penalty system is biased by race, ethnicity or geography. See Raymond Bonner, ‘Justice Dept Set to Study Death Penalty in More Depth’, New York Times, 14 June 2001, p. A28. David S. Baime, Special Master, ‘Report to the Supreme Court: Systemic Proportionality Review Project, 2000–2001 Term’, 1 June 2001. The study found, for example, that those charged with murder ‘in Monmouth County are about four times more likely to face the prospect of the death chamber’ than those charged with murder in Essex County. See Robert Schwaneberg, ‘AG Studies Disparities in Capital Punishment’, Newark StarLedger, 21 August 2001. John Charles Boger and Dr Isaac Unah, ‘Race and the Death Penalty in North Carolina: An Empirical Analysis: 1993–1997’, http://www.deathpenaltyinfo.org/articles. php?scid=19&did=246. ‘1 in 4 Blacks Condemned by All-White Juries’, The Tennessean, 27 July 2001. Professor Raymond Paternoster and Professor Robert Brame, ‘An Empirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisidiction’, December 2002.

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between otherwise similar cases. The United States Supreme Court has held that such proportionality review is not constitutionally required.20 Gaps and errors in data collection would make such a review impossible in many places, even if it were to be attempted.21 Failure to consider clemency seriously, even in egregious cases The clemency process could be the final failsafe, guarding against unfair implementation of capital punishment, inconsistencies in handling capital cases within a state, and the execution of people whose guilt is in substantial doubt. However, political considerations – the desire not to appear to be ‘soft on crime’ – have made clemency grants far less likely than pre-Furman.22 For example, Texas denied clemency to Gary Graham, who was executed on 23 June 2000, even though his clemency counsel showed that Graham’s trial lawyer had failed to challenge questionable prosecution evidence – most notably, an ‘identification’ by one eyewitness who in the clemency proceeding was contradicted by several other eyewitnesses.23 Graham’s clemency petition also included Texas’ pattern of racial discrimination by race of the victim in capital sentencing and the fact that Graham was a juvenile at the time of the crime (making his execution inconsistent with international legal principles).24 Increasing threats to judicial independence In recent years, there have been increasing threats to the independence of both elected and appointed judges. Initially, most of the threats occurred in the context of judicial elections, such as when Tennessee Supreme Court Justice Penny White was defeated for re-election after being attacked for participating in a single decision overturning an unconstitutional death sentence.25 More recently, threats to judicial independence have also occurred as part of the judicial appointment process. Assertions of ‘weakness on 20 21 22 23 24 25

Pulley v. Harris, 465 US 37 (1984). See, e.g., John Shiffman, ‘Missing Files Raise Doubts About Death Sentences’, The Tennessean, 22 July 2001. See Gene R. Nichol, ‘Governors with Power to Spare’, News and Observer, 10 October 2001. See ‘Death Penalty Troubles in Texas’, New York Times, 19 June 2000, p. A18. See CNN, Talkback Live: Should Gary Graham Be Executed?, CNN, television broadcast, 22 June 2000. See Penny J. White, ‘Breaking the Most Vulnerable Branch: Do Rising Threats to Judicial Independence Preclude Due Process in Capital Cases?’(1999) 31 Columbia Human Rights Law Review 123 at 137–42.

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capital punishment’ have played a prominent role in efforts – many of them successful – to derail people whom President Clinton was considering nominating, or had already nominated, for federal district court and appellate court judgeships.26 Matters have deteriorated to the point that, in asserting that Missouri Supreme Court Judge Ronnie White should not have been denied confirmation to sit as a federal district judge, Senator Diane Feinstein stressed the fact that in a large majority of decisions he had upheld death sentences. When a judge hoping to be re-elected, or to be elected or appointed to higher judicial office, knows that statistics about how often he or she has upheld death sentences will be a major consideration, how can anyone be sure that this will not affect judicial actions in capital cases? The death penalty was first used in political campaigns to attack candidates for executive or legislative office who opposed the death penalty. Next, it was used to attack candidates for executive or legislative office who sought to ensure proper counsel for, and post-conviction and habeas corpus rights of, people facing the death penalty. Now it is being used to attack senators who vote to confirm judges who are asserted to be ‘weak’ on the death penalty, and to prevent such judges from being re-elected or elevated to higher office. The fact that the death penalty has no impact on crime27 is somehow not mentioned. Increasing public awareness of systemic unfairness in death penalty implementation The American public is increasingly being informed about systemic unfairness in the implementation of the death penalty. While much of the reportage has been about innocent people being sentenced to death, attention has also been focused on problems relating to the sentencing process. Danger of innocent people being executed The most dramatic situations in which people sentenced to death have been exonerated have been those in which DNA evidence has provided proof that innocent people have been convicted. While these cases are a relatively small percentage of all exonerations of death-sentenced prisoners, the flaws in the legal 26

27

George H. Kendall, ‘Breaking the Most Vulnerable Branch: Do Rising Threats to Judicial Independence Preclude Due Process in Capital Cases?’ (1999) 31 Columbia Human Rights Law Review 123 at 142–7. Ronald J. Tabak, ‘How Empirical Studies Can Affect Positively the Politics of the Death Penalty’ (1998) 83 Cornell Law Review 1431 at 1431–9.

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system that led to wrongful convictions in these cases also affect cases in which DNA is not available. There is a misperception as to how often DNA evidence is available. Considerable further public education will be needed before most people realise that the physical material needed to undertake DNA analysis simply does not exist in most capital cases. Exonerations based on DNA testing On 23 August 2001, Charles I. Fain, who had been on Idaho’s death row for almost eighteen years, was released. DNA testing showed that three hairs found on the victim’s body, which an FBI forensics expert had testified at trial had likely been Mr Fain’s, were not Mr Fain’s. The prosecution had also relied on two jailhouse informants, who claimed that Mr Fain had told them in excruciating detail about committing the crime.28 Earlier in 2001, Earl Washington was released from prison after DNA testing exonerated him. He came within nine days of being electrocuted for a rape and murder of which he was innocent. Mildly retarded, Washington had ‘confessed’ to the crimes. He would have been executed in 1985 if not for the intercession of another Virginia death row inmate, who helped find him counsel.29 It took sixteen more years to prove Washington’s innocence conclusively.30 Another long-time death row inmate, Frank Lee Smith, was not fortunate enough to be exonerated while alive. Eleven months after he died of cancer, after fourteen years on Florida’s death row, DNA testing showed that Smith had not committed the rape and murder for which he had been convicted.31 The one-hundredth innocent death row inmate to be released since the resumption of capital punishment in the 1970s was Ray Krone. He was freed in April 2002 from Arizona’s death row, after DNA evidence showed he was innocent.32 Exonerations not involving DNA Perhaps the most significant case not involving DNA in which an innocent death row inmate came perilously close to being executed is that of Anthony Porter. Porter was 28 29 30 31 32

Raymond Bonner, ‘Death Row Inmate is Freed After DNA Test Clears Him’, New York Times, 24 August 2001, p. A11. Eric M. Freedman, ‘Earl Washington’s Ordeal’ (2001) 29 Hofstra Law Review 1089 at 1098. Ibid., pp. 1098–103. John Aloysius Farrell, ‘DNA Scrutiny Tests Judicial System’, Boston Globe, 26 June 2001. Dennis Wagner and Beth DeFalco, ‘DNA Frees Arizona Inmate’, Arizona Republic, 9 April 2002.

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within days of being executed by Illinois, without anyone asserting a claim of innocence, when he secured a stay of execution because of the possibility that he was mentally incompetent to be executed (i.e. that he would not understand that he was going to be put to death because he had been convicted of capital murder). At that point, a Northwestern University journalism class that previously had decided not to investigate the case re-examined the facts. Within a short time, it secured recantations from the ‘eyewitnesses’ upon whose testimony the prosecution’s case had depended. An investigator working with the students then tracked down the actual killer, who confessed. Porter was released in 1999.33 In December 2000, Michael Graham and Albert Ronnie Burrell were released after thirteen years on Louisiana’s death row for a double murder after it became clear that three witnesses against them had committed perjury (the trial prosecutor had recommended against prosecuting them because the cases against them were insufficiently strong, but the District Attorney had told him to move the cases forward to prevent the local sheriff from being embarrassed).34 Investigation of whether misconduct by Oklahoma ‘police scientist’ led to the execution of one or more innocent men In March 2001, the FBI issued a report attacking the performance of Joyce Gilchrist, a ‘police scientist’ based in Oklahoma City, Oklahoma. An extensive investigation was begun of Ms Gilchrist’s testimony in over 1,000 cases,35 including the case of Malcolm Rent Johnson, who was executed on 6 January 2000. In the summer of 2001, internal police memorandums . . . raised questions about Ms Gilchrist’s testimony in Mr Johnson’s 1982 trial. During the trial, Ms Gilchrist said Mr Johnson’s blood type matched sperm collected from a bedspread and a pillowcase in the victim’s apartment. The samples were on six slides. But an examination of the slides on July 30 contradicted Ms Gilchrist’s findings, one memorandum said, and concluded that the slides actually contained no sperm at all.36

At trial, the District Attorney had asserted, in closing argument, that Ms Gilchrist’s testimony ‘firmly erased any reasonable doubt, any doubt at all in this case’.37 33 34 35 36 37

Richard Cohen, ‘Innocents at Large’, Washington Post, 11 February 1999. Christopher Baughman and Tom Guarisco, ‘Justice for None’, The Advocate, 18–20 March 2001. Jim Yardley, ‘Oklahoma Retraces Big Step in Capital Cases’, New York Times, 2 September 2001, Section 1, p. 12. Ibid. Ibid., quoting District Attorney Robert H. Macy’s closing argument.

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Serious questions of possible innocence in other cases in which people have already been executed In December 2000, the Chicago Tribune published a two-part investigative series on whether innocent people may have been executed in recent years. In the first part, it found that there are serious questions in at least three cases as to whether the people executed were really guilty.38 In the second part, it reported how a variety of legal technicalities, erected so that people would be executed more quickly after their convictions, are preventing people with substantial claims of innocence from being able to have their evidence considered by the courts.39 Increased awareness of how innocent people can get to death row Cases such as those discussed above, as well as the Chicago Tribune’s reportage and the book Actual Innocence, by Jim Dwyer, Barry Scheck and Peter Neufeld, have focused increased attention on how innocent people can end up on death row. One factor is police and prosecutors making premature decisions about who is guilty and then conducting investigations designed to confirm their preconceptions. Another is police taking advantage of easily led suspects who confess to crimes they did not commit. A third factor is the withholding of exculpatory information. At an ABA programme in August 2001, prosecutors stated that police often withhold from prosecutors evidence that would be favourable to the defence, because the police fear the prosecutors would, properly, provide that information to defence counsel.40 A fourth factor is the use of jailhouse informants, who are often motivated by the desire to secure favourable treatment from prosecutors or prison officials. A fifth factor, present in Anthony Porter’s case, is an over-reliance on eyewitnesses who, although well meaning, may not be accurate.41 In a detailed account of how Paul Colella ended up on Texas’ death row, the Houston Chronicle pointed out these troubling aspects of the case – a case that it described as ‘ordinary’ by Texas standards:

38 39 40

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Steve Mills et al., ‘Shadows of Doubt Haunt Executions – 3 Cases Weakened Under Scrutiny’, Chicago Tribune, 17 December 2000. Steve Mills, ‘Questions of Innocence: Legal Roadblocks Thwart New Evidence on Appeal’, Chicago Tribune, 18 December 2000. Zachary W. Carter and Joseph E. Birkett, ‘Judging Justly? Judicial Responsibility for Addressing Incompetent Counsel and Prosecutorial Misconduct in Death Penalty Cases’ (forthcoming in Thomas M. Cooley Law Review). Helen O’Neill, ‘The Perfect Witness’, Associated Press, 4 March 2001 (concerning rape victim Jennifer Thompson, on the basis of whose eyewitness identification an innocent man was convicted and sentenced to life in prison; he was exonerated eleven years later by DNA testing).

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r ‘At his 1992 trial, Colella presented an alibi witness so strong that two appellate judges who later reviewed his case were convinced of his innocence.’ r ‘Colella was represented at trial by an inexperienced defence attorney’. One of Colella’s final appeals was ‘summarily dismissed’ by ‘the Texas Court of Criminal Appeals, the state’s highest court for criminal cases’, due to its being filed one month late by ‘his court-appointed lawyer – yet another rookie attorney’. r In Texas, it is not ‘unusual for an unqualified or inexperienced attorney to be assigned to litigate perhaps the most complex and consequential area of law: capital murder’. r ‘A condemned inmate’s hope of avoiding execution rests with a high court so reluctant to reverse convictions that not even exonerating DNA evidence can sway its members, and its judges speak openly about being tough on criminals.’ r Once rejected by the courts, ‘the condemned is at the mercy of a Board of Pardons and Paroles that is even stingier than the Court of Criminal Appeals and a governor attuned to the prevailing political winds’. r ‘The chances that a wrongful conviction in a capital case will be corrected are dimmed further by a paradoxical relationship between the Parole Board and the Court of Criminal Appeals in which each relies on the other to consider claims of innocence.’42 Justice O’Connor’s statements that innocent people may well have been executed On 2 July 2001, Supreme Court Justice Sandra Day O’Connor stated:‘If statistics are any indication, the system may well be allowing some innocent defendants to be executed.’43 Then, in October 2001, she said that: ‘More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.’44 Justice O’Connor’s statements attracted widespread attention, especially because she ‘has rarely expressed any misgivings about the way states mete out death sentences’, and ‘has been a key swing vote on numerous of the Court’s death penalty decisions [in which she has voted against death row inmates], including several in which profound questions of innocence and due process were raised’.45 42 43 44 45

James Kimberly, ‘Once on Death Row, It Might Not Matter’, Houston Chronicle, 6 February 2001. ‘O’Connor Questions Death Penalty’, Associated Press, 2 July 2001. John Fulwider, ‘O’Connor Lectures Lawyers, Recollects for Students in Lincoln’, Nebraska State Paper, www.nebraska.statepaper.com, archives, 18 October 2001. Alan Berlow, ‘A Supreme Court Shocker – Sandra Day O’Connor’s Criticisms of the Death Penalty Couldn’t Have Come from a More Unlikely Source’, Salon Magazine, 4 July 2001.

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The egregious arbitrariness, capriciousness and unfairness of the capital punishment system, even aside from innocence issues While many believe that the only possible concern about the capital punishment system is the danger that innocent people will be executed, a growing number are troubled by the system’s inability to ensure that people convicted of similar crimes under similar circumstances and who have similar backgrounds will receive comparable sentences. There is a rising tide of evidence that whether one gets the death penalty depends more on circumstances of geography, quality of defence counsel, and race of the victim than on the defendant’s criminal behaviour. Since these problems have been discussed above, only a few additional observations are warranted here. Most who are sentenced to death were convicted or sentenced unconstitutionally The first part of the Liebman study, released in 2000, showed reversal rates of 68 per cent in capital cases over a period of decades. The greatest proportion of these reversals resulted from constitutional violations affecting the penalty determinations. In the vast majority of cases in which reversals occurred, the eventual sentence was not death.46 While the high rate of reversals may cause some to believe that the system is working, closer evaluation shows the contrary. There are jurisdictions, such as Virginia, in which the reversal rates are very low, not because there is less error initially, but because state and federal courts use procedural bars, the harmless error rule, and conservative views of what constitutes constitutional error to deny relief in situations in which courts elsewhere would grant relief.47 Moreover, the lessening availability of high-quality counsel to represent death row inmates in post-conviction and federal habeas corpus proceedings, combined with the new procedural restrictions and deference requirement of the habeas corpus ‘reform’ law enacted in 1996, make it far less likely that death row inmates whose constitutional rights are violated will secure relief. Immense inequities arising from differences between prosecutors, defence counsel’s disparate abilities, and racial discrimination There is increasing reportage about inequities arising from differing attitudes of different prosecutors, even within the same state, discordant results resulting from 46 47

James S. Liebman et al., ‘A Broken System: Error Rates in Capital Cases, 1973–1995’ (2000), available at search category ‘Liebman’ at www.law.columbia.edu. Cf. Commission Draft, Joint Legislative Audit and Review Commission, Virginia General Assembly, ‘Review of Virginia’s System of Capital Punishment’, 10 December 2001.

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different capabilities of counsel, and apparent disparities based on the race of the victim (and, in some jurisdictions, the race of the defendant). This in-depth reporting included in December 2001 the first series in recent memory by an Alabama newspaper on the implementation of capital punishment in Alabama.48 Many additional news accounts about prosecutorial inconsistency were published soon after the release on 11 February 2002 of the second part of the Liebman study.49 That study found that the prosecutors who most often seek the death penalty are more likely than other prosecutors to have the results overturned later; that, where murder victims are white, the reversal rate is double the rate when the victims are African-American; that error rates are higher when trial judges are directly elected, and even more so when the elections are partisan; and that large AfricanAmerican populations and poor law enforcement practices are correlated with higher error rates.50 Supreme Court holding unconstitutional the execution of the mentally retarded In June 2002, the Supreme Court held it unconstitutional to execute a person who has mental retardation.51 This reversed the Supreme Court’s contrary holding in 1989. One reason for the Supreme Court’s new position was the fact that, in 2001, five states – Arizona, Connecticut, Florida, Missouri and North Carolina – enacted laws prohibiting executions of people with mental retardation. This brought the total of such states to eighteen out of the thirty-eight states with capital punishment. The federal government’s death penalty also exempted the mentally retarded. And there were twelve states without capital punishment. Unfortunately, this holding came too late to save the lives of approximately forty people known to have mental retardation who have been executed since the death penalty was reintroduced in the 1970s.52 Moreover, the Supreme Court’s decision will not automatically prevent future executions of persons with mental retardation. Most defence counsel are unaware of how to investigate the possibility that their clients have mental retardation, and are unprepared to prove retardation. And counsel 48 49

50

51 52

See Jeb Phillips and Taylor Bright, ‘Execution of Justice’ (five-part series), Birmingham Post-Herald, 14–18 December 2001, available at www.postherald.com/justice.shtml. James S. Liebman et al., ‘A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It’ (2002), available at www.law.columbia. edu/media inquiries/news/2002/broken system/. Marcia Coyle, ‘Trimming Death Sentence Errors’, National Law Journal, 11 February 2002. The study is available at www.law.columbia.edu/media inquiries/news/2002/ broken system/. Atkins v. Virginia, 122 SCt 2242 (2002). ‘Ruling Too Late for 40 Inmates – Some with Low IQ Executed Before High Court’s Ban’, Chicago Tribune, 23 June 2002.

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who do have the requisite knowledge often find it difficult to prove mental retardation, particularly where the passage of time makes it hard to unearth evidence of the client’s behavioral difficulties as a child. Also, many statutes bar a finding of mental retardation if the defendant’s IQ is above 69 or 70, even though psychologists recognise that people with IQs measured in the 70–75 range can be mentally retarded. Slight progress at ending executions for crimes committed as juveniles In contrast to the progress being made with regard to people with mental retardation, relatively little progress has been made in recent years in ending the death penalty for juveniles, i.e. for those convicted of committing capital crimes when they were age sixteen or seventeen.53 Currently, sixteen of the thirty-eight capital punishment states, plus the federal death penalty, set eighteen as the minimum age of death penalty eligibility. In five states, the minimum age is seventeen.54 In October 2002, four Supreme Court justices stated, in dissenting from the denial of a petition for a writ of habeas corpus, that it is unconstitutional to execute people for crimes committed before age eighteen. The dissent, authored by Justice Stevens, said: ‘The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice.’55 It remains to be seen whether jurisdictions still permitting executions for juvenile-committed murders will come to agree with a Dallas Morning News editorial stating that ‘it does not make sense to say that people under 18 are not old enough to smoke or drink or vote or rent a car – but they are old enough to die for horrible mistakes’.56 Beginnings of a focus on problems with executing mentally ill people Until recently, little attention has been paid in the United States to the question of whether – assuming that the death penalty is justifiable for some people – executions of people with mental illness should be prohibited. The insane and those who become mentally incompetent to be 53

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Thompson v. Oklahoma, 487 US 815 (1988), is generally accepted as holding (through the opinions of Justices Stevens and O’Connor) that it is unconstitutional to execute someone for a crime committed before the person’s sixteenth birthday. Subsequent to Thompson, no state has tried to execute anyone who was younger than sixteen at the time of the crime. In Stanford v. Kentucky, 492 US 361 (1989), the Supreme Court held that it is constitutional to execute someone for a crime committed at age sixteen or seventeen. See ‘Juvenile Age Chart’, available at the Death Penalty Information Center website, under Information, Special Topics, Juveniles, at www.deathpenaltyinfoorg/juvagelim. html#agechart/. In re Stanford, 123 SCt 472 (2002) (Stevens J. dissenting). ‘Death Row Decisions – Once Again, the System Is in Question’, Dallas Morning News, 15 August 2001, editorial.

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executed, i.e. they do not know that they are about to be put to death or for what reason, cannot constitutionally be executed. But, otherwise, there are no restrictions against executing the mentally ill. Recently, attention has begun to be paid to executions of the mentally ill. In February 2002, the second part of the Liebman study recommended that the death penalty no longer be imposed on ‘severely mentally ill people’. The study noted that ‘severe mental disorder is [a] condition that prevents defendants from helping to prove their innocence or that they are unfit candidates for execution’, and that litigating issues about severely mentally ill people is extremely expensive both at trial and on appeal. It concluded that: ‘States or counties that bar capital prosecutions when there is clear proof of psychosis or other severe mental disorders stand to avoid many of the worst capital costs and risks of serious, reversible error.’57 After the Supreme Court held in June 2002 that it is unconstitutional to execute the mentally retarded, the National Mental Health Association urged the Court to render a similar holding with regard to mentally ill death row inmates. It said that like those with mental retardation, the mentally ill ‘suffer from impaired judgment, confess to crimes they didn’t commit, make terrible witnesses at trial and may appear to jurors to be unrepentant’.58 Increased willingness of jurists to acknowledge serious problems with capital punishment implementation Increasingly, present and former members of the judiciary are speaking out with regard to unfair aspects of capital punishment implementation. As noted above, Justice Sandra Day O’Connor, who has frequently cast decisive votes to uphold death sentences, gave speeches in 2001 that acknowledged the possibility that innocent people may have been executed in recent decades. Justice O’Connor also highlighted in these speeches the problems with the quality of defence counsel appointed to represent poor people in capital cases, and said: ‘Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.’59 In April 2001, Justice Ruth Bader Ginsburg expressed support for legislation imposing a moratorium on executions. She stated: ‘People who are well represented at trial do not get the death penalty’, and that ‘I 57 58 59

Liebman note 49 above, pp. 402–4. P. Reinert, ‘Death Penalty Debate Reopened by Court’s Retardation Decision’, Houston Chronicle, 22 June 2002, p. A17. ‘O’Connor Questions Death Penalty’, Associated Press, 2 July 2001. Justice O’Connor also pointed out that most death penalty states do not have statutes authorising postconviction DNA testing. Ibid.

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have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.’60 Florida’s former Chief Justice, Gerald Kogan, stated in 1999 that based on forty years’ experience with the death penalty – as prosecutor, defence counsel and jurist – he is convinced that Florida has executed people ‘who either didn’t fit the criteria for execution or who, in fact, were, factually, not guilty of the crime for which they have been executed’.61 He has also observed that, due to such things as plea bargains with ‘more culpable defendants’ and the use of questionable jailhouse ‘confessions’, ‘in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty’.62 Former Chief Justice Kogan was one of the three co-chairs of the Constitution Project’s Death Penalty Initiative, along with Beth A. Wilkinson, a chief prosecutor in the Oklahoma City bombing case, and former Texas Court of Criminal Appeals Judge Charles F. Baird. This thirtymember blue-ribbon committee proposed eighteen substantial reforms to the capital punishment system, in a document issued in 2001.63 Increased international judicial, diplomatic and business criticism of the United States’ unfair implementation of capital punishment Judicial decisions In 2001, there were four significant decisions by jurists outside the United States regarding the unfair implementation of the death penalty in the United States. These accelerated international legal criticism of the United States death penalty system that was exemplified by the April 1998 report by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, who found a ‘significant degree of unfairness and arbitrariness’ in the United States death penalty, and favourably noted the American Bar Association’s call for a moratorium on executions.64 On 15 February 2001, the Canadian Supreme Court, reversing earlier decisions in 1991, held that extraditions to the United States were 60 61 62 63 64

Associated Press, 10 April 2001. Gerald Kogan, Speech at Amnesty International Southern Regional Conference, http://www.judiciary.state.nj.us/baime/baimereport.pdf, 23 October 1999, p. 3. Ibid. The Constitution Project’s Death Penalty Initiative, Mandatory Justice: Eighteen Reforms to the Death Penalty (2001). ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Mission to the United States of America’ (Addendum), UN Commission on Human Rights, 54th Sess., Provisional Agenda Item 10, UN Doc. E/CN.4/1998/68/ Add.3 (1998).

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constitutionally impermissible where capital punishment was possible, ‘in all but exceptional cases’. The Court relied, inter alia, on the concerns about the unfairness of the death penalty’s implementation in the United States. It stated: Concerns in the United States have been raised by such authoritative bodies as the American Bar Association which in 1997 recommended a moratorium on the death penalty throughout the United States because, as stated in an ABA press release in October 2000: ‘The adequacy of legal representation of those charged with capital crimes is a major concern. Many death penalty states have no working public defender systems, and many simply assign lawyers at random from a general list. The defendant’s life ends up entrusted to an often under-qualified and overburdened lawyer who may have no experience with criminal law at all, let alone with death penalty cases. The US Supreme Court and the Congress have dramatically restricted the ability of our federal courts to review petitions of inmates who claim their state death sentences were imposed in violation of the Constitution or federal law. Studies show racial bias and poverty continue to play too great a role in determining who is sentenced to death.’65

Then, in April 2001, the Organization of American States’ InterAmerican Commission on Human Rights ruled that the United States federal courts had violated Juan Raul Garza’s rights to a fair trial and to due process, under the American Declaration of the Rights and Duties of Man, by allowing as aggravating factors in his capital sentencing proceeding evidence concerning four murders in Mexico with which he had not been charged. Mr Garza was nevertheless executed on 19 June 2001. In June 2001, the International Court of Justice held that the United States had violated provisions of the Vienna Convention on Consular Relations when Karl and Walter LaGrand were not advised of their right to confer with the German consulate immediately after their arrests in Arizona. Arizona had subsequently executed them. The Court held that a provisional order it had issued prior to the executions had been binding and should have caused a stay of execution.66 Also in June 2001, the South African Constitutional Court held that South Africa’s government had violated Khalfan Khamis Mohamed’s rights to life, to human dignity, and not to be subjected to cruel, inhuman or degrading punishment when it delivered him to the custody of the United States without having secured an agreement that he would not be subjected to capital punishment.67 Mr Mohamed received life 65 66 67

United States v. Burns [2001] 1 SCR 283, quoting ABA Press Release, October 2000. Germany v. United States, available at the International Court of Justice website, www.icjcij.org, under ‘Contentious Decisions’, ‘Germany’, June 2001. Joshua A. Brook and Noah S. Leavitt, ‘From South Africa, a Challenge to US Death Penalty’, International Herald Tribune, 7 June 2001.

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without parole, rather than the death penalty, at his United States federal court trial, in which the South African court decision was admitted as a mitigating factor. Diplomatic criticism Shortly after leaving his post as United States Ambassador to France, Felix G. Rohatyn, who had always favoured the death penalty, wrote an op-ed stating that America’s moral leadership in Europe ‘is under challenge because of two issues: the death penalty and violence in our society’. He added: There is a strong belief among our European allies that [capital punishment] has no place in a civilized society. In addition, the United States is seen as executing people who have not had appropriate legal assistance, people who may be innocent, people who are mentally retarded as well as minors. We are viewed as executing disproportionate numbers of minorities and poor people, and there is no compelling statistical evidence that the death penalty is a greater deterrent to potential criminals than other forms of punishment.68

Rohatyn concluded that he now supported a moratorium on executions, to enable ‘jurists and parliamentarians and chiefs of police’ to discuss this subject with our European allies.69 Following the 11 September 2001 terrorist attacks on the United States, several European governments made it clear that they would not extradite alleged terrorists to the United States without assurance that the death penalty would not be sought. On 6 December 2001, the Constitution Project issued a press release, pointing to the European nations’ extradition policies and attaching a ‘warning issued by six of the nation’s most distinguished retired Foreign Service officers’, who urged ‘careful consideration’ of all recommendations of the Constitution Project’s Death Penalty Initiative – including proper legal assistance at all stages, various critical safeguards to ensure fair trials, and bans on executing people with mental retardation and juveniles.70 Business criticism At an American Bar Association conference at the Carter Center in October 2000, General Motors’ Senior Vice President and General Counsel Thomas A. Gottschalk said he had canvassed lawyers for General Motors in several countries. They reported that the United States’ implementation of the death penalty was undercutting the United States’ ability to promote human rights around the world, 68 69 70

Felix G. Rohatyn, ‘America’s Deadly Image’, Washington Post, 20 February 2001. Ibid. Constitution Project, Press Release, ‘Six Ambassadors Urge Consideration of Death Penalty Reforms Issued by the Constitution Project’, 6 December 2001, and attached ‘Statement of Former Ambassadors on the Death Penalty in the United States’.

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and that there was considerable concern that the United States’ death penalty system was not being implemented in a fair, non-discriminatory manner.71 Increasing criticism of death penalty implementation and support for moratoriums, and Governor Ryan’s clemencies for all Illinois death row inmates As a result of the greater public awareness of inaccurate and unfair application of the death penalty in the United States, there is increasing public criticism of the capital punishment system and greater support for moratoriums. Much of the criticism comes from what were hitherto considered as unlikely sources: people who support in principle a theoretically fair death penalty but who no longer support the actual, badly flawed capital punishment system. There are also new initiatives to bring together those who – irrespective of their theoretical differences on capital punishment in principle – support a moratorium. These efforts moved forward even during the periods leading up to the June 2001 execution of Timothy McVeigh and after the 11 September 2001 terrorist attacks on the United States. Erstwhile supporters of capital punishment Illinois Governor George Ryan imposed a moratorium on executions in January 2000. This ‘proved to be a catalyst for debate over death penalty reform . . . because Ryan is a conservative Republican who has supported the death penalty’.72 Thereafter, among those who advocated a moratorium in Ohio were such ‘conservative, faith-based Republicans’ as Representative Thomas Brinkman, Jr and Representative Jim Trakas. Both said they oppose the death penalty.73 In Virginia, Delegate Frank Hargrove, a Republican who two decades earlier proposed resuming public hangings,74 and who is ‘one of the [Virginia] General Assembly’s most senior, most conservative, most reasonable and most respected members’, introduced abolition legislation. Many other ‘erstwhile death penalty advocates – among them, Virginia’s 71 72 73 74

Transcription, remarks of Thomas A. Gottschalk, at American Bar Association, ‘Call to Action: A Moratorium on Executions’, 12 October 2000. Adrienne Drell, ‘Ryan Changed National Death Penalty Debate Focus’, Chicago SunTimes, 13 March 2001. Alan Johnson, ‘Ohio Study of Execution Sought’, Columbus Dispatch, 18 June 2001, p. 1A. Craig Timberg, ‘A Death Penalty Change of Heart’, Washington Post, 28 January 2001.

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former Attorney General William Broaddus – advocated a cessation of executions and having life without parole replace the death penalty.75 Rev. Pat Robertson, long-time leader of the Christian Coalition, endorsed a moratorium in April 2000.76 In many localities around the country, resolutions supporting moratoriums have been adopted. Often, the supporters have included Republican legislators. For example, in Charlotte, North Carolina, Republican City Councillor Rod Autrey led the successful effort to pass a moratorium resolution in September 2000. He still favoured the death penalty in principle, but decided he could not support its continued, unchanged implementation in practice.77 R. Emmett Tyrell Jr, editor-in-chief of the conservative American Spectator, said ‘it is time to end capital punishment’. He stated that ‘capital punishment merely silences life. It neither dramatizes the horror of crime nor speaks out for life. Capital punishment actually adds to the increasing anger and morbidness of society.’ He added that executing someone, while it might ‘make him a transient star in our witless celebrity culture’, would leave him with ‘no chance to acknowledge his wrongs’ or to ‘atone for his wrong’ and would leave society with ‘less chance to reflect on such a man’s life of crime’.78 Prior to Timothy McVeigh’s execution, several commentators discussed having changed from supporting the death penalty to opposing it. For example, Patrick Reeder, a former Marine and conservative Republican who had always supported the death penalty and whose wife was killed in the Oklahoma City bombing, said that McVeigh’s execution would not be ‘about justice – it is about revenge. It’s blood lust. And if I don’t stand up now and say this, well, it’s just cowardice.’79 The Raleigh News & Observer ’s book review editor, J. Peder Zane, conceded in a March 2001 book review that ‘I never really thought about the death penalty until I started reading about it’. Unimpressed by moral arguments on the subject, Zane began rethinking his position after reading arguments that the death penalty is not a deterrent, that it is unfairly implemented, and that it makes no sense ‘in a fallible world’. Having been forced, through reading books like Actual Innocence, to ‘re-examine my 75 76 77 78 79

Editorial, ‘A New Voice Is Raised Against the Death Penalty’, Roanoke Times, 1 January 2001. Brooke A. Masters, ‘Pat Robertson Urges Moratorium on US Executions’, Washington Post, 8 April 2000, p. A01. Transcription, remarks of Rod Autrey, at American Bar Association, ‘Call to Action: A Moratorium on Executions’, 12 October 2000. R. Emmett Tyrell Jr, ‘Killing Time’, American Spectator, available at ‘Tyrell Archives’ at www.gilder.com/amspec/, 14 December 2000. Jeff Goodell, ‘Letting Go of McVeigh’, New York Times Magazine, 13 May 2001.

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support for the death penalty’, Zane said his ‘immersion in the subject has helped me to see that it is a deeply problematic practice that offers society no real advantages’. Indeed, after noting evidence that the public in France and the UK, although opposing abolition in advance, were not furious once it was abolished, Zane concluded: ‘if we are not willing to fight for the death penalty, why should we oppose its abolition?’80 Texas’ former death house chaplain, Carroll Pickett, started his fifteenyear tenure there as a death penalty supporter but changed his mind because of the injustices he saw, the fact that innocent people could be executed, the disproportionate application of the death penalty to people of colour and the poor, its not being a deterrent, and the fact that about ‘60 percent of death row inmates . . . are genuinely remorseful for their crimes’.81 In March 2002, murder victims’ survivors in New Jersey announced the formation of a group seeking abolition of the death penalty. One of the group’s founders said that, while she still favoured capital punishment in theory, she favoured its abolition because ‘it causes even more suffering for the families’.82 In May 2002, Maryland became the second state in which a pro-death penalty governor imposed a moratorium on executions. Governor Parris N. Glendening said there were ‘reasonable questions’ about the fairness of Maryland’s death penalty system and declared a moratorium pending the release of the Paternoster/Brame report.83 He stated that ‘[V]ery serious questions have been raised about the system, about its impartiality, particularly relative to race and especially the race of the victim’. However, notwithstanding the Paternoster/Brame report’s findings, in December 2002, of significant disparities by race of the victim and by geography, the new Maryland Governor, Robert Ehrlich Jr, ended the moratorium upon his inauguration in January 2003. Earlier in January 2003, Illinois Governor George Ryan, shortly before leaving office, granted pardons to a few death row inmates and changed the sentences of all the other Illinois death row inmates to life without parole.84 In doing so, Governor Ryan cited the Illinois legislature’s failure 80 81 82 83 84

J. Peder Zane, ‘Thinking Outside the Penalty Box’, Raleigh News & Observer, 25 March 2001. Alan Turner, ‘Witnessing Death Turns Minister into Execution Critic’, Houston Chronicle, 18 March 2002. John P. McAlpin, ‘Tired of Waiting, Families Say End Death Penalty Entirely’, Associated Press, 21 March 2002. Francis X. Clines, ‘Death Penalty Is Suspended in Maryland’, New York Times, 10 May 2002. Henry Weinstein, ‘Move Will Instensify Debate on Executions’, Los Angeles Times, 12 January 2003.

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to enact any of the recommendations made in April 2002 by a ‘blue ribbon’ study commission – including a former United States Senator, the general counsel to the Chicago Police Department, the head of the Illinois State Attorneys group, the Chicago public defender, a past president of the local bar association, and the son of a murder victim – after two years of in-depth study of Illinois’ capital punishment system.85 The commission recommended eighty-five reforms, ‘ranging from videotaping police interrogations . . . to reducing the factors that make someone eligible for the death penalty to 5 from 20’.86 The commission advocated barring capital punishment when the conviction is based on a single witness, a jailhouse ‘snitch’ or an uncorroborated ‘accomplice’.87 Editorial and op-ed comment on Governor Ryan’s dramatic action was largely favourable. Increasing efforts to formulate broad-based, informed coalitions There are many reasons why people change their opinions about the death penalty. Sometimes, a personal experience affects someone’s moral views on the death penalty. Often, like book reviewer J. Peder Zane, people who have not previously thought much about the subject change their minds after getting more information about it. Frequently, those opposing the death penalty are not sufficiently educated about capital punishment’s implementation to enable them to answer tough questions by people who are sceptical but who might change their minds. In the last few years, beginning with the ABA’s February 1997 call for a moratorium on executions, efforts have begun to enable people with open minds to gain access to information they might find eyeopening. These efforts involve interactions between people who have not been accustomed to working closely together. These include linkages between activists who work against the death penalty or in favour of moratoriums and lawyers for death row inmates; linkages between lawyers for death row inmates and ‘establishment’ bar associations; linkages between lawyers for death row inmates, activists working on the issue, and those in the religious community who oppose the death penalty or favour a moratorium; and linkages between the media and all of the above. Suspicions between many of those who are now establishing linkages have been long-standing. For example, some lawyers representing death 85

86

Steve Mills and Christi Parsons, ‘Ryan’s Panel Urges Fixes in Death Penalty’, Chicago Tribune, 15 April 2002. The commission’s report can be found at www.idoc.state.il.us/ ccp/ccp/reports/commission report/index.html. 87 Ibid. Ibid.

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row inmates have felt that activists, although well meaning, have undercut their efforts and that the media has pandered to public outrage by demonising their clients. Many activists feel that death row lawyers have been patronising to them. Many members of the press believe that advocates for death row inmates have either overstated their cases or failed to give them useful information in a timely manner. And many in the religious community have been inactive on this subject either because no one has asked them to do anything or because they feel insufficiently informed to be able to answer their congregants’ most likely questions. Progress is being made in overcoming these problems. Several initiatives have involved the American Bar Association, whose Section of Individual Rights and Responsibilities in 2001 published protocols for the evaluation of death penalty fairness.88 A lawyer based at the Section is now working full-time on moratorium implementation efforts. Numerous other groups, many of which – unlike the ABA – favour abolition, are engaging in increasingly intensive pro-moratorium efforts. Pro-moratorium efforts in various locales include people of various political beliefs and people whose moral positions on capital punishment differ. Finally, there are a growing number of efforts involving religious groups and clergy. This is a welcome change from decades in which many antideath penalty religious organisations and clergy failed to inform their own members about their opposition to capital punishment. An example of a new approach is the ‘Shabbaton’ on the death penalty at Manhattan’s Central Synagogue in March 2001, which included: a Talmudic scholar’s perspectives on frequently quoted Biblical passages bearing on capital punishment; a sermon by a Protestant minister; discussion of why the Reform and Conservative Jewish movements in the United States oppose the death penalty; Professor Barry Scheck’s insights on how innocent people can end up on death row, and executed, in the United States; and Sister Helen Prejean’s account of her ‘journey’ from nearly complete ignorance about the actual workings of the death penalty in the United States to detailed knowledge of its numerous problems, which has led her to become an outspoken advocate for a moratorium leading to eventual abolition.89 88

89

American Bar Association, Section of Individual Rights and Responsibilities, ‘Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States’ (2001) 63 Ohio State Law Journal 487 . See ‘Symposium: The Death Penalty, Religion, and the Law: Is Our Legal System’s Implementation of Capital Punishment Consistent with Judaism or Christianity?’ (2002) 4 Rutgers Journal of Law and Religion 1, available at: http://wwwcamlaw.rutgers.edu/publications/law-religion/.

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Conclusion There is today a greater fluidity in public discourse over capital punishment in the United States than most would have believed possible not long ago. Indeed, there was previously relatively little real discourse on this subject. Public and press interest in the actual workings, and failings, of the death penalty system is now at a high level. What the ultimate result of all this activity will be cannot now be divined. So many politicians, particularly Democrats, are still worried about being labelled ‘weak on crime’, while so many other politicians are eager to portray their opponents as ‘weak on crime’ that it is too soon to tell if a sufficiently large critical mass of public officials willing to endorse a moratorium or abolition will emerge. What does seem clear is that the momentum has shifted in favour of those who are critical of the manner in which the death penalty has been implemented, and that far more information about major problems with its implementation is being published. In short, it has become politically possible for more public officials to learn what Governor Ryan learned and to act on that information.

10

The experience of Lithuania’s journey to abolition Aleksandras Dobryninas

Introduction On the eve of the tenth anniversary of the re-establishment of the independent Lithuanian state, the popular magazine Veidas published the results of opinion polls about public attitudes to the Soviet past. Respondents from five main Lithuanian cities were asked about possible associations with the Soviet Union, and the majority of them (52 per cent) pointed to violations of human rights. This not only perfectly describes Lithuanians’ attitude to the authoritarian past, but also indirectly shows that among the population the human rights issue after ten years of independence is firmly associated with democratic progress in society. Lithuania, together with many of its neighbours from Central and Eastern Europe, belongs to the so-called post-communist part of the world; together these countries face the challenges which characterise the transition from an authoritarian regime to democracy. On the road to an open and civil society, Lithuania, as with many other Central and Eastern Europe countries, has had to solve a paradoxical problem: how to implement Western democratic ideas in a society that experienced the adverse impact of the previous anti-democratic institutional structures. At first, stimulated by optimism, there were many illusions about the prospects for a liberal and humanistic future for the country. However, this optimism quickly came up against social and political realities. Ackermann, who in 1992 noted the receptiveness of Eastern Europeans to liberal democratic ideas, wrote that ‘it is one thing . . . to affirm the enduring significance of freedom and the rule of law’, but ‘quite another to translate these values into enduring political structures’.1 These remarks can be applied to various aspects of recent developments in Lithuania, but probably all the more so to the field of criminal justice – an extremely important concern to every society, and one which – in the case of Lithuania – still needs serious reform. The criminal justice 1

B. Ackerman. The Future of Liberal Revolution (New Haven, CT, and London: Yale University Press, 1992), pp. 67–8.

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system not only defends citizens against criminals, but also – through its basic concepts of crime and punishment – indirectly provides us with the fundamental principles of social control over society. In modern history, one can find many examples of how, on the one hand, various political reforms influenced the development of the criminal justice system, and, on the other hand, how basic concepts and models of criminal justice supported both democratic and authoritarian processes in society.2 Western intellectuals long ago asserted that societies could be understood and evaluated through observation of their systems of punishment. From this point of view, the period of Soviet occupation in Lithuania (1940–90) may be associated not only with the violation of human rights, but also with draconian penal policies, which had to legitimise Soviet antidemocratic attitudes to human life, freedom and dignity. It is therefore no surprise that in Soviet times capital punishment was without question the mode of punishment and that, for example, in the Criminal Code of the former Lithuanian Soviet Socialistic Republic there were sixteen provisions which provided for the death penalty. In accordance with these provisions, defendants could be executed not only for committing murder, but also for political and economic crimes. The attitude to the death penalty in Lithuanian society became a test of the maturity of its democratic outlook and of its citizen’s willingness to rid itself of its former totalitarian and inhumane system. The problem of the death penalty in Lithuania after the re-establishment of independence After the re-establishment of independence in 1990, the Lithuanian Government initiated democratic and liberal reforms not only in the areas of politics and economics, but also in the criminal justice system, including a reconsideration of the purpose of punishment and the very sensitive issue of the death penalty. The first positive indications of the government’s abolitionist policy could be seen by the end of 1991, when the number of provisions in the Criminal Code providing for the death penalty had been reduced to one, premeditated murder. The first criminal to be executed in independent Lithuania was executed in 1992, and, since 1996, no executions have been carried out. Table 10.1 shows the trend of capital executions during the first six years of independence. Table 10.2 provides statistics regarding homicides during the same period. 2

See L. Radzinowicz, Ideology and Crime: A Study of Crime in its Social and Historical Context (London: Heinemann Educational Books, 1966); P. H. Solomon Jr, ‘Local Political Power and Soviet Criminal Justice, 1922–41’ (1985) 37 Soviet Studies 305–29.

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Table 10.1 Number of executed criminals in Lithuania since re-establishment of independence

Executed criminals

1990

1991

1992

1993

1994

1995

0

0

1

3

1

2

Table 10.2 Number of murders between 1990 and 1995

Premeditated murders Percentage of all crimes

1990

1991

1992

1993

1994

1995

224 0.6

260 0.6

303 0.5

480 0.8

523 0.9

502 0.8

Comparing these two tables, it is evident that there is no correlation between the numbers of executions and the numbers of homicides committed. Moreover, although no one has been executed since 1996, the number of premeditated murders has decreased. In other words, in Lithuania, as in others countries, the death penalty does not play a deterrent role in criminal justice policy. At the same time, it became obvious – especially in the case of the last execution in 19953 – that the death penalty could so easily be used to gain populist political support, rather than as an effective tool in restorative or preventive justice. Of course, these circumstances inevitably provoked public debate about the need for the death penalty in Lithuania. However, a much greater impact on this issue arose from Lithuania’s international obligations, which Lithuania had undertaken in order to intensify the process of integration into the European political structure. Lithuania became a full member of the Council of Europe and thus was involved in the European debate concerning the abolition of the death penalty. In 1996, the Parliamentary Assembly of the Council of Europe urged Lithuania and certain other Eastern European countries to suspend executions.4 As a reaction to this recommendation, in 1996 the President of Lithuania sent to the Lithuanian Parliament (Seimas) the draft of a law to suspend the death penalty. Unfortunately, due to various political reasons, this draft was never discussed in Parliament. In 1997, Lithuania, together with Latvia and Estonia, during a regular session of the Baltic Assembly, accepted a ‘Resolution on the Abolition of 3 4

The case of B. Dekanidze, who was accused in 1994 of organising the murder of a famous Lithuanian journalist, V. Lingys. Resolution 1097 (1996) on the Abolition of Death Penalty in Europe, Council of Europe, Parliamentary Assembly, 1996 Session.

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the Death Penalty’ which contained a recommendation to their governments to sign Protocol No. 6 to the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms, which commits the parties thereto to abolish the death penalty in peacetime. The resolution expressed the importance of the human rights issue and recommended the parliaments and governments of the three Baltic states to prepare for the ratification of the Protocol as an important step towards full integration into European and international political structures. At the same time, the authors of the resolution emphasised three conditions for abolishing the death penalty in all Baltic states: a decline in the crime rate; implementation of life imprisonment to replace capital punishment; and prison reform. Two months later, in the Lithuanian Seimas, a draft of the Seimas’ ‘Resolution on the Abolishment of Death Penalty’ was prepared. This document was written in the light of the Baltic Assembly’s resolution, and called for the suspension of the enforcement of the death penalty in Lithuania until the Lithuanian Government signed Protocol No. 6. The Lithuanian Seimas, during its session on 24 June 1997, decided, by thirtyeight votes to twelve, with twelve abstentions, to debate this Resolution, but in the event the debate was postponed until 1998, after a group of parliamentarians decided to send a request to the Constitutional Court questioning the legality of the death penalty. These political manoeuvrings demonstrate that, despite the obvious political pressure from the European Community, Lithuanian politicians hesitated to abolish the death penalty de jure, merely promising to do so in the near future. Of course, many of them were influenced by popular retentionist arguments, which insisted that the death penalty had to be kept as an invaluable weapon in the fight against crime. However, it seemed that the strength of public opinion was much more influential, which, as regular sociological research showed, was firmly in favour of the death penalty. Lithuanian politicians were more sensitive to the vox populi (which in a democratic society could not be neglected) than to theoretical or ideological arguments for or against the death penalty. Such political sensitivity to public opinion was clearly evident during the last presidential election in Lithuania, when the two main candidates both publicly supported the existing the death penalty. Both pointed to the dramatic crime situation in society, and advocated the death penalty as a temporary, but inevitable, measure still needed in order to protect society. Interestingly, the newly elected President later changed his mind on this issue, initiating and supporting the process for the abolition of the death penalty in Lithuania.

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Lithuania was not exceptional in this respect: other countries of Central and Eastern Europe provide us with strikingly similar examples. In 1995, the Government of the Slovak Republic informed the Council of Europe of its intention to restore the death penalty due to the serious crime situation in the country; thankfully, these attempts to restore capital punishment were unsuccessful. In 1998, the Latvian Parliament voted to retain the death penalty in the Criminal Code, but one year later the Latvian Parliament abolished the death penalty. In all these cases, politicians had to address difficult dilemmas: they had to choose either the rhetoric of the retentionist which was in line with the majority of their potential voters, or to support abolition in line with the state’s national interests in strategically important international policy. Of course, in this context, knowledge that there was massive (70–80 per cent) popular support for the death penalty did not make the Lithuanian politicians’ decision any easier. On the other hand, both public and politicians had little knowledge about death penalty research, and therefore it was especially important that any abolitionist policy not only had to be sensitive to international human rights standards but also had to try to raise public understanding and awareness about capital punishment. In order to strengthen the abolitionist position in society, in 1996–99 various Lithuanian human rights organisations initiated several projects which, by using a variety of methods, set out to show that the death penalty was inhumane, inefficient and unjust and had no place in a contemporary criminal justice system. One of these projects, entitled ‘The Death Penalty in Lithuania: From Retentionist Public Support to Abolitionist Well-Informed Opinion’, was initiated by the Lithuanian Centre for Human Rights, and was run during 1997–9 with financial support from the Council of Europe. The next section will outline the significant data from the polls that were conducted on the death penalty, describe the rationale for the surveys, and discuss the results and the conclusions concerning abolitionist strategies that were drawn from the research in question. Opinion polls on the death penalty The decision to retain the death penalty or to abolish it is in the hands of political elites, whose role in democratic societies is to transform emotive public images and expectations into rational debate. Because of this, political decisions always have to find the balance between popular opinion and objective analysis. In the case of capital punishment, while current criminological research tends to demonstrate that the execution of criminals is an ineffective, arbitrary, unjust, amoral and brutal means of combating

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crime,5 the public (including some politicians) believe that only cruel penal policies can protect society from violence and crime. This belief has especially strong support in so-called post-communist countries, where economic, political and social transformations are challenged by dramatic crime growth. Politicians, who want to abolish the death penalty, are confronted with an unpleasant dilemma: either to follow European standards and lose local popularity, or to ignore basic human rights and win popular political support by playing on popular prejudices concerning crime and capital punishment. In Lithuania, the first national survey concerning capital punishment was conducted in 1990,6 and showed that 27 per cent of respondents were against capital punishment. Since then, the percentage of abolitionists has significantly reduced. For example, according to a poll carried out by VILMOR7 in 1997, only 18.3 per cent of respondents favoured abolition. It is of interest to note that while the number of murders committed in Lithuania rose from 224 in 1990 to 402 in 1996, an increase by a factor of 1.8, the numbers of those supporting abolition fell by a factor of 1.5. At first sight these polls were not very encouraging for Lithuanian abolitionists, and the call for the abolition of the death penalty was extremely weak and looked to be getting weaker. However, there were at least two reasons to question such conclusions. First, some critical analysis should be made of significance of public opinion. The nature of public opinion may be explained in terms of the teachings of Alfred Schutz about the different levels of social knowledge. According to his theory, ordinary men and women (‘people from the street’) communicate ‘knowledge of recipes indicating how to bring forth in typical situation typical results by typical means’.8 This type of knowledge differs from the knowledge of experts and well-informed citizens. Simplified and stereotyped information is taken for granted, and can be challenged only if the individual is faced with problems, which are incompatible with typical schemes of the recognition of the social world and which bring about a re-examination of his or her knowledge. The second observation is closely related to the first and is concerned with the methodology of opinion polls about the death penalty. Roger 5 6 7 8

H. A. Bedau (ed.), The Death Penalty in America (Oxford: Oxford University Press, 1982), p. 342. V. Gaidys and D. Tureikyte (ed.), Nuomones: 1989–1994 (Vilnius: Filosofijos, sociologijos ir teises institutas. Vieˇsosios nuomones tyrimu centras, 1994) p. 61. The national survey was conducted on 7–11 February 1997. A. Schutz, ‘The Well-Informed Citizen’ in A. Schutz, Collected Papers, vol. 2, Studies in Social Theory (The Hague: Martinus Nijhoff, 1976), p. 122.

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Hood described this problem in the following words: ‘Many countries also cite “public opinion” as one of the major reasons for retaining the death penalty. However, a number have abolished it and consistently resisted attempts to reinstate it, despite popular support for capital punishment. There is a need to distinguish such popular support from well-informed opinion. Public opinion polls can prove to be a misleading indicator.’9 Unfortunately, not only can opinion polls in themselves be ‘a misleading indicator’ but also the context and the results of such polls could be misleadingly interpreted. When people are simply asked if they are for or against the death penalty, few respondents will understand the whole complex, legal, moral, social and political issues that are connected with this question. Because of this, one is faced rather with the expression of people’s emotional reaction than with considered and thoughtful opinions. Such opinion polls do not require people to think, but only to react quickly. Of course, there is a group of people, elites, or, in our terms, experts and well-informed citizens, who by their social status are able to give more professionally considered answers to such questions. However, until 1997, these circumstances had not been carefully considered when preparing questionnaires on public attitudes to the death penalty. These remarks do not imply that previous opinion polls had no significance or were badly designed or analysed, but rather the above-mentioned criticisms show that surveys about the death penalty should be more carefully prepared in order to escape superficial and misleading interpretation. Description of the survey As mentioned earlier, analysis of public opinion on the death penalty in Lithuania was based on two surveys conducted by the opinion pollsters Baltic Surveys (Baltijos Tyrimai). Both surveys were based on the same questionnaire consisting of ten questions that may be roughly divided into five groups: 1. Questions about a general evaluation of the death penalty: r respondents’ attitudes to the death penalty (A110 ); and r The main functions of the death penalty (A4). 2. Questions oriented to legal aspects of the death penalty: r institutions that have a say in the abolition of the death penalty in Lithuania (A2); and 9 10

R. Hood, The Death Penalty: A Worldwide Perspective (Oxford: Clarendon Press, 1989), p. 167. The number of the question shows the order in which they were asked.

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r the types of crime that should to be punished by the death penalty (A3). 3. Questions about humanitarian aspects of the death penalty: r public execution of criminals (A5); and r capital punishment for juveniles and women (A9). 4. Questions about possible changes in penal policy concerning the death penalty: r support for the death penalty if the respondent believes that society has sufficient means for the re-socialisation of criminals (A7); and r support for the death penalty if the respondent believes that criminals can be sufficiently isolated from society and are able to compensate for the damage done (A8). 5. Questions about international aspects of the death penalty: r support for the death penalty if all of Lithuanian’s neighbours decide to abolish the death penalty (A6); and r abolishing the death penalty and facilitating Lithuania’s integration into EC (A10). It is clear that these questions did not directly ask respondents if they were in favour of or opposed to the death penalty. They were ‘conditional’ questions that helped to evaluate respondents’ legal, political and moral attitudes to the problem of capital punishment. In other words, the questions were a little ‘provocative’ and required some deliberation and understanding of the issues. The first survey was carried out in March 1997. The sample size was 1009, the age range was 15–74, and the national sample was 100 PSU (Primary Sample Unit). The second survey, in May 1997, was aimed at Lithuania’s elite, with a sample size of 300. This survey covered representatives of the Seimas (Parliament) and political parties, heads of State Departments, lawyers, businessmen, etc. The idea behind these two surveys was not only to analyse the general public’s and the elite’s reactions to various aspects of the death penalty in Lithuania, but, by comparison of the two sets of results, indirectly to evaluate the role of the elite as a social group that could convey informed public impressions about the death penalty to the decision-makers. Analysis of the results The analysis of the results was done in accordance with above-mentioned groups of questions. First group (A1, A4) At first, sight, one could conclude that only 10 per cent of the public and 14 per cent of the elite were against the death

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70.0%

60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0%

Has to be abolished immediately

To abolish, if crime situation becomes better

Death penalty cannot be abolished

No opinion

Elite

14.0%

66.0%

20.0%

0.3%

Public

10.1%

32.4%

57.3%

0.2%

Figure 10.1 Attitudes to the death penalty (A1)

60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0% Elite Public

No function

Recompense

Deterrence

Isolation

Other

No opinion

2.7%

11.0%

23.0%

55.0%

1.3%

19.0%

23.7%

17.0%

57.2%

0.6%

1.5%

Figure 10.2 Function of the death penalty (A4)

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Aleksandras Dobryninas

70.0%

60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0%

Representatives of governmental institutions

Representatives of judicial institutions

Referendum

Church

Elite

29.0%

7.3%

62.0%

1.0%

Public

20.8%

13.9%

60.0%

2.4%

No opinion

2.8%

Figure 10.3 Institutions that should determine the abolition of the death penalty (A2)

penalty and that the remainder of the respondents were supporters of capital punishment. However, these results expressed rather direct and unconditional opinions about the death penalty among Lithuanians. It was noticeable that among supporters of the death penalty only 57 per cent of the general public and 20 per cent of the elite believed the death penalty to be an inevitable and natural solution to protect society against dangerous offenders. At the same time, 32 per cent of the general public and 66 per cent of the elite were of the view that the death penalty was only a temporary measure that could be abolished when the crime situation had improved. Although there were obvious differences between the public and the elite’s reactions to the death penalty, the latter more clearly favouring abolition, both groups of respondents emphasised the incapacitating function of the death penalty – 57.2 per cent of the general public and 55 per cent of the elite. The two groups differed also in their choice of the next most relevent purpose (after incapacitation) of the death penalty: the elite (23 per cent) focused on the function of deterrence, while the general public (23.7 per cent) emphasised the function of recompense.

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100.0% 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0% Homicide

Rape

Distribution Economic

Assault of narcotics

crime

Parricide Genocide Terrorism Androlepsy No opinion

Other

Elite

86.0%

18.0%

3.0%

13.0%

6.0%

26.0%

54.0%

57.0%

27.0%

11.0%

0.3%

Public

94.6%

35.2%

16.4%

17.1%

12.7%

24.4%

31.9%

38.0%

19.3%

3.0%

0.8%

Figure 10.4 Types of crime that should be punished by the death penalty (A3)

Second group (A2, A3) This group of questions showed that both sets of respondents believed the issue of the death penalty to be of such importance as to require resolution by a national referendum (60 per cent for general public and 62 per cent for the elite). They were equally sceptical about the possibility of resolving this issue by governmental and judicial institutions, or by the church. On the other hand, an absolute majority of respondents (general public 94.6 per cent and the elite 86 per cent) believed that the death penalty should be applied in the case of homicide. Interestingly, the majority of the elite considered the possibility of introducing capital punishment for state crimes such as genocide (54 per cent) and terrorism (57 per cent); for the general public, the two most serious crimes after homicide were rape (35.2 per cent) and terrorism (38 per cent). Third group (A5, A9) This group of questions demonstrated that although the majority of respondents in both groups were against public executions and capital punishment for juveniles and women, there was a difference between the general public’s and the elite’s attitudes to these issues: 40.3 per cent and 43.3 per cent of the general public were

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60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0%

Completely agree

Rather agree

Rather disagree

Completely disagree

No opinion

Elite

5.0%

9.3%

22.0%

58.0%

5.0%

Public

20.7%

19.6%

20.1%

36.7%

3.0%

Figure 10.5 Public execution of criminals (A5)

in favour of public executions and the death penalty for juveniles and women, compared to the elite, where the corresponding figures were 14.3 per cent and 26.3 per cent. Fourth group (A7, A8) These responses demonstrate that if the respondents had faith in the effectiveness of the criminal justice agencies then 50.5 per cent of the general public and 67 per cent of the elite would support the abolition of the death penalty. If such conditions prevailed, then only 13.5 per cent of the general public and 4.3 per cent of the elite would strongly support capital punishment. Similarly, respondents supported the abolition of the death penalty if they could be assured that offenders would be securely isolated from society – 44.5 per cent of the general public and 59 per cent of the elite. Again, only 16.4 per cent of the general public and 5.3 per cent of the elite would strongly favour retaining the death penalty. It is interesting to compare these findings with the first group of questions, where the percentage support for the death penalty was much higher. Fifth group (A6, A10) As with previous groups, questions about the death penalty in this group were conditional. However, compared with such issues as incapacitation, secure custody and re-socialisation,

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40.0%

35.0%

30.0%

25.0%

20.0%

15.0%

10.0%

5.0%

0.0%

Completely agree

Rather agree

Rather disagree

Completely disagree

No opinion

Elite

3.3%

23.0%

27.0%

38.0%

9.0%

Public

16.5%

27.8%

25.8%

23.5%

6.4%

Figure 10.6 Capital punishment for juveniles and women (A9)

40.0%

35.0%

30.0%

25.0%

20.0%

15.0%

10.0%

5.0%

0.0%

Completely agree

Rather agree

Rather disagree

Completely disagree

No opinion

Elite

4.3%

21.0%

29.0%

38.0%

7.7%

Public

13.5%

29.0%

30.5%

20.0%

7.0%

Figure 10.7 Support for the death penalty if respondent believes that society has sufficient means for re-socialisation of criminals (A7)

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35.0%

30.0%

25.0%

20.0%

15.0%

10.0%

5.0%

0.0%

Completely agree

Rather agree

Rather disagree

Completely disagree

No opinion

Elite

5.3%

29.0%

26.0%

33.0%

7.0%

Public

16.4%

31.8%

28.3%

16.2%

7.3%

Figure 10.8 Support for the death penalty if respondent believes that criminals can be sufficiently isolated (A8)

the importance of international factors on the decision to abolish the death penalty was not so strong. Only 24.8 per cent of the general public and 52 per cent of the elite supported abolition if Lithuania’s neighbours – Poland, Russia, Latvia and Belarus – abolished the death penalty; 28 per cent of the general public and 49 per cent of the elite would agree to abolish the death penalty to facilitate integration into the European Union. It seems clear that international prestige was a more important factor for the elite than for the general public. Once again, these results significantly differed from those in Group 1. The survey showed that, potentially, there were many more abolitionists in Lithuania than had been identified by traditional public opinion polls, which had been based on simple and unconditional questions for or against the death penalty. Concretely, the majority of respondents supported abolition if the state institutions were able to isolate or rehabilitate dangerous criminals. The research also showed that the Lithuanian elite occupied a more abolitionist position than the general public and were more sensitive to the international aspects of the abolition of the death penalty. At the same time, it became clearer that the elite could play a more active role in the process of the abolition of the death penalty, without being afraid (in the case of the politicians) that support for such a policy would significantly reduce their popularity among voters.

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45.0%

40.0%

35.0%

30.0%

25.0%

20.0%

15.0%

10.0%

5.0%

0.0%

Completely agree

Rather agree

Rather disagree

Completely disagree

No opinion

Elite

9.0%

32.0%

28.0%

24.0%

7.0%

Public

27.5%

40.7%

15.7%

9.1%

7.0%

Figure 10.9 Support for the death penalty if all Lithuania’s neighbours decide to abolish it (A6)

70.0%

60.0%

50.0%

40.0%

30.0%

20.0%

10.0%

0.0%

To abolish death penalty and to facilitate the integration into the EC

To retain death penalty and to burden the integration into the EC

No opinion

Elite

49.0%

44.0%

7.7%

Public

28.8%

65.7%

5.5%

Figure 10.10 The death penalty and Lithuania’s integration into the EU (A10)

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These findings and conclusions were widely disseminated throughout Lithuanian society and discussed among academics, politicians, lawyers and other ‘well-informed citizens’. The research demonstrated to the political and cultural elite that Lithuania had a good chance to abolish the death penalty, and that popular appeal to harsh public opinion should not hinder the abolitionist process. In other words, the results of the research demonstrated that support for the death penalty could be significantly reduced by improving crime-fighting and initiating effective abolitionist information strategies. Raising public awareness of death penalty issues The next logical step in the abolition process concerns the educational aspects of abolitionist policy. From the sociological point of view, the respective roles of the elite and the general public in the educational process are not equally balanced: the elite plays a leading role in forming ideas and stereotypes for the rest of society. Other findings from the research showed that different sub-groups of the elite had different attitudes to the death penalty. Table 10.3 shows that 17.2 per cent of lawyers who responded favoured abolition; 55.2 per cent of them considered that the death penalty was only a temporary measure which could be abolished when the crime situation improves, and 24.1 per cent were in favour of retention. For Lithuanian parliamentarians, the respective percentages were as follows: 18.4 per cent, 73.8 per cent and 7.8 per cent; for senior officers of Lithuanian ministries and heads of departments: 21.9 per cent, 62.5 per cent and 15.6 per cent. It was clear that the lawyers expressed more retentionist and repressive attitudes to the death penalty than the political elite.11 Of course, such an attitude by the legal elite to the problem of the death penalty has created obstacles for abolitionist policy in Lithuania. If a majority of lawyers were for the death penalty, it was difficult to expect that they could positively influence the general public concerning the abolition of the death penalty. In other words, the legal elite and legal practitioners in general had to be a priority for the educational strategy. The second stage of the project combined elements of educational and research activities. Fifteen target groups were selected for seminar discussions on the problem of the death penalty that took place in March–June 11

It is interesting to note that, even at the end of 1998 (when the decision on the abolition of the death penalty had to be accepted) the Chair of the Lithuanian Supreme Court and the General Prosecutor expressed their support for the death penalty, and asserted that the serious crime situation did not permit the abolition of the death penalty at least de jure.

Death penalty should be abolished Death penalty is temporary measure Death penalty cannot be abolished No opinion

6.7

70.0

23.3

73.8

7.8

Intellectuals (%)

18.4

Members of Parliament (%)

15.6

62.5

21.9

Higher officers of ministries and departments (%)

Table 10.3 The attitudes of the elite to the death penalty

3.4

24.1

55.2

17.2

Lawyers (%)

20.0

70.0

10.0

Heads of state enterprises and banks (%)

40.0

56.7

3.3

Heads of private firms and banks (%)

47.4

42.1

10.5

Leaders of political parties and NGOs (%)

22.2

70.4

7.4

Heads of local governments (%)

0.3

20.0

66.0

13.7

Average (%)

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1998. The majority, thirteen groups, were comprised of representatives of the Lithuanian criminal justice system: police officers, investigators, prosecutors, judges, officers from the Ministry of the Interior, etc. Two groups consisted of university lecturers, teachers and students. Each group consisted of fifteen to twenty participants. During the seminar, each group was informed about the historical and legal aspects of the death penalty in Lithuania, and this was followed by discussion of the moral, political and social aspects of capital punishment, its functions, and its effectiveness in the context of current crime-fighting and crime prevention policies. Special attention was paid to the international aspects of abolitionist policy. Participants could freely discuss all these issues irrespective of their position for or against the death penalty. In order to measure the change in participants’ opinions, participants were asked to complete two questionnaires similar in structure to the questionnaire of the previous survey in 1997, which covered the legal and moral aspects of the death penalty, possible change in penal policy concerning capital punishment, and international aspects of the death penalty. Participants completed the first questionnaire at the beginning of the seminar and the second at the conclusion. Analysis of respondents’ answers to these questionnaires was conducted to establish whether exposure to the information sessions and the subsequent discussions had influenced the respondents’ opinions regarding the death penalty. There were eight professional groups (officers from the criminal police, police commissars, investigators, officers from the Department of Migration and the Department of Juvenile Affairs, prosecutors, officers from the Department of Police, teachers and students in education) selected for this comparative analysis. The results showed that seminars helped to clarify the position of 15 per cent of those participants who previously had no clear-cut opinion about the death penalty. Among men, one could observe a small increase in support for the death penalty, while there was a larger increase of support for abolition among women. The same differentiation could be observed in age groups: respondents below age thirty-five years changed their position to one of abolition while respondents aged thirty-five years and over changed their position in favour of the death penalty. Also, it was interesting to note that respondents with a higher educational level had a more stable opinion about the death penalty than other groups. There was a noticeable shift towards abolition by officers of the Department of Juvenile Affairs and the Department of Police, prosecutors, teachers and students. Nevertheless, despite high expectation, evaluation of the effect of the seminars showed little obvious change in participants’ orientation towards abolition. This could be explained in part by the traditional view

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in Lithuanian society that the criminal justice system was a crime-fighting institution. The ideology of a ‘war against crime’ with clear Soviet origins is not compatible with the alternative democratic vision of the criminal justice system as an institution that should protect basic human rights. Probably, not only does the criminal justice system in Lithuania need serious reform but the democratic and liberal principles in legal education also have to be strengthened. Seminars and research results also showed that participants, who occupied many influential positions in society, were not very well informed about the death penalty. The majority of them pointed to the mass media as the main source of their information, feeling that the professionally prepared information was not sufficient for them and that they needed academic courses and other abolitionist materials in the Lithuanian language. On the other hand, one could assert that this professional group was open to abolitionist arguments, and potentially could become a well-informed group. As in the case of the 1997 survey, of much more interest than the respondents’ answers to direct questions concerning support for or opposition to the death penalty were their answers to the conditional questions, by which one can indirectly evaluate various aspects of the respondents’ reactions to the problems of the death penalty in society. From this point of view, one could argue that the participants in the seminars began to better understand the notion that the state should not have the right to kill its citizens and that the death penalty could be abolished, if offenders were securely imprisoned, and that the death penalty contradicted Lithuanian aspirations to enter the EU.12 Concluding comments These results, as well as other abolitionist initiatives, were widely discussed in Lithuania and presented at international and national conferences and in academic courses and seminars, and were reported by Lithuanian and foreign mass media. Of course, it is difficult to evaluate how these initiatives influenced the attitudes of the political and legal elites to the death penalty, but at the beginning of 1998 a group of Lithuanian parliamentarians initiated a hearing in the Constitutional Court on the question of the compatibility of the death penalty with the Lithuanian Constitution. On 9 December 1998, the Constitutional Court accepted a resolution which asserted that the practice of the death penalty contradicted three 12

For detailed analysis of the first and second stage of the project in question, see A. Dobryninas and S. Katuoka, Mirties bausme Lietuvoje: teisiniai ir sociologiniai aspektai (Vilnius: LZTC, 1999), pp. 73–111.

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Articles of the Constitution. This decision of the Constitutional Court was based not only on legal reasoning, but also on experts’ evaluation and research findings concerning the legal, political and sociological aspects of the death penalty in Lithuania. The analysis of public attitudes to the death penalty in contemporary Lithuania referred to above was included in the Court’s considerations. On the basis of this decision, the Lithuanian Parliament shortly thereafter accepted amendments to the Criminal Code, thereby replacing the death penalty with life imprisonment. The very next month, Lithuania signed Protocol No. 6 to the European Convention on Human Rights, and on 22 June 1999 the Lithuanian Parliament ratified the Protocol. By this act, Lithuania fulfilled European Union requirements for the abolition of the death penalty. Although today in Lithuania the death penalty has been abolished de jure, nevertheless it would be a mistake to abandon continued public education on death penalty matters. Recent opinion polls show that there were still 60 per cent in support of the death penalty13 among the general population, and one must not forget that the death penalty is a very attractive issue for politicians oriented to populist rhetoric.14 In view of this, Lithuanian governmental and non-governmental institutions need to continue to develop educational strategies in support of abolitionist policy, and pay closer attention to the process of democratisation of the criminal justice system, thus reducing the repressive mentality within society and strengthening humane aspects of crime-fighting and crime prevention policies. 13 14

Baltijos tyrimai, Vilnius, 2000. From time to time, one can hear the populist appeal of politicians to restore the death penalty in Lithuania for specific crimes (terrorism, drug selling, homicides, etc.).

11

The death penalty in South Korea and Japan: ‘Asian values’ and the debate about capital punishment? Byung-Sun Cho∗ Introduction

On 3 April 1997, the UN Commission on Human Rights approved Resolution 1997/12, (‘Question of the Death Penalty’), presented by Italy with forty-five other countries co-sponsoring: the resolution was passed with twenty-seven votes in favour, eleven against and fourteen abstentions.1 It is not surprising that the issue of the death penalty should be addressed by retentionist countries in a relativist mode, and it is significant to note that the two groups, that is Asian and Islamic countries, that held the forefront, especially at the 53rd session of the Commission, in the battle against the Italian resolution, are the most vocal and most articulate in developing the theme of relativism in all matters pertaining to human rights. Countries in the Far East, South Korea, North Korea, China and Japan, are probably the most articulate and the earliest proponents of the relativist approach. All these countries included in their arguments the complaint that the resolution proposed by Italy constituted an inadmissible attempt, on a matter as delicate as that of capital punishment, to impose views that were culturally specific and did not show sufficient respect for other traditions, and which were also – particularly as far as the Islamic countries were concerned – of a religious nature. ∗

1

This is an updated version of a paper which was originally presented at the international conference ‘Sistemi politici e pena di morte’ of 27–28 October 2000 in Palermo. I would like to thank Peter Hodgkinson for his criticism and encouragement at this conference. Amnesty International, News Service 58/97 (AI Index: IOR 41.06/97). In favour: Angola, Argentina, Austria, Belarus, Brazil, Bulgaria, Canada, Cape Verde, Chile, Colombia, the Czech Republic, Denmark, the Dominican Republic, Ecuador, France, Germany, Ireland, Italy, Mexico, Mozambique, Nepal, the Netherlands, Nicaragua, the Russian Federation, South Africa, Ukraine and Uruguay. Against: Algeria, Bangladesh, Bhutan, China, Egypt, Indonesia, Japan, Malaysia, Pakistan, the Republic of Korea (South Korea) and the United States. Abstaining: Benin, Cuba, El Salvador, Ethiopia, Gabon, Guinea, India, Madagascar, the Philippines, Sri Lanka, Uganda, the United Kingdom, Zaire and Zimbabwe.

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As far as the issue of capital punishment is concerned, a major component of ‘Asian values’ is Confucianism, which is characterised by justice and retribution.2 South Korea: from retentionist to de facto abolitionist? The supreme penalty under Korean law is death by hanging.3 It is irrevocable: it ends the existence of those punished, rather than temporarily imprisoning them. Furthermore, although not intended to inflict physical pain, execution is the only corporal punishment still applied to adults. Though the scope of crimes subject to the death penalty was much restricted in the Revision of Penal Code of 1995, under the present South Korean Penal Code, the death sentence may be imposed for fifteen offences. The Military Penal Code4 has forty-six crimes for which the death penalty can be imposed. In sum, ninety offences in nineteen laws are still punishable by the death penalty, but in practice it is applied to just five or six crimes. I believe that, in order to avoid the risk of political abuse, crimes attracting the death penalty in the National Security Law should be eliminated irrespective of the wider debate about the death penalty. In addition, the death penalty should be eliminated for economic and drugrelated crimes. It has been pointed out that political convicts who were sentenced to death according to the National Security Law accounted for about 20 per cent of all death sentences by 1970. During the 1980s, the number of political convicts who were sentenced to death under the National Security Law was reduced to below 5 per cent of all death sentences. Since 1990, there have been no political convicts sentenced to death.5 However, the United Nations Security Council excluded the death penalty for the gravest crimes when in 1993 and 1994 it established the International Criminal Tribunals for the former Yugoslavia and for

2

3 4 5

William Shaw, Legal Norms in a Confucian State (Berkeley: Institute of East Asian Studies, University of California Berkeley, 1981), pp. 3–42. For the details of Confucianism, see Confucius, The Analects (trans. Arthur Waley, New York: Random House, 1966); Confucius, The Original Analects: Sayings of Confucius and His Successors (trans. Taeko Brooks and E. Bruce Brooks, New York: Columbia University Press, 1998); Wei-ming, ‘Confucianism’, in Arvind Sharma (ed.), Our Religions (San Francisco: HarperSanFrancisco, 1993). Article 66 of the Korean Penal Code (Law No. 293 of 1953, most recently amended by Law No. 5057 of 1995): the death penalty shall be executed in a prison by hanging. Law No. 1003 of 1962, most recently amended by Law No. 6290 of 2000. For the misuse of the National Security Law and its statistics, see In-Sub Han, ‘Yoksajok yumullosoui sahyung – gui bobironjok jongch’aekjok gumto’ (Death Penalty as a Historic Relic – Theoretical and Political Review), Samok No. 246 (July 1999), pp. 51–7 and Table 5 (p. 53).

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Rwanda.6 If the use of the death penalty is excluded for the most serious international crimes, it can hardly be countenanced for lesser crimes. Executions are usually carried out within six months7 of the sentence being affirmed and within five days of the issuance of the order8 by the Minister of Justice9 who is required to order a stay of execution if a condemned person is in a state of loss of mind, or a condemned female is pregnant.10 However, once the individual’s mental state is restored, or after the woman has given birth, the Minister of Justice may issue a new order of execution to take place within six months of the date of recovery or childbirth.11 The Korean Juvenile Act (Law No. 4057, 1988) requires that juveniles younger than eighteen at the time of the commission of a capital offence be sentenced to fifteen years’ imprisonment.12 To date, there has been no debate about the issue of consent to psychiatric treatment. It is for the Minister of Justice to decide whether a condemned person is in a state of loss of mind, although it is the Public Prosecutor’s Office that investigates the mental state of a condemned person.13 At the execution there is no medically qualified person present, and South Korea does not subscribe to the World Medical Association resolutions on physician participation. The head of the prison or ‘detention house’ where the execution is carried out determines and certifies death, and this is followed by an inquest on the body – the noose is not to be removed for five minutes.14 Those awaiting execution are confined in a prison or detention house, though in practice most condemned prisoners are held at the detention house for persons awaiting trial, rather than in prisons,15 on the basis that they are not actually serving a sentence while awaiting execution. There are eight such detention houses in Korea, one in each of the eight High Court regions. Executions cannot be carried 6

7 8 9 10 11 12 13 14 15

For the statutes of the Yugoslav and Rwanda Tribunals, see M. Cherif Bassiouni, ‘The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in Former Yugoslavia’ (1994) 5 Criminal Law Forum 279–340; and M. Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’ (1997) 10 Harvard Human Rights Journal 11–62. Article 456, Section 1 of the Korean Code of Criminal Procedure. Article 466 of the Korean Code of Criminal Procedure. Article 463 of the Korean Code of Criminal Procedure. Article 469, Section 1 of the Korean Code of Criminal Procedure. Article 469, Section 2 of the Korean Code of Criminal Procedure. Article 59 of the Korean Juvenile Act. Article 9 of the Regulation Regarding the Execution of Public Prosecutor Matters (Ministry of Justice Decree No. 475 of 1999). Article 164 of the Regulation Regarding the Execution of Criminal Punishment. Article 57, Section 1 of the Act Regarding the Execution of Criminal Punishment: a special execution yard is used within the prison and the detention house; Article 170 of the Regulation Regarding the Execution of Criminal Punishment.

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out on a Sunday or a national holiday.16 There is no provision made for visitors to the condemned, and the execution is a secret event at which there must be no other witnesses – neither the condemned’s family nor the victim’s family – except for the public prosecutor or representatives of the Public Prosecutor’s Office and the head of the prison or detention house or his deputies. These singular characteristics contribute to the perennial and impassioned controversy about capital punishment. Both the Korean Constitutional Court and the Korean Supreme Court have declared that the death penalty is not contrary to the constitutional provision prohibiting cruel punishments.17 The Korean Constitutional Court ruled 7–2 in November of 1996 that the death penalty was constitutional. In the decisions of the Korean Constitutional Court there have been lengthy discussions about capital punishment. Proponents of the death penalty insist that it is right and useful. In reply, abolitionists argue that it is morally flawed, and they cite studies to demonstrate its failure to deter. Abolitionists insist that the death penalty is ‘uncivilised’, ‘inhuman’ and inconsistent with ‘human dignity’ and ‘the sanctity of life’, and that it treats members of the human race as non-humans, as objects to be toyed with and discarded, that it is uniquely degrading to human dignity and by its very nature a denial of the executed person’s humanity. However, the views of the majority of judges indicate that these dissenting opinions do not explain why they think that executions are ‘uncivilised’, and that, when deserved, execution, far from degrading the condemned, affirms his humanity by recognising his rationality and his responsibility for his actions. The view of the majority of judges is that execution, when deserved, is necessary for the sake of the convict’s dignity. This argument seems to come from philosophers such as Confucius, Kant and Hegel.18 Thus the courts would favour retention of the death penalty as retribution, even if it were shown that the threat of execution did 16 17 18

Article 57, Section 2 of the Act Regarding the Execution of Criminal Punishment. Judgment of the Korean Constitutional Court of 28 November 1996, 95 Hon Ba 1; Judgment of the Korean Supreme Court of 12 June 1987, 87 Do 1458. In my view, the rulings of the Constitutional Court and the Supreme Court show – albeit indirectly – that their philosophical bases consist in philosophies of Kant, Hegel and Confucius. For support for my view, see Jong-U Kim, ‘Sayungjedo pyejirul uihan sinhakjok byunron’ (A Theological Defence for the Abolition of the Death Penalty), Samok No. 246 (July 1999), pp. 7–42. As for the philosophies of Kant, Hegel and Confucius with regard to the death penalty, see Confucius, The Analects (trans. Arthur Waley, New York: Random House, 1966); Confucius, The Original Analects: Sayings of Confucius and His Successors (trans. Taeko Brooks and E. Bruce Brooks, New York: Columbia University Press, 1998); Wei-ming, ‘Confucianism’, in Arvind Sharma (ed.), Our Religions (San Francisco: HarperSanFrancisco, 1993); Immanuel Kant, Die Metaphysik der Sitten (Werkausgabe No. 8) (Frankfurt am Main: Suhrkampf, 1997); Immanuel Kant, The Metaphysical Elements of Justice: Part I of the Metaphysics of Morals (trans. John Ladd, Indianapolis: Bobbs-Merrill, 1965); G. W. F. Hegel, Grundlinien der Philosophie des Rechts

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not deter prospective murderers not already deterred by the threat of imprisonment. They argue that the Korean Constitution (Article 37, Section 2) allows for limitations on fundamental rights, subject to certain conditions. The courts believe that the death penalty, because of its finality, is more feared than imprisonment, and deters those prospective murderers not already deterred by the threat of imprisonment. According to the views of the courts, sparing the lives of even a few prospective victims by deterring their murderers is more important than preserving the lives of convicted murderers, regardless of the possibility, or even the probability, that executing them would not deter others. Whereas the lives of the victims who might be saved are valuable, that of the murderer has only negative value. The penal law is meant to protect the lives of potential victims in preference to those of actual murderers. In sum, the courts have explained that the right to life cannot remain permanently valid and can be restricted in order to safeguard innocent citizens, and that the courts believe that the death penalty is an effective deterrent. The Ministry of Justice shares the Constitutional Court’s view that the death penalty system is a ‘necessary evil’.19 In this ‘necessary evil’ argument, retribution and general deterrence appear to be the main justifications for the use of the death penalty in the Korean courts, which have traditionally been influenced by Confucianism.20 Thus although, as I believe, the death penalty should be declared unconstitutional, the Korean courts are unlikely to take that step soon. Public opinion polls show that most Koreans still support capital punishment, although polls also show that this support is gradually reducing over time. According to a Gallup poll published in December 1999, 43 per cent of South Koreans oppose the death penalty with 50% in favour and the rest undecided.21 Previously, the more negative attitude towards abolition was confirmed by the results of a public opinion poll that was conducted by the Segye Ilbo newspaper in March 1995, which showed that 68.3 per cent of those polled were in favour of the death penalty and 20 per cent were against it. Of those who favoured the death penalty, 34.6 per cent thought that the list of crimes punishable by death should be expanded.

19

20 21

(5th edn, Hamburg: Meiner, 1995); and G. W. F. Hegel, The Philosophy of Right (trans. T. M. Knox, Oxford: Clarendon Press, 1962). For the official attitude of the Ministry of Justice on the death penalty, see Il-Tae Huh, ‘Hanguk’ui sahyungjedo ui yuihunsung’ (Unconsitutionality of Korean Death Penalty System), (June 1996) 48 Justice 10–11. Byung-Hwa Kim, Hankuk sabobsa (Korean History of Justice Administration) (2nd edn, Seoul: Iljogak, 1982), vol. 1, pp. 90ff. The data on recent polls was provided in the Gallup poll in 1999 showing that 50 per cent of those polled (1,500 respondents) were in favour of the death penalty, while 43 per cent of those polled supported abolition of the death penalty. See the Korean newspaper, Chosun Ilbo, 6 December 1999; Amnesty International, Death Penalty News (March 2000, AI Index: ACT 53/01/00).

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The percentage of death penalty support varies according to age: for those in their twenties it was 58.2 per cent, in their thirties 67.6 per cent, in their forties 68.5 per cent, in their fifties 71 per cent and in their sixties 76.5 per cent. Despite the differences of opinion between supporters and opponents of the death penalty, there is some agreement that the death penalty should not be applied to political offences: 37.3 per cent of those polled supported the immediate abolition of the death penalty for political offenders, and 29.1 per cent of those polled believed that the death penalty should be applied more selectively to political offenders. Support among the public is based on the traditional image of deterrent and retributive effects of the death penalty. The ancient Koreans, like the ancient Romans, clearly considered the death penalty to be a deterrent and public executions of criminals by decapitation and burning were well attended.22 When we trace the penal system in Korea to its origins, we can find some comment about the penal system in ancient history books. In particular, the Kochosun (233–108 BC) had eight provisions including compensation that can be seen in modern penal systems. The founder of the Korea Dynasty (918–1392 AD) established a facility to confine prisoners in their capital city and enacted criminal laws which included several modern elements such as the three trial system for death penalty cases, three judges presiding at a trial, furlough programmes, etc. There were five types of punishment: whipping with a rod, whipping with a club, labour as a punishment, exile and capital punishment.23 The Chosun Dynasty (1392–1910) continued the use of these punishments, but expanded the use of imprisonment rather than capital punishment, and introduced safeguards concerning the correct standards and procedures. In 1894, during ‘Kabo-Innovation’, the penal system underwent considerable reform to modernise it in line with the Japanese system until 1945.24 The Korean Government was established in 1948, which in 1953 enacted a new penal code. There is no absolute criterion for judging death penalty cases in Korea, thus leaving trials open to social and political tinkering. In particular, those executed in the past for political reasons would not now necessarily be put on death row for the same offences. However, the executions of political criminals have been swift, indicating that they were persecuted for political ambitions. Between 1948 and 1998, an average of nineteen prisoners per year were executed in Korea, a total of 902 executions.25 Until 1987, when the nation’s democratisation started to get on track, almost 22 23 25

Byung-Hwa Kim, Hankuk sabobsa (Korean History of Justice Administration) (2nd edn, Seoul: Iljogak, 1982), vol. 3, pp. 5ff. 24 Ibid., vol. 2, pp. 55ff. Ibid., pp. 89ff. Korean newspaper, Korea Herald, 9 June 1999, p. 4.

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half the executed had been political prisoners charged with rebellion or violating the National Security Law. The recent statistics reflect a gradual decrease in both the number of persons sentenced to death and the numbers of those actually executed. On average, about twenty persons have been executed annually in Korea, the great majority for murder committed in the course of robbery. There have been no executions since 1998, when President Dae-Jung Kim, whose death sentence in 1980 for inciting an uprising was later commuted, was elected. On 15 August 2000, Independence Day, President Kim exercised his power of clemency and commuted the death penalties of two prisoners to life imprisonment.26 Newspapers reported that Korea could now be considered de facto abolitionist, in that it retains the death penalty in law but has not carried out any executions for the past three years. The Korean newspaper Donga Ilbo commented that the death penalty in Korea ‘has a far greater symbolic than practical significance’.27 A legislative proposal to abolish the death penalty and replace it with life imprisonment was presented to the Parliament by ninety-two legislators on 24 July 2000. For the first time in the nation’s history, a Bill proposing the abolition of the death penalty was debated in Parliament. The spectre of executing an innocent man haunts death penalty proponents and galvanises death penalty opponents, and even the Korean Supreme Court has recognised that ‘[d]eath is a different kind of punishment from any other which may be imposed’.28 What makes it different, of course, is its irrevocability. Because of this, the Korean Supreme Court has demanded that more rigorous procedures be used in capital cases than are required in non-capital cases. Notwithstanding procedural and substantive safeguards designed to protect against mistakes, human error is inevitable, and in capital cases human error can be fatal. In Parliament, death penalty supporters argued that the multi-level system of review and heightened scrutiny given to capital cases ensures that innocent people will not be executed. A smaller group in Parliament maintained that even the slightest possibility of executing an innocent person is an acceptable price for maintaining a credible system of criminal justice. Those supporting the death penalty stressed the penalty’s efficacy in deterring heinous crimes. ‘The death sentence should be retained for the protection of the majority of innocent people’, they said. They also emphasised the importance of the conformity between the death penalty and public sentiment,29 which explains why Parliament failed to enact the draft Bill for the Abolition of the Death Penalty, which was mainly due to public opposition. In the 26 28 29

27 Ibid. Korean newspaper, Donga Ilbo, 15 August 2000, p. 3. Judgment of the Korean Supreme Court, 26 April 1995, 95 Do 2420. Korean newspaper, Korea Herald, 4 August 2001, p. 3.

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sixteenth National Assembly, the Bill commuting the death penalty to life imprisonment was again submitted to Parliament. The law-maker’s next submission of the Bill came about ten days after the nation’s major religious groups – Catholic, Protestant and Buddhist – began a national ‘pan-religious anti-death penalty campaign’. They planned to hold lecture tours and petition drives across the country. ‘We will submit the Bill commuting the death sentence to life imprisonment after securing more law-maker’s signatures’, said Representative Dai-Chul Chung, adding that they would not repeat the failure of similar moves in the fifteenth National Assembly. ‘Considering many people still feel the death penalty should exist to protect the innocent and reduce violent crime, we are planning to strengthen life sentences. For instance, we will add a regulation barring an amnesty, parole or reduction of prison term before those with life sentences serve 15 years in jail’, said Representative Chung.30 At present, the South Korean Government has generally made the fight against crime, especially corruption, its main priority, indicating that the role of the government in relation to the death penalty was to administer its use not to intervene in the debate about retention or abolition. Although the draft Bill failed to be enacted, its supporters hoped it would stimulate public debate on the issue. The religious community’s decision to mount a campaign to abolish the death penalty sparked controversy in the nation. Following the move on 19 January 2001 to establish an association against the death penalty, the Catholic Bishops’ Conference of Korea (CBCK), the National Council of Churches in Korea (KNCC) and a Buddhist committee on human rights announced that they would embark on a nationwide campaign against capital punishment by establishing a special group consisting of various religious leaders including Won-Buddhism, Confucianism and the Chundo-kyo. Leaders of the three major religions said: ‘The campaign is inevitable as capital punishment undermines human dignity by taking state revenge on someone for their past mistakes.’ Campaigns on capital punishment are not new in Korea, but this one particularly attracted the spotlight because of the religious leaders’ participation. Well aware of public opinion, the Constitutional Court ruled the death penalty constitutional in November 1996. In response to these rulings and in order to secure more public consensus on replacing the death penalty, the Catholic community appealed to the public by releasing a petition in December 1999 entitled, ‘Cherish Life by Abolishing Capital Punishment’ and conducted a campaign to collect signatures. Public response to the campaign has been fairly good with over 100,000 signatures collected by 2000. The argument of abolitionists is 30

Korean newspaper, Donga Ilbo, 28 January 2001, p. 1; Korean newspaper, Korea Herald, 29 January 2001, p. 4.

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that there is no clear evidence that the death penalty is more effective than life imprisonment in reducing crime rates. Moreover, it is emphasised that one cannot ignore the possibility of wrongful convictions. Critics of Korea’s death sentence may have their most compelling argument for the abolition of the penalty in sixty-seven-year-old Yoon-bum Seo. In 1991, a crazed man aimed his car at seventeen pedestrians, including several children, strolling through a square in Yoido, Seoul. Lying among the dead was Seo’s five-year-old grandson. ‘When I heard my grandson was killed, I wanted to kill his murderer. That’s the nature of the human mind’, Seo said. But Seo refused to hate. Mustering courage to face her fears, she decided to meet her grandson’s killer, Yong-Je Kim, twenty-four years old at the time, and talk to him about his horrible crime. The ensuing conversation revealed to Seo all of Kim’s torments: the fact that his mother abandoned him and his two siblings; that his father died while searching for his wife; and that Kim, as a man, was continuously rejected for work because of a minor eye deformity. After the meeting, Kim wrote over a hundred letters to the grandmother describing his remorse. Though she was torn with grief over the death of her grandson, Seo realised that she must forgive Kim, and help the death-row inmate find a way to live. ‘I would have regretted it if I had continued to hold a grudge. In a sense, Kim was the victim of a distorted society’, Seo said. However, despite Seo’s petition to grant leniency to her grandson’s killer, Korean society was not as compassionate. Kim was executed in 1997. ‘The death sentence should be spared for people like Yong-Je Kim. We have to try and help people like him get their lives back on the right track instead of killing them. That’s what punishment is for’, Seo said.31 Scientific studies have discredited the claim that execution deters murder.32 The statistics on crime, homicide and execution in Korea have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. The majority of murders are committed in the heat of passion and/or under the influence of alcohol or drugs, when there is little thought given to the possible consequences of the act. The most recent survey of research findings on the relationship between the death penalty and homicide rates concluded that research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment, and such proof is unlikely to be forthcoming.33 The evidence as a whole still gives no positive support to the deterrent hypothesis. 31 32 33

Korean newspaper, Korea Herald, 7 December 1999, p. 5. Roger Hood, The Death Penalty: A Worldwide Perspective (2nd edn, Oxford: Clarendon Press, 1996), p. 238, para. 328. Il-Tae Huh, ‘Hangukui sayungjedoui uihonsong’ (On the Unconstitutionality of the Death Penalty System in Korea) (1998) 31 Justice No. 2, 7–24.

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The number of individual executions carried out and the resumption of executions in Korea for economic and violent crimes in 1997 (a total of twenty-three) seems to have violated minimum international standards. Some cases violated the specific standards applying to the death penalty, including the United Nations ECOSOC guidelines.34 On 10 July 1990, the South Korean Government ratified the International Covenant on Civil and Political Rights (ICCPR) without reservation. Retaining the death penalty for political offences in the Penal Code and for other political crimes defined in the National Security Law as well as for economic and drug trafficking crimes is clearly contrary to the principles and standards contained in international treaties. The number of those executed on political grounds since the Second World War is approximately 180, although the death penalty for political convicts has not been used since 1990.35 In a general comment on Article 6 of the ICCPR, the UN Human Rights Committee said in 1982 that ‘all measures of abolition should be considered as progress in the enjoyment of the right to life’. This makes it clear that the intent of the Article was to encourage the abolition, not the extension, of the death penalty,36 thus revealing something of a conflict between retention of the death penalty and Korea’s formal commitments to international human rights standards. Japan: judicial attempts to restrict the use of the death penalty Under the present Japanese Penal Code,37 which is based on the Penal Code of 1907 and subsequently revised in 1995, the death sentence may be imposed for twelve offences:38 The Japanese Supreme Court addressed the issue of the constitutionality of the death penalty under the post-war Constitution in a decision 34

35

36 37 38

Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the United Nations Economic and Social Council (ECOSOC) in 1984 (Resolution 1984/50). These, among other things, prohibit the execution of offenders aged under eighteen at the time of the crime. A further resolution (1984/64), adopted in May 1989 by ECOSOC, recommends ‘eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence’. For the number of executed political convicts as compared to other executed convicts, see In-Sub Han, note 5 above, p. 53. The number of executed persons was not published, but the list of executed political convicts is available on a restricted basis: from 22 March 1960 to 27 May 1986, the number of executions (mainly for espionage) was 186. Randall Coyne and Lyn Entzeroth, Capital Punishment and the Judicial Process (Durham, NC: Carolina Academic Press, 1994), p. 702. Law No. 45 of 1907, most recently amended by Law No. 91 of 1995. Under the Penal Code of 1907, the number of crimes punishable by death was thirteen. However, Article 200 of the Penal Code (killing a lineal ascendant) was abolished by Law No. 91 of 1995.

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of 12 March 1948.39 In that case, the defendant was accused of murdering his mother and sister and disposing of their bodies by throwing them into a well.40 Article 36 of the 1947 Constitution prohibits ‘cruel punishment’,41 and, based in large part on this provision, defence counsel in an earlier post-war case argued that the death penalty was unconstitutional. In a 1948 judgment, the Supreme Court in Grand Bench rejected that claim.42 In Japan, the method of execution is hanging within the confines of a prison.43 In 1955, the Supreme Court rejected a claim that hanging constituted cruel punishment (Hirasawa case).44 The constitutionality of hanging as a method of execution was again presented to the Supreme Court in 1961 (Ichikawa case).45 Similar procedures to those in South Korea apply for the execution protocol. Although the execution must be attended by the public prosecutor, an assistant officer of the public prosecutor and the warden of the prison or his delegate,46 executions are no longer open to the public: the situation of death row in practice is kept strictly secret. Normally, a prison medical officer should attend the execution, certify death and 39 40

41 42 43 44 45

46

One of the salient features of the 1947 Japanese Constitution is the adoption of US-type judicial review. After the Second World War, there was little to eat in the home and violent arguments would erupt regarding the defendant’s unwillingness to work in order to provide for the family. At some point, the mother and sister refused to provide for or feed the defendant as long as he refused to work and share responsibility. The defendant, apparently enraged, killed them. The court found the defendant guilty and sentenced him to death. Judgment of the Supreme Court of 12 March 1948 (Murakami case) (Grand Bench), Keishu 2, 191. Article 36 of the Japanese Constitution: the infliction of torture by any public officer and cruel punishments are forbidden. Judgment of the Supreme Court of 12 March 1948 (Murakami case) (Grand Bench), Keishu 2, 191. Currently, Article 11 of the Japanese Criminal Code prescribes that the death penalty must be executed by hanging at a prison. Judgment of the Supreme Court of 6 April 1955 (Hirasawa case) (Grand Bench), Keishu 9, 663. In the Ichikawa case, the defendant, convicted of burglary and murder, contended that, while the Japanese Criminal Code, the Code of Criminal Procedure and the Prison Law all provide for the death penalty, none of them specified the manner. Accordingly, the defendant contended that hanging, the method prescribed in Cabinet Order No. 65 of 1873, was unconstitutional because it inflicted a cruel punishment in violation of Article 36 of the 1947 Constitution. The Supreme Court held that the Cabinet Order of 1873 did not lose force after the adoption of the 1947 Constitution. Moreover, the Court held that hanging was not a cruel punishment, in violation of Article 36 of the Constitution. In addition, the Court found that the death penalty per se was not unconstitutional. On this case, see Chin Kim and Gray D. Garcia, ‘Capital Punishment in the United States and Japan: Constitutionality, Justification and Methods of Infliction’ (1989) 11 Loyola of Los Angeles International and Comparative Law Journal 253–80. Japanese Code of Criminal Procedure, Article 477, Section 1.

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remove the rope from the executed person. At present, there is no provision that establishes the right to psychiatric evaluation to determine the competency of the condemned to be executed.47 No one else may be present without the permission of a public prosecutor or the warden.48 Even the fact that an individual execution was carried out is kept hidden – not only to the mass media, but even to the relatives of the prisoner – and the relatives and defence lawyer are not given the opportunity to visit the prisoner before the execution.49 The details of how the execution was carried out in a particular case are not made known to anybody outside the execution process and the government does not announce when an execution has been carried out. The Ministry of Justice claim that this protects the family of the condemned from further shame since the arrest, trial and conviction have already shamed the family. However, abolitionists claim that secret executions hide the reality of capital punishment from the populace and that if capital punishment does have a deterrent effect it is nullified by keeping executions secret.50 Current practice in Japan is to tell the condemned one or two days in advance of the date of execution though in some cases the prisoner is not told at all. One official claimed that the decision is made on a case-by-case basis, and if it is thought that the condemned could cope with the news he would be told one day in advance; if not, the prisoner would not be notified. Critics claim that families often contend that lack of advance notice is cruel because the condemned and his or her family do not know from day to day whether the condemned will live to see tomorrow.51 One of the striking aspects of the death penalty in Japan is the secrecy and arbitrariness which surround its use. It is next to impossible to explain the rationale behind the choices made by the Ministry of Justice,52 and some of the prisoners sentenced to death have spent more than twenty to thirty years on death row.53 It is said that the choice of who is next to be 47 48 49

50 51 52 53

See Kikuta, ‘The Death Penalty in Japan: Why Hasn’t It Been Abolished?’ (1994) 1 Meiji Law Journal 47–8. Japanese Code of Criminal Procedure, Article 477, Section 2. For the details of the restrictions on communication between prisoners who are sentenced to death and the outside world, see Toshio Sakamoto, ‘Shikeishikko to shikeishu no shogu – sono jittai to mondaiten’ (Execution of the Death Penalty and the Treatment of Criminal under Sentence of Death – Its Practice and Problem) (1997) 69 Horitsu Jiho No. 10, 8–11. Ibid. On the practice of the death penalty in Japan in general, see Chin Kim and Gray D. Garcia, note 45 above, pp. 275–7; and Sakamoto, note 49 above, pp. 8–11. Amnesty International, Japan: The Death Penalty: Summary of Concerns (AI Index: ASA 2/01/97). According to a report of Amnesty International, they include Tomiyama Tsuneyoshi, an eighty-year-old man who has spent thirty years under sentence of death. Okaunish

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executed and when is based on an evaluation of the condemned person’s ‘readiness’ spiritually to meet his death,54 a policy of the Ministry of Justice that is hard to understand from the viewpoint of humane penal policy. Since 1900, there have been seven draft legislative proposals to abolish the death penalty. The issue of public opinion The 1964 Preparatory Draft of the legislation to abolish the death penalty emphasised that the death penalty debate should be informed by the issue of public opinion. The information presented by the 1964 Preparatory Draft came from the public opinion survey sponsored by the Prime Minister’s Office in 1956. This 1956 public opinion survey revealed that around 70 per cent of public opinion favoured retention of the death penalty.55 The outcome of opinion polls in 1967 and 1989 provided similar results,56 since when public opinion has become the main justification for governments opposed to abolition. The outcome of polls sponsored by government attracted some criticism.57 For example, Justice Dando thought that the questionnaires were designed to lead to answers favourable to the retentionists.58 Kikuta also criticised the survey methodology, and, according to his analysis, the 1989 survey raised serious doubts.59 In an officially sponsored opinion poll in 1994, the survey instrument included questions such as whether the death penalty should be retained for ‘those who kill other persons’, and therefore, given the form of the question, the results of the survey (74 per cent answered affirmatively and 17 per cent negatively) should be discounted, because public opinion is by its nature governed by the information given to it and is thus easily manipulated by the government. The 1974 Draft proposed abolition for five crimes and retaining it for the remaining seven.60 However these proposals were met with opposition

54 55 56

57

58 60

Masaru, aged seventy, has spent twenty-seven years under sentence of death. Amnesty International, Japan: The Death Penalty: Summary of Concerns (AI Index: ASA 2/01/97). For details of the practice of execution, see Kaoru Murano, Nippon no shikei (Death Penalty in Japan) (Tokyo: Takushoku shobo, 1999). On the outcome of the 1956 poll in detail, see Kikuta, note 47 above, pp. 43–67. The Prime Minister’s Office, Shiyˆonikansuruyoronjˆosha (Public Opinion Regarding Death Penalty) (1967); The Prime Minister’s Office, Hanzaitoshobatsunikansuruyoronjˆosha (Public Opinion Regarding Crime and Punishment) (1989). For criticism of this form of question, see Shigematsu Dando, ‘Towards the Abolition of the Death Penalty’ (1996) 72 Indiana Law Journal 13–16; Kikuta, note 47 above, pp. 53–61. 59 Kikuta, note 47 above, pp. 54–5. Dando, note 57 above, p. 10. Yoshio Suzuki, ‘Japan’ (1973) 21 American Journal of Comparative Law 287–303.

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and failed.61 In 1995, Parliament enacted a new Penal Code (Law No. 91 of 1995), but the opportunity to reduce the number of offences attracting the death penalty was not taken. The number of convicts sentenced to death in Japan dropped steadily during most of the post-war period, from an average of under six per year between 1971 and 1980. Similarly, the number of executions, which had reached as many as thirty-nine in 1957 and 1960, dropped to only one each year from 1979 to 1984. Given these circumstances, some critics of the death penalty voiced the hope that a 1981 judgment of the Tokyo High Court62 might effectively signal an end to the death penalty in Japan. In murder cases, it is certain that Japanese courts have tried to limit the use of the death penalty in its precedents,63 and there is evidence that they are becoming more and more cautious in their use of the death sentence. The so-called ‘serial shooting case’, Nakayama,64 sometimes referred to as the Funata case after Judge Mitsuo Funata of the Tokyo High Court who presided over the trial, is a good example of this more cautious approach. The Tokyo District Court found Nakayama guilty as charged and sentenced him to death in 1979.65 Under sentencing practice that prevailed at the time, the District Court’s sentence seemed preordained.66 On appeal, however, the Tokyo High Court reduced Nakayama’s sentence to life imprisonment.67 The High Court found various extenuating circumstances68 and concluded that the death penalty was too harsh for this defendant, and that it was more appropriate for him to devote the 61

62 63

64

65 66 67 68

Criticism that the 1974 Draft submitted by the Japanese Government was too focused on the protection of the interests of the state was widely held by scholars and the general public. The Ministry of Justice was therefore unable to introduce the 1974 Draft. See Kikuta, note 47 above, pp. 53–61; Chihiro Saeki, ‘Shikeiseido no yukue’ (On the Death Penalty System) (1997) 69 Horitsu Jiho No. 10, 28–32. Judgment of the Tokyo High Court of 21 August 1981, Kosai keishu 37, 733; Hanrei Jiho 1019, 20. See Dando, The Criminal Law of Japan (Littleton, CO: Rothman, 1997), p. 291; Shigematsu Dando, Keihokˆoyosoron (Basic Principles on Criminal Law General Part) (3rd edn, Tokyo: Shobunsha, 1997), p. 481. In that case, the defendant, Norio Nakayama, had been charged with a series of four separate brutal murders, all committed in cold blood during a month-long period in late 1968. For details of this case, see Judgment of the Tokyo High Court of 21 August 1981, Kosai Keishu 37, 733; and Daniel H. Foote, ‘The Door That Never Opens: Capital Punishment and Post-Conviction Review of Death Sentences in the United States and Japan’ (1993) 19 Brooklyn Journal of International Law 380–4. Judgment of the Tokyo District Court of 10 June 1979 (unreported). At the time, multiple murders, especially if premeditated, were almost certain to attract the death penalty. Judgment of the Tokyo High Court of 21 August 1981, Kosai Keishu 37, 733; Hanrei Jiho 1019, 20. These included findings that Nakayama was only nineteen years old when he committed the offences. He had been raised in a ‘very bad home environment’ and had undergone a ‘remarkable’ transformation following his conviction, resulting in part from his marriage

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rest of his life to atoning for his offences and praying for the repose of the victims’ souls. Prosecutors immediately appealed against this sentence, claiming that it was too lenient.69 That appeal was assigned to the Second Petty Bench of the Supreme Court.70 Recognising that the High Court’s decision cast doubt over the continued applicability of the death penalty, lower courts considering potential death penalty cases refrained from issuing judgments until the Supreme Court addressed the case. Moreover, at the Supreme Court level, each of the three Petty Benches held all pending appeals in death penalty cases while the case was under review. Thus it is clear that the judiciary recognised Nakayama as a potential landmark decision. Since the Tokyo High Court in its reasoning as much as invited the Supreme Court to review the constitutionality of capital punishment, the Supreme Court should have reaffirmed its continued constitutionality. Because there were no errors of fact in the first-instance court and the case was of great significance, the High Court’s judgment could not

69

70

to a woman with whom he exchanged letters while in prison; and had sought to console the families of his victims by providing them with the royalties from books he wrote while in prison. The court strongly implied that the government’s insufficient social welfare policy was one of the causes for his criminality. See Judgment of the Tokyo High Court of 21 August 1981, Hanrei Jiho 1019, 43. Prosecutors in Japan have the right to appeal against acquittals and sentences they consider too lenient (Japanese Code of Criminal Procedure, Article 351, Section I, and Article 5, 381 and 382 (appeal from trial court decisions)). The grounds for an appeal to the Supreme Court are limited, however. Such appeals must normally be framed as issues of either constitutional error or conflict with prior Supreme Court precedent (Article 405). The Supreme Court may, at its discretion, decide to review other cases if it considers that they relate to important matters of statutory interpretation (Article 406), and may reverse lower court opinions if it concludes that they are ‘patently unjust’, with one of the specified categories for such ‘injustice’ being ‘grossly improper sentencing determination’ (Article 411). To date, the Nakayama case is the only case in which the Supreme Court has ever reversed a sentence for being too lenient. See Japanese Code of Criminal Procedure, Law No. 131 of 1948. The Japanese Supreme Court is composed of fifteen justices, divided into three Petty Benches of five justices each. Cases are normally assigned to the Petty Benches equally, without regard to the field of law involved. The Petty Benches decide most cases themselves, but certain classes of cases are referred to the Court sitting en banc – the so-called Grand Bench – for a decision by the entire Court. Under the Court Organisation Act, if one Petty Bench is planning to issue an opinion that conflicts with prior Supreme Court precedents, it must refer the case to the Grand Bench for decision. Even when a Petty Bench is not intending to depart from established precedent, the Court’s rules call for the Petty Bench to refer the case to the Grand Bench if it considers that the case presents important issues worthy of consideration by the full court. See Japanese Court Organisation Act, Law No. 59 of 1947. In the Nakayama case, the Second Petty Bench took an intermediate course. It did not formally refer the case to the Grand Bench. Behind the scenes, however, the Justices from the two other Petty Benches were consulted as to their views on the case. Apparently, only after the Second Petty Bench had obtained consensus from the Court as a whole did it issue its decision in the matter. On this problem, see Foote, note 64 above, pp. 380–5.

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escape reversal in the Supreme Court.71 After sharply criticising most of the High Court’s findings on extenuating circumstances, the Supreme Court reversed the decision and remanded the case for ‘further thorough consideration’,72 a decision that the Supreme Court later affirmed.73 Irrespective of this judgment, an important matter to note is that the Supreme Court did not entirely reject Judge Funata’s basic reasoning in the High Court’s decision. Though in some precedents the death penalty was approved in cases in which there had been only a single victim,74 the number of persons sentenced to death in Japan is a strong indication of the influence of the Japanese courts’ effort to limit the use of the death penalty. The warning of Judge Funata is expected to be instrumental in further reducing the number of death sentences. As in Korea, one of the most important issues of the death penalty debate in Japan is the risk of executing the innocent. Notwithstanding procedural and substantive safeguards designed to protect against mistakes, human error is inevitable, with fatal consequences.75 As Justice Dando, who has played a prominent part in the abolitionist movement in Japan, observed: The problem of miscarriage is the most decisive one as to whether capital punishment should be maintained. In the case of the death penalty, once executed, the dead person cannot be compensated at all. We know that there are innumerable reasons, both theoretical and practical, to believe that the miscarriage of fact finding is quite inevitable, regardless of the ability and personality of those who carry out the investigation and the trial.76

Abolitionists believe that the risk of executing the innocent can never be entirely eliminated, as long as the death penalty is maintained. The criteria for post-conviction review were relaxed after the so-called Shiratori judgment of 1975.77 The Shiratori decision adopted both the ‘comprehensive evaluation’ and ‘reasonable doubt’ standards for which critics of

71 72 73 74

75 76 77

Judgment of the Supreme Court of 8 July 1983 (the Second Petty Bench), Keishu 37, 609. Judgment of the Tokyo High Court of 18 March 1987, Hanrei Jiho 1226, 142. Judgment of the Supreme Court of 17 April 1990 (the Third Petty Bench), Hanrei Jiho 1348, 15. Judgment of the Supreme Court of 9 July 1987 (the Second Petty Bench), Hanrei Jiho 1242, 131 (the ‘Little Miss Sayur’ kidnapping and homicide case); Judgment of Supreme Court of 17 July 1987 (the Second Petty Bench), Hanrei Jiho 1248, 138. For more detail, see Shigematsu Dando, Shikei Haishiron (The Abolition of Death Penalty) (5th edn, Tokyo: Yuhigaku, 1998). Dando, note 57 above, pp. 13–16. Judgment of the Supreme Court of 20 May 1975 (the First Petty Bench), Keishu 29, 177. On this case, see Foote, note 64 above, pp. 367–521.

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the retrial standards had been fighting for fifteen years.78 The Supreme Court also appears to have relaxed the level of proof required – from the ‘high probability’ that some other courts had demanded to a simple ‘probability’ that the prior findings would be altered.79 Since this judgment was handed down on 20 May 1975, there have been four cases – the Menda case in 1983, the Saitakawa case in 1984, the Matsuyama case in 1984 and the Shimada case in 1989 – in which convicted persons who were sentenced to death have had their convictions overturned.80 These four cases share a number of features. In each case, the convicted individual was able to forestall execution in part by filing a series of retrial requests. In two of the cases, Menda and Saitakawa, district courts reviewing retrial requests undertook careful re-examinations of the cases and identified serious doubts about the original convictions. In the former, the district court actually ordered a new trial; in the latter, the court declined to do so but outlined its doubts in requesting the High Court to review the case carefully. In each of those cases, the High Court firmly rejected the retrial requests, finding that the new evidence was insufficient to justify a new trial under the existing standards. With the Supreme Court’s Shiratori and Saitakawa rulings, the situation changed dramatically. Apart from the Shizuoka district court’s first post-Saitakawa ruling, all subsequent decisions in these four cases went in favour of the death-sentenced prisoners. Moreover, the courts considering the retrial requests in these cases were willing to undertake their own thorough reevaluations of the evidence, rather than simply examining the original trial courts’ evaluations for obvious errors. This is particularly true with regard to the issue of the reliability of confessions. In all four cases, the reviewing courts highlighted inconsistencies, gaps and unnatural aspects in the confessions and emphasised that, despite their detailed nature, the confessions failed to disclose any secrets that only the true offender could have known and that were subsequently corroborated by concrete physical evidence. In these cases, and in every other retrial case to date, the ruling granting the retrial has been followed by the acquittal of the defendant in the subsequent retrial. The fact that the risk of executing the innocent is unavoidable, which has been demonstrated with respect to post-conviction review of death sentences such as those mentioned above, has been a very important addition to abolitionists’ arguments. Not unexpectedly, death penalty supporters argue that the multi-level system of review and the heightened 78 79 80

For more on the former precedent and the pressure to overturn it, see ‘Shiryo/saishin kankei nenpyo’ (Materials/Chronology on Retrials) (1992) 64 Horitsu Jiho No. 8, 23. For an analysis of the Shiratori case, see Dando, note 57 above, p. 14. For details of these four cases, see Foote, note 64 above, pp. 449–61.

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scrutiny given to capital cases ensure that innocent people will not be executed. Conclusion The debate over the propriety of capital punishment often evokes heated argument along cultural and religious lines. As was noted at the beginning of this chapter, Asian countries regularly form a majority of those states voting against UN General Assembly and Human Rights Commission draft resolutions addressing the death penalty.81 The argument that underpins the objections raised by those cosponsors opposed to moratorium/abolition resolutions is the so-called principle of sovereignty. However, Article 3.7 of the Asian Charter on Human Rights states that: All states must abolish the death penalty. Where it exists, it may be imposed only rarely for the most serious crimes. Before a person can be deprived of life by the imposition of the death penalty, he or she must be ensured a fair trial before an independent and impartial tribunal with full opportunity of legal representation of his or her choice, adequate time for preparation of defence, presumption of innocence and the right to review by a higher tribunal. Execution should never be carried out in public or otherwise exhibited in public.82

This was part of an attempt to create a popular culture on human rights in Asia and a thousand people from various countries participated in the debates during the three years of discussion on this Charter. In addition, more than 200 non-governmental organisations directly took part in the drafting process.83 Consistent with international human rights law and policy, the Charter protects the individual from uncontrolled state sovereignty. Thus the principle of state sovereignty presented mainly by Asian countries should not be an argument against the abolition resolutions of international meetings and international soft law on the death penalty. Compared to Western countries, states in the Far East such as South Korea, China and Japan are authoritarian and hierarchical societies characterised by Confucianism. In contrast to Confucianism, Buddhism, another Asian spiritual belief, has no relationship with social systems in the Far East. Confucianism emphasises a social order, while Buddhism is characterised by a radical, non-discriminatory respect for all life. The de 81 82 83

Amnesty International, News Service 58/97 (AI Index: IOR 41.06/97). Yash Ghai, Our Common Humanity: The Asian Charter on Human Rights (Hong Kong: Asian Human Rights Commission, 2000). On the process of drafting the Asian Human Rights Charter, see Newsletter of the Asian Human Rights Commission, 2000.

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facto moratorium on executions between 1989 and 1993 in Japan as well as between 1973 and 1974 in Korea resulted from the personal belief of Ministers of Justice who seemed to be influenced by Buddhism.84 Under Confucianism, law is grounded from its inception in the political order alone; law was in no way identified as the creation of a divine being. What distinguishes the traditional law of the Far East from that of the West is its failure to distinguish between the formal legal norm and the transcendent moral insight of the judge. Justice in Confucianist countries was ‘patrimonial’ and the judge did not adjudicate according to formal rules and without regard to persons, but situationally.85 The governments of Confucianist countries were thus pre-eminently governments of moral men, not of law.86 A major purpose of criminal punishment was a situational administration of justice and retribution87 in order to deter future criminal conduct and accordingly to maintain the sound social order of hierarchy. It was the principle of ‘killing the criminal so that others may live’ (saengdo sarin), which is found elsewhere in the casebook Simnirok.88 The preface to the Simnirok, itself an accurate statement of the philosophy of law expressed in the case decisions themselves, views law as an indispensable element in justice, although not the sole element. ‘Punishments are a tool of instruction and transformation’, begins the preface, ‘[y]et one cannot conduct government with law alone; ethical principles must also assist administration’.89 In one case, it was pointed out that ‘the purpose of the law of requital for a life is to relieve the grievance of the deceased and give a feeling of relief to the survivors; only then will the punishment be a just one’. Moreover, executing the wrong person, or a person not fully culpable, would create further grievance.90 In this sense, Hahm asserted that the potential grievance of the defendant in a criminal case was a factor in Korean legal thinking.91 Death penalty supporters, who tend to find their justification in Confucianism and the traditional 84

85 86 87

88

89

The Minister of Justice in Korea was San-Dok Hwang, who was famous as a Professor of Criminal Law. See Il-Tae Huh, ‘Hanguk’ui sahyungjedo ui yuihunsung’ (Unconsitutionality of Korean Death Penalty System) (1996) 48 Justice 14 (especially note 12). William Shaw, Legal Norms in a Confucian State (Berkeley: Institute of East Asian Studies, 1981), p. ix. Pyon-choon Hahm, The Korean Political Tradition and Law (Seoul: Hollym, 1967). In Confucianism, it is clear that retributive justice is not utilitarian justice. In comparison with Western legal thought, the concept of ‘retribution’ is similar to that of retribution in the context of Immanuel Kant. See Byung-Sun Cho, ‘Die Rezeption des Europ¨aischen Strafrechts in Korea’, in Kurt Seelmann et al. (eds.), Recht und Kulturen (Frankfurt am Main: Peter Lang, 2000), pp. 69–98. Simnirok is a collection of records of simni hearings in approximately one thousand cases held between 1776 and 1799. Simnirok (2 vols., Seoul: Popchech’o, 1968); Shaw, note 85 above, pp. 118 and 149. 90 Ibid., p. 120. 91 Hahm, note 86 above, p. 71. Ibid., p. 118.

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values of people, neglect to appreciate that the traditional legal reasoning relates to human rights.92 Indeed, Korea and Japan have made efforts to limit the use of the death penalty in their own way, as mentioned above. Continuing this line of thought, it would be easy to object to the simplistic caricature of ‘authoritarian Asian values’, because this ‘Asian values’ thesis is totally irrelevant in matters of respect for human rights, which has also been stressed in the traditional values of Confucianism. Often, the national debate on the death penalty is conducted in purely national terms, but this debate loses its justification especially in the Far East, because pursuant to the traditional legal reasoning the transcendent moral insight over the death penalty must be settled in this debate. In my view, the transcendent moral insight could be regarded as a transfiguration of natural law theory.93 Therefore, in the Far East, the international dimension needs to be brought in.94

92 94

93 Ibid., pp. 69–98. Cho, note 87 above, pp. 69–98. Amnesty International, International Standards on the Death Penalty (AI Index: ACT 50/010/1998); Randle Coyne and Lyn Entzeroth, Capital Punishment and the Judicial Process (Durham, NC: Carolina Academic Press, 1994), p. 685; and W. A. Schabas, The Abolition of the Death Penalty in International Law (2nd edn, Cambridge: Cambridge University Press, 1997), p. 20.

12

Georgia, former republic of the USSR: managing abolition Eric Svanidze

The issue of the abolition of capital punishment is complex and must be addressed in the context of historical, legal, moral, criminological, economic, educational and other factors, and, because of this, there is scope for difference in this universal process. The objective of this chapter is to describe Georgia’s experience and thus to give an example of national particularities. For context, it is necessary to mention that Georgia, a country of some 70,000 square kilometres with a population close to five million, is situated in the Transcaucasus between Russia and Turkey. The history of the death penalty in Georgia is both interesting and important. The first abolition of the death penalty took place as long ago as the twelfth century in the period of Regina Tamar who inherited the crown from her father Georgi the Third in 1184 and governed Georgia until 1213.1 Georgia was not only the largest and strongest country in the region, but had also achieved significant cultural and scientific advances. During this period, Georgia had a well-established state apparatus, including law-enforcement agencies. From historical documents, it can be shown that very few thefts, robberies and acts of piracy were committed in that period.2 In addition to this, Regina Tamar was attempting to follow the concept of an ethical monarchy. Such factors created the climate for the abolition of capital punishment. Documents from that period emphasise that not a single execution took place during her reign,3 and, since we have no data about any laws issued by Regina Tamar with regard to abolition, it must be assumed that the moratorium was maintained until the second half of the thirteenth century when Georgia was conquered by the arguably less developed and brutal Mongolian nomads. Georgia did not experience conditions favourable to abolition again for nearly seven centuries when it was implemented by the Constitution 1 2 3

N. Asatiani and M. Lordkipanidze, The History of Georgia (Tbilisi: Ganatleba, 1993), pp. 150–7. Georgi Nadareishvili, ‘Private and Public Punishment in Feudal Georgia’ (2000) 14 GYLA Almanakhi 116–19. Ibid., p. 119.

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of the Georgian Democratic Republic, which existed as an independent state between 1918 and 1921 before being forced to become a part of the USSR, a federal state which consisted of fifteen republics, including Russia, Ukraine and other countries in eastern Europe and central Asia. This enormous and extremely powerful totalitarian state governed by the Communist Party existed in different forms from 1917 to 1991. At a time when western Europe was gradually adopting humanitarian principles, one expression of which was the abolition of the death penalty, the regime in the Soviet Union was still resorting to this exceptional measure of punishment, although there were some cases of its temporary suspension. The death penalty in peacetime was abolished on 26 May 1947 by special edict of the highest legislative body, the Presidium of the Supreme Council of the USSR, but was restored on 12 May 1950 by another edict of the same organ. In keeping with this period of repression, it must be said that the cruelty of punishment was the main focus of criminal policy in the Soviet Union and, consequently, in Georgia. It suffices to note that, by the time of the collapse of the Soviet regime, the Criminal Code of Georgia permitted the death penalty for thirtythree types of crime, including espionage, terrorist acts, some crimes against state order, several military crimes committed in wartime, banditry, riots in penitentiary establishments, murder, rape, bribery with aggravating circumstances, misappropriation of state and public property in especially large amounts and violation of rules regulating currency trade operations. According to Article 24 of the Criminal Code, the death penalty could not be imposed on women pregnant at the time of the crime or sentence and juveniles under the age of eighteen at the time of the crime. At the time of the collapse of the USSR, the popular misconceptions about the deterrent effect of the death penalty were accepted by the majority of the population, and this factor played an important role in hindering the National Independence Supporting Powers, elected in 1990, from being as radical in their decisions concerning the abolition of the death penalty as they were in reforming other aspects of social life. The only step in this direction was made on 20 March 1991 when the Supreme Council of Georgia (that is, Georgia’s Parliament) excluded the death penalty from those provisions of the Criminal Code which provided punishment for economic crimes. By 1992, Georgia was experiencing serious destabilisation, and armed conflicts began, all of which led to a significant deterioration in law and order in the country. Despite this, the state authorities maintained a moratorium on the death penalty, which remained in force between 1992 and 1993, though courts continued to render death penalty decisions.

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Unfortunately, public opinion was not happy with this policy, and this eventually led to the government ending the moratorium on executions in 1994. It was not just the increase in violent crime and the pressure of public opinion that brought about this change in policy but the defects in the administration of the judicial and law-enforcement agencies, which had led to a deterioration in the public’s trust in those institutions. During this period, it was frequently the case that criminal groups managed to secure their members’ release from arrest through the use of force. Characteristic of this period was the decline into ‘mob rule’, when the law was taken into the hands of the citizens and suspects, sometimes innocent, were cruelly punished. For the most part, they were stoned. In this period, thirty-two such incidents took place. For example, on 2 November 1995, a gang consisting of Paata Kohuasvili and four accessories committed a brigand attack on Eldar Kbilashvili’s house situated in Adigeni, the mountain region of southern Georgia. During this attack, the householder was shot by a machine gun. In spite of the fact that the police arrested a suspect on the same day in the nearest village, the police escort was stopped by 500–600 inhabitants of that area, who then cruelly beat and stoned the suspect, wounding him fatally. One of the reasons for this reaction by the population was the lack of effective law-enforcement agencies or courts. Therefore, in addition to the factors referred to above, the authorities in Georgia had to deal with the question of the effectiveness of the criminal justice system. The Georgian experience demonstrates just how important it is that the abolition of the death penalty should take effect in the context of an effective legal and criminal justice system, which enjoys public support. The year 1995 proved to be decisive for Georgia. Criminal gangs were effectively eradicated as the law-enforcement agencies became more efficient and effective and large-scale legal and judicial reforms were initiated. At the same time, important steps were taken towards the democratisation of the Georgian state and society, and in August 1995 a new Constitution was adopted. This basic legal act envisages: the principle of the separation of powers; a system of centralised government bodies, which corresponded to a form referred to as a ‘presidential republic’; elections to every state body; review of the state’s power by the courts; and the establishment of referenda and other democratic processes. The Georgian Constitution contains a list of universally recognised rights and freedoms, including the right to life. Despite these positive changes, Georgia still had to address the issue of the death penalty, which was provided for in the new Constitution. According to Article 15, paragraph 2, until its final abolition the death

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penalty may be imposed by organic law for the commission of particularly grave crimes against life, although only the Supreme Court of Georgia was authorised to impose the death penalty. According to Georgian legislation, in comparison with ‘ordinary’ law an organic law is considered as an addition to the Constitution and thus requires a particular majority of votes in Parliament to be adopted. Thus, the requirement of this ‘special’ law did at least ensure an additional barrier to the imposition of the death penalty, which was agreed after passionate debate and was quite clearly a compromise. Opponents of abolition were satisfied with the inclusion of the death penalty in the Constitution, although serious concerns were raised as supporters of the death penalty felt that the provision should be regulated not by the Constitution but by the Criminal Code. Nonetheless, it was a success for the abolitionists, as the future of the death penalty was to be determined through the Constitution. During the process of drafting the Constitution, the issue of the death penalty made emotions run high and caused polemics, not only among lawyers and specialists, but also within society as a whole, where there were many public discussions. Notwithstanding the limited achievements of death penalty supporters, public opinion was prepared for its abolition. Of particular note here was the role played by the media and non-governmental organisations, especially those focusing on human rights and state democratisation issues and by several NGOs founded by former political prisoners who were active in this campaign. These NGOs participated in conferences and governmental and public debates, commissioned opinion polls and published many articles. An active role was also played by the political parties, namely, the Union of Georgian Citizens (the governing political party), the Georgian Republican Party, the Georgian National Party and Khma Erisa (Nation’s Voice), and those opposed to abolition were encouraged to contribute to the debate. Lawenforcement officials (though the penitentiary administration was not among them), prosecutors, some marginal political figures and crime victims groups were the main representatives of those opposed to abolition. There were no officially organised victims groups but certain movements of relatives (mainly mothers of murdered children) had been formed in Georgia. It must be underlined that the discussions were held not only in the scientific and professional press but also by the state and private electronic media and newspapers. Religious groups also made a significant contribution to the debate, as historically Georgia has had an independent Orthodox Church to which some 65 per cent of the population belong. The support of the Georgian Orthodox Church was crucial in this debate. The arguments put forward by supporters of capital punishment were not distinguished by their originality. In contrast to other countries where

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such problems did not exist, mob rule was frequently referred to, and as mentioned earlier this unruliness was particularly problematic at the time. Another argument advanced by the retentionists was the tradition of blood feud or revenge, which still exists in some of the less developed regions of Georgia, albeit on a small scale. This tradition was inherent in Georgian society and law in the Middle Ages and before, which is why Article 104, Paragraph 8, of the Criminal Code – adopted in 1961 and in force until 1 June 2000 – listed revenge as an aggravating circumstance. The increase in the number of murders was a major factor relied on during the debate on abolition. In 1990, there were 270 murders recorded in Georgia. This figure rose to 878 in 1993, an increase of 325 per cent, although by 1995 this figure was halved to 391 (manslaughter and other kinds of homicide are not included in these figures). Supporters of the death penalty claimed that this reduction was a direct consequence of lifting the moratorium on executions. However, the same trends were revealed in the figures for all serious crimes committed over those years: in 1990, the total number of crimes committed was 19,711, of which 3,538 were serious crimes; in 1993, the corresponding figures were 22,065 and 8,870; in 1995, 15,735 and 4,729. Therefore, it is demonstrable that the presence or absence of a moratorium on executions was responsible for this effect. The following years further demonstrated that the reduction of crime – murder in particular – was not related to the use of capital punishment. It suffices here to mention that since the abolition of the death penalty in November 1997 Georgia has experienced a remarkable decline in the number of murders. In 1998, 1999 and 2000, the figures for murder were respectively 243, 244 and 239, which compare favourably with the figures during the Soviet era of 250–300 per year. The argument that the removal of the death penalty has led to an increase in the practice of ‘mob rule’ appears to be unfounded. From 1996 to 2002, that is to say in six years, only two incidents of ‘mob rule’ have been recorded in Georgia. On 7 March 1998, in Tsalenjiha in eastern Georgia, about seventy inhabitants captured, tortured and killed gravedigger Sergo Kvarachelia whom they suspected of stealing from graves, which is considered an extremely insulting action in that part of Georgia (later investigation proved Kvarachelia’s innocence). Another incident took place on 18 June 2000 in the Telavi region of western Georgia, when a police escort was intercepted by a crowd of 80–100 persons, who kidnapped, tortured and stoned Malhaz Kalamov who had been arrested for the alleged murder of police officer Kurasvili. These two incidents, while extremely serious, must be put into the context of the

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previous years (thirty-two incidents in 1993–5). Viewed thus, it is clear that there have been considerable improvements. This is yet one more illustration that strict punishment and inhumane treatment of offenders are not effective measures for reducing crime. The establishment of democracy in Georgia led to an improvement in stability and a remarkable improvement in the work of law-enforcement agencies. Special attention was paid to judicial reform, leading to the majority of judges being well qualified and properly remunerated, thereby decreasing the incidence of corruption and gaining public trust. The population began to realise the inevitability that offenders were going to be detected and punished and that this certainty of detection and punishment is more effective in reducing and preventing crime than the previous strategy of draconian punishments. Of course, this transition took time as Georgia advanced towards the abolition of the death penalty step by step. The last execution took place on 14 February 1995 when seven persons were executed. Six of them had been convicted of murders with aggravating circumstances; the seventh was an especially dangerous recidivist who had been sentenced to death for the rape of a minor. Executions were carried out by one person by means of a gun in special premises at the central prison, in the presence of the prison director, other representatives of penitentiary administration, a special prosecutor, a medical expert and other officials. The main aim of the presence of these individuals was to confirm the fact of death. No provisions for ‘last minute pardon’ or other possibilities for delay were envisaged by the procedure. In total, in 1994–5, fourteen persons were executed in Georgia. Thereafter, the de jure moratorium was restored. In 1996, following the restoration of the moratorium, an opinion poll showed that 38 per cent of those polled supported the abolition of the death penalty; 47 per cent were opposed to abolition, with 15 per cent undecided. Such results were not unexpected, given the experience of other countries. One such country, the Federal Republic of Germany, experienced a gradual decline in support for the penalty following abolition. In 1959, ten years after abolition, a majority (55 per cent) supported the restoration of the death penalty. By 1973, such support had reduced to 30 per cent, and by 1981 support for the death penalty was only 22 per cent.4 While it may not be prudent to proceed to abolition without regard to public opinion, and while support of the majority is desirable, the Georgian experience demonstrates that such decisions must be made despite the opposition of the public. Public opinion, as reflected in the 4

John Khetsuriani, The Death Penalty: Arguments and Facts (Tbilisi: Samshoblo, 1997), pp. 28–9.

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positions taken by politicians, NGOs and the media, demonstrates that the public is moving towards support for abolition. This trend is so obvious that there has been no need for further research in this area in Georgia. On 10 December 1996, to mark International Human Rights Day, the President of Georgia, Eduard Shevardnadze, petitioned Parliament with a request that the existing moratorium on executions remain in force until the adoption of a new Criminal Code. This was a declaration of a de jure not a de facto moratorium. The following day, another step was taken by the Parliament, which adopted changes to the Criminal Code which significantly restricted the application of the death penalty prior to its final abolition. Under these changes, the death penalty was only available for murder with aggravating circumstances. Moreover, it was prohibited to impose the death penalty on women at all, or on men below age eighteen at the time of the crime or above sixty-five at the time of the sentence. In the belief that public opinion would not consider the existing sentencing provisions (fifteen to twenty years’ imprisonment) for serious crimes as a suitable alternative to the death penalty, the legislature introduced a new penalty, life imprisonment. Before the abolition of the death penalty, life imprisonment was introduced as an alternative sanction to capital punishment, which in that period was envisaged only for terrorist acts, certain other crimes against the state, murder and threatening a police officer’s life (in total, sixteen offences attracted life imprisonment). It should be mentioned that the legislature also stipulated the possibility of commutation for persons currently under sentence of death, recommending that in such cases the death penalty should be replaced by a maximum sentence of up to twenty-five years’ imprisonment with the restriction that conditional early release, parole or reduction in sentence were to be denied to such prisoners. The next step towards the abolition of the death penalty was taken on 25 July 1997, when the sentences of all fifty-four persons then on death row in Georgia were commuted by a decree of the President of Georgia to twenty years’ imprisonment, contrary to the legislature’s wishes. Since life imprisonment was not available at the time their crimes were committed, it was decided not to use this as the replacement sentence for that group. These major reforms brought in over time were crowned by the acceptance and success of the President’s act of commutation, thus demonstrating that society and the state were ready to abolish the death penalty. Parliament then abolished the death penalty in law on 11 November 1997. The relevant changes to the existing Criminal Code were made

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at the same time. The legal technique employed was very simple – the words ‘death penalty’ were simply removed from the Criminal Code. Under the new Criminal Code, which has been in force since 1 June 2000, life imprisonment is available for thirteen crimes (murder with aggravating circumstances, narco-business and smuggling of drugs, sabotage, terrorism, genocide, crimes against humanity, and certain other crimes against the state and mankind). Life imprisonment is not mandatory: the relevant provisions of the Criminal Code envisage the alternative punishment of imprisonment for terms between ten and twenty years. Life imprisonment cannot be imposed on persons under the age of eighteen when the crime was committed or over sixty when sentenced. According to Article 72, paragraph 7, a person sentenced to life imprisonment can be released after he or she has served twenty-five years and a court finds that the continuation of punishment is not necessary. These new alternatives to the death penalty have financial implications for the state. Replacing the death penalty with long-term imprisonment, as a rule, requires the construction of a new prison for such prisoners. In the early years it is usually sufficient to set aside special cells in the general prison estate for such inmates, because for example, in the two years immediately following abolition, only ten persons were sentenced to life imprisonment. However, as the years pass, it is likely that new prisons will have to be built, staffed and maintained, and this will be costly. There has been no negative reaction in the general population to the abolition of the death penalty. Of perhaps more significance is the fact that the governing party, which made the decision to abolish, was re-elected at the next elections and, furthermore, the restoration of the death penalty was not an issue in that election. The example of the Georgian experience should be an encouragement to politicians of other countries that may fear a loss of popular support were they to espouse the cause of abolition. The role of the Constitutional Court of Georgia has not so far been mentioned. This is because it played no role in the abolition of the death penalty. The Court had to be seen to be neutral because of the nature of the provisions of the Constitution, which provides both for the death penalty and for its abolition. However, having said this, it would be helpful to have the Constitutional Court affirm the decision of Parliament and alter the constitution accordingly – this has been the experience of many other European countries in light of the attempts at restoration. Such a decision by the Constitutional Court would act as an additional guarantee, a judicial protection to politically motivated decisions to restore the death penalty. Georgia’s accession to the Council of Europe differed from that of other member states, as, unlike other newcomers, Georgia had abolished capital

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punishment prior to accession and prior to ratification of Protocol No. 6 to the European Convention on Human Rights became necessary. The existence of the European Convention and the necessity of subscribing to it were the strongest arguments advanced by supporters of abolition. The main conclusion that can be drawn from Georgia’s experience must be the following. It is necessary to maintain the step-by-step and complex approach bearing in mind the factors mentioned at the beginning of this chapter. In Georgia, these steps were: narrowing the provision for the death penalty by moratoria, legislative restrictions and constitutional norms; the strengthening of law-enforcement and court systems; preparation of the criminal legislation; establishing alternatives to the death penalty; commutation of the sentences of those already sentenced to death; formation of positive opinion in the population (though not necessarily in the majority of it); the active involvement of the media, NGOs and religious leaders; and the adoption of relevant international treaties. In this regard, a considerable impact was made by the ideas of a prominent Georgian public figure and writer, Ilia Chavchavadze. The quotation from one of his articles written as far back as 1898 will best serve to end this chapter: That human origin on behalf of which mankind has requested exclusion of the capital punishment from the list of punishments, must be recognised as the best achievement of progress of mankind in the field of protection of morals.5 5

Ilia Chavchavadze, ‘Considerations’ (1957) 9 Mnatobi 157.

13

Capital punishment in the Commonwealth Caribbean: colonial inheritance, colonial remedy? ∗

Julian B. Knowles

Capital punishment continues to operate in Caribbean countries which were formerly part of the British Empire and which now enjoy independent status within the Commonwealth.1 Although the substantive law and procedure relating to the death penalty in each of the states differs to some extent, the death penalty in these countries still bears many of the hallmarks of the English practice of capital punishment. Moreover, the vast majority of Caribbean Commonwealth countries retain the Judicial Committee of the Privy Council (or ‘Privy Council’) in London as their highest court. It is therefore possible to generalise about the operation of the death penalty in the region in terms of both procedure and jurisprudence.2 This chapter will consider the use of the death penalty in the Caribbean from an historical and jurisprudential perspective, focusing in particular on selected important constitutional law appeals to the Privy Council. It will also consider the political response to the growing international scrutiny of the death penalty in the region. Before considering these issues, however, it is necessary to consider the procedural steps between conviction and execution in the Caribbean. The capital punishment process in the Caribbean The death penalty is available in the Caribbean as a punishment upon conviction for murder and a limited number of other offences (for ∗

1

2

I am indebted to Nicholas Blake QC, Belinda Moffat, Saul Lehrfreund and Parvais Jabbar for reading this chapter and for offering helpful and constructive criticism. I am also very grateful to Jeffrey Bryant for his invaluable research help. All errors and omissions remain my responsibility. The law is stated as at 30 April 2002. This chapter is dedicated to Scott Braden, attorney-at-law, and Joseph Arthur O’Neill (1902–96), my grandfather, whose compassion and gentle wisdom are a constant source of inspiration. Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines and Trinidad and Tobago. See Edward Fitzgerald QC, in Hodgkinson and Rutherford (eds.), Capital Punishment: Global Issues and Prospects (Winchester: Waterside Press, 1996), pp. 143–53.

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example, treason). Until 2001, the death sentence was mandatory upon conviction of a capital offence.3 After conviction, the prisoner is moved to the death row section of the state prison, which is generally close to the execution chamber. The prisoner is usually detained in solitary confinement until execution.4 Throughout the twentieth century, executions were regularly carried out in the Caribbean on those convicted of murder. For example, in Jamaica during the thirty years following the Second World War, until 1976, there were, on average, five executions annually.5 In the early 1960s, the former colonies began to gain independence from the United Kingdom. Although the use of capital punishment in the United Kingdom had been restricted to certain forms of aggravated murder by the Homicide Act 1957, and was effectively abolished in 1965 following intense political debate,6 similar controversy about the appropriateness of retaining the death penalty did not feature greatly in the political transition to independence in the region. Without exception, the colonial statutes and penal codes providing for a mandatory sentence of death continued in operation7 and executions continued to be carried out on a regular basis throughout the 1960s and 1970s. Jamaica’s Offences Against the Person (Amendment) Act 1992, which limited the death penalty to certain types of aggravated murder,8 was the first statutory restriction on the use of capital punishment in the region. Since then, similar legislation has been introduced or proposed in Belize9 and Trinidad and Tobago10 3 4

5 6

7

8 9 10

Jones v. Attorney of the Commonwealth of the Bahamas [1995] 1 WLR 891 (PC); Reyes v. The Queen [2002] 2 AC 235 (PC). For a description of the conditions in which those on death row in the Bahamas are held, see Higgs v. Minister of Public Safety [2000] 2 WLR 1368 at 1388 (PC) per Lord Steyn, dissenting. The conditions are typical of the Caribbean as a whole: cf. Thomas v. Baptiste [2000] 2 AC 1 (PC) (Trinidad) and Neville Lewis v. Attorney-General of Jamaica [2000] 3 WLR 1785 (PC) (Jamaica). Amnesty International, Report on the Death Penalty in Jamaica (1994). The death penalty for murder was suspended in the United Kingdom by the Murder (Abolition of the Death Penalty) Act 1965. The suspension became permanent in 1969. The last English executions were carried out in August 1964. The death penalty was retained for treason and piracy with violence and for some military offences. It was abolished for these offences by section 21(5) of the Human Rights Act 1998 (military offences) and section 36 of the Crime and Disorder Act 1998 (treason and piracy). See e.g. section 3(1) of the Offences Against the Person Act 1861 (Jamaica); section 312 of the Penal Code of the Bahamas; Jones v. Attorney-General of the Commonwealth of the Bahamas [1995] 1 WLR 891 (PC). Lamey v. The Queen [1996] 1 WLR 902 (PC). Criminal Justice Act 1994: see Reyes v. The Queen [2002] 2 AC 235 (PC). Offences Against the Person (Amendment) Bill 1996. This sought to categorise murder into capital murder, non-capital murder and intentional homicide. The Bill did not receive parliamentary support and was not enacted. At the present time there do not appear to be any proposals to reintroduce it.

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providing for a mandatory death sentences only when aggravating features are present. Constitutional arguments The constitutions of the newly independent Caribbean states specifically provided for the death penalty by way of exception to the constitutional provisions affirming the right to life.11 Until 2002, broadly based challenges to the constitutionality of the death penalty met with little success. In most12 Caribbean states, the death penalty was entrenched at independence by the use of constitutional savings clauses. These provisions have the effect of deeming to be constitutional any description of punishment, which was lawful in the state concerned at the time of independence.13 On their face, they severely restrict the applicability of the argument that society has evolved to the point that capital punishment is no longer constitutional because it violates appropriate standards of decency.14 Mandatory death penalty Although all Caribbean constitutions contain prohibitions on the imposition of inhuman and degrading punishments, until April 2001 constitutional savings clauses had prevented a successful challenge from being made to the constitutionality of the mandatory death penalty. For example, in Runyowa v. The Queen the Privy Council rejected an argument 11

12

13

E.g. section 12(1) of the Constitution of Barbados provides: ‘No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Barbados of which he has been convicted.’ In some states, such as St Christopher and Nevis, the savings clauses are of a more limited type: Browne v. The Queen [2000] 1 AC 45 at 49 (PC). In Belize, there is no provision for exempting existing laws from subsequent challenge as unconstitutional after an initial five-year period: section 21 of the Constitution of Belize. These provisions were extensively analysed by the Privy Council in Reyes v. The Queen [2002] 2 AC 235; Hughes v. The Queen [2002] 2 AC 259; and Fox v. The Queen [2002] 2 AC 284 (PC). E.g. section 17 of the Constitution of Jamaica provides: (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorise the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.

14

The effect of this provision was considered by the Privy Council in Pratt and Morgan v. Attorney-General of Jamaica [1994] 2 AC 1 (PC). In 1999, in Hilaire v. Trinidad, Commission Report 66/99 (21 April 1999), the InterAmerican Commission on Human Rights held that the mandatory death penalty breaches Articles 4(1) and (2) and 5(1) and (2) of the American Convention on Human Rights.

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that the mandatory death penalty for arson was unconstitutional because of the savings clause in section 60 of the Constitution of Rhodesia.15 However, in Newton Spence and Peter Hughes v. The Queen, the Eastern Caribbean Court of Appeal held that the mandatory death penalty violated the prohibition on inhuman and degrading treatment in the Constitutions of St Lucia and St Vincent and the Grenadines. The Court overcame the problem of the savings clause in paragraph 10 of Schedule 2 to the Constitution of St Lucia16 by reading the phrase ‘description of punishment’ narrowly.17 It continued: The experience in other domestic jurisdictions, and the international obligations of our states, therefore suggest that a court must have the discretion to take into account the individual circumstances of an individual offender and offence in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the requirements of due process.18

The Court accordingly declared mandatory sentences unconstitutional. It held that juries must fix the sentence after hearing mitigation from the defence and any evidence from the prosecution.19 The appeal to the Privy Council was heard in January 2002 together with appeals from St Christopher and Nevis (Fox v. The Queen) and Belize (Reyes v. The Queen). The principal judgment was delivered by Lord Bingham of Cornhill in the Reyes appeal.20 Patrick Reyes had been convicted of murder by shooting, and his use of a firearm meant that his offence carried a mandatory death sentence under section 102 of the Criminal Code. Had he murdered in some other manner the judge would have had a discretion to impose life imprisonment. Lord Bingham explained why mandatory capital sentences violate the prohibition on inhuman and degrading punishment in section 7 of the Constitution of Belize.21 In the Hughes decision, the Privy Council had to grapple with the savings clause in paragraph 10 of Schedule 2 to the Saint Lucia Constitution Order 1978.22 Lord Rodger of Earlsferry held that, insofar as the Criminal Code in St Lucia required the imposition of the death penalty in all cases of murder, it went beyond the saving provided for in paragraph 10 which only preserved the constitutionality of punishments which were 15 16 17 18 20 21

[1967] 1 AC 26 at 49 (PC). See also Ong Ah Chuan v. Public Prosecutor [1983] 1 AC 648 (PC). In similar terms to section 17(2) of the Constitution of Jamaica (see note 16 above). Unreported, 2 April 2001 (ECCA, Appeals 17 of 1997 and 20 of 1998), para. 19. 19 Ibid., para. 58. Ibid., para. 43. In the Reyes case, the Privy Council was able to proceed to the merits because the Constitution of Belize does not contain a savings clause of the type discussed above. 22 SI 1978/1901. Paras. 53 et seq.

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authorised by pre-existing laws. Although the Privy Council upheld the decision of the Court of Appeal, it did not, however, agree that juries should assume responsibility for capital sentencing.23 Hanging: mediaeval barbarity or lawful punishment? In the Caribbean, all executions are carried out by hanging.24 Despite the rejection of hanging as a method of execution in the United States, and the growing body of evidence to show that hanging does not cause instantaneous death but very often results in excruciating pain and suffering for the prisoner, all attempts in the Caribbean to argue that hanging is unconstitutional because it constitutes inhuman and degrading punishment have failed because of savings clauses.25 In Boodram v. Baptiste,26 nine appellants argued that execution by hanging in Trinidad and Tobago would violate the prohibition on cruel and unusual punishments in the English Bill of Rights 1689,27 which is part of the common law of Trinidad. Relying on dissents in a United States case, Campbell v. Wood,28 they presented evidence (which was not challenged by the state) that hanging constitutes an unnecessarily painful, prolonged and humiliating manner of execution, and that recent scientific research has exposed as a fallacy the claim that hanging results in instantaneous death.29 The Privy Council held that the Bill of Rights 1689 had to be read with the local statutory provisions authorising hanging as the method of execution.30 The first sign of a possible change of opinion in the region on this question occurred on 27 January 1999 when the Caribbean AttorneysGeneral issued a joint statement reaffirming their commitment to the death penalty, which concluded: ‘Consideration should be given to classifying the crime of murder into capital and non-capital murder and 23 25

26 27 28 29

30

24 Boodram v. Baptiste [1999] 1 WLR 1709 (PC). Para. 52. Ibid. In order to comply with international human rights standards, methods of execution must inflict only the minimum degree of suffering necessary to extinguish life: Ng v. Canada, unreported, 5 November 1993, UN Doc. CCPR/C/49/D/469/199 (United Nations Human Rights Committee). [1999] 1 WLR 1709 (PC). Section 1 provides: ‘That excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted.’ 18 F 3d 662 (1994). The evidence before the Privy Council included a film obtained from the Imperial War Museum of Japanese war criminals being hanged by the British army after the Second World War. The film clearly showed that some of the prisoners were alive and struggling at the end of the rope after falling through the trap. Their Lordships did not watch the film but its contents were described in an affidavit submitted by the appellants’ solicitor. The author appeared as junior counsel for the appellants and also viewed the film. [1999] 1 WLR 1709 at 1711–12. The nine appellants were executed in June 1999.

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empowering judges to determine cases in which the death penalty should be applied. Finally, as an alternative to hanging, humane methods of execution should be explored.’ There is little indication that this recommendation is being actively pursued, at least in Trinidad and Tobago. In 2000, a Bill was introduced into Parliament by the Attorney-General,31 which would allow the executive to select any method of execution and would prevent the defendant from challenging its constitutionality no matter how cruel or inhumane it might be. Executions in the modern era in the Caribbean32 The 1970s and 1980s saw a decline in executions in the region while the issue of capital punishment came under political and judicial scrutiny. The time spent on death row by condemned prisoners began to increase, partly as a result of official moratoria on executions and partly as a result of the inability of the regional judicial systems to process the large numbers of cases coming before them.33 These delays led directly to the decision of the Judicial Committee of the Privy Council, in Pratt and Morgan v. Attorney-General of Jamaica,34 that to execute a defendant after an unduly prolonged period is inhuman and degrading and therefore unconstitutional. In Jamaica in 1975, a commission chaired by the distinguished lawyer Dr Lloyd Barnett considered the events surrounding the breakout from death row at St Catherine’s District Prison in December 1974, in the course of which several warders were taken hostage. The Commission made a number of recommendations concerning the treatment of those on death row, and questioned whether capital punishment should be used at all.35 The Barnett Commission’s report prompted a national debate over the continued use of the death penalty, and no executions were carried out in Jamaica between April 1976 and August 1980. 31 32

33 35

Constitution (Amendment) (No. 3) Bill. This section concentrates on the larger jurisdictions. Executions have also recently been carried out in some of the smaller states. On 20 July 1998, David Wilson was hanged in St Christopher and Nevis. He had not yet petitioned the Privy Council for leave to appeal against his conviction. In February 1995, three men were hanged in St Vincent and the Grenadines. In August 1995, Belize attempted to hang Pasqual Bull and Herman Maheia less than twenty-four hours after their death warrants had been read. The executions were eventually stayed by the Privy Council twenty minutes before they were due to be carried out. The last execution in Belize was in 1985. The last executions in other retentionist countries were: Antigua, 1991; Barbados, 1984; Dominica, 1986; and St Lucia, 1995. 34 [1994] 2 AC 1 (PC). Guerra v. Baptiste [1996] AC 397 (PC). Amnesty International report, note 5 above, p. 7.

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In 1979, both houses of the Jamaican Parliament voted to retain capital punishment. The Senate decided to continue the moratorium pending further examination of the issue, although the issuing of death warrants resumed. A new committee was appointed chaired by Sir Aubrey Fraser, a former appeal court judge. The Fraser Committee report, of March 1981, stated that capital punishment should be abolished in Jamaica. The Committee recognised, however, that outright abolition would be politically unacceptable and it therefore proposed a restriction on the use of capital punishment to aggravated forms of murder. These proposals eventually formed the basis for the Offences Against the Person (Amendment) Act 1992.36 Nearly all of the Fraser Committee’s recommendations, including a call to commute all pending death sentences, were ignored by the government. Executions resumed in Jamaica in May 1981, and between then and July 1984, twenty-three prisoners were hanged, a much higher rate than before the moratorium began in 1976. The last executions in Jamaica occurred in March 1988, when Stanford Dinnal and Nathan Foster were hanged.37 In recent years, Trinidad has been the most enthusiastic proponent of capital punishment in the Caribbean, largely due to the efforts of its ambitious former Attorney-General, Ramesh Maharaj. Maharaj succeeded in his desire to resume executions in Trinidad in June 1999 when ten prisoners were executed in a six-week period. Prior to 1999, there had been only two executions in Trinidad during the previous twenty years. In September 1990, a Commission of Inquiry chaired by Elton Prescott recommended that the death penalty should be retained. The execution of Glen Ashby on 14 July 1994, while his appeal was pending before the Privy Council, in violation of an undertaking that had been given to the court by leading counsel for Trinidad, shocked international opinion. The United Nations Human Rights Committee called it an extra-judicial execution. A Commission of Inquiry, appointed by the Organisation of Commonwealth Caribbean Bar Associations to inquire into the circumstances of the execution, found that his hanging was illegal. The Commission declared itself satisfied that there was sufficient evidence to cite the then Attorney-General, Keith Sobion, for contempt of court.38 36

37 38

In September 1992, the new Act inter alia repealed section 2 of the Offences Against the Person Act 1864 and substituted a new section which defined as capital murder that which was committed in various specified circumstances. See generally Lamey v. The Queen [1996] 1 WLR 902 (PC). Berry v. Jamaica, Communication No. 330/1988, UN Doc. CCPR/C/50/D/330/1988 (1994), para. 3.1. Second Status Report on the Implementation of the Death Penalty in Trinidad and Tobago, March 2000, p. 2. The United Nations Special Rapporteur on Extrajudicial,

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‘Evolving standards of decency’: the constitutional jurisprudence of the Privy Council in capital cases Local legislation invariably grants convicted prisoners the right to seek leave to appeal against conviction to the local court of appeal, and applications for leave to appeal (and, if granted, the appeal itself) are usually heard by a three-judge panel. Larger jurisdictions, like Jamaica and Trinidad and Tobago, have permanent courts of appeal, which sit in session throughout the year. Smaller jurisdictions either have a part-time court of appeal with members drawn from the courts of other jurisdictions (e.g., Belize) or they share a court of appeal with other states.39 If the appeal is dismissed, the defendant has the right to petition the Privy Council in London for special leave to appeal. The judicial jurisdiction of the Privy Council rests on the ancient prerogative of the Sovereign as the source of justice throughout the dominions. At independence, most Caribbean states chose to retain the judicial link with the United Kingdom40 and enshrined a constitutional right of appeal to the Privy Council.41 Applications for special leave to appeal are heard by three judges and full appeals are generally heard by five judges, unless the Privy Council is being invited to depart from a previous ruling, in which case seven judges may sit.42 Generally, the Privy Council has the power to quash the conviction (either outright or, where appropriate, with a direction that the case be remitted back to the local court of appeal to decide whether there should be a retrial), to substitute an alternative verdict, or to dismiss the appeal. In constitutional cases, it also has the power to declare that the carrying out of the execution would be unlawful and to substitute a lesser sentence.43 The Privy Council also has jurisdiction to grant a

39

40

41 42 43

Summary and Arbitrary Executions declared that Mr Ashby had been the victim of a clear violation of his right to life: see UN Doc. E/CN.4/1995/61, para. 382. The execution was described as ‘a grave violation of due process and the rule of law’ by Trinidad Chief Justice de la Bastide in ‘The Case for a Caribbean Court of Appeal’ (1995) 5 Caribbean Law Review 401. For example, criminal appeals from St Christopher and Nevis, St Vincent and the Grenadines, Antigua and other states are heard by the Court of Appeal of the Eastern Caribbean. The Caribbean states which have retained a right of appeal to the Privy Council are: Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, Grenada, Jamaica, St Christopher and Nevis, St Lucia, St Vincent and the Grenadines and Trinidad and Tobago. Guyana also has the death penalty but has abolished the right of appeal to the Privy Council. See, for example, section 110 of the Constitution of Jamaica. See e.g. Pratt and Morgan v. Attorney-General for Jamaica [1994] 2 AC 1 (PC). Ibid.

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stay of execution pending the hearing of the application for special leave to appeal.44 If the Privy Council refuses leave to appeal, or dismisses the appeal, the defendant may, depending upon whether the state concerned is a signatory to the relevant human rights treaty, lodge a complaint with one of the international human rights bodies alleging that his45 rights under the treaty have been violated. At the conclusion of the judicial process, the executive must consider whether or not the prerogative of mercy should be exercised in the defendant’s case, irrespective of whether a formal petition for clemency has been submitted by the defendant.46 Prior to 1980, the Privy Council would interfere in criminal cases only rarely. In Muhammed Nawaz v. King Emperor, Lord Simon LC said that the Privy Council would only intervene ‘where there has been an infringement of the essential principles of justice’.47 During the late 1980s and 1990s, however, the Privy Council became increasingly willing to grant leave to appeal on issues that just a few years earlier would not have troubled it.48 Five factors in particular have probably been responsible for this change. First, a majority of the judges who now sit on the Privy Council have a greater sensitivity for human rights issues.49 Secondly, during the 1980s the European Convention on Human Rights began to assume an increasing importance as rulings from Strasbourg exposed the failings of the common law. Thirdly, there was a growing awareness of the generally poor quality of trial representation and judging in the Caribbean.50 This is not always the fault of the advocates or the judges: legal aid rates are generally paltry, no money is given for expert witnesses,51 and practitioners and judges often have to make do with out-of-date books. Fourthly, the miscarriage of justice cases of the Guildford Four, the Birmingham Six52 and Judith Ward53 shattered judicial complacency about standards of police behaviour. Fifthly, since 44 45

46 47 48

49

50 51 52

Reckley v. Minister of Public Safety [1995] 2 AC 491 (PC). The overwhelming number of death row prisoners in the Caribbean are male and so in this chapter the male pronoun will be used exclusively. No women have been executed in the modern era in the Caribbean. Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342 at 1346 (PC). (1941) LR 68 Ind. App. 126. Cf. C. Gelber, ‘Reckley (No. 2) and the Prerogative of Mercy: Act of Grace or Constitutional Safeguard?’ (1997) 60 MLR 572; and L. Blom-Cooper, ‘Justice and Mercy in the Caribbean’ (1997) Crim LR 116–20. In Beckford v. The Queen (1987) 85 Cr App R 378 at 387, Lord Griffiths referred to ‘that utter certainty that is required in a case of capital murder that the jury would necessarily have returned the same verdict’. Sankar v. State [1995] 1 WLR 194 (PC); Crosdale v. The Queen [1995] 1 WLR 864 (PC). Arleigh James v. The Queen, unreported, 22 March 1999 (PC). 53 Ward [1993] 1 WLR 619 (CA). McIlkenny (1991) 93 Cr App R 287 (CA).

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the 1980s a panel of experienced solicitors and counsel has been available in London to represent defendants before the Privy Council without payment.54 The modern approach of the Privy Council in appeals against conviction is summarised in a passage from Davies v. The King: [The Privy Council] will set aside a conviction wherever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.55

Four questions have been the subject of particularly detailed consideration by the Privy Council in recent years: 1. whether prolonged delay in the carrying out of a death sentence renders the sentence unconstitutional; 2. whether detention in inhuman conditions in prison entitles a prisoner to a judicial commutation of his sentence; 3. the effect in domestic law of the decisions of international human rights bodies; and 4. whether the prerogative of mercy in the Caribbean is subject to the rules of natural justice. Delay and ‘the phenomena of alternating hope and despair’56 At common law, delays in carrying out sentences of death were virtually unknown.57 The Report of the Royal Commission on Capital Punishment 1949–5358 gave the average delay in 1950 as six weeks if there was an appeal and three weeks if there was not. One consequence of the political debates in the 1970s in the Caribbean about the future of the death penalty was that a number of prisoners whose appeals had failed were not executed immediately but were kept in solitary confinement pending the resolution of the controversy. For example, when executions resumed in 1981 in Jamaica, the first five prisoners executed had been on death row for between two-and-a-half and five years. 54 55 56

57 58

Higgs v. Minister of Public Safety [2000] 2 WLR 1368 at 1392–3. (1937) 57 CLR 170 at 180, approved in Berry (Linton) v. The Queen [1992] 2 AC 364 at 384. For a useful summary of the Privy Council’s changing approach to the issue of delay, see Fisher v. Minister of Public Safety [1998] AC 673 at 686–7 (PC) per Lord Steyn, dissenting. Pratt and Morgan v. Attorney-General for Jamaica [1994] 2 AC 1 at 18 (PC). Cmd 8932 (1953).

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In de Freitas v. Benny, Lord Diplock rejected the argument that post-conviction delay rendered execution unconstitutional.59 In Riley v. Attorney-General of Jamaica,60 Lord Bridge of Harwich, writing for the majority, rejected a death penalty challenge because of what he held to be the effect of the savings clause in section 17(2) of the Constitution, which provided: ‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.’61 In dissent, Lords Scarman and Brightman challenged both the reasoning and the conclusion of the majority, arguing that the majority’s approach to the interpretation of the Constitution was wrong in that they had not afforded it the ‘generous interpretation’ which, as a constitutional instrument, it ought to have been given.62 The majority’s hope63 that the delay would be taken into account by the GovernorGeneral in his exercise of the prerogative of mercy proved to be misplaced and the appellants were executed after having spent more than six years on death row.64 Ten years later, in June 1993, the issue of whether prolonged delay could render the carrying out of an execution inhuman and degrading treatment came back before a seven-judge Privy Council in the Pratt case. Two important factors in particular gave grounds for hope that the Privy Council might overrule Riley. First, in 1989 in Soering v. United Kingdom,65 the European Court of Human Rights had held that extradition of a defendant to the United States to stand trial for capital murder would violate Article 3 of the European Convention on Human Rights not because capital punishment per se violates the Convention (the Court having rejected this argument) but because of the length of time the condemned man would spend on death row prior to execution. Although the minority in Riley had been alive to international jurisprudence, and had

59 60 61 62 63

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[1976] AC 239 at 245–6 (PC). The appellant was hanged a day following the judgment: Geoffrey Robertson QC, The Justice Game (London: Chatto & Windus, 1998), p. 90. [1983] 1 AC 719 (PC). The ‘appointed day’ was the date of Jamaican independence, namely, 6 August 1962: see [1983] 1 AC 719 at 727 (PC). Minister of Home Affairs v. Fisher [1980] AC 319 at 328 (PC). [1983] 1 AC 719 at 725. Nor was the three-to-two decision in Riley seen as a proper ground for exercising clemency, despite the English practice of granting mercy where the defendant had lost before the courts by a narrow margin: Amnesty International report, note 5 above, p. 16. Two other prisoners, Vincent O’Sullivan and Enos Henry, were also executed on 16 September 1982. They had been sentenced to death in 1976. (1989) 11 EHRR 439.

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relied on the decision of the European Court in Tyrer v. United Kingdom66 regarding delay and corporal punishment, the decision in Soering was a significant breakthrough. Secondly, the legal resources available to the appellants in the Pratt case were greater than those available to the appellants in Riley. No less than six counsel (including three Queen’s Counsel) represented the appellants in the Pratt case, and they were supported by very significant research assistance. This legal firepower enabled historical material to be unearthed which showed beyond doubt that the premise of the majority in the Riley case – that prior to independence there would have been no grounds upon which to argue that a delayed execution was unlawful – was wrong. The decision in Pratt was delivered by Lord Griffiths. The two appellants had been on death row since 1979 and had had death warrants read on several occasions, only to have their executions stayed at the last minute. The chronology described by Lord Griffiths67 showed that the appellants had been the victims of serious maladministration, with Jamaican courts losing their papers and not delivering reasons on their cases for several years at a time. By the time that their constitutional proceedings were commenced in 1991, they had been on death row for twelve years, far in excess of the period in Riley. Lord Griffiths began his judgment by emphasising the speed with which executions for murder had been carried out in England:68 It is difficult to envisage any circumstances in which in England a condemned man would have been kept in prison for years awaiting execution. But if such a situation had been brought to the attention of the court their Lordships do not doubt that the judges would have stayed the execution to enable the prerogative of mercy to be exercised and the sentence commuted to one of life imprisonment. Prior to independence, applying the English common law, judges in Jamaica would have had the like power to stay a long delayed execution.

Having established this fact, it was a straightforward matter to show why the minority in Riley had been correct. Lord Griffiths found that section 17(2) of the Jamaican Constitution did not address the question of delay. He said: ‘Before independence the law would have protected a Jamaican citizen from being executed after an unconscionable delay, and their Lordships are unwilling to adopt a construction of the Constitution that results in depriving Jamaican citizens of that protection.’69 The length of permissible delay remained to be determined. Clearly, reasonable time for appeals and applications to international human 66 68

67 [1994] 2 AC 1 at 19 (PC). (1979–80) 2 EHRR 1. 69 Ibid., pp. 28–9. Ibid., p. 19.

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rights bodies had to be allowed. Lord Griffiths was not prepared to accept the view that delay caused by recourse to legitimate appeals could be ignored for the purposes of assessing whether there had been unduly prolonged delay. Despite support for this view in the speech of Lord Bridge in Riley70 and in the decisions of American and Canadian courts,71 he firmly rejected this approach. Lord Griffiths said that the aim should be to complete the domestic stage of the appeals process within three-anda-half years, and that the application to an international body should be completed within eighteen months. Therefore, he said, ‘[t]hese considerations lead their Lordships to the conclusion that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute “inhuman or degrading punishment or other treatment”’.72 The decision in Pratt immediately raised the question of whether the five-year period specified by Lord Griffiths was an absolute time limit. If constitutional proceedings were brought by a man who had been on death row for four years and eleven months, was he still liable to be executed? This question was considered by the Privy Council in Guerra v. Baptiste.73 The appellant had been on death row for four years and ten months when he sought constitutional relief. Having established that the principle in Pratt was applicable in Trinidad, Lord Goff of Chieveley considered whether the appellant could rely on the principle even though he had not reached the five-year threshold. The facts showed that it had taken four years to produce the notes of evidence at trial for the purposes of the appeal. Their lordships did not ‘see how it could be said that an appellate process is being carried out with all possible expedition’ under the circumstances.74 In Henfield v. Attorney-General of the Commonwealth of the Bahamas, Lord Goff said that the five-year period in Pratt was not to be regarded as ‘a fixed limit applicable in all cases, but rather as a norm which may be departed from if the circumstances of the case so require’.75 The principles established by these cases clearly had general application throughout the Commonwealth Caribbean,76 and as a consequence a 70 71 72 74 76

[1983] 1 AC 719 at 724. Richmond v. Lewis, 948 F 2d 1473 (9th Cir. 1990); Kindler v. Canada (Minister of Justice) (1991) 67 CCC (3d) 1 (Supreme Court of Canada). 73 [1996] AC 397 (PC). [1994] 2 AC 1 at 35–6 (PC). 75 [1997] AC 413 at 421 (PC). Ibid., p. 414. Bradshaw v. Attorney-General of Barbados [1995] 1 WLR 936 (PC) (Barbados); Henfield v. Attorney-General of the Commonwealth of the Bahamas [1997] AC 413 (PC), overruling in part Reckley v. Minister of Public Safety [1995] 2 AC 491 (PC), overruled itself in part by Fisher v. Minister of Public Safety [1998] AC 673 (PC).

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considerable number of death sentences were commuted. They provoked a furious reaction in the Caribbean and there were a number of unsuccessful legislative attempts to reverse them.77 In Fisher v. Minister of Public Safety,78 the appellant sought to apply the Pratt principle to pre-trial delay. He argued that time spent on death row prior to trial ‘counted’ for the purposes of establishing the necessary inhuman and degrading treatment. Although the question had been left open in Henfield,79 it was rejected by a majority of the Privy Council.80 The majority were, however, prepared to accept that there might be exceptional cases where the delay was such as to warrant commutation, but concluded that the facts in Fisher were not sufficiently exceptional.81 He was executed in October 1998 after his second appeal to the Privy Council was also dismissed.82 Lord Steyn dissented. Many practitioners interpreted his judgment as a clear signal to persist with pre-trial delay arguments.83 Lord Steyn’s analysis treated the cruelty inherent in delayed execution as merely one example of the state’s treatment of the defendant, which could render an execution unconstitutional. In Neville Lewis v. Attorney-General of Jamaica,84 a majority of the Privy Council adopted this approach and in so doing rejected the reasoning of the majority in Fisher. ‘Barbarous regimes’: prison conditions in the Caribbean The conditions of Caribbean death rows have been well documented. Many organisations have expressed their concern that Caribbean prison conditions fall far below acceptable minimum standards.85 In Higgs v. Minister of Public Safety, Lord Steyn gave a description of death row conditions in the Bahamas, which reflect conditions across the region 77 80 82 83 85

78 [1998] AC 673 (PC). 79 [1997] AC 413 at 426–7. See below. 81 Ibid., p. 682. [1998] AC 673 at 679–80 (PC). Fisher v. Minister of Public Safety (No. 2) [2000] 1 AC 434 (PC). 84 Ibid. [1998] AC 673 at 686 (PC). The conditions in Jamaican prisons have been documented in the following reports: Jamaica Prisons Ombudsman, Prison and Lock Ups (1983); Americas Watch, Prison Conditions in Jamaica (1990); Americas Watch, Death Penalty, Prison Conditions and Prison Violence (1993); and Amnesty International, Proposal for an Inquiry into Death and Ill-Treatment of Prisoners in St Catherine’s District Prison (1993). These reports document a lack of proper health care or psychiatric care; lack of sanitation; inadequate food; inadequate ventilation; and repeated violence and ill-treatment by prison guards. For relevant United Nations Human Rights Committee decisions, see, among others, Leslie v. Jamaica, 31 July 1998, Communication No. 564/1993; Finn v. Jamaica, 31 July 1998, Communication No. 617/1995; Whyte v. Jamaica, 27 July 1998, Communication No. 732/1997; and Perkins v. Jamaica, 30 July 1998, Communication No. 733/1997.

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generally.86 In Thomas v. Baptiste,87 the Privy Council considered whether prison conditions could ever constitute grounds for judicial commutation of a death sentence. The main issue in the appeal concerned the effect in domestic law of the decisions of the Inter-American Commission on Human Rights and the greater part of Lord Millett’s judgment dealt with that question,88 raising more questions than it answered. Lord Millett did not explain what it was about detention in solitary confinement, shackling or flogging which would enable the prisoner to rely on treatment in support of a commutation of his sentence, or why other forms of illtreatment might not qualify. Nor did he appear to recognise that the vast majority of Caribbean death row prisoners are, in fact, kept in solitary confinement, and so he did not explain why they were not entitled to have their sentences commuted for this reason alone. In his dissent, Lord Steyn continued to develop the reasoning he first expounded in Fisher.89 Five months later, in Higgs v. Minister of National Security, the appellants argued that they were entitled to have their sentences commuted inter alia on the grounds of pre-trial delay and their detention in inhuman condition. By a three-to-two majority, the Privy Council reaffirmed the decision in Fisher v. Minister of National Security90 that only exceptional pre- trial delay could result in commutation. Writing for the majority, Lord Hoffmann sought to explain the reasoning underlying Lord Millett’s conclusion in Thomas.91 His judgment left unanswered the question of how a ‘nexus’ between treatment and execution was to be established. Nor did he explain why, if a nexus was required, the actions of the guards in taunting the appellants about their forthcoming executions and showing them the execution chamber did not constitute the requisite nexus. In his dissent, Lord Steyn argued that Article 17(1) 86

87 90

[2000] 2 WLR 1368 at 1388 (PC). Both Lord Steyn and Lord Cooke of Thorndon rejected any notion that the conditions could be justified on the grounds of cultural relativism (Ibid., p. 1395): In the Supreme Court in the present cases the judge adopted the opinion of another judge in another case that the prison conditions could not be described as below the ‘evolving standards of decency that are the hallmark of maturing society’ having regard to security and financial constraints. It is difficult, however, to see how security could be a factor in the years of confinement in these conditions; and I did not understand the argument for the respondents to suggest that it was a factor. As for financial constraints, if ever the poverty of a country might arguably excuse such treatment this could hardly be so in The Bahamas, ‘one of the most prosperous of the Caribbean and Latin American nations’ . . . From the way in which the prison conditions were dismissed in the courts below, the likely fate of an application for injunctive relief (if one could have been mounted in the absence of legal aid) is perhaps not hard to predict. 88 Ibid., pp. 27–8. 89 Ibid., p. 36. [2000] 2 AC 1 (PC). 91 [2000] 2 WLR 1368 at 1380–81. [1998] AC 673 (PC).

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of the Constitution of the Bahamas required a global approach to be taken to the question of whether the state has inflicted such additional cruelties that it has forfeited the right to execute. ‘The effect of the decision of the majority is to entrench by a judgment of a court sitting in London the barbarous regime on death row which I have described’, he said. In April 2000, the consolidated appeals in Neville Lewis v. Attorney General of Jamaica92 were heard by the Privy Council. The appellants had lodged constitutional motions in which they raised allegations of serious ill-treatment by the prison authorities in the form of beatings and detention in inhuman conditions. These claims had been struck out by the lower courts on the grounds that even if true they could not, on the authority of Thomas v. Baptiste93 and Higgs,94 constitute grounds for commutation. The Privy Council allowed the appeals on the grounds of post-conviction delay in accordance with Pratt v. Attorney General of Jamaica.95 The majority held that, had it been necessary, the prison conditions issue would have had to have been remitted to the lower courts in order to determine ‘whether they were such as to aggravate the punishment of the death sentence so as to amount to inhuman and degrading treatment in the light of the Board’s judgment in Higgs v. Minister of National Security . . . and Thomas v. Baptiste’.96 Lord Steyn’s prediction at the beginning of his judgment in Fisher v. Minister of Public Safety97 has come to pass more quickly than perhaps even he foresaw. Death row prisoners are now entitled to have their sentences judicially commuted where there has been excessive pre- or postconviction delay, or where they have been detained in unduly harsh conditions or mistreated by the prison authorities, or where other factors are present which may fairly be said to have increased the anguish and mental suffering of the condemned man beyond the minimum necessary. ‘Some people in Costa Rica’: the effect of decisions of international human rights bodies in domestic law The status in domestic law of the decisions of international human rights bodies has proved to be a controversial issue in the Privy Council. Prior to 1998, both Jamaica and Trinidad were parties to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which confers a right of individual petition to the UN Human Rights 92 94 96

[2000] 3 WLR 1785 (PC). [2000] 2 WLR 1368 (PC). [2000] 3 WLR 1785 at 1813.

93 95

[2000] 2 AC 1 (PC). [1994] 2 AC 1 (PC). 97 [1998] AC 673 (PC).

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Committee.98 They were also parties to the American Convention on Human Rights (ACHR), which offers a similar mechanism before the Inter-American Commission on Human Rights. Where a state party has also accepted the jurisdiction of the Inter-American Court of Human Rights, then the state concerned or the Inter-American Commission can refer the case to that body for a definitive decision. The Bahamas is not a party to the ACHR, but as a member of the Organization of American States its citizens have the right to submit petitions to the Inter-American Commission on Human Rights alleging breaches of the American Declaration on the Rights and Duties of Man.99 Although the recommendations of these bodies are not directly binding in domestic law, in Pratt the Privy Council allowed for an eighteen-month period within the overall timetable to allow petitions to international human rights bodies to be made. In the governments’ eyes these bodies were not dealing with the petitions expeditiously enough and they were concerned that their ability to carry out executions within the Pratt timetable was being hampered. In August and October 1997, Jamaica and Trinidad respectively issued Instructions which purported to lay down a timetable, which the international bodies had to meet. The states declared, in effect, that if the international bodies did not comply with their timetable then they would proceed to carry out the executions without waiting for the international bodies’ decision.100 On 26 May 1998, Trinidad denounced the Optional Protocol to the ICCPR, thereby removing the right of individual petition to the Human Rights Committee under the ICCPR. On the same day, it re-acceded to that instrument, subject to a reservation to exclude any communication ‘[r]elating to any prisoner who is under sentence of death in respect of any matter relating to his prosecution, his detention, his trial, his conviction, his sentence or the carrying out of the death sentence on him and any matter connected therewith’. In Rawle Kennedy v. Republic of Trinidad and Tobago, the Committee rejected this attempt, by a nine-to-four majority, stating that ‘[t]he Committee cannot accept a reservation, which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population . . . This constitutes a discrimination, which runs counter to some of the most basic principles embodied in the Covenant and its Protocols.’101 98 99 100 101

See generally McGoldrick, The Human Rights Committee (Oxford: Clarendon Press, 1996). See generally Harris and Livingstone (eds.), The Inter-American System of Human Rights (Oxford: Clarendon Press, 1998). Thomas v. Baptiste [2000] 2 AC 1 at 18–19 (PC). Communication No. 845/1999, 31 December 1999.

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As a result of this decision, on 27 March 2000 Trinidad withdrew from the Optional Protocol for a second time. On the same day that it withdrew from the Optional Protocol for the first time, Trinidad also notified the Organization of American States of its intention to denounce the ACHR. Pursuant to Article 78 of the ACHR, Trinidad’s denunciation took effect on 26 May 1999. The denunciation did not, however, affect the right of petition in relation to alleged violations occurring before that date. The legality of executing condemned prisoners before the Commission had ruled on their cases came before the Privy Council in Thomas v. Baptiste.102 The appellants both had outstanding applications to the Commission but the President had signed death warrants regardless. The issue was whether Trinidad was obliged to wait for the Commission to issue a decision notwithstanding that the eventual decision was not binding upon it as a matter of domestic law. By a three-to-two majority, the Privy Council held that the due process clause of the Trinidad Constitution had the effect of temporarily extending its criminal justice system to include the Commission and the state could not therefore lawfully frustrate the judicial process by carrying out the appellants’ executions before that process was complete.103 Accordingly, the majority granted a stay of execution pending the decision of the Commission. In due course the Commission held that the appellants’ rights under the ACHR had been violated because inter alia they had been subjected to a mandatory death penalty which, the Commission held, violated their rights under Articles 1, 2, 4, 5, 7 and 25 of the ACHR. Their cases have been consolidated together with others and referred to the InterAmerican Court of Human Rights for final determination.104 The decision in Fisher v. Minister of Public Safety (No .2)105 was given on the first day of the hearing in Thomas v. Baptiste. The Fisher (No. 2) case had raised the issue of whether the Bahamas, which is not a party to the ACHR, was obliged to wait for a decision of the Commission on a petition lodged with it under the American Declaration on the Rights and Duties of Man. By a three-to-two majority,106 the Privy Council held that they were not obliged to wait indefinitely but were entitled to proceed 102 103

104 105 106

[2000] 2 AC 1 (PC). Lords Browne-Wilkinson, Steyn and Millett were in the majority. Lord Goff of Chieveley and Lord Hobhouse of Woodborough dissented. While joining the majority’s reasoning, Lord Steyn dissented in the result, arguing that the prison conditions in which the appellants had been held entitled them to have their sentences commuted, as discussed above. Constantine and others v. Trinidad. The Court upheld the ruling of the Commission in a judgment rendered on 21 June 2002: see www.oas.org. [2000] 1 AC 434 (PC). Lord Slynn of Hadley and Lord Hope of Craighead dissented.

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to execute a defendant who had a petition outstanding provided that the Commission had had a reasonable time to consider the petition, and that the word ‘court’ in Article 16 of the Constitution referred to domestic courts. Thomas v. Baptiste exposed the fallacy in this reasoning. A state is obliged to wait for the decision of an international human rights body because the right not to have judicial proceedings curtailed by executive action is a common law right, which is not created but is affirmed by constitutional provisions – proceedings before the Commission plainly are judicial proceedings for these purposes, the Bahamas having chosen to become a member of the OAS and therefore to confer on its citizens the right of individual petition under the American Declaration on the Rights and Duties of Man.107 Nevertheless, in Higgs v. Minister of National Security,108 the appellants’ argument that Fisher (No. 2) was wrongly decided in the light of Thomas was rejected by the Privy Council. Lord Hoffmann reaffirmed the correctness of the decision in Fisher (No. 2) without explaining in detail why the same common law right which protected death row prisoners in Trinidad did not also protect prisoners in the Bahamas. In Briggs v. Baptiste,109 the appellant had received a favourable recommendation from the Commission. However, this had not been followed by Trinidad and a warrant for his execution had been read. The InterAmerican Court of Human Rights had issued provisional measures in the form of an order, which required Trinidad not to carry out the execution until further order. The issue before the Privy Council was whether the Court’s injunction was binding as a matter of domestic law. The appellant relied on the reasoning in Thomas to argue that the injunction was binding and that Trinidad was not permitted to carry out the execution until all international procedures had been completed. By a four-to-one majority, the Privy Council dismissed the appeal.110 Lord Millett held that, once the Commission had reported, and that report had been taken into account at the mercy stage, then the international process was at an end and there was nothing upon which the court’s injunction could bite.111 With respect to the repeated reading of death warrants, Lord Millett said that this was a matter which should be taken into account by a mercy advisory committee and could not form the basis of judicial 107 108 110

For a description of the status of the Declaration, see Higgs v. Minister of National Security [2000] 2 WLR 1368 at 1372–3. 109 [2000] 2 AC 40 (PC). Ibid. 111 [2000] 2 AC 40 at 51 and 54–5. Lord Nicholls of Birkenhead dissented.

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commutation.112 But the Privy Council’s recommendation was never taken into account by the Trinidadian authorities. At the conclusion of the hearing, on 22 July 2000, the Privy Council announced that the appeal would be dismissed for reasons to be given later, and these were not released until 22 October 2000. Mr Briggs had been executed within days of the hearing, on 28 July 2000. The last of the cases to raise the status of international human rights bodies in domestic law was Neville Lewis v. Attorney-General of Jamaica.113 Jamaica is a party to the ACHR, and one of the issues involved was whether Jamaica was obliged to wait for the decision of the Commission on a defendant’s petition lodged under the Convention. Jamaica’s Constitution is very similar to the Constitution of the Bahamas and does not contain a due process clause. The question, therefore, was whether Thomas v. Baptiste or Fisher (No. 2) applied in that situation. By a four-to-one majority, the Privy Council held that Jamaica was, indeed, obliged to wait for the Commission to reach a decision. Lord Slynn of Hadley’s judgment finally exposed the fiction which had underpinned Lord Hoffmann’s reasons in Higgs v. Minister of National Security, namely, that the result in Thomas v. Baptiste depended on the fortuitous inclusion in the Constitution of Trinidad of a due process clause despite the fact that the right to due process of law is a fundamental common law principle.114 The Privy Council has clearly found the issue of the effect in domestic law of the decisions of international human rights bodies to be very difficult. Three of the five decisions considering the issue resulted in three-to-two majorities, and all of them had at least one dissenting judgment. While in Higgs v. Minister of Public Safety Lord Hoffmann loyally applied the reasoning in Thomas v. Baptiste, in his dissent in Neville Lewis v. Attorney-General of Jamaica he appeared to express doubts about the reasoning in Thomas.115 These decisions are, however, extremely important because of the recognition they have given to international human rights bodies, particularly the Inter-American Commission of Human Rights. They have demonstrated that the decisions of these bodies and the scrutiny they give to death penalty cases can have an important and direct effect on the lives 112 114 115

113 [2000] 3 WLR 1785 (PC). Ibid., p. 55. Lord Hoffmann dissented. [2000] 3 WLR 1785 at 1815. Nor has Lord Hoffmann attempted to hide his scepticism about international human rights bodies as a whole. During the hearing in Briggs v. Baptiste [2000] 2 AC 40 (PC), he memorably described the Inter-American Court of Human Rights as ‘some people in Costa Rica’. The seat of the Court is in San Jos´e, Costa Rica.

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of citizens and the administration of justice and that they cannot be casually disregarded by ambitious vote-hungry politicians. It is an unfortunate sign of the growing influence of these bodies that Jamaica and Trinidad, instead of seeking to co-operate with them and gracefully accepting their recommendations, have irreparably harmed their reputations as democracies governed by the rule of law by reducing or renouncing their human rights obligations altogether. This has not deterred human rights lawyers in these countries, however, who continue to fight for the rights of their clients with a considerable degree of success. No apology for Mr Reckley: the justiciability of the prerogative of mercy The major issue argued in the appeal in Neville Lewis v. Attorney-General of Jamaica was whether the decision in Reckley v. Minister of Public Safety (No .2) that the prerogative of mercy was not amenable to judicial review was correctly decided. The decision in Reckley v. Minister of Public Safety (No. 2) had drawn fierce academic criticism116 and many practitioners thought that there were good grounds to argue that it was wrongly decided. The background to the two cases was the unfair and cruel way in which decisions on mercy were taken in the Caribbean. Whereas in the United Kingdom the condemned person was at least permitted to submit petitions or make representations (albeit without sight of any material before the Home Secretary), in the Caribbean the process was generally carried out in secret. More often than not, the first time that the condemned person would know that clemency had been denied and that execution was imminent was when the prison superintendent arrived at the cell door to read the death warrant. While practice across the region varied, usually the condemned person was not invited to submit representations and he was never given access to the trial judge’s report or other material on which the decision would be taken. In de Freitas v. Benny, Lord Diplock peremptorily rejected the appellant’s argument that the mercy process in Trinidad was amenable to judicial review for a failure to comply with the rules of natural justice and that he was entitled to make representations.117 In the years between 1976 and 1996, public law underwent considerable change as the courts expanded 116

117

D. Pannick, ‘Tempering Justice with Mercy’ [1996] Public Law 557; C. Gelber, ‘Reckley (No. 2) and the Prerogative of Mercy: Act of Grace or Constitutional Safeguard?’ (1997) 60 MLR 572; and L. Blom-Cooper, ‘Justice and Mercy in the Caribbean’ [1997] Crim LR 116. [1976] AC 239 at 247 (PC).

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the scope of judicial review.118 The issue of whether the prerogative of mercy could be judicially reviewed was directly considered in 1993, in R. v. Secretary of State for the Home Department, ex parte Bentley.119 The Divisional Court held that errors of law in the exercise of the prerogative of mercy were reviewable and that the Secretary of State had acted unlawfully in refusing to grant Derek Bentley a posthumous free pardon.120 In 1995, in Guerra v. Baptiste,121 the Privy Council granted special leave to appeal inter alia on the ground that de Freitas v. Benny was no longer good law. In Reckley v. Minister of Public Safety,122 the appellant was granted a stay of execution pending resolution of the issue in Guerra v. Baptiste. In the event, that appeal was allowed on other grounds and the Privy Council did not decide the mercy issue. It therefore arose for determination on Mr Reckley’s restored application for special leave to appeal in February 1996. The decision in Reckley v. Minister of Public Safety (No. 2)123 was seen as a failure to grapple with the fundamental issue of why natural justice should not apply in capital cases when it had been held to apply in the context of life sentenced prisoners. Lord Goff of Chieveley’s analysis of the problem proceeded on the premise that because the merits of the mercy decision were immune from challenge before the courts therefore the defendant could enjoy no procedural rights either. Why this should be so was not adequately explained. It also demonstrated a trusting faith in the bona fides of those involved in the mercy process and those involved in writing the material which goes before the mercy committee. In fact, as the evidence in R. v. Secretary of State for the Home Department, ex parte Bentley124 revealed, trial judges’ reports could be unfair and inaccurate. Lord Goddard’s report after the trial in that case said that he could find ‘no mitigating circumstances in Bentley’s case’,125 despite the fact that there was ample evidence of Bentley’s mental retardation and his secondary involvement in the crime. In 1998, the Court of Appeal quashed Mr Bentley’s conviction on the ground of Lord Goddard’s flagrant bias during the trial.126 The opportunity to argue that Reckley (No. 2) was wrongly decided presented itself in Neville Lewis127 because of the different constitutional 118 119 120 121 123 126 127

Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (HL); R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL). [1994] QB 349 (DC). Derek Bentley was executed in 1953 for the murder of a policeman. In 1998, his conviction was quashed by the Court of Appeal: [2001] 1 Cr App R 307. 122 [1995] 2 AC 491 (PC). [1996] AC 397 (PC). 124 [1994] QB 349. 125 Ibid., p. 365. Ibid. R. v. Bentley [2001] 1 Cr App R 21; [1999] Crim LR 330 (CA). [2000] 3 WLR 1785.

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structure in Jamaica. Although in the event the Privy Council was not prepared to draw a distinction between the differing constitutional arrangements,128 the distinctive constitutional framework in Jamaica enabled the Neville Lewis appeal to be presented, in the early stages at least, not so much as a direct attack on Reckley but as an opportunity to revisit the issue unfettered by binding authority. A vast amount of historical material was presented which had not been considered in Reckley (No. 2). This enabled the appellants to show that historically the prerogative of mercy had been exercised on a clearly defined basis and was, therefore, little different from an ordinary administrative decision-making process. Whereas in Reckley (No. 2) Lord Goff began his judgment with the proposition that mercy was not the subject of legal rights and had looked for justification for concluding that it should be, Lord Slynn of Hadley began with the opposite premise. He also explained why Lord Diplock’s aphorism in de Freitas v. Benny, which had infected the whole of the judgment in Reckley (No. 2), was wrong.129 Lord Slynn held that fairness required that the condemned man should have the right to make informed representations and the right to see all the material which would be placed before the mercy committee. He also said that fairness might also require there to be an oral hearing depending on the circumstances and that if the decision on mercy differed from the recommendation of an international human rights body then the mercy committee was required to give reasons for not following the recommendation.130 The majority’s decision provoked a strong dissent from Lord Hoffmann, who had been a member of the Privy Council in Reckley (No. 2).131 Responses by states to the Privy Council and the future of the death penalty in the Caribbean Since 1993, the Privy Council has been increasingly criticised by politicians in the region, who are keen to carry out executions in order to increase their popularity with their electorates. They argue that recent decisions of the Privy Council in constitutional cases reveal an anti-death penalty bias among the judges who sit on it. Announcing his government’s forthcoming legislative programme in February 1999, which included a Bill to amend the Constitution to reverse the ruling in Pratt, the Governor-General of Barbados said: Ever since November 1993, the will of the government and people of Barbados, indeed the will of the Governments and people of the Caribbean generally, have 128 130

Ibid., p. 1801. Ibid., pp. 1805–6.

129

Ibid., pp. 1803–4. Ibid., p. 1814.

131

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been frustrated by decisions of the Judicial Committee of the Privy Council which have had the effect of preventing the use of the death penalty as a punishment legally and constitutionally imposed by the State. The rule of law which is the foundation upon which civil society is organised and regulated is being imperilled by judicial decisions in England. It cannot continue.

This hysterical tone increased even further after the Neville Lewis decision. The Prime Minister of Jamaica, Percival Patterson, accused the Privy Council of ‘bending the law to suit itself ’. The Attorney-General of Trinidad said that the decision would mean that it would be impossible to ‘carry out a sentence of death in a constitutional way’.132 The assertion that the Privy Council has been guilty of cultural imperialism is hard to justify. For example, the decision in Neville Lewis drew extensively upon jurisprudence from the domestic courts of the region, including Jamaica, Belize and Guyana. Indeed, the appellants had actually won before the domestic courts on some issues. More importantly, the decision mirrored the human rights values of the region as a whole as declared by the Inter-American Commission of Human Rights in its decision in Hilaire v. Trinidad.133 And to the extent that the Privy Council has been influenced by the principles contained in the European Convention on Human Rights it has been right to do so. The constitutions of the region and the Convention share a common heritage134 and it would be absurd if the constitutional interpretation were to take place uninfluenced by the European Court’s decisions on the Convention. The Caribbean Court of Justice On 14 February 2001, the heads of government of a majority of CARICOM countries135 signed an agreement in Barbados establishing in principle a Caribbean Court of Justice to replace the Privy Council in all civil and criminal appeals. The idea of a final court of appeals for the Caribbean situated in the Caribbean was first proposed in the 1960s at the time of independence. Although proponents of the Court justify it on the grounds of Caribbean nationalism, there is no doubt that the Court is intended, first and foremost, to speed up the rate of executions. 132 133 134 135

St Lucia Star, 20 September 2000. Commission Report 66/99 (21 April 1999). Minister of Home Affairs v. Fisher [1980] AC 319 (PC). CARICOM (Caribbean Community) is the regional organisation which concentrates on the promotion of the integration of the economies of its member states, and the co-ordination of their foreign and domestic policies. It includes all the countries within the English-speaking Caribbean together with other countries such as Suriname. See www.caricom.org.

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In a speech delivered on 21 September 2000, nine days after the decision in Neville Lewis v. Attorney-General of Jamaica, the then Prime Minister of Trinidad, Basdeo Panday said as much. The Caribbean Court of Justice is therefore little more than a cynical political exercise, which has more to do with political expedience than with improving the quality of justice in the Caribbean. There are, as yet, no proposals on how the Court is going to be funded, nor how (or whether) adequate legal aid is going to be available for defendants. The signs are not encouraging. The levels of remuneration in the Caribbean are so low that they have even drawn criticism from the Court of Appeal of Trinidad.136 There are no proposals to allow English lawyers to represent defendants before the Caribbean Court of Justice. There are insufficient numbers of attorneys in the Caribbean willing to represent those accused of capital crimes when their reward is a great deal of opprobrium but very little money. The Court is unlikely therefore to improve the quality of justice. It is likely to be some time before the Privy Council’s jurisdiction is abolished, however. The agreement to establish the Caribbean Court of Justice has to be ratified by the signatories, and many practical issues still have to be determined. It is also going to be necessary for most of the jurisdictions to amend their constitutions to remove the right of appeal to the Privy Council. In most cases, this will require the agreement of opposition parties, which, in view of the politics of the region, may be difficult to obtain.137 Legislative amendments The governments of a number of countries have introduced legislation to amend their constitutions to reverse the Privy Council’s decision in Pratt and other cases. The most wide-ranging of these is the Trinidad Constitution (Amendment) (No. 3) Bill 2000, which was introduced by the Attorney-General in late 2000. The Bill is extremely draconian. Clause 3 reverses the decision in Thomas v. Baptiste.138 It provides that execution while a petition from a condemned prisoner to an international human rights body is pending shall not constitute a violation of due process of law or protection of the law or any of the other rights and freedoms specified in section 4. Clause 4 inserts Part IA into the Constitution. This Part 136 137 138

Bethel v. The State, unreported, 23 March 2000 (Criminal Appeal No. 31 of 1996) (Court of Appeal of Trinidad). For example, in Jamaica, the opposition Jamaican Labour Party led by Edward Seaga is opposed to the Caribbean Court of Justice. [2000] 2 AC 1 (PC).

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precludes the granting of any form of relief (including a stay of execution) to any death-sentenced prisoner at any time prior to the expiration of five years from date of conviction on any of the specified grounds. Section 5(A)(3)(a) reverses the decision in Guerra v. Baptiste. Section 5(A)(3)(b) reverses that part of the decision in Neville Lewis which held that conditions of detention could be a ground for commutation of sentence of death. Clause 5 inserts section 14(5A) into section 14 (enforcement of protective provisions), and provides that the High Court shall have no jurisdiction to hear an application against the execution of a death warrant on any ground where the time for appealing has expired or a petition to the Privy Council has been dismissed. Clause 6 inserts a new section 86A. This provides for automatic commutation of a sentence of death to one of life without the possibility of release (section 86A(4)) where a period of five years has expired from the date of conviction. This period would appear to be calculated by excluding the time occupied by any appeals made by the prisoner to the domestic court or international body. This section therefore reverses the decisions in Pratt and Bradshaw v. Attorney-General of Barbados139 to the extent that the Privy Council in those cases rejected attempts by the government to exclude periods of delay caused by legitimate use of appeals procedures on the grounds that they were the prisoner’s ‘fault’. Clause 7 repeals section 89 and inserts a new section 89. This provides for a constitutional right to make representations on mercy to the Advisory Committee following disclosure of relevant material (section 89(1) and (2)). It therefore codifies that part of the decision in Neville Lewis which held that there was such a right at common law in any event. However, there is no provision made for oral hearings, which the Privy Council expressly contemplated might be required in certain cases in order to ensure fairness. Section 89(3) also excludes the possibility of judicial review of any aspect of the decision relating to mercy, including what information was taken into account. By effectively removing judicial scrutiny of the death penalty in Trinidad, the Bill would permit the executive to inflict punishments of mediaeval barbarity on condemned prisoners prior to their executions. It would also permit the execution of pregnant women, the insane, children and those with claims of innocence, all of which are prohibited by the common law and international law. The courts would be powerless to grant commutation, or even to grant a stay of execution to allow the lawfulness of the proposed execution to be examined. The Bill will serve to mark out Trinidad as being positively antipathetic to human rights. By preventing judicial scrutiny of the operation of the death penalty, it 139

[1995] 1 WLR 936 (PC).

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will place it in the company of states such as China, Saudi Arabia and Iraq, with whom it would not, in any other circumstances, wish to be associated. There is little doubt that the Bill represents a serious inroad into the rule of law in Trinidad. Signs of hope In a speech to a human rights conference in Belize on 12 September 2000,140 the Attorney-General of Belize, the Honourable Godfrey Smith, publicly dissociated himself from the clamour for executions generated by politicians elsewhere in the region, and argued passionately that the Caribbean should accept the inevitability of abolition and move forward: I must state frankly to this conference that I would not wish to see the Caribbean expend its greatest energies on human rights aspects of the death penalty for too much longer. I would much rather that we in the Caribbean and the Third World concede the ineluctability of the abolition of the death penalty and then embark with unbreakable determination, unity and resolve to manipulate the very same international human rights movement for the recognition of the right to development for people in developing countries . . .

So while the prospects of abolition of the death penalty in the near future in some corners of the Caribbean are bleak, there are some signs of hope. At least one of the region’s politicians has been farsighted enough to realise that endless debate about the death penalty is sterile, and that, while executions might win votes, they will do little to solve the real challenges facing the Caribbean in the twenty-first century. 140

Human Rights Training Seminar for the Commonwealth Caribbean, Belize City, Belize, September 2000.

14

Public opinion and the death penalty William A. Schabas

Public opinion is frequently invoked in defence of capital punishment. Sometimes it presents itself as an excuse, relied upon by legislators and jurists who argue that they are personally favourable to abolition of the death penalty but that they cannot move too far ahead of public opinion. And sometimes it appears as a justification, because use of capital punishment is said to be the consequence of democratic rule: it is the will of the majority. In their recent book, Robert Jay Lifton and Greg Mitchell note that ‘the death penalty exists uneasily in any contemporary democracy. Emerging democratic attitudes, over centuries, mostly militate against state killing.’1 And so we have a paradox. Democracy leans towards abolition, but retentionists defend the death penalty in the name of the will of the people. Should human rights need to protect itself from public opinion?2 During the April 2001 session of the United Nations Commission on Human Rights, United States Ambassador George Moose said there was public debate on the question in his country, but that ‘[e]ach nation should decide for itself through democratic processes whether its domestic law should permit capital punishment’.3 The United States, in its initial report to the Human Rights Committee pursuant to Article 40 of the International Covenant on Civil and Political Rights, said that ‘[t]he majority of citizens through their freely elected officials have chosen to retain the death penalty for the most serious crimes, a policy which appears to represent the majority sentiment of the country’.4 Pro-capital 1

2 3

4

Robert Jay Lifton and Greg Mitchell, Who Owns Death? (New York: Morrow, 2000), p. 212. See also Phoebe C. Ellsworth and Samuel R. Gross, ‘Hardening of the Attitudes: Americans’ Views on the Death Penalty’ (1994) 50 Journal of Social Issues No. 2, 19. For a recent study, see Franklin E. Zimring, Gordon Hawkins and Sam Kamin, Punishment and Democracy (Oxford and New York: Oxford University Press, 2001). Jonathan Fowler, ‘UN Body: Stop Executions’, Associated Press, 25 April 2001. See also ‘Commission on Human Rights Adopts Ten Resolutions, Measures on the Death Penalty, Impunity, and Other Issues Concerning the Promotion and Protection of Human Rights’, United Nations Press Release, 25 April 2001. UN Doc. CCPR/C/81/Add.4, para 139.

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punishment states, many of them with dubious claims to democratic legitimacy, challenged the draft resolution that was subsequently adopted by the Commission on Human Rights, in 1998, because ‘in its insistence on imposing only one view’ it failed to take account of the ‘democratic will of the people’.5 In November 1994, when Rwanda opposed the Security Council resolution creating the International Criminal Tribunal for Rwanda, it argued that the draft statute’s exclusion of the death penalty was unacceptable to its population.6 In January 1999, in denouncing the Optional Protocol to the International Covenant on Civil and Political Rights so as to exclude the possibility of communications dealing with capital punishment, Guyana said this was the consequence of ‘public discussions and Parliamentary approval’.7 Debates about the relative importance of public opinion even rage in abolitionist circles, and impact dramatically upon advocacy strategies. There are those who believe the key to abolition lies in convincing public opinion until such time as there is a favourable majority. Others, impatient with the evolution of views within the public or pessimistic that they will change significantly in the near future, urge an approach that focuses upon political and judicial elites. They point to legislative abolition in the United Kingdom,8 Canada,9 France10 and Germany11 at a time when public opinion polls continued to favour the death penalty. South Africa’s Constitutional Court judicially abolished capital punishment, declaring 5

6 7 8 9 10

11

‘Letter dated 31 March 1998 addressed to the Chairman of the Commission on Human Rights by the delegations of Algeria, Antigua and Barbuda, Bahrain, Bangladesh, Bhutan, Brunei Darussalam, Burundi, China, Democratic Republic of the Congo, Egypt, Ghana, Indonesia, Iran (Islamic Republic of), Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libyan Arab Jamahiriya, Malawi, Malaysia, Maldives, Mauritania, Mongolia, Myanmar, Nigeria, Oman, Philippines, Qatar, Rwanda, Saudi Arabia, Singapore, Sudan, Swaziland, Syrian Arab Republic, Tajikistan, United Republic of Tanzania, United Arab Emirates, Viet Nam and Yeman’, UN Doc. E/CN.4/1998/156, para. 4. UN Doc. S/PV.3453, p. 16. ‘Report of the Human Rights Committee’, UN Doc. A/54/40, p. 98. Roger Hood, The Death Penalty: A World-wide Perspective (Oxford: Clarendon Press, 1989), p. 150. Ezzat A. Fattah, ‘Canada’s Successful Experience with the Abolition of the Death Penalty’ (1987) 25 Canadian Journal of Criminology 421. In his recent memoirs, French Senator Robert Badinter recalls opinion polls published in Le Figaro during the parliamentary debates on abolition in 1981: ‘A pr´esent, on nous reprochait de violer l’opinion des Fran¸cais. Dans une d´emocratie moderne, c’´etait presque une accusation de forfaiture.’ Robert Badinter, L’Abolition (Paris: Fayard, 2000), p. 301. Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany 1600–1987 (Oxford: Oxford University Press, 1996), p. 935; M. Mohrenschlager, ‘The Abolition of Capital Punishment in the Federal Republic of Germany: The German Experience’ (1987) 58 Revue internationale de droit p´enal 509.

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it contrary to the country’s interim constitution, all the while conceding ‘that the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder’.12 Ireland may well be the first country to have put the issue to a genuine popular vote when, on 31 May 2001, a constitutional amendment prohibiting capital punishment was adopted by referendum with a majority of more than 63 per cent.13 That no other countries have dared to submit the issue to public opinion in such a way probably reflects fears that even relatively progressive electorates will succumb to demagogic politicians. Yet public opinion is increasingly being invoked by states to justify abolitionist measures. The Czech Republic and Romania informed the Secretary-General that they had abolished capital punishment ‘in response to public opinion’.14 Poland said that it had been abolished for economic crimes because this was not accepted by public opinion.15 What is public opinion? The question of ‘public opinion’ is often reduced to the rather simplistic proposition that ‘the majority supports the death penalty’. Of course, the study of public opinion is far more complex. It can indicate not only the position taken on the subject by various segments of the public, but also the basis of such opinions. On both sides of the divide, there will be segments of the population that rely on religious, moral, practical, scientific and economic grounds. Individual opinions are probably based on various combinations of these factors. Anecdotally, it seems reasonable to assert that there is a widespread belief that capital punishment has a deterrent effect. Many people feel intuitively that they are deterred from committing violent crime because of the threat of the death penalty, but this is obviously an absurd proposition. Most do not commit murder because they are not murderers, not out of fear that they might be caught and executed. In one sense, the deterrence hypothesis is unarguable: capital punishment deters to the extent that any punishment deters. The real issue is whether capital punishment 12 13 14

15

S. v. Makwanyane, 1995 (3) SA 391, 16 Human Rights Law Journal 154. Twenty-First Amendment of the Constitution (No. 2) Bill 2001 (Death Penalty). The death penalty was abolished in Ireland in 1990: Criminal Justice Act 1990. ‘Capital Punishment and Implementation of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, Report of the Secretary-General’, UN Doc. E/1995/78, paras. 19 and 25. Ibid., para. 26.

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has a deterrent effect that is superior to other forms of punishment such as prolonged detention. In the context of addressing public opinion issues, judges have sometimes assumed that this is the basis of popular support for the death penalty. Noting that the deterrent hypothesis is unfounded scientifically, some courts have dismissed the relevance of public opinion because it is not properly informed.16 Former United States Supreme Court Justice Thurgood Marshall said that ‘[t]he American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable’.17 Public opinion surveys in the United States indicate evolving attitudes with respect to justifications for capital punishment.18 In 1985, 62 per cent of Americans believed in the deterrent effects of capital punishment. This had dropped to 51 per cent by 1991, and to 45 per cent in 1997.19 This no doubt reflects the changing debate within the United States. Recognising the weaknesses in the deterrent justification, advocates of capital punishment have shifted their focus to retribution, and this is surely being manifested in recent opinion surveys. It is probably unsurprising that support for the death penalty varies by race and ethnicity. An ABC News poll taken in January 2000 found 69 per cent of whites but only 38 per cent of blacks supported capital punishment.20 Similarly, the death penalty is more popular among the rich than the poor, and among men than women.21 16

17

18 19

20 21

Republic v. Mbushuu et al. [1994] 2 LRC 335 at 351 (High Court of Tanzania, per Mwalusanya): ‘The government must assume responsibility for ensuring that their citizens are placed in a position whereunder they are able to base their views about the death penalty on a rational and properly informed assessment. It is clear that many people base their support for the penalty on an erroneous belief that capital punishment is the most effective deterrent punishment, and so the government has a duty to put the true facts before them instead of holding out to the public that the death penalty is an instant solution to violent crime.’ Gregg v. Georgia, 428 US 153 at 233, 96 SCt 2909 at 2973, 49 L Ed. 2d (1976) (Marshall J, dissenting); See also Furman v. Georgia, 408 US 238 at 360–9, 92 SCt 2726 at 2788– 92, 33 L Ed. 2d 346 (1972) (Marshall J, concurring). For a very helpful discussion on the subject, see the chapter entitled ‘Public Opinion and Knowledge’ in Roger Hood, The Death Penalty: A World-wide Perspective (Oxford: Clarendon Press, 1996), pp. 212–25. Michael L. Radelet and Marian J. Borg, ‘The Changing Nature of Death Penalty Debates’ (2000) 26 Annual Review of Sociology 43. A. Gallup and F. Newport, ‘Death Penalty Support Remains Strong’ (1991) 309 Gallup Poll Monthly 40; S. R. Gross, ‘Update: American Public Opinion on the Death Penalty – It’s Getting Personal’ (1998) 83 Cornell Law Review 1448. Lifton and Mitchell, note 1 above, p. 217. Ibid., pp. 217–81. See also Robert M. Bohm, ‘American Death Penalty Opinion, 1936– 1986: A Critical Examination of Gallup Polls’, in Robert M. Bohm, The Death Penalty in America: Current Research (Cincinnati: Anderson Publishing, 1991), pp. 113–42 at p. 135.

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Measuring public opinion? Lifton and Mitchell, in their recent book, puzzle over the ‘mythology of decisive, unyielding support’ for capital punishment.22 They challenge the conventional wisdom about ‘public opinion’, insisting that even in enthusiastically pro-death penalty countries like the United States the picture is rather more complex. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Bacre Waly Ndiaye, took a similar perspective on public opinion in the report on his mission to the United States: 103. During his mission, the Special Rapporteur was repeatedly told that the death penalty is applied because that is what the people want. However, the Special Rapporteur emphasizes that a thorough analysis of the will of the people may change this assumption considerably. Recent studies in the United States show that people are not simply ‘in favour of’ or ‘opposed to’ the death penalty. According to criminologist Dennis Longmire, in his study on attitudes on capital punishment, positions on the death penalty are not so clear, and 73 per cent of the people have inconsistent attitudes towards this punishment. In his study, he concluded that ‘people tend to be quick to stand in support of this sanction, but they are just as quick to back off their support when given specific information about its administration’. Further, as stated in the Secretary-General’s fourth quinquennial report on capital punishment (E/1990/38/Rev.1 and Corr.1 and Add.1), there is a need to differentiate between sporadic popular support of capital punishment and well-informed opinion. 104. According to a 1997 poll conducted by Sam Houston State University, the number of Texans favouring the death penalty has slightly decreased. In 1977, 80 per cent of Texans reportedly supported capital punishment, while in 1997 the number dropped to 76 per cent. Despite this initial high figure, however, 48 per cent of the respondents to the survey who initially reported that they were uncertain about their position became opposed to the death penalty when offered the possibility of a life sentence option. Similar conclusions have been reached by other studies. Thus, William Bowers, in his New York study, found that 71 per cent of the respondents supported the death penalty. However, this figure was reduced to 19 per cent when the alternative of life imprisonment without parole was offered.23

Ndiaye focused on opinion polling, but it is in fact only one of several ways by which public opinion may be assessed. Legislative action, to the extent that it is the work of individuals elected by and accountable to the public, is also a measure of public opinion. In countries with jury trials, 22 23

Lifton and Mitchell, note 1 above, p. 212. ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr Bacre Waly Ndiaye, Submitted Pursuant to Commission Resolution 1997/61’, UN Doc. E/CN.4/1998/68/Add.3.

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especially those like the United States where the jury actually participates in the capital punishment decision, these too are indicators of what the public thinks. Public opinion polls Periodically, public opinion polls of varying degrees of scientific rigour are held in different countries, including many where the death penalty has been abolished. Sometimes, courts have relied upon polls as useful evidence of public support for capital punishment,24 and more rarely as justification for restriction or limitation on the death penalty.25 Justice La Forest of the Supreme Court of Canada cautioned against determining the acceptability of the death penalty ‘in terms of statistical measurements of approval or disapproval by the public at large’, but added that ‘it is fair to say that they afford some insight into the public values of the community’.26 Public opinion has surely been polled more closely in the United States than anywhere else in the world. When the Gallup organisation first surveyed American public opinion on capital punishment, in 1936, the result was 61 per cent in favour. This climbed to 70 per cent in 1953, at the time of what may have been the most celebrated American execution, that of Julius and Ethel Rosenberg.27 Support for capital punishment clearly decreased during the 1950s and 1960s, to about 47 per cent. But then it rose again and, by the early 1990s, it was said to be somewhere between 75 and 80 per cent.28 Now it is declining once again. A 1998 poll in Texas registered support at 68 per cent from a high of 86 per cent in 1994.29 24 25

26 27 28 29

Gregg v. Georgia, note 17 above, p. 181 n. 25 (US), 2929 n. 25 (SCt) (Stewart J); Kindler v. Canada [1991] 2 SCR 779 at 852 (per McLachlin J, concurring). See Atkins v. Virginia, 536 US (2002), p. 12, n. 21, of the slip opinion. See, however, the remarks of Chief Justice Rehnquist in his dissenting opinion, attacking resort to public opinion polls: ‘The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved (Stanford v. Kentucky, 492 US 361 at 377 (1989) (plurality opinion)). The Court’s uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles or are capable of supporting valid empirical inferences about the issue before us.’ Kindler v. Canada, note 24 above, p. 832 (per La Forest J). Lifton and Mitchell, note 1 above, p. 215. Gallup and Newport, note 19 above; M. Gillespie, ‘Public Opinion Supports Death Penalty’, 24 February 1999, http://www.gallup.com/poll/releases/pr990224.asp. K. Walt, ‘Death Penalty’s Support Plunges to 30-Year Low’, Houston Chronicle, 13 March 1998.

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Recent polls in Florida, a state that traditionally provides enthusiastic support for capital punishment, have the retentionists at 63–68 per cent, down from 83 per cent in the 1980s.30 A January 2000 poll for ABC News put support for the death penalty in the United States overall at 64 per cent, while a Gallup poll the following month had it at 66 per cent.31 In public opinion polling, the results depend largely on the wording of the questions being asked. Some judges, attuned to the possibility of ambiguity in poll results because of the questions formulated, have dismissed them as reliable indicators of public support for the death penalty. Chief Justice Wright of the California Supreme Court said that ‘public opinion polls show opinion to be divided as to capital punishment as an abstract proposition’.32 Associate Justice Robert I. Berdon of the Connecticut Supreme Court considered that public opinion ‘cannot appropriately be measured by abstract polls that elicit generalized, emotional responses from participants’.33 He continued: Even public opinion polls demonstrate public reluctance and concern over the imposition of the death penalty. While a majority of the public may support the death penalty in the abstract, public support for the penalty drops to below 50 percent when alternative sentences are considered. Given the choice, more people would support life imprisonment without parole plus restitution to the victim’s family over the death penalty. In addition, many people have significant doubts about various aspects of the death penalty. Fifty-eight percent of those surveyed in an April, 1993 poll were concerned about the danger of executing innocent people. Forty-eight percent were concerned about racism in the application of the penalty, and another 42 percent had doubts about the ability of the death penalty to deter crime.34

When alternative punishments are proposed, such as life imprisonment without possibility of parole, the size of the majorities tend to decline rather dramatically.35 In Florida, where an offender may be sentenced to life without parole instead of capital punishment, support declines to 50 per cent.36 The ABC News poll in January 2000 found support in the United States at only 48 per cent when there is an option of life without 30 31 32 33 34 35

36

A. Judd, ‘Poll: Most Favor New Execution Method’, Gainesville Sun, 18 February 1998; M. Griffin, ‘Voters Approve of Death Penalty’, Orlando Sentinel, 23 April 1998. Lifton and Mitchell, note 1 above, p. 217. People v. Anderson, 6 Cal. 3d 628 at 648, 100 Cal. Rptr 152, 493 P. 2d 880 at 894 (1972), cert. denied, 406 US 958, 92 SCt 2060, 32 L Ed. 2d 344 (1972) (Wright CJ). State v. Ross, 230 Conn. 183, 646 A 2d 1318 at 1377 (1994) (Berdon AJ, dissenting in part). Ibid., p. 1380 n. 16. William J. Bowers, Margaret Vandiver and Patricia H. Dugan, ‘A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer’ (1994) 22 American Journal of Criminal Law 77. M. Griffin, ‘Voters Approve of Death Penalty’, Orlando Sentinel, 23 April 1998.

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parole.37 Another study claims that ‘as few as one in four people are staunch death penalty advocates who will accept no alternative, and that as many as two out of four people are reluctant supporters who accept the death penalty but would prefer an alternative’.38 Legislative behaviour Legislative behaviour has often been taken as an indication of public opinion. In Bachan Singh v. State of Punjab, the Indian Supreme Court ruled that the death penalty does not violate ‘the letter or the ethos’ of the constitution, relying on among other points the fact that ‘contemporary public opinion channelled through the people’s representatives in Parliament’ continues to favour it.39 The classic explanation for the use of legislative materials in evaluating public opinion is that of Justice Potter Stewart of the United States Supreme Court. In Gregg v. Georgia, Justice Stewart noted that, since the Supreme Court struck down United States death penalty statutes in Furman v. Georgia in 1972, thirty-five state legislatures had adopted death penalty legislation in an attempt to respond to its strictures about the inherent arbitrariness of existing death penalty statutes. For Justice Stewart, this was ‘[t]he most marked indication’ that a large proportion of American society continued to support the death penalty. ‘[A]ll of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people’, he said.40 Similarly, Justice Harry Blackmun cited federal death penalty statutes to show that ‘these elected representatives of the people – far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man’s dignity, than are we who sit cloistered on this Court – took it as settled that the death penalty then, as it always has been, was not in itself unconstitutional’.41 More recent decisions echo these pronouncements.42 One enthusiastic United States judge has said that ‘[w]hen, in the course of a decade, thirty-seven States 37 38

39 40 41 42

Lifton and Mitchell, note 1 above, p. 216. Bowers, Vandiver and Dugan, note 35 above, p. 81. See also Richard C. Dieter, ‘Sentencing for Life: Americans Embrace Alternatives to the Death Penalty’, in Hugo Adam Bedau (ed.), The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997), pp. 116–26. Bachan Singh v. State of Punjab, AIR 1980 SC 898 at 900 (Sarkaria J). Gregg v. Georgia, note 17 above, pp. 180–1 (US), 2928 (SCt). Ibid., p. 413 (US), p. 2816 (SCt). See also the comments of Powell J, ibid., pp. 436–7 (US), pp. 2827–8 (SCt). Stanford v. Kentucky, 492 US 361 at 370, 109 SCt 2969 at 2975, 106 L Ed. 2d 306 (1989) (Scalia J); Penry v. Lynaugh, 492 US 302 at 331, 109 SCt 2934 at 2953, 106 L Ed. 2d 256 (1989) (O’Connor J).

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call for the death penalty, the probability that the legislature of each State accurately reflects its community’s standards approaches certainty’.43 Answering the legislative opinion argument in Gregg, dissenting Justice Thurgood Marshall responded that the enactment of new death penalty statutes should not be regarded as ‘conclusive’. Insisting that only wellinformed public opinion could contribute to the constitutional debate, he cited recent studies demonstrating how little Americans knew about the matter.44 According to Justice Marshall: I would be less than candid if I did not acknowledge that the [enactment of new statutes imposing the death sentence] has a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive.45

In any case, constitutional norms are supposed to protect the individual against capricious legislators, not pander to them.46 Canada’s Supreme Court looked at legislative behaviour during ‘free votes’ on the death penalty in the federal Parliament. During a free vote, elected members of Parliament are not bound by party discipline and may, in such cases, be deemed to reflect more accurately the views of their constituents. According to Justice John Sopinka: In 1976, in a free vote, a majority of the members of the House of Commons voted to abolish capital punishment for all offences under the Criminal Code. Its reinstitution was rejected in another free vote in 1987. These votes reflect the view of the majority of the elected members of Parliament that the death penalty is incompatible with respect for human dignity and the value of human life. Thus public policy in Canada, reaffirmed as recently as four years ago, stands clearly opposed to the death penalty.47

In the same judgment, Justice Peter Cory said ‘[t]hese votes are a clear indication that capital punishment is considered to be contrary to basic Canadian values’.48 But Justice Beverley McLachlin saw the parliamentary debates in another light. She noted that the fact that the matter continued to be discussed by the legislature was evidence of important 43 44

45 46 47 48

State v. Ramseur, 106 NJ 123 at 173, 524 A 2d 188 at 212 (1987) (Wilentz J). Gregg v. Georgia, note 17 above, p. 233 (US), p. 2973 (SCt) (Marshall J, dissenting), quoting Austin Sarat and Neil Vidmar, ‘Public Opinion, the Death Penalty and the Eighth Amendment: Testing the Marshall Hypothesis’ (1976) 1 Wisconsin Law Review 171. Gregg v. Georgia, note 17 above, pp. 232–3 (US), 2973–4 (SCt) (Marshall J, dissenting). Ibid., pp. 233 (US), 2973–4 (SCt). Kindler v. Canada, note 24 above, p. 789 (per Sopinka J, dissenting). Ibid., p. 793 (per Cory J, dissenting).

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retentionist sentiment. As for the free vote in 1987 calling for revival of the death penalty, although it was defeated, Justice McLachlin considered that ‘the vote – 148 to 127 – fell far short of reflecting a broad consensus even among Parliamentarians’.49 Before the United States courts, legislative behaviour has been invoked successfully in order to limit some of the more excessive aspects of the death penalty. Arguments of this nature have been made in cases dealing with the specific crimes for which capital punishment may be imposed, as well as the juvenile death penalty and the method of execution. In Coker v. Georgia, the United States Supreme Court struck down Georgia’s death penalty for rape of an adult woman, principally because Georgia was the only state to impose the death penalty for rape of an adult, and one of only three to impose it for rape in any case.50 In Enmund v. Florida, the Court considered whether the death penalty could be imposed in cases of ‘felony murder’, that is, where there is no evidence the accused attempted to commit murder but where he or she participated with others in a crime such as robbery where a murder was committed. ‘[O]nly about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die’, said the Supreme Court, adding that only eight states authorised the death penalty solely for felony murder.51 Legislative behaviour has been invoked in the United States in challenges to execution by hanging,52 by electrocution53 and by the gas chamber.54 In June 2002, a majority of the United States Supreme Court relied principally upon legislative trends in ruling that execution of the mentally disabled was contrary to Article 8 of the Bill of Rights. The judgment notes that, since a 1989 ruling on the same point by the Supreme Court, several state legislatures enacted measures to restrict or prohibit execution of the mentally disabled. But, ‘[i]t is not so much the number of these States that is significant, but the consistency of the direction of change’, said the Court. ‘The practice, therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.’55 49 50 51 52 53 54 55

Ibid., p. 839 (per McLachlin J). Coker v. Georgia, 433 US 584 at 593–6, 97 SCt 2861 at 2866–8, 53 L Ed. 2d 982 (1977). Enmund v. Florida, 458 US 782 at 792, 102 SCt 3368 at 3372–4, 73 L Ed. 2d 1140 (1982). Campbell v. Wood, 18 F 3d 662 at 707 n. 29 (9th Cir. 1994) (Reinhardt J, dissenting), cert. denied, 114 SCt 2125 (1994). Glass v. Louisiana, 471 US 1080 at 1089 (1985) (Brennan J, dissenting from denial of certioriari). Fierro v. Gomez, 865 F Supp. 1387 at 1406 (1994). Atkins v. Virginia, note 25 above, pp. 8–12.

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Finally, courts have frequently looked at legislative behaviour in assessing when methods of punishment reach the point where they are no longer ‘acceptable’. Legislative behaviour has been invoked in the United States in challenges to execution by hanging,56 by electrocution57 and by the gas chamber.58 Executive behaviour One of the features of modern death penalty practice is that, despite legislation permitting the death penalty and courts prepared to impose it, the executive, which often has the final say in an execution, refuses to authorise the deed itself. The growing list of abolitionist countries includes a large number of countries in which capital punishment exists in law but is no longer carried out. Amnesty, pardon and commutation of death sentences are contemplated by Article 6(4) of the International Covenant on Civil and Political Rights, stating: ‘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.’59 The executive will often exercise this on a case-by-case basis. Sometimes, a collective commutation will be offered to mark some significant political anniversary. In recent times, general moratoria on the death penalty have been imposed, frequently because the country has undertaken a formal debate on whether or not to abolish capital punishment. Courts have looked at these developments as evidence of public opinion and societal values. As the California Supreme Court noted in 1972, ‘[a]lthough death penalty statutes do remain on the books of many jurisdictions, and public opinion polls show opinion to be divided as to capital punishment as an abstract proposition, the infrequency of its actual application suggests that among those persons called upon to actually impose or carry out the death penalty it is being repudiated with ever increasing frequency’.60 Chief Justice Wright pointed to the steady decrease in executions in the United States, which hit a peak of 199 in 1935 and steadily reduced to two in 1967. ‘[I]n spite of a growing population and notwithstanding the statutory sanction of the death penalty’, he said, this 56 57 58 59 60

Campbell v. Wood, 18 F 3d 662 at 707 n. 29 (9th Cir. 1994) (Reinhardt J, dissenting), cert. denied, 114 SCt 2125 (1994). But see ibid., p. 682 (Beerer CJ). Glass v. Louisiana, 471 US 1080 at 1089 (1985) (Brennan J, dissenting from denial of certioriari). Fierro v. Gomez, 865 F Supp. 1387 at 1406 (1994). (1976) 999 UNTS 171. People v. Anderson, note 32 above, p. 648 (Cal. 3d), 894 (P. 2d) (Wright CJ).

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fact ‘persuasively demonstrates that capital punishment is unacceptable to society today.’61 Courts have juxtaposed this executive reluctance to execute against the apparent enthusiasm for capital punishment revealed by public opinion polls. To some, the refusal of the executive to comply with public enthusiasm for executions may be viewed as elitist. In at least one recent case, a prominent politician, New York Governor Mario Cuomo, paid with his career for systematic and uncompromising vetoes each time the state legislature re-enacted a capital punishment statute. Yet politicians are elected to lead, not to follow, and they often take unpopular decisions, which are respected by electors as being for the greater good. If elected officials determined fiscal policy based on the impulsive opinions of their electorate, the state would quickly go bankrupt. Officially proclaimed moratoria have prevented executions for significant periods of time in such states as Jamaica, Trinidad and Tobago, Zimbabwe and South Africa. Although they do not necessarily lead to abolition, they do indicate a reluctance by officials to proceed with executions and suggest a degree of hesitation in the general public. Acting Justice Sydney Kentridge, in his individual reasons for judgment in the South African Constitutional Court case, opined that the 1990 proclamation of a moratorium by President De Klerk might support contentions that South African public opinion was at least ambivalent on the subject of capital punishment.62 International law and practice That international law evidences a trend favourable to abolition of the death penalty would seem to be beyond dispute. Should not it too be taken as an indication of public opinion? Five international instruments now prohibit imposition of the death penalty.63 These instruments have 61

62 63

Ibid. See also District Attorney for Suffolk District v. Watson, 381 Mass. 648, 411 NE.2d 1274 at 1282 (1980); State v. Ross, 646 A 2d 1318 at 1377–8 (Conn. 1994) (Berdon AJ, dissenting in part). S. v. Makwanyane, note 12 above, p. 187 (per Kentridge AJ, concurring). Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, ETS 114 (in peacetime); 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, ETS 183; Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at Abolition of the Death Penalty, GA Res. 44/128, (1990) 29 ILM 1464; Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty, OASTS 73, (1990) 29 ILM 1447; American Convention on Human Rights, (1979) 1144 UNTS 123, OASTS 36, Art. 4(4) (in states that have previously abolished the death penalty). According to an interpretation favoured by some members of the UN

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been ratified by nearly seventy states, which are now bound at international law not to pronounce or impose the death penalty.64 The ad hoc tribunals set up by the Security Council to judge war crimes and crimes against humanity in the former Yugoslavia and in Rwanda, as well as the Rome Statute of the International Criminal Court, formally exclude the possibility of capital punishment.65 The most recent international norm appears in the Charter of Fundamental Rights, adopted by the European Union in Nice in December 2000. Article 2 (‘Right to life’) provides: 1. Everyone has the right to life. 2. No one shall be condemned to the death penalty, or executed.66 Slightly more than a decade ago, in 1989, Amnesty International published a seminal volume on the issue of capital punishment, entitled When the State Kills. Amnesty International surveyed the international situation, distinguishing between countries that were abolitionist for all crimes (i.e. countries whose laws do not provide for the death penalty for any crime), countries that were abolitionist for ordinary crimes only (i.e. countries whose laws provide for the death penalty only for exceptional crimes under military law or crimes committed in exceptional circumstances such as wartime), countries that were abolitionist in practice (i.e. countries and territories which retain the death penalty for ordinary crimes but have not executed anyone during the past ten years or more), and retentionist countries (i.e. countries and territories which retain and use the death penalty for ordinary crimes).67 The statistical portrait was as follows:

64

65

66 67

Human Rights Committee, the International Covenant on Civil and Political Rights is also an abolitionist instrument for states that have already abolished the death penalty: Ng v. Canada (No. 469/1991), UN Doc. A/49/40, vol. II, p. 189, 15 Human Rights Law Journal 149 (per Francisco Jos´e Aguilar Urbina and Fausto Pocar). Albania, Andorra, Argentina, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Chile, Colombia, Costa Rica, Croatia, Cyprus, the Czech Republic, Denmark, the Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Georgia, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Mexico, Moldova, Mozambique, Namibia, Nepal, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, San Marino, the Seychelles, Slovakia, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkmenistan, Ukraine, the United Kingdom, Uruguay, and Venezuela. Statute of the International Tribunal for the Former Yugoslavia, UN Doc. S/RES/827. Annex, Art. 24(1); Statute of the International Tribunal for Rwanda, UN Doc. S/RES/955, annex, art. 23(1); Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (17 July 1998), Art. 77. Charter of Fundamental Rights of the European Union’, OJ 2000 C 364/1, 18 December 2000. Amnesty International, When the State Kills (New York: Amnesty International, 1989), pp. 259–62.

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Abolitionist for all crimes Abolitionist for ordinary crimes only Abolitionist in practice Retentionist

35 18 27 100

Amnesty International also provided the relevant dates of abolition, where applicable. These indicated an unmistakable trend towards abolition, one that was constantly growing in momentum. For example, of the thirty-five countries that were abolitionist for all crimes, twenty-seven had abolished the death penalty since 1948. Moreover, with each decade subsequent to 1948, the number of states abolishing capital punishment increased. However, the figures also indicated that a majority of states continued to employ capital punishment. Sometime in the middle of the 1990s, the majority shifted from one favouring capital punishment to one opposing it. According to the report of the Secretary-General of the United Nations, issued on 31 March 2000,68 the numbers are as follows: Abolitionist for all crimes Abolitionist for ordinary crimes only Abolitionist in practice Retentionist

74 11 38 71

The change throughout the 1990s, since the Amnesty International study, is most dramatic. Thus, whereas in 1989 some 44 per cent of states were abolitionist in one form or another, by the year 2000 they made up 64 per cent of the total.69 In a February 2001 judgment, the Supreme Court of Canada stated: The existence of an international trend against the death penalty is useful in testing our values against those of comparable jurisdictions. This trend against the death penalty supports some relevant conclusions. First, criminal justice, according to international standards, is moving in the direction of abolition of the death penalty. Second, the trend is more pronounced among democratic states 68

69

‘Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, Report of the Secretary-General’, UN Doc. E/2000/3. The report was prepared by Professor Roger Hood. In the third edition of his book, which appeared in late 2002, Professor Hood updates these figures, as of the end of December 2001, to indicate seventy-five states that are abolitionist for all crimes, fourteen for ordinary crimes, thirty-four for what he calls ‘retentionist but abolitionist de facto’, and seventy-one retentionist. Roger Hood, The Death Penalty: A Worldwide Perspective (Oxford: Oxford University Press, 2002), p. 255. Amnesty International itself comes to a somewhat different total, essentially due to differences in assessment of whether or not certain states are de facto abolitionist. According to Amnesty International, as of 10 December 2002, there were a total of 111 abolitionist states (seventy-six for all crimes, fifteen for ordinary crimes and twenty de facto) and eighty-four retentionist states.

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with systems of criminal justice comparable to our own. The United States (or those parts of it that have retained the death penalty) is the exception, although of course it is an important exception. Third, the trend to abolition in the democracies, particularly the Western democracies, mirrors and perhaps corroborates the principles of fundamental justice that led to the rejection of the death penalty in Canada.70

In one of the leading cases on the Eighth Amendment not dealing with capital punishment, the United States Supreme Court considered comparative law sources and noted the fact that the punishment – deprival of citizenship for desertion – was not authorised in other countries.71 Similarly, in the recent case of Atkins v. Virginia, the majority of the United States Supreme Court took account of the views of the ‘world community’, as expressed in an amicus curiae brief submitted by the European Union, opposing execution of mentally disabled offenders.72 In a late 1960s death penalty case, Chief Justice Wright of the Supreme Court of California wrote that ‘the repudiation of the death penalty in this country is reflected in a world-wide trend towards abolition’.73 Other courts, however, have rejected abolitionist arguments and referred to the fact that the death penalty is still used in many countries. In Bachan Singh v. State of Punjab, Justice Sarkaria of the Indian Supreme Court upheld the legality of the death penalty, noting that ‘a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society’.74 Justice La Forest of the Supreme Court of Canada admitted ‘a growing and, in my view, welcome trend among Western nations over the past fifty years to abolish the death penalty but some have gone against this trend, notably the United States, a fact of especial concern having regard to its size and proximity to this country’.75 Juries Although determination of criminal sentences is a matter normally left to judges in most jurisdictions, within the United States, at least, the death penalty is usually imposed by a jury.76 According to the United 70 71 72 73 74 75 76

United States v. Burns [2001] 1 SCR 283, para. 92. Trop v. Dulles, 356 US 86 at 102, 78 SCt 590 at 599, 2 L Ed. 2d 630 (1958). Atkins v. Virginia, note 25 above, p. 12, n. 21. People v. Anderson, note 32 above, p. 654 (Cal. 3d), p. 898 (P. 2d) (Wright CJ). Bachan Singh v. State of Punjab, note 39 above, pp. 900 and 929 (Sarkaria J). Kindler v. Canada, note 24 above, p. 833 (per La Forest J). Thirty-three of the states of the United States provide for jury participation in capital sentencing. In only four (Alabama, Delaware, Florida and Indiana) may the judge overrule the jury’s decision. This may even involve ordering sentence of death where the jurors have been more clement: Harris v. Alabama, 115 SCt 1031 (1995).

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States Supreme Court, ‘one of the most important functions any jury can perform in making . . . a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system – a link without which the determination of punishment could hardly reflect “the evolving standards of decency that mark the progress of a maturing society” ’.77 Chief Justice Wright of the Supreme Court of California wrote that ‘[j]ury sentencing has been considered desirable in capital cases in order “to maintain a link between contemporary community values and the penal system” – a link without which the determination of punishment could hardly reflect “the evolving standards of decency that mark the progress of a maturing society” ’.78 This was also recognised by the majority of the United States Supreme Court in Gregg v. Georgia, which considered the jury to be ‘a significant and reliable objective index of contemporary values because it is so directly involved’.79 In his recent book, Austin Sarat says that juries ‘intermingle a politics of vengeance with a fearful concern about dangerous persons and convey the authority and the desire that someone should be put to death by the state. They represent the ultimate public embrace of the killing state.’80 But, interestingly, Hugo Adam Bedau has pointed out that the enthusiastic support in United States public opinion polls does not translate into sentencing rates in actual capital cases. He has noted that jurors, who have already been screened to ensure they are not opposed to capital punishment, only vote for death in 10 per cent of cases. ‘Thus it appears that when nominal supporters of the death penalty actually confront in the courtroom a living human being over whom they have the power of life and death in sentencing, enthusiasm for a death sentence evaporates more frequently than it hardens. There is no clearer evidence than this of the essentially symbolic role of the death penalty at present.’81 Indeed, the resistance of juries to the imposition of mandatory death sentences has been manifested for centuries. In Kindler v. Canada, Justice Peter D. Cory considered this to be evidence of an historic popular revulsion to capital punishment. He cited records going back to as early 77

78 79 80 81

Witherspoon v. Illinois, 391 US 510 at 519 n. 15, 88 SCt 1770 at 1775 n. 15, 20 L Ed. 2d 776 (1968), quoting Trop v. Dulles, note 71 above, p. 101 (US), p. 598 (SCt) (plurality opinion). This citation is referred to approvingly in Gregg v. Georgia, note 17 above, p. 191 (US), p. 2933 (SCt) (Stewart J). People v. Anderson, note 32 above, p. 893 (P. 2d) (Wright CJ). Gregg v. Georgia, note 17 above, p. 181 (US), p. 2929 (SCt) (Stewart J). See also Furman v. Georgia, note 17 above, pp. 439–40 (US), p. 2829 (SCt) (Powell J, dissenting). Austin Sarat, When the State Kills (Princeton: Princeton University Press, 2001), p. 155. Hugo Adam Bedau, The Death Penalty in America: Current Controversies (New York: Oxford University Press, 1997), p. 86.

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as the fourteenth century indicating an unwillingness of juries to convict for felonies, in order to avoid the possibility that capital punishment would be imposed.82 By the seventeenth century, juries were using their power to convict for lesser but included offences in order to avoid the death penalty.83 In the eighteenth century, despite the fact that the number of capital crimes increased dramatically, the frequency of convictions and the harshness of sentences decreased.84 ‘Quite simply’, noted Justice Cory, ‘juries tended to refuse to convict or, if they did convict, refused to find the accused guilty of a capital offence.’85 He went on to say: This marked resistance to the death penalty speaks volumes for the basic decency and compassion of jurors. It is reflected in their decisions over the centuries and constitutes a long and lasting record of social values that is worthy of consideration. The compassionate views of the jurors are echoed in over 300 years of writings by reformers.86

In the twentieth century, jury discretion was adopted by legislators in the United States as a replacement for mandatory death penalties. As was noted by the Supreme Court of California, this was probably because juries, ‘with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict’.87 But in Gregg v. Georgia, Justice Stewart was not prepared to concede that the reluctance of juries to impose the death penalty was evidence of public disapproval of capital punishment. ‘Rather, the reluctance of juries in many cases to impose the sentence may well reflect the human feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases’, he said.88 For Chief Justice Burger in Furman v. Georgia, ‘the very infrequency of death penalties imposed by jurors attests to their cautious and discriminating reservation of that penalty for the most extreme cases’.89 82

83 84

85 87

88 89

Kindler v. Canada, note 24 above, p. 800 (Cory J, dissenting), citing B. W. McLane, ‘Juror Attitudes Toward Local Disorder: The Evidence of the 1328 Lincolnshire Trailbaston Proceedings’, in J. S. Cockburn and T. A. Green (eds.), Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton: Princeton University Press, 1988), p. 36 at pp. 54–5. Ibid., citing J. S. Cockburn, ‘Twelve Silly Men? The Trial Jury at Assizes, 1560–1670’, in Cockburn and Green, ibid., p. 158 at pp. 171–2. Ibid., citing D. Hay, ‘Property, Authority and the Criminal Law’, in D. Hay et al., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), p. 17 at p. 22; M. Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1979). 86 Ibid. Ibid. Woodson v. North Carolina, 428 US 280 at 293, 96 SCt 2978 at 2986, 49 L Ed. 2d 944 (1976). On abhorrence for mandatory death sentencing, see also the comments by Burger CJ in Furman v. Georgia, note 17 above, pp. 386–90 (US), pp. 2802–3 (SCt). Gregg v. Georgia, note 17 above, pp. 181–2 (US), p. 2929 (SCt) (Stewart J). Furman v. Georgia, note 17 above, p. 402 (US), p. 2810 (SCt) (Burger CJ, dissenting).

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Human rights law and public opinion Some norms quite effectively insulate the individual from the vagaries of public opinion. When international law forbids ex post facto criminal offences, proclaiming that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed, neither legislature nor court may tamper with this principle without expressly violating the state’s treaty obligations. Much death penalty litigation, however, involves the prohibition of cruel, inhuman and degrading treatment or punishment, a norm that appears in one form or another in essentially every principal human rights and humanitarian law treaty as well as in most national constitutions. The terms ‘cruel’, ‘inhuman’ and ‘degrading’ are enigmatic, resisting judicial interpretation that does not take public opinion into account. They are subjective concepts. What is deemed cruel, inhuman or degrading by one society, one culture, one religion, even one age group, will often be viewed differently by others. Furthermore, within one society such concepts will inevitably change over time. The same may be said of the term ‘punishment’. In a judgment issued at the beginning of the century, the majority of the United States Supreme Court held that the prohibition against cruel and unusual punishment in Article VIII of the Bill of Rights ‘may acquire meaning as public opinion becomes enlightened by a humane justice’.90 More recently, Chief Justice Earl Warren of the United States Supreme Court said that cruel punishment should be assessed in light of the ‘evolving standards of decency in a maturing society’.91 The phrase has been invoked on scores of occasions, not only by courts in the United States but throughout the world.92 According to Acting Justice Sydney Kentridge of the South African Constitutional Court, ‘[t]he accepted mores of one’s own society must have some relevance to the assessment whether a punishment is impermissibly cruel and inhuman’.93 Criminal sanctions must be established with reference to public attitudes because effective punishment aims, inter alia, at deterrence and retribution. These goals cannot be attained unless forms of punishment 90 91 92

93

Weems v. United States, 217 US 349 at 378, 30 SCt 544 at 553, 54 L Ed. 793 (1910). Trop v. Dulles, note 71 above. For example, Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, et al., 1993 (4) SA 239 (ZSC), [1993] 1 ZLR 242 (S), 14 Human Rights Law Journal 323 (per Gubbay CJ). S. v. Makwanyane, note 12 above, p. 187 (per Kentridge AJ).

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inspire abhorrence and loathing among common citizens. Criminal sentences vary enormously from jurisdiction to jurisdiction, even among societies that are fundamentally similar in many respects. Public opinion must inevitably contribute to an assessment of the line of demarcation between punishment which is effective but not offensive to the fundamental human right to be free of cruelty, and that which crosses the threshold. Once it is admitted that the death penalty serves a retributive function, its effectiveness is dependent on whether or not the public actually considers it to provide ‘just desert’. The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia referred to public opinion in its assessment of the purposes of sentencing: It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatisation and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion, and this punitive effect must be borne in mind when assessing the suitable length of sentence.94

An extreme form of this argument invokes the ‘self-help’ danger. Advocates of the death penalty may attempt to defend its use in order to avoid threats of ‘mob violence’, and the threat that if appropriately retributive punishment is not imposed by the state then the public will take the law into its own hands. This argument was invoked by the Tanzanian Government in a 1994 challenge to the death penalty. The authorities argued that it was dangerous to let criminal law policy ‘jump too far ahead of the population’, because this would result in alienation of the public and its loss of confidence in the system. ‘There is abundant evidence that members of the Tanzanian public often resort to mob justice in a situation in which they feel that the criminal justice system and/or its agencies lack the competence or the will to protect them against crimes’, claimed the state. ‘Therefore no civilized community should provoke such a situation in the name of a so-called “progressive” penal policy.’95 But, even if this view is to be accorded validity, it finds its justification in the theory of criminal law. The idea that prompt and harsh punishment is important to the maintenance of public confidence in a system of criminal justice seems out of place when the standpoint of human rights is adopted. Human rights tribunals have been alive to the rather delicate 94 95

Prosecutor v. Furundzija (Case No. IT-95-17/1-T), Judgment, 10 December 1998, para. 290. Republic v. Mbushuu et al., note 16 above, p. 349.

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nexus between public opinion and human rights. Justice Brian Walsh of the European Court of Human Rights, in a case dealing not with punishment but with the legality of homosexual activity, warned that ‘[i]f the law is out of touch with the moral consensus of the community, whether by being either too far below it or too far above it, the law is brought into contempt’.96 While admitting its relevance in the determination of what constitutes cruel, inhuman and degrading punishment, courts may attach different degrees of weight to the various sources of public opinion. In some cases, they have relied simply on their own intuitive notion of cruelty. This was the approach of the Judicial Committee of the Privy Council in its 1993 judgment on the death row phenomenon. Lord Griffiths, speaking for six of his colleagues, spoke of an ‘instinctive revulsion’ to executing an individual after lengthy detention. ‘What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.’97 Other courts have attempted to be more scientific, or at least to appear so. While it is desirable that the human rights norms that are enshrined in international instruments and national constitutions find a favourable echo in public opinion, they surely cannot be dependent upon it. Human rights instruments, whether they be international treaties or domestic constitutions, are, first and foremost, aimed at protection of the individual from the state. Although encompassing a significant collective rights dimension, they begin with the premise that the state itself, even where it expresses the legitimate democratic aspirations of the general public, may attempt to oppress the individual for any number of reasons. Consequently, unpopular speech and belief need to be sheltered from majorities that would suppress them, ethnic minorities must be guaranteed the right to survive and to resist assimilation, and accused criminals require protection from unfair prosecution and biased judges. If public opinion were to be canvassed each time individual rights were in jeopardy, there can be little doubt that human rights guarantees would come out the loser. Yet it would contradict the raison d’ˆetre of human rights law to make its efficacy contingent on public opinion, one of the very forces it is aimed at counteracting or neutralising. 96

97

Dudgeon v. United Kingdom, 23 September 1981, Series A No. 45, 4 EHRR 149 at 184, 67 ILR 345. But see Tyrer v. United Kingdom, 25 April 1978, Series A No. 26, 2 EHRR 1, 59 ILR 339, para. 31. Pratt et al. v. Attorney-General for Jamaica et al. [1993] 4 All ER 769 at 783, [1993] 2 LRC 349, [1994] 2 AC 1, [1993] 3 WLR 995, 43 WIR 340, 14 Human Rights Law Journal 338, 33 ILM 364 (JCPC).

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Justice Robert Jackson of the United States Supreme Court, best known internationally as the Nuremberg prosecutor, wrote: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.98

Similarly, President Arthur Chaskalson of the South African Constitutional Court wrote: Public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised . . . The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and weakest amongst us that all of us can be secure that our own rights will be protected.99

Yet if public opinion is removed from the equation, on what are the courts to rely? Justice Antonin Scalia of the United States Supreme Court has warned that ‘the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views’.100 While acknowledging its relevance, Justice Powell of the United States Supreme Court said that public opinion ‘lies at the periphery – not the core – of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.’101 The South African Constitutional Court, in assessing whether the death penalty violated that country’s interim constitution, rejected arguments that reliance should be placed on South African public opinion.102 Chief 98 99 100 101 102

319 US 624 at 638 (1943). See also Furman v. Georgia, note 17 above, pp. 268–9 (US), p. 2741 (SCt) (Brennan J, concurring). S. v. Makwanyane, note 12 above, para. 88. Cited in United States v. Burns, note 76 above, para. 67. Thompson v. Oklahoma, 487 US 815 at 865, 108 SCt 2687 at 2714–15, 101 L Ed. 2d 702 (1988), cited in S. v. Makwanyane, note 12 above, p. 187 (per Kentridge AJ). Furman v. Georgia, note 17 above, p. 443 (US). S. v. Makwanyane, note 12 above, p. 168 (per Chaskalson P). There have been several articles on the subject of public opinion and the death penalty in South Africa: H.

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Justice Wright of the California Supreme Court described public acceptance of capital punishment as ‘a relevant but not controlling factor’ in the judicial debate.103 Judges are of course influenced by what they perceive as public opinion. Even international bodies like the UN Human Rights Committee cannot be totally indifferent to public opinion, especially as it is reflected in the positions taken by states. Harsh public reaction to controversial decisions may result in withdrawal from a treaty system or, as in the case of the Judicial Committee of the Privy Council, threats to replace one appellate court with another. Judicial independence is of particular concern where judges are elected, as is the case in many jurisdictions in the United States. In its report on capital punishment in the United States, a mission of the International Commission of Jurists said it believed ‘that Judges that are required to answer to the vagaries of public opinion place their independence and impartiality at risk’.104 Conclusion No matter what is said, it is a rare judge indeed who is immune to the influence of public sentiment, even where tenure of office is assured. Judges will say they are concerned with the image of the court, and be careful not to let its findings come unhinged from societal attitudes as a whole. On an international level, the problem takes on different dimensions. Tribunals such as the European Court of Human Rights and the UN Human Rights Committee realise that if they become too isolated from ‘public opinion’ this may result in denunciations of the relevant treaty or inhibit ratifications. It must be wrong to give public opinion too much importance in judicial consideration of capital punishment. Public opinion cannot be linked to democratic government in vulgar equation. If this were the case, international human rights and constitutions would be deemed anti-democratic. Courts, as well as legislatures, must be more aggressive in their role as

103

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Morsbach and G. Morsbach ‘Attitudes Towards Capital Punishment in South Africa’ (1967) 7 British Journal of Criminal Justice 402; J. Midgley, ‘Public Opinion and the Death Penalty in South Africa’ (1974) 14 British Journal of Criminology 347; and Keith I. Smith, ‘The Penalty of Death: Public Attitudes in South Africa’ (1989) 2 South African Journal of Criminal Justice 256. People v. Anderson, note 32 above, p. 648 (Cal. 3d), pp. 893–4 (P. 2d). Note that the judgment of the California Supreme Court abolishing the death penalty was immediately neutralised by a constitutional amendment, California Constitution Art. 1 (27). People v. Frierson, 25 Cal. 3d 142 at 184, 599 P. 2d 587, 158 Cal. Rptr 281 (1979). International Commission of Jurists, ‘Administration of the Death Penalty in the United States: Report of a Mission’, June 1996, p. 68.

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moulders of public opinion, relying for guidance upon the values of dignity, equality and humane treatment that underpin international human rights norms. In this respect, the Judicial Committee of the Privy Council set an interesting example when it affirmed that its members were simply shocked at the notion of prolonged detention prior to execution.105 They cited no polls, no legislative trends. Their judgment has made public opinion, even if it did not follow it.

105

Pratt et al. v. Attorney General for Jamaica et al., note 97 above.

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Capital punishment: meeting the needs of the families of the homicide victim and the condemned Peter Hodgkinson∗

Crime victims are too often ignored and, when remembered, too often exploited in the interest of political expediency. They are a constituency almost universally overlooked by the traditional abolitionist movement, thus proving a significant obstacle to the process of replacing the death penalty. Politicians the world over justify the retention of the death penalty, in part, because of their concerns about crime victims, though frequently on closer examination little or no provision for them is made by the state. Consistent with the observations made in the introductory chapter, it will come as no surprise to learn that the bulk of information that has developed around victims and the death penalty is based on the scholarship and experience of the United States. It is especially important therefore when evaluating the experience of the US with regard to victims that one takes care to distinguish between what does and does not ‘work’ and its relevance or otherwise to influencing victim services models worldwide. Justice cannot be done in this chapter to the wealth of scholarship dedicated to the issue of crime victims in general, so it will restrict its review and analysis to the literature dedicated to the issues of victims and their relationship to the death penalty and punishments in general. There has been an almost exponential growth in victim research and services over the past two to three decades with international and regional bodies such as the United Nations1 and the European Commission2 dedicating research and resources to improved practice and guidelines. These have developed largely through the improvement in understanding of the issue ∗

1 2

This chapter builds on the paper I wrote for the Council of Europe publication, The Death Penalty – Abolition in Europe (Strasbourg: Council of Europe Publishing, 1999). I am very grateful to Ms Seetal Purohit, Researcher with the Centre for Capital Punishment Studies, for the invaluable help she provided in the formulation of this chapter. United Nations Victim Charter, www.odccp.org/crime cicp sitemap.html (revised 6 January 2003). Commission of the European Communities, ‘Crime Victims in the European: Reflections on Standards and Action’, Brussels, European Commission, COM (1999) 349 Final, http://europa.eu.int/comm/justice home/pdf/com1999-349-en.pdf.

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initiated by International Victimology,3 the World Society of Victimology4 and the European Forum for Victims Services.5 An excellent text produced by Paul Rock, After Homicide – Practical and Political Responses to Bereavement,6 provides a wealth of information in a very sympathetic format about how homicide affects individuals and the range of responses that have been developed to address the pain and suffering experienced by the families and friends of homicide victims. The UK and the US differ in that the latter retains and uses the death penalty, though in many aspects of penal policy the UK, to its cost, bases too much of its criminal justice practice on imports from the US and one might have expected the development of victim services in the UK to be heavily influenced by the current pro-punishment approach in the US. Thankfully, this has not been the case and the mainstream response to victims’ needs continues to mirror the rational needs-based approach imported from California some thirty years ago. Victim 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 victimised. Where victim initiatives exist they seem increasingly to manifest themselves as lobbyists for procedural rights and harsher penalties at 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. Groups like Justice for All7 and 3

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The International Victimology Website (IVW) was launched in June 1999 as a resource for all those interested in improving justice for victims of crime and abuse of power. Through the IVW, the UN Centre for International Crime Prevention, the Research and Documentation Centre of the Netherlands Ministry of Justice and the World Society of Victimology aim to promote the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. See www.victimology.nl (revised 17 December 2002). World Society of Victimology. The purposes of the WSV are to promote research on victims and victim assistance; to advocate their interests throughout the world; to encourage interdisciplinary and comparative research in victimology; and to advance the cooperation of international, regional and local agencies, groups and individuals concerned with the problems of victims. See www.world-society-victimology.de/frameset.html (revised 8 May 2002). European Forum for Victim Services, ‘Statement of Victims’ Rights in the Process of Criminal Justice’, London, Victim Support, 1996, www.victimology.nl/onlpub/ eurforvicrts96a.html (revised 4 April 2001). Paul Rock, After Homicide – Practical and Political Responses to Bereavement (Oxford: Clarendon Press, 1998). Justice for All announces on its website that it is a criminal justice reform organisation that will ‘act as an advocate for change in a criminal justice system that is inadequate in protecting the lives and property of law-abiding citizens’. See www.jfa.net (revised 19 October 2002). Other sites supported by Justice for All are www.prodeathpenalty.com

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Parents of Murdered Children8 characterise the pro-punishment victim movement in the US, and both enjoy considerable political support. Of the two, Houston-based Justice for All, a comparative newcomer, adopts a particularly hard line on punishment, especially the death penalty. Their views represent a failure of the political system to responsibly address the legitimate feelings of pain and anger many crime victims and their families experience. Of course, it could be that it suits populist politicians to have such aggressive emotions aired as it provides ammunition for their platform on the extremes of law and order policy. The victim issue rather like the offence issue receives too little attention in both the scholarship and the debate given that both have developed to a great extent around the paradigm offence of murder, its victims and their families. We need to remind ourselves when considering victims’ needs that for many crimes that attract the death penalty there is some difficulty in pinpointing just exactly who has been victimised as in most countries where the death penalty is available it is not reserved for the offence of murder alone. For example, the Philippines has a mandatory death sentence for twenty-one offences none of which are specifically for murder, and of those currently on death row the largest proportion, 45 per cent, are there for offences stemming from the offence of rape, of which only six persons (8 per cent) have been sentenced to death for rape followed by murder.9 A further twenty-six offences attract a discretionary death sentence.10 It is difficult to know quite how to formulate a victims services strategy for such offences as bribery, arson and drug use and importation. In the modern era of the death penalty, rape is not an offence that typically attracts the death penalty, and rape victims who escape death manifest different needs from those who are killed during the assault – the most obvious being the capacity to articulate those needs, which might include some reference to the issue of punishment. I hasten to add that

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(revised 2 January 2003) and www.murdervictims.com (revised 30 September 2002). National Organization of Parents of Murdered Children, www.pomc.com (revised 13 December 2002). On 20 April 2002, there were 969 men and 25 women sentenced to death in the Philippines. Of the twenty executions scheduled for 2002, eleven were sentenced for qualified rape (incest), five for rape, two for robbery with homicide and two for kidnap for ransom. Examples of other crimes attracting the death penalty on death row are: forty for drug-related offences, one for illegal possession of firearms, one for carjacking with homicide, ten for qualified bribery and 125 for kidnap offences. See the FLAG (Free Legal Assistance Group) link on the website of the Centre for Capital Punishment Studies, www.wmin.ac.uk/ccps/ (revised 18 December 2002). See the FLAG link referred to in the previous footnote.

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I am not advocating that punishment should be influenced by individual victims – in fact the very premise on which this chapter is based is to avoid victim sentencing. A case could be made that there is no need or place for a separate victim service as the state prosecutes not on behalf of individuals but of society as a whole and the loss or suffering of the ‘victim’ is already taken into account in fixing the sentence. While this may be an argument for not including the victim’s perspective in the trial process, it should not replace the development of services to meet the material and psychological needs of individuals who are primary or secondary victims of crime. An ongoing discussion concerns the issue of what term to use to describe the friends and families of homicide victims. One might wonder why it should make any difference how you label those close to the victim. Should one restrict this association to immediate family, to non-married live-in partners, to heterosexual and homosexual relationships and to intimate friends? Who decides? Unlike other types of victims, homicide victims have no further involvement in the process of criminal justice, as this function is assumed by the state and occasionally by their nearest and dearest. Terms that have been adopted and used interchangeably are ‘secondary victim’, ‘invisible victim’, ‘co-victim’ and, more recently, ‘survivor’. I shall use the terms ‘primary victim’, meaning the actual crime victim, and ‘secondary victim’, to describe others, not necessarily restricted to the family and immediate friends of the homicide victim. It also has to be recognised in this context that secondary victims is a title that should be conferred on the family and friends of the condemned. The family of the victim and the accused are usually innocent parties and should be treated as such. The explanation of the need for this debate is that, in the current political climate of the victims’ movement, especially in the US, a label can affect status and influence the ensuing debate about victims’ needs and rights that flow from this official recognition. For example, the right to: r economic and emotional support; r be informed about the progress of the police investigation; r be present at trial; r provide information at the sentencing phase (a ‘victim impact statement’ in the US, or a ‘victim personal statement’ in the UK); r receive compensation from the state and/or from the condemned; r be consulted about the sentence – life or death; r be consulted at clemency and parole hearings; and r be present at the execution.

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Crime victim issues in the UK The UK too has experienced a sea change in the victims’ movement, with a multiplicity of groups competing with Victim Support (the founding victim group in the UK11 ), not just for funds but also for public and government support of their ideologies. A criticism levelled at Victim Support by some of these new arrivals is that the former group must inevitably compromise its position and therefore the needs and rights of victims because it is largely dependent on the government for funding. Victim Support for its part has always taken the line not to campaign in the area of punishment – in fact its constitution bars it from so doing save in the area of compensation. In contrast, some of the new organisations, aping their US counterparts, campaign aggressively for stiffer penalties and the establishment of procedural rights for victims, such as victim impact statements, active participation in the sentencing process, involvement in any decision-making forum where early release is being considered, and the right to know when ‘their’ offender is being released from prison and where he or she is living – a far cry from the days when the needs of victims were provided for by local volunteers who helped with such ‘mundane’ activities as providing a sympathetic ear, contacting builders to repair damage to property, helping to allay fear of re-victimisation, contacting friends and relatives, and finding temporary accommodation.12 Victim Support continues to concentrate on these fundamental needs, supporting and initiating schemes directed at making the criminal justice system less frightening and more accessible to victims. Victim Support has projects concerning, for example, witnesses at court, victims’ relations with the prosecuting authorities, and separate facilities for victims and their families at court.13 It has also promoted research into victims’ needs and effective measures to meet those needs. For example, special projects have been established to respond to 11

12

13

The National Association of Victim Support Schemes (NAVSS, now Victim Support) had its origins in the initiative prompted by the National Association for the Care and Resettlement of Offenders (NACRO), which founded the Bristol Victim-Offenders Group in 1969. This group developed strategies to work with the victims of personal crime referred to them by the police. They established a multi-disciplinary team of professionals who trained volunteers. This group eventually formed into the Bristol Victim Support Scheme in 1974. Similar groups began to form countrywide and the NAVSS was formed in 1979. See www.victimsupport.com (revised 14 June 2001). C. Holtom and P. Raynor, ‘Origins of Victim Support: Philosophy and Practice’, in M. Maguire and J. Pointing (eds.), Victims of Crime: A New Deal ? (Milton Keynes: Open University Press, 1998). Paul Rock, ‘The Victim in Court Project at the Crown Court at Wood Green’ (1991) 30 Howard Journal 301–10.

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families of murdered children and to the victims of rape. Victim Support has been successful in meeting its objectives over the last three decades without needing to engage in aggressive political campaigns demanding ‘rights’ for victims.14 Undoubtedly, the decision to produce a Victim’s Charter in 1990 and 1996 was directly the result of the quiet, behindthe-scenes lobbying that characterises the approach of Victim Support,15 though the 1996 version did owe much of its rhetoric to the influence of the more vocal lobbyists and the populist tendency of the then Home Secretary, Michael Howard.16 Many decades of research have improved our knowledge of the experiences and needs of victims.17 From von Hentig’s work18 in the 1940s – which raised the notion of victim participation arguing that there were characteristics inherent in some who became victims, which led to their victimisation – subsequent research in this area suggested that victims were in some way to ‘blame’ for their predicament. The 1960s saw the arrival of ‘victim survey’19 research in the US and the UK, which in turn spawned the British Crime Surveys20 that have in recent years provided valuable information about the perceptions victims have of the criminal justice process. The core effects, identified by such research, that are experienced by the families of homicide victims include fear of crime,21 fear 14 15 16

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Paul Rock, Helping Victims of Crime: The Home Office and the Rise of Victim Support in England and Wales (Oxford: Clarendon Press, 1990). ‘Victim’s Charter: A Statement of the Rights of Victims’ London: Home Office, 1990. Michael Howard, Home Secretary, launched this document in June 1996. The byword was ‘giving victims a voice’ and it set out to make quite specific undertakings to victims – perhaps more ‘rights’ orientated than ‘needs’. The main tenets of the Charter are: the provision of information to victims; taking victims’ views into account; treating victims with respect and sensitivity at court; and providing support to victims. J. Shapland, J. Willmore and P. Duff, Victims and the Criminal Justice System (Aldershot: Gower, 1985) and M. Maguire and C. Corbett, The Effects of Crime and the Work of Victim Support Schemes (Aldershot: Gower, 1987). H. von Hentig, The Criminal and His Victim (New Haven: Yale University Press, 1948). R. Sparks, H. Genn and D. Dodd, Victims and the Criminal Justice System (Chichester: Wiley Press, 1977). The first British Crime Survey was published in 1983, and the survey has been repeated six times since then (1985, 1989, 1992, 1994, 1996 and 1998). The original conception was an attempt to provide an alternative and, it was hoped, more accurate picture of the nature and volume of crime than that provided by the official statistics collected by the police forces. Over the years, it has evolved and, in addition to refining its statistical accuracy, it has established an agenda of data collection and research which highlights the experiences and perceptions of victims which has led to initiatives which attempt to meet the identified needs of victims. This model has also been used in discrete local areas where its results have directly influenced crime prevention and victims’ needs policies. C. Murray-Parkes, ‘Psychiatric Problems Following Bereavement by Murder or Manslaughter’ (1993) 162 British Journal of Psychiatry 49 at 50.

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of strangers,22 over-protectiveness of their other children,23 anger24 and isolation.25 At the extremes there are victims whose suffering is so intense as to be disabling both physically and psychologically amounting to a clinical condition. There is evidence too that such bereavement affects members of the same family in different ways, and that family members may adopt different coping or survival mechanisms. According to some claims in the US, as many as 70 per cent of such families end in separation in one form or another, and Paul Rock26 recalls the views of a number of family members: ‘[W]e’ve split into two now, and there are three or four daughters that I don’t see and seven grandchildren, because we were too close and because our opinions varied so much – “hang them”, “don’t hang them”, and all things around it’ (member of Survivors of Murder and Manslaughter, (SAMM)). Another member of SAMM said: ‘I couldn’t even look at my husband for three years. I hated him, I didn’t want him near me because I couldn’t cope with his . . . I couldn’t recognise his pain. It was only me that was in pain. I didn’t even want my other son. All I wanted was . . .’ If this incomplete catalogue of ‘effects’ teaches us anything, it is that there is one myth that needs debunking immediately and that is the perception among some researchers and policy-makers that victims of crime are a homogeneous group with identical needs susceptible to similar solutions. Over the past decade or so, there has been a growth of victims groups in the UK, many of which have developed in response to the plight of individual victims or particular crimes. The Suzy Lamplugh Trust and the Zito Trust were both established by family members in the hope that 22 23

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Robert Kilroy-Silk, ‘The Suffering Continues’, Police Review, 20 May 1988; A. Burgess, ‘Family Reaction to Homicide’ (1975) 45 American Journal of Orthopsychiatry 391. Daphne Vaughan, ‘Death by Murder’ (unpublished manuscript). Rock, note 6 above, quotes an extract from a paper written by the mother of a murdered child: ‘A certain fear envelopes you. You become paranoid over your surviving children going out and wait anxiously for their return. You become fearful of facing people and to hear someone walking behind you fills you with dread.’ ‘I was so angry I sometimes didn’t know what to do with myself, I used to take the car out into Derbyshire, drive into some remote area and scream. I would hear this terrible demented screaming like a madwoman or someone possessed and realised that it was me.’ Quoted in Rock, note 6 above, from Irene Ivison, Fiona’s Story (London: Virago, 1997), pp. 270–1. ‘Everyone expects you to be “all right”, but you feel that you will never be “normal” again. The world goes on much the same as before, while inside you feel alone, isolated and no-one really understands the pain, emptiness and anger, which you are suffering.’ Quoted in Rock, note 6 above, from a Support After Murder and Manslaughter (SAMM) leaflet. See Rock, note 6 above, p. 46.

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others may learn from the mistakes that led to their loved ones suffering. They set out to create a climate of understanding through which change could be encouraged – the change in the case of the Lamplugh Trust was to the procedures of estate agents27 to ensure that no female staff attend appointments with members of the public at remote locations unaccompanied. Jayne Zito’s husband Jonathan was killed, while waiting at a railway station, by Christopher Clunis who had recently been discharged from mental health care without, it later transpired, support or medication. Her ‘campaign’ for a public enquiry28 was successful and the Trust she founded has become active and influential on such issues as community care for the mentally ill and the needs of the victims of assault by the mentally ill. I use these two examples to illustrate the capacity to divert the pain of bereavement, in such circumstances, from destructive outcomes into creative outcomes, believing that such an approach has benefits for the families of victims and society in general. In the introductory chapter, reference was made to the unhelpful effects of competition between abolitionist groups. What Rock’s volume and other writings about crime victims reveal is that amongst the pain and confusion of individuals bereaved by murder there is occasionally conflict and dissent about means and ends leading to fractures and the emergence of new groupings. The abolitionist community might attract some sympathy for their agenda if they were to promote policies that helped establish a climate where respect for victims and their families is of at least equal importance to ensuring the legal and civil rights of the accused and the condemned. Jayne Zito, drawing on her background in mental health coupled with a working knowledge of the criminal justice system, was able to put this to use, and this helped, in her words, to avoid ‘a destructive pattern of grief’. POMC29 and SAMM30 are two groups that developed in response to the 27

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Suzy Lamplugh disappeared in 1986 after keeping an appointment alone with a male client, who had ostensibly arranged to view a property. There has been no trace of her since then. North East and South East Thames Regional Health Authorities, The Report of the Inquiry into the Care and Treatment of Christopher Clunis (London: HMSO, 1994). Parents of Murdered Children (POMC) was established in 1990 as a separate group which had its origins in The Compassionate Friends (TCF) set up in 1969. In 1980, TCF and POMC became a joint organisation. Out of POMC sprang the Victims of Crime Pressure Group (1993) and Families of Murder Victims (1993). SAMM, which was formed out of POMC in 1994, experienced some conflict of direction in its early days when a sub-group, Justice for Victims (1994), was formed from among its membership. Justice for Victims had and continues to have some antipathy towards Victim Support, which they believed had harmed the relationship SAMM had with them. The current relationship is more positive as SAMM have an office in Victim Support premises and they collaborate on a number of issues.

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needs of the families of murder victims, and they in turn have spawned other groups such as Justice for Victims. This brief review is undertaken to set the context for the discussion of the development of responses to the needs of victims of murder and to their families and the influence they have on the debate about punishment, in this instance capital punishment. Rock’s enquiry charts the development of the victims’ movement, its relationship to its constituents, to other group members, to the general public and finally to central government. While his work focuses on the UK, it is clear that the victim movement in the US has had and continues to have influence on some in the movement in the UK. At the risk of over-simplifying the debate, it appears that the principal thrust of many new groups is concern for severe punishment and more procedural rights for victims to influence the outcome of actions against offenders. This approach has struck a rich vein of approval among the public, the tabloid press and politicians on the right (and some on the left), and furthermore there is evidence that it is having an impact in shaping policy on the ground locally and centrally through legislation. This is so despite the fact that there is little evidence to suggest that longer sentences lead to a more effective sentencing policy or that victims benefit – the only people to benefit from this approach would appear to be politicians and lobbyists at the expense of victims’ vulnerability being further exposed and exploited. An example of this is the public concern expressed when individuals convicted of sexual offences against children are released from prison. Specifically, demands are made for the resettlement plans and locations of such offenders to be disclosed. When such information has been leaked, it has led, predictably, to the formation of vigilante groups which hound out such individuals. This places the problem with the police who have to take them temporarily into protective custody while more permanent and suitable plans are devised. This development is in itself deeply worrying, but more so is the evidence that legislators are being persuaded to contemplate new legislation placing more restrictions on the movements and therefore individual rights of people who have formally paid their debt to society. While adequate safeguards are essential to ensure public safety, a balance has to be struck between the needs and rights of potential future victims and the needs and rights of offenders. Such public disclosure will have the effect of driving such individuals underground where they will escape any supervision. This particular victims’ ‘right’ has been influenced by developments in the US, and31 there is little doubt that 31

‘Megan’s Law’ is legislation named after Megan Kanka, the seven-year-old who was raped and killed by Jesse Timmendequas. On 29 July 1994, Timmendequas lured Megan

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Michael Howard’s decision32 in principle and in practice to consign a number of life sentenced prisoners to a natural life sentence was in direct response to the lobbying of certain victim groups. In the view of some, the rise in retributive punishment is directly the responsibility of the modern victims movement, an outcome mirroring the developments in the US. Pat Carlen, for one, believes that: The final strand in the new punitiveness is the rise and rise of the crime victim. Since the mid-1970s there has been a growing emphasis on the neglect and invisibility of the victim of crime in the administration of justice. The trumpeting of crime victim wrongs has been useful to anyone wishing to make an electoral appeal on law and order issues. Although at a common-sense level one might have thought that it is because crimes do have victims that anyone ever cared about crime in the first place, the 1970s rediscovery of the victim has certainly fed into the 1990s punitiveness – and with a vengeance! The results? A greatly increased fear of crime, daily demands for stiffer sentences, and a steep increase in levels of criminological nonsense.33

Victims and capital punishment: the US The major co-ordinating group in the US for homicide victims, the National Organization of Parents of Murdered Children (NOPOMC),34

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into his house across the street from her to see his puppy, and killed her. The next day, he led police to the body in a nearby park. It was disclosed after the murder to her parents and neighbours that he had two previous sex convictions against children and had been moved into that area after being released from prison. Her parents campaigned for laws to require that neighbours be notified when sex offenders move into an area. New Jersey passed legislation, which came into effect on 31 October 1994, followed by most other states. President Clinton enacted a federal law in 1996. Michael Howard was the former Home Secretary who identified seventeen life sentenced prisoners for whom he would not exercise his discretion for early release, implying that they would serve whole life sentences. He also increased the tariff from eight to fifteen years for the two ten-year-olds convicted of the murder of two-year-old Jamie Bulger. This decision was successfully challenged in the domestic and European courts. P. Carlen, Jigsaw: A Political Criminology of Youth Homelessness (Buckingham: Open University Press, 1996), p. 53. The National Organization of Parents of Murdered Children (NOPOMC) was founded in 1978 and now co-ordinates a confederation of 300 groups across the US, and receives over 100,000 requests for assistance annually. It publishes a newsletter, Survivor, which informs its membership about the activities of the national and state branches. Reports of changes to legislation and practice that affect victims, updates on personal stories of victimisation, a letters page, the Parole Block campaign and MINE (Murder Is Not Entertainment) are regular features. Recent issues have addressed support for the campaign to introduce a Victims’ Rights Amendment to the US Constitution. Parole Block is a campaign to support friends and families of homicide victims objecting to the release on parole of ‘their’ murderer. MINE is a campaign to persuade the entertainment industry to treat the topic of murder with sensitivity. Some state variations include in their brief ‘other survivors of homicide victims’. See www.pomc.com (revised 13 December 2002).

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originated in the early 1970s and, like many such groups in the US, is rooted in the rights-based model (unlike Victim Support in the UK). NOPOMC and Justice for All owe their origins to the right in politics 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 the main players 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. By many accounts Justice for All (JFA) has a hugely disproportionate and alarming influence on the shape of the political and criminal justice industry in Texas, especially when one considers its youth as an organisation and its membership, estimated to be about 4,000. Despite its ambitions to become a national organisation along the lines of NOPOMC, the bulk of its members are Houstonian and Texan. Given their activities and their agenda, we should be grateful for small mercies! Crime victim Pam Lychner was attacked by a parolee, William Kelley, at the home she and her husband were selling. It was only when Kelley was being considered for parole just two years into a twenty-one-year sentence and when he sued the Lychners for ‘mental anguish’ for locking him in a cupboard at the time of the assault, that Mrs Lychner became active and founded JFA in 1993. It is suggested that JFA became and remains a major force through the patronage of the Crime Victims’ Advocate in Houston, Andy Kahan. This partnership flourished for several years, and Lychner’s influence can be measured through the fact that a federal statute requiring the registration of sexual offenders carries her name as does a bronze statue of her in her home town and uniquely the renaming of a Texas Department of Criminal Justice prison – an honour usually reserved for prison staff. The current president of JFA, Diane Clements, took over in 1996 and has taken the organisation to new heights of punitiveness.35 35

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 particular scrutiny of Justice for All and the politics of the victims’ movement in Texas.

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More alarming than the catalogue of political intrigue and abuse of power recounted in Nowell’s article is the evidence of destructive hostility shown by Clements – and therefore one assumes JFA – towards another victims’ organisation. The essence of my concern is illustrated by the following passage taken from his article where he describes an incident that took place at the 2002 conference of the National Organization of Victim Assistance: 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.’

I suspect that Ms Clements views both Murder Victims’ Families for Reconciliation (MVFR)36 and the Journey of Hope37 with the same distaste as they take altogether different positions on the issue of the death penalty. Both organisations share similar beliefs and constituents, the latter having evolved from the former, as all are families or friends of victims of homicide and passionately oppose the death penalty. MVFR’s opposition to the death penalty is based on the fact that ‘[m]ost criticism of the death penalty focuses on how it affects the person on death row. Our concern is how the death penalty affects the rest of us in society. Our opposition to the death penalty is rooted in our direct experience of loss and our refusal to respond to that loss with a quest for more killing. Executions are not what will help us heal.’ The Founder of MVFR, Marie Deans, believes that ‘[a]fter 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, 36

37

Following the murder of her mother-in-law, Marie Deans founded Murder Victims Families for Reconciliation (MVFR) 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. In Indiana, in 1993, the first Journey of Hope was staged, and this has been followed with marches throughout a variety of states every year since. See www.mvfr.org (revised 12 December 2002). See www.journeyofhope.org (revised November 2002).

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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”.’ Since 1993, the Journey of Hope has taken this message onto the road in a different state of the US each year, holding meetings in the local communities through which the ‘journey’ passes. The National Organization for Victim Assistance (NOVA), offered as a foil to these ‘partisan’ groups, was founded in 1975 and is the oldest national group of its kind worldwide providing authoritative and objective information for victims. It is a private, non-profit organisation for victims and witnesses offering programmes for ‘practitioners, criminal justice agencies and professionals, mental health professionals, researchers, former victims and survivors, and others committed to the recognition and implementation of victim rights and services’.38 As part of its contribution to the death penalty issue it has produced an information video for those secondary victims faced with the choice of witnessing an execution39 – a difficult task at the best of times but, as MFVR point out, NOVA’s nonpartisan position is called into question by the fact that this documentary portrays only the experiences of secondary victims who support the death penalty. Furthermore, the funding for this project was drawn from the provisions in the 1984 Victims of Crime Act ‘that directly or indirectly provides financial support to public and non-profit institutions serving the needs of victims. What message is sent when these public funds are used to support only one subset of the victims’ population?’40 The issue of victims and the death penalty provides a chilling illustration of the relationship between politicians and victims in support of the death penalty aligning themselves against those homicide victims’ families who are opposed to the death penalty. For some years it has been apparent to such families that their access to victim services is being frustrated throughout the process and from time to time their adverse experiences have formed the basis of uncomfortable anecdotes. Recently, MVFR has conducted a thorough review of as many of these anecdotes as could be corroborated and their findings are so worrying as to warrant close examination,41 especially by those institutions that purport to be concerned by 38 39 40

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National Organization for Victim Assistance, www.try-nova.org (revised 19 July 2002). ‘Finding Resolution: The Stories of Crime Victims as Witnesses to an Execution’, Candee Productions, www.candeeproductions.com. R. R. Cushing and S. Sheffer, ‘Dignity Denied – The Experience of Murder Victims’ Family Members Who Oppose the Death Penalty’, Murder Victims’ Families for Reconciliation, August 2002, pp. 17–18. Ibid.

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the needs of crime victims and their families and friends, as the evidence from this report begs the question whether such groups and individuals are pro-victim or pro-death penalty – a question that should be posed to Ms Clements of JFA. The experiences of Gus Lamm and his daughter Audrey illustrate the injustice and discrimination faced by the families of murder victims that oppose the death penalty. Victoria Lamm (wife of Gus and mother of Audrey) was, together with Janet Mesner, murdered by Randy Reeves in 1980. Reeves was subsequently sentenced to death. In 1998, as an execution date loomed, the Lamms were contacted by the family of Janet Mesner and all travelled to the state legislature in Nebraska to present an account of their experiences. ‘It pains me to think that in some indirect way, my mother’s death could cause another person to lose his life, said Audrey, now 21 years-old. Killing another person doesn’t do any honour to her memory.’ In 1999, when the Nebraska Board of Pardons met to consider commuting Reeves’ death sentence, only one of the three family members of the victims present was permitted to speak and that was Janet’s sister, who supported the death penalty. The Nebraska Constitution had been amended, as it had in another thirty-one states, giving rights to victims. Including the right ‘to be informed of, present at, and make an oral or written statement at sentencing, parole, pardon, commutation, and conditional release proceedings’. Gus and Audrey Lamm, having been denied those rights, brought an action against the Nebraska Board of Pardons claiming that their equal right to speak had been denied because of their views on the death penalty. At the District Court hearing, the judge found that ‘the Lamms are not victims as that term is commonly understood’ and went so far as to characterise the Lamms as ‘agents of Randy Reeves’ – all because they opposed the death penalty. The Lamms appealed to the Nebraska Supreme Court, at which hearing MVFR filed an amicus curiae brief.42 The Court chose not to comment on the issue of victim discrimination but to concentrate on the issue that the Constitution ‘requires that the legislature enact laws for implementing and enforcing those rights. The legislature had not yet done so, and so the Court ruled that such laws should now be enacted. To date, this has not taken place.’43 I have heard MVFR 42

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State of Nebraska ex rel. Gus Lamm and Audrey Lamm v. Nebraska Board of Pardons et al., 620 NW Rep. 2d 763. The lawyer representing the Lamms stated: ‘The District Court’s callous declaration, that [Gus and Audrey Lamm] are not victims does not obviate the loss they have endured. Rather, the ruling . . . adds insult to injury when their public plea not to desecrate the memory of their loved one by the taking of another life is met with a legal pronouncement that they are persona non grata under the Nebraska law.’ Cushing and Sheffer, note 40 above, p. 10. Ibid.

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members relate their experiences on a number of occasions, and many state that when they declare their opposition to the death penalty prosecutors and other criminal justice agents accuse them of not really loving their murdered relatives. It is to be hoped that the compelling evidence of injustice revealed in this report and the accompanying recommendations will not go unnoticed. Aside from the obvious violations of the victim legislation, what this report shows is the wholesale contamination and politicisation of the process when the death penalty is an issue. Victim-driven criminal justice An inherent contradiction and injustice in a victim-driven criminal justice system is illustrated by the two approaches reflected above with respect to those convicted of capital murder. If all victims’ wishes are to be respected, then prosecutions for capital murder will become even more inconsistent than at present – one simply cannot have a prosecution policy based on the wishes of the families and friends of homicide victims, where some are for and some are against capital punishment. There is evidence that prosecutors do take the wishes of victims’ families into account, though it appears that the majority of such families and such wishes are pro death penalty.44 There is evidence too that irrespective of their individual inclinations the agenda of such groups, actively supported by the prosecution industry, is pro-punishment and pro-revenge. This practice of a victim-driven prosecution and sentencing policy is evident in many other parts of the world, none more so than in those countries where Shari’¯a law applies. Depending on local variations in interpretation and practice, victims’ families have the right to determine whether the condemned is sentenced to death, choose the mode of execution (beheading or stoning – though in some jurisdictions the mode is determined by the offence), and demand financial compensation as an alternative to choosing death, and in some Islamic states the victim’s family has the right to be or choose the executioner. Neither the US nor the Islamic 44

Houston Chronicle, 8 June 1998. Letter from Charles A. Sage, whose sister Marilyn was murdered in 1993. He reflects on the meeting with prosecutors and family members before the trial, when he suggested that acceptance of a life sentence for a defendant already dying of AIDS was the sensible choice. ‘My view was dismissed by the prosecutors [part of the cottage industry of the death penalty] and by most, but certainly not all, members of the family. The entire process focuses attention on those survivors who favour the death penalty and dismisses opponents. Sanctimonious victim’s rights groups court only supporters of the death penalty and ensure that theirs is the only viewpoint quoted by the press.’ What this letter also highlights is which view and which family member should represent the views of the deceased. Is there a hierarchy of family members and their influence?

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approach meets two essential elements of natural justice, namely, consistency and proportionality. Another potential flaw in this process – and one that bears on the importance of status – is that all these negotiations are undertaken on behalf of the victim, by the state and by the secondary victims, begging the question as to whether the procedure of the ‘living will’ should carry weight at the prosecution and the sentencing phases. There are numerous individuals in the US who carry notarised declarations stating that in the event that they are murdered the state should not seek the death penalty – should prosecutors respect that wish or should the state or the family have the right to override that wish?45 If the move is towards a victim-driven system, then it follows that the victim’s view should be more influential than that of either the state or the friends and families of the victim. Victim impact statements Following Lockett v. Ohio,46 the defence team in a capital case is allowed to introduce any information helpful to the defendant in mitigation while the prosecution is only permitted to introduce evidence relevant to any aggravating characteristics of the offence. Prosecutors and victims’ groups, believing this led to an imbalance, sought to redress this by making similar provision for the deceased, the victim. ‘Victim impact evidence’ was first raised in 1987 in Booth v. Maryland,47 when evidence, showing the pain and loss suffered by surviving relatives and friends of a murder victim, offered in support of the prosecution’s argument for a death sentence was declared inadmissible by the US Supreme Court. This judgment was overturned in 1991 by Payne v. Tennessee48 when the Supreme Court ruled that the prosecution may now introduce evidence to show the victim in a favourable light. Inevitably, this process is raw with emotion, antagonistic to the defendant, implicitly a demand for the death penalty and not subject to cross-examination by the defence – hardly the ideal environment to tease fact from fiction or relevance from irrelevance or 45

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Boston Globe, 7 July 1998. Mario Cuomo, who was Governor of New York state for three terms, has attached such a notarised codicil to his will. It reads: ‘I hereby declare that should I die as a result of a violent crime, I request that the person or persons found guilty for my killing not be subject to or put in jeopardy of the death penalty under any circumstances, no matter how heinous their crime or how much I have suffered.’ The campaign in New York was started by Sister Camille D’Arienzo in 1994 during the governor’s election when it seemed certain that the death penalty would be returning to New York after an absence of some thirty years. She says that at least 10,000 people across the country have signed statements like Cuomo’s. 47 Booth v. Maryland, 482 US 496 (1987). Lockett v. Ohio, 438 US 586 (1978). Payne v. Tennessee, 501 US 808 (1991).

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to ensure objectivity in sentencing, especially when the prosecutor and the judge are likely to be elected officials and when in all states juries decide the sentence. Hugo Bedau, critical of this development, remarked: ‘Criminal desert is supposed to be measured by the offender’s culpability and the harm caused by the crime . . . Now, however, it will be up to each capital trial jury to decide for itself whether the murder of which the defendant has been found guilty is deserving of a death penalty because of some special features about the victim, features not defined by any statute, possibly not evident to the defendant at the time of the crime, and not specifiable by the trial court or in any uniform manner from case to case.’49 The balance that has to be achieved is to give recognition to the victim in a respectful and dignified manner while still maintaining objectivity in the legal process. The trial is not the place to consider the very legitimate needs and rights of the families and friends of the victim; there should in effect be a separate ‘victim justice system’.50 Here again the mainstream victim movement in the UK differs from its counterpart in the US. Dame Helen Reeves, Chief Executive of the National Association of Victim Support Schemes (NAVSS) laid out its position with respect to the victim impact debate. Dame Helen’s plans are: to ensure that victims have a voice and that the legitimate interests of the victim can be taken into account and acted upon by the Police, the Prosecution Service, and the Courts. She argues that the best interests of victims are not met by involving them directly in the sentencing process, or by raising expectations that their views will impact on the level of punishment of the offender. She argues that raising such expectations and involving the victim directly in the sentencing process can work against the best interests of the victims concerned.51

The UK experience of the victim statement is limited, given that it was only introduced nationwide in October 200152 following a series of pilots around the country. An evaluation of both the ‘One Stop Shop’ (OSS) project for crime victims and the Victim Personal Statement initiative 49 50 51

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Hugo Adam Bedau, ‘American Populism and the Death Penalty: Witnesses at an Execution’ (1994) 33 Howard Journal of Criminal Justice 289–303. See the Howard League proposals in their briefing paper, ‘Victims of Crime’, available from the League’s offices, 708 Holloway Road, London N19 3NL. Extract from the debate held between Dame Helen Reeves and Edna Erez, Kent State University, US, on the issue of the victim impact statement, 10th International Symposium on Victimology, Montreal, Canada, 2000. Home Office Circular 35/2001, ‘Victim Personal Statements’. This gives the option to all discernible victims to complete such a statement, which can include information about whether the victim would like to receive further information about the progress of the case; concerns about bail; concerns or special needs related to being a potential witness; and any compensation the victim is seeking, based on financial loss and any physical or psychological injury suffered.

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conducted by the Department of Law at Bristol University53 found that less than 50 per cent of eligible victims opted into the OSS and approximately 30 per cent prepared Victim Personal Statements (VPS). ‘Most victims prepared VPS for expressive reasons [getting it off their chests] and instrumental reasons [wanting to affect a decision]. But approaching half did so for procedural reasons [e.g. wishing to back up evidential statements]. Like most OSS participants, they also saw making a VPS as an expression of their rights and as an aid to their feeling in control of events.’ Both these schemes are staffed by police officers who are required to inform the victims that the VPS will form part of the case papers and can be disclosed to the defence if an offender is caught, meaning that the victim could be cross-examined on what has been said in the statement. Furthermore, ‘[i]f it is in the public interest to do so, the VPS should be taken into account by all the criminal justice agencies who subsequently deal with a case but they are not obliged to act upon it. In relation to sentencing, the court can take into account the effect of the crime but cannot take account of any opinion about sentencing.’54 It was clear from the start that the VPS would not imitate either the spirit or the process of the US victim impact statement and that it would be emphasised that this was not a formula for influencing the sentencing process. Victim offender mediation/dialogue (VOM/D) My knowledge of this issue is based principally on my exposure to the Texas experience though projects based on the restorative justice approach are to be found in other parts of the US, which have capital punishment, and in other parts of the world, where it is applied to the generality of crime victims. The Texas VOM/D55 is a programme for victims of violent crime including lethal crime, and therefore some of those who take part in this project are families of homicide victims whose murderers are on death row.

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C. Hoyle, E. Cape, R. Morgan and A. Saunders, ‘Evaluation of the “One Stop Shop” and Victim Statement Pilot Projects’, a report for the Home Office, Research Development and Statistics Directorate, Department of Law, University of Bristol. The Liberty Guide to Human Rights, www.YourRights.org.uk. The Victim Offender Mediation / Dialogue is an initiative of the Victim Services Division of the Texas Department of Criminal Justice, www.tdcj.state.tx.us/victim/victimvomd.htm. In summary, the mission of the Victim Services Division is to provide a central mechanism for victims and the public to participate in the criminal justice system. Its philosophy is to strive to reduce victimisation through education within an environment of integrity, fairness, compassion, dignity and respect.

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Figures available in April 2002 showed that 494 victims had requested to meet with their offenders, 62 were assigned to VOM/D staff, 42 were assigned to volunteers, 31 cases were resolved, 26 cases were completed in that the victim and offender had met face-to-face, 5 had been resolved by ‘creative alternatives’ not requiring face-to-face meetings, 209 cases were described as closed, meaning that either contact with victim had been lost or the victim had withdrawn or that the offender was deemed inappropriate or had refused. There were 150 pending cases. Of the 494 cases, 244 involved murder victims, of which 51 were on death row; 130 offenders sought to initiate mediation through the VOM/D. In 2001, 22 mediations were completed. The important principle to be remembered is that this scheme is essentially for the crime victim and secondary victim, unlike some earlier projects which brought together victims with their offenders where victims were clearly being ‘used’ as part of the offender’s therapy programme. The anecdotal evidence of the impact of this process is overwhelmingly positive in nature for both the victims and the offenders who have taken part. In ongoing research being undertaken at the Center for Restorative Justice and Peacemaking at the University of Minnesota Victim Offender Mediation programmes are being examined in Texas, Ohio and a number of other states of work with serious violent crime including capital crimes. The evidence to date from interviews with victims and offenders indicates that both constituencies almost universally described the experience of all aspects of the programme as ‘very helpful’. The briefing paper56 reviewing the work in progress published by the School of Social Work refers to a number of earlier studies the outcomes of which mirrored those of the Minnesota study. Jon Wilson, another author on the subject, writes about the growing movement that in his view ‘brings victims and offenders together in search of true justice’ and how the Texas VOM/D ‘brings true healing to crime victims, and true accountability to their offenders’.57 The overwhelming majority of those participating in a ‘Training and Awareness Symposium’ in Austin, Texas, in 2001,58 staged by the Victim Services Division of the Texas Department of Criminal Justice, which I attended, had personal experience of violent crime as primary or secondary victims, which was significant as no one felt the need to hide the 56

57 58

Mark S. Umbreit, Robert B. Coates and Betty Vos, ‘Victim Offender Mediation Dialogue in Crimes of Severe Violence’, Centre for Restorative Justice and Peacemaking, University of Minnesota, School of Social Work. Jon Wilson, ‘Readings in Restorative Justice’, Hope Magazine, www.hopemag.com. Jon Wilson is the publisher and editor-in-chief of Hope Magazine. Second Annual, Victim Offender Mediation/Dialogue Training and Awareness Symposium, Shepherd of the Hills Lutheran Church, Austin, Texas, 20–21 April 2001.

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pain of their experiences, nor justify the differing approaches they had adopted to cope with their individual circumstances. It was a privilege to have been permitted to attend the conference though it frequently felt that I was ‘eavesdropping’ on the very private and painful reconstructions of their experiences.59 Families of murder victims whose offenders were on death row constituted a minority in attendance at the meeting, and I was able to meet with a number of them for private conversations. Interestingly, all those that I spoke with had participated in the VOM/D and had met ‘their’ offenders and subsequently had also witnessed their execution. This is not always the experience of the Victim Services Division which is also responsible for the scheme permitting victims’ families to witness the execution of ‘their’ offender. This is of interest because there appears to be an inherent contradiction between the objectives of the VOM/D and the Witness Execution project – a contradiction supported by the testimony of the majority of those at the symposium who indicated that the VOM/D programme provided lasting resolution and healing whereas no one I spoke to claimed such benefits flowing from the experience of witnessing the execution of ‘their’ offender. Most of those that I spoke to reflected on an aspect of their experience that was ignored which they felt should have been addressed. One family nearly a decade on was still lobbying to meet with the parents of the condemned man responsible for their daughter’s death as all their attempts to meet them and console them at the trial and subsequent court hearings had been aggressively thwarted by the prosecutors. This sharing of grief, exchanges of consolation and offerings of apologies are anathema to prosecutors and are seen as undermining the anger and passion on which death penalty cases are based. These sentiments echo those that I have heard during my many discussions with the families of the condemned, all of whom regret not being able, ever, to express their sorrows and apologies to the families of the victims. This is not a process that has time for anything that hints of healing – it prefers to tar all those associated with the defendant as in some way culpable. Some of the counsellors in VOM/D share the regrets of their ‘clients’ and believe such contact between the two sets of secondary victims to be crucial to the healing process for both parties. Advocates of the VOM/D approach are very careful to point out that it is not an approach that will meet the needs of all victims or their families, and I was introduced to families where the ‘one model fits all’ approach had been quite counter-productive and had led to intermittent difficulties 59

I would like to thank all those who attended the symposium for allowing me to be present, especially those who allowed me to interview them.

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in their relationships. Possibly the main area of concern and dissent was the issue of forgiveness, and I was left with the uncomfortable impression that there was a strong covert pressure to forgive, with the implication that it was not possible to ‘move on’ without forgiving. One of the workshops addressed this issue and was staged by a husband and wife team who were both secondary victims – the husband had forgiven, the wife had not and furthermore could not envisage ever being able to.60 While this was the only workshop to formally address forgiveness, the issue formed the basis of much emotive discussion in other workshops and plenary sessions. Literature on the subject provided by the International Forgiveness Institute based in Madison, Wisconsin,61 suggested definitions of forgiveness and the means by which to achieve it. Nikki Erickson, a secondary victim, in a paper entitled, ‘What Does it Mean to Forgive?’, describes the murder of her mother by a sixteen-year old boy who in the act of trying to steal her purse stabbed her to death. Ms Erickson was six years old at the time. She speaks warmly of her experience of the Texas VOM/D and of the personal steps she had taken since her mother’s murder and to the decision that it was possible to forgive yet not forget, and felt she was honouring her mother by so doing.62 It was difficult to avoid wondering whether this entire process owed more to the strong Christian principles that pervaded the meeting and many of the participants than to the theoretical principles of restorative justice. When challenged about this I was assured, though not reassured, that the approach worked equally well with non-believers and with believers of all faiths. My concerns do not detract in any way from what are the proven benefits of this approach but do raise the question of whether it is as effective with secular and non-Christian groups and if not what adjustments need to be made to the process to make it accessible to all. Execution witness programme At what I consider to be the negative end of the range of victims’ services one has the burgeoning practice of permitting the families and friends of homicide victims to witness the execution of ‘their’ murderer. The decision to extend this ‘right’ to those who survive the victim was arrived at after vigorous campaigning by the pro-punishment victims’ lobby and 60 61 62

Don and Mary Streufert lead a workshop on ‘Issues of Forgiveness’ asking such questions as: what is the nature of forgiveness? When is it an option and/or is it an option? R. Enright and G. Reed, ‘A Process Model of Forgiving’, Department of Educational Psychology, University of Wisconsin – Madison. Nikki Erickson, ‘What Does it Mean to Forgive’, The Crime Victims Report, vol. 5, No. 1, March/April 2001.

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is justified on the grounds that the condemned are allowed to invite witnesses to their execution and such a spectacle would provide an invaluable opportunity to the families and friends of victims for ‘closure’. At least thirteen states have provision for victims’ families to witness executions63 with each state having different regulations governing numbers, status, age and dress code. In all states, the victims’ witnesses are segregated from the witnesses for the condemned and practice is very varied between states as to the preparation and support, before, during and after, for all witnesses. Why the remaining twenty-five states do not currently have provision for victims’ families to witness or why some states do not permit the family of the condemned to witness executions is unclear. Permitting, even encouraging, already pained and vulnerable people to watch while someone is put to death by hanging, lethal injection, lethal gas, firing squad or electrocution is a measure that should not have been implemented without extensive research into the reasons for and the effects of such an experience. I am not aware that there has as yet been much authoritative research conducted on the effects on all those who witness executions but the reason generally offered by politicians and some victims’ lobbies for witnessing an execution is that the spectacle brings ‘closure’. The state of Texas is interesting in this respect because as well as being infamous for its enthusiastic support of the death penalty it has in place a number of projects worthy of further examination. When the state decided to permit the families of victims to witness executions, it initiated a Victim Witness Preparation Process under the auspices of the Victim Services Division of the Texas Department of Criminal Justice. In addition to providing information by way of literature to victim witnesses, victim services staff visit prospective witnesses to discuss the execution process and to provide a personal point of contact for the family when they arrive for the execution. The ‘support room’ is now housed within the Walls prison at Huntsville rather than in the administration offices in Huntsville for the victim witnesses and it is here that they wait before and return to after the execution whilst the family of the condemned continue to be housed in the administration building across the road from the prison. It is a requirement for the assigned victim services representative 63

Oklahoma and Washington guarantee families the right to watch. In addition, California, Florida, Illinois, Louisiana, Montana, North Carolina, Ohio, Pennsylvania, Texas, Utah and Virginia hold hearings to determine access. The number permitted access varies from state to state, as does the family status of witnesses. Illinois allows families to watch only through closed-circuit television. It seems that not all states have the same minimum age for witnesses: Missouri does not permit those under the age of twenty-one. It is ironic that one is not old enough to witness an execution at twenty-one but old enough at sixteen to be executed.

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to accompany the witness before, during and after the execution when the family meets with the Post Trauma Support Team for a debriefing session and then at the press conference if they have indicated a wish to meet the press.64 Each witness is contacted several weeks after the execution to see if they have experienced any emotional or physical problems in the interim.65 The literature provided by the Victim Services Division avoids any comment about the purpose of this particular victims’ right, though the most frequently quoted justification is that it provides ‘closure’ for the family and friends of victims and, more importantly, that it is what they want. The data from the Victim Services Division suggest that it is becoming more common for executions to be attended, with 62 per cent of executions attended in 1997 and 82 per cent in 2001. The ‘two most common complaints Texas victim witnesses have expressed about the execution process was that it took too long for the execution to take place after the sentencing, and that it was too easy. And, while many were glad that the execution had transpired, they did feel compassion and empathy for the inmate’s family who were just starting their grieving process.’ This has resonance with my earlier comments about victims’ families’ wishes to meet with offenders’ families but through to the end every attempt is made to keep these parties separate including structural alterations to execution viewing chambers. The most important outcome for these families was some undefined but clearly felt sense of justice having been achieved. None claimed to have participated in the process for reasons of vengeance and none considered that witnessing the execution had in any way led to the much vaunted and promised ‘closure’. They in common with most informed commentators were unclear as to what ‘closure’ is. A major difficulty with this initiative, notwithstanding the rights or wrongs in principle, is that such individuals should be protected from further suffering at the hands of the state and while they have in place certain structural checks and balances I remain deeply sceptical as to the need for this provision, which I view as further political exploitation of a very vulnerable constituency – all for the tenuous objective of ‘closure’. The entire context of the debate is so contaminated by the politics of anger that I believe it is almost impossible to make a rational assessment 64

65

Full details about the procedure are available on the Texas Department of Criminal Justice website, www.tdcj.state.tx.us/victim/victim-viewexec.htm (revised 13 December 2002). A report dated 28 August 1998 indicates that ‘[f]or the most part, the majority that have been interviewed have expressed no regrets in their decision to view and did not suffer any post trauma symptom’. Dan Guerra, Assistant Director, Texas Department of Criminal Justice, Victim Services Division, Austin, Texas.

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of what the positive outcomes are for victim witnesses. It seems to me that by complying with this demand the state seeks to divest itself of further responsibility having already surrendered any remnants of political courage in capitulating to the demands of the pro-punishment victims’ lobby. It was not until victims’ families were allowed to witness executions that the above measures were implemented despite the fact that the families of the condemned have been witnessing executions for decades. Thankfully, this omission has now been addressed to some extent in the state of Texas where pastoral responsibility for these families has been delegated to the Prison Chaplains’ department, which attempts to provide a similar service to that provided for the victim witnesses. It could be argued that the experiences of these ‘secondary victims’ at the hands of the criminal justice system equals, perhaps exceeds, the suffering of the victim’s family – exceeds because their experience is aggravated by a universally unsympathetic, even hostile, legal and penal system when compared to the experience of the family of the victim. Referred to above but worth mentioning again are the accounts by both sets of secondary victims that early contact should be facilitated where requested so that the beginnings of understanding and healing can begin. Marginalising the family of the condemned has to be avoided and their inclusion in the activities of MVFR is to be applauded. The general question about how this experience affects all witnesses is also poorly researched but the anecdotal evidence and the testimony of numbers of prison personnel such as the former Warden of Parchman penitentiary in Mississippi, Don Cabana,66 and abolitionists such as Sister Helen Prejean67 would suggest that significant ill-effects are experienced by many of those who have exposure to the raft of procedures involved in the process of capital punishment. Research involving media witnesses at the execution of Robert Alton Harris in California in 1992 indicated a range of psychological ill-effects experienced by some of those witnesses. The researchers concluded that: ‘The experience of being an eyewitness to an execution was associated with the development of dissociative symptoms in several journalists.’68 Evaluation of the effects on victim witnesses is being undertaken by the Social Work Program of the University of Texas at El Paso, and it would be valuable if this evaluation 66 67 68

Donald A. Cabana, Death at Midnight: The Confession of an Executioner (Boston: Northeastern University Press, 1996). Sr Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (New York: Random House, 1993). A. Freinkel, C. Koopman and D. Spiegel, ‘Dissociative Symptoms in Media Eyewitnesses of an Execution’ (1994) 151 American Journal of Psychiatry 1335–9.

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could be extended to include all those who have been exposed to this spectacle as many such witnesses are not there by choice but as part of the expectations of their employment. One such employment is the Prison Chaplain and in Texas Chaplain Carroll Pickett,69 who over fifteen years of ministry stood beside ninety-five inmates as they were put to death. His practice was to spend the last day with the condemned and with members of his family, some of whom stayed to watch the execution. Chaplain Pickett found this to be one of the most difficult aspects of his ministry because what he saw was a group of victims that nobody cared about. Five years after his retirement and five years trying to ‘ignore the awful memories of the death chamber’. Pickett has found a new calling as a vocal member of the anti-capital punishment lobby.70 Conclusions Closure is a term imported into this debate from the world of psychiatry, especially from the world of practice in the US. It appears to have a fluid definition and application in the way it is applied to the issue of victims and the death penalty and provides yet another illustration of politicians’ duplicity in offering painful and largely fictional solutions to the friends and families of homicide victims gained through witnessing the execution of ‘their’ offender. If what is meant by ‘closure’ is an end to pain and suffering, then no victims’ family I have talked to or authorities I have read can confirm such an outcome. In fact, ‘closure’ as ‘getting over it’ is not recommended by bereavement counsellors such as Deborah Spungeon.71 In the view of some observers, an essential ingredient of ‘closure’ is forgiveness and as discussed earlier this issue is very difficult to confront for many secondary victims. Spungeon’s views on the issue of victim offender mediation are that ‘[t]he co-victim’s acceptance of the notion of forgiveness for the defendant should not be made a prerequisite for participation. It may happen at a later time, or it may never happen. The decision to forgive or not forgive the defendant must always be the covictims’ choice. Achieving a sense of self-forgiveness, often an important issue for co-victims, may be a surprising and beneficial outcome for the co-victim.’ 69 70 71

C. Pickett and C. Stowers, Within These Walls: Memoirs of a Death House Chaplain (New York: St Maltin’s Press, 2002). The Australian Magazine, 20 July 2002. D. Spungen, Homicide: The Hidden Victims – A Guide for Professionals (London: Sage Publications, 1998).

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Scott Turow, writing in the Wall Street Journal about his experiences on the Commission set up by Governor Ryan in Illinois, comments: ‘We found that survivors need enhanced support services and reliable communication about developments in a case. Compassionate services, rather than a determinative role in the penalty process, may be a better answer for survivors as well as for the system.’ In order to get to this position some radical reappraisal needs to be made by victims for and against the death penalty and especially by the traditional abolitionist movement. The intellectual argument challenging the purpose and the effect of the death penalty has long been favourable to those opposed to capital punishment, as has the moral argument so far as international human rights treaties and the mainstream religious groups, save Islam and the Mormon Church, are concerned. The emotional argument, however, about the needs and rights of victims and their families and friends is definitely with the pro-punishment lobby – the emotional appeal is very compelling and even more compelling when it appears even to neutral observers that abolitionists and other penal reform groups are only concerned about the needs and rights of offenders. Positive statements must be made reflecting concern for the needs and rights of crime victims. There is little doubt that the pro-punishment victim movement attracts significant public and political support in the USA compared with the UK, where the public support for punishment is arguably as strong as in the US but crucially without the same support from mainstream political and victim groups. Death penalty abolitionists have a steep hill to climb if they hope to influence this emotionally charged debate and the ground they have to make up is largely of their own creation – crucial to their future strategy has to be an explicit recognition of the needs and rights of victims. I am not suggesting a cynical adoption of a victim-friendly strategy but the acceptance that homicide victims and those that survive them have inherent rights and that these should be recognised. The failure to do so has driven many moderate, perhaps anti-death penalty victims’ families reluctantly into the arms of the pro-lobby who claim to offer succour and ‘solutions’ to the hurt, anger and frustration experienced by such families. The menu of ‘rights’ referred to earlier in this chapter represents the incline of the hill that has to be climbed. This very full menu of rights that the bereaved have sought and won is an indication of how such families and friends can and have influenced the very philosophy that the state pursues in capital cases. For example, an issue once on the periphery of the debate, the mode of execution, is beginning to gain more attention from the pro-punishment victims’ lobby, which is confirmed by the views of those victim witnesses in Texas who commented that ‘it was too easy’. The mode of execution debate goes to

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the heart of the modern purpose of the death penalty – retribution. The move towards the more sanitised and clinical lethal injection represents an interesting dilemma – on the one hand it is an attempt to make the execution process more civilised and therefore more acceptable, while on the other it represents a dilution of the retributive justification. Those states that fought to retain the electric chair did so because they believed that the process had to appear to be painful but not so painful as to violate the Eighth Amendment. Reform groups have to counter the advances made by the propunishment victims’ lobby, and it is not enough for them to rely on the intellectual and academic evidence that the death penalty serves no useful purpose or that it is a vehicle for a multitude of abuses of due process and human rights. While all this is correct, it fails to address the needs of even the moderate victim lobby and it is this failure historically that has led to the birth of the angry, frustrated and pro-punishment victims groups in the US. The dominant debate on victims’ needs and rights is provided by those victims groups that focus on influencing penal policy rather than, and some would say at the expense of, the more traditional needs of crime victims – the crime victim movement has become a political movement typified by the vocabulary, rhetoric and aggressive tactics of the pro-life movement. Abolition of the death penalty and penal reform in general is not to be gained at the expense of the inherent needs and rights of crime victims. The simple analysis provided by some politicians that money spent on offenders is money denied to victim services is a fallacy. Victims’ needs and rights should not be met at the expense of humane, effective and proportional responses to offenders, and their needs should not be confused with or influence the treatment of offenders.

Index

Abeyta, Roderick 155, 167 abolition of the death penalty 5–20, 92, 96, 105–6, 108, 186–207, 278, 358; in Caribbean countries 308; de facto 1, 2, 8, 34; de jure 1, 8, 44, 206, 236, 252, 279, 310; in Europe 22–5, 121; in Georgia (former republic of the USSR) 273–6; international aspects of 62, 246, 250; in Lithuania 251, 252; strategies for 2, 4, 194, 281; trend towards 1, 322; in the UK 121; in the US 31, 116–18, 119–25, 186–207; use of the Bible 117, 118, 119, 199 abolitionism 5, 28–9, 30, 32–3, 34, 44, 339; resources of 34; traditional 1, 34–5, 332 Abraham, Lynne 188 Abu-Hanifa school 172 Abu Zeid, Dr Nasr Hamad 178 academics and the death penalty 198, 250 Ackermann, B. 233 Actual Innocence 228 Affan, Uthman ibn 169 African Charter of Human and Peoples’ Rights 44, 46 al-Ansari, Abu Yusuf Ya’qub 172 al-Azhar 173, 175 al-Shaybani, Muhammad 172 Alabama: botched executions 148, 159, 161; and the death penalty 74, 212, 221; life imprisonment 103, 104; post-conviction counsel 211 Alabama Post-Conviction Defender Organization 12 Albania 23, 40 Algeria 48 alternatives to the death penalty 3, 24, 34, 92–115, 280, 315, 326 American Baptist Church 120, 141

American Bar Association 134, 196, 205, 208, 218, 226, 231; moratorium 191, 196, 224, 225, 230 American Civil Liberties Union 199 American Convention on Human Rights 41, 42, 43, 51, 298, 299; and abolition of the death penalty 43; and execution of juveniles 60; and execution of the elderly 58; and freedom of expression 44; and Jamaica 301; offences attracting the death penalty 46; and procedural safeguards 56; and reinstatement of the death penalty 42, 51 American Declaration of the Rights and Duties of Man 225, 298, 299, 300 American Friends Service Committee 135, 139, 199 American Law Institute 196 American League to Abolish Capital Punishment 118 American Medical Association 66, 67, 68, 73, 76–7, 197 American Nurses Association 81 American Orthopsychiatric Association 197 American Philosophical Association 198 American Political Science Association 198 American Prison Congress 12 American Psychiatric Association 66, 76–7, 197 American Public Health Association 81, 197 American Society of Criminology 198 American Sociological Association 198 American Spectator 228 Amnesty International 14, 16, 129, 132, 136–7, 196, 200, 321–2 Anaya, Tony 193 Andrews v. United States 57 Annan, Kofi 140

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Anti-Terrorism and Effective Death Penalty Act 133, 210, 211 apartheid 133 apostasy 48, 177–9, 185 appellate courts, US 144, 190–2, 211, 213 Aquino, Cory 28 Arizona 143, 148, 163, 221, 225 Arkansas 148, 162, 193 Armenia 23 Arroyo, President Gloria 26, 87 Ashby, Glen 288 Asia 25–9, 106, 253–72 Asian Charter on Human Rights 270 asphyxiation 143, 149, 154 assets, seizure of an offender’s 94 Atkins v. Virginia 11, 18, 72–3, 197, 207, 323 Attorney-General, US 24, 188 attorneys, trial 209–10, 219; see also counsel, lawyers Australia 14, 25 Autrey, Rod 228 Azerbaijan 94 Bachan Singh v. State of Punjab 316, 323 Bahamas 296 Bailey, W. C. 10 Baird, Charles F. 224 Bakr, Abu 169 Baldus, David 15 Baltic Assembly, Resolution on the Abolition of the Death Penalty 233–49 Baltic Surveys 239–40 Barbados 33 Barlinnie Special Unit, Scotland 112 Barnett, Dr Lloyd 287–8 Bassiouni, M. Cherif 169–85 Beccaria, Cesare 204 Bedau, Hugo Adam 10, 13, 31–2, 186–207, 324, 348 Belarus 23, 44, 48 Belize 33, 283, 285 Bentham, Jeremy 204 Bentley, Derek 303 Berdon, Associat Justice Robert I. 315 bereavement 338, 339 Bernardin, Joseph Cardinal 128 Bible, use of 117, 118, 119, 199 Bill of Rights, England 286 Bill of Rights, US 191, 318, 326, 329 Billings, Warren 201 Bingham, Lord Chief Justice 98, 285 Birmingham Six 12, 290 Black Leadership Forum 139

Blackmun, Justice Harry 10, 123, 132, 316 Blunkett, David 103 Bonin, William 81 Boodram v. Baptiste 286 books on the death penalty 200–1, 228 Booth v. Maryland 347 Borg, Marian J. 143–56 Bosnia and Herzegovina 42 Bowers, William J. 10, 313 Bradshaw v. Attorney-General of Barbados 307 Brady, Ian 93, 101 Brame, Robert 213, 229 Brecheen, Robert 64 Brennan, Justice William 123, 130 Brewer, Victoria 9 Breyer, Justice Stephen G. 17 Bridge, Lord 292, 294 Briggs v. Baptiste 300, 301 Brightman, Lord 292 Brinkman, Representative Thomas Jr. 227 British Crime Surveys 337 British Medical Association 74 Brittan, Leon 102 Broaddus, William 228 Brown, Edmund G. ‘Pat’ 192 Bryan, Anthony Braden 81 Buddhism 260, 270, 271–2 Bundy, Ted 93 Bureau of Justice Statistics 94 Burger, Justice Warren 123, 325 Burrell, Albert Ronnie 217 Bush, George H. W. 50, 130, 191, 192 Bush, George W. 30, 136, 188, 192, 197 business community 186, 226–7 Cabana, Donald A. 134, 187, 355 California: abolition of the death penalty 192; constitutionality of capital punishment 191; executions in 61, 80–1, 119; Supreme Court 319, 325; trial attorneys 209; victim services 333 Camacho, Genaro Ruiz 167 Cambodia, and the death penalty 5, 25 Campbell v. Wood 286 Canada: and the death penalty 43, 61, 205; extradition to the US 224; free votes in Parliament 317; life imprisonment 100, 110; Supreme Court 39, 314, 317, 322, 323 Cannon, Joseph 83–4, 153, 166 Capital Jury Project 189 capital punishment: see death penalty

Index Caribbean countries 282–308; capital punishment process 282–4; commutation to life imprisonment 295; competence of counsel and judges 290; constitutions 284, 285; and the death penalty 3, 32–3, 34; delays in executions 291–5, 307; independence 283; judicial systems 287; legal aid 306; legal personnel 290, 306; mercy, prerogative of 291, 302–4; moratorium 287; prison conditions 291, 295–7, 307; and the Judicial Committee of the Privy Council 304–5, 306; repeated reading of death warrants 300 Caribbean Court of Appeal 33 Caribbean Court of Justice 305–6 Carlen, Pat 341 Carpenter, Scott Dawn 156, 166 Carter, Jimmy 139, 192 Cassin, Rene 125 Catholic Bishops’ Conference of Korea 260 Catholic Bishops, US 124, 126–7, 135, 142 Catholic Catechism 131–2, 139, 199 Catholics Against Capital Punishment 131 Center for Restorative Justice and Peacemaking 350 Centre for Capital Punishment Studies 5, 24 Cernate, Tomas 85 Cetino, Amilcar 85 Ceylon 14, 19, 49 Charter of Fundamental Rights, EU 321 Chaskalson, President Arthur 329 Chavchavadze, Ilia 281 Cheever, Rev. George B. 117, 118 Chen, President Chui-bian 27 Chessman, Caryl 119, 120 Chicago Police Department 230 China 25, 28–9, 63, 68, 84–5, 253, 270 Cho, Byung-Sun 253–72 Christian Coalition 6, 199, 228 Christian fundamentalist churches 199 Christian Reform Church in North America 127 Chundo-kyo 260 Chung, Representative Dai-Chul 260 church groups, opposition to capital punishment 119–22, 123, 130; see also religious organisations Citizens for a Moratorium on Federal Executions 139

361 citizens, well-informed 239, 248, 251 civil liberties organisations 199–200 civil rights organisations 140, 142, 199–200 Clark, Ramsey 188 clemency 55, 185, 192, 193, 214, 259, 291; see also mercy Clements, Diane 342–3, 345 Clinton, Bill 133, 139, 188, 191, 192, 196, 215 closure 353, 354, 356 Clunis, Christopher 339 Coker v. Georgia 194, 318 Colella, Paul 218–19 Coleman, Roger Keith 203 Committee of Ministers 21 Community of Sant’ Egidio 139 commutation to life imprisonment 193, 259, 293, 319; in Caribbean countries 295, 296, 307; in Georgia (former republic of the USSR) 279 competence to be executed 74, 76–8, 82, 88, 89, 222 Confucianism 254, 257, 260, 270, 271–2 Confucius 256 Connecticut 221 consistency 132, 347 Constitution Project 138, 224, 226 constitutional savings clauses 284, 285, 286 constitutionality of capital punishment: criteria for 145, 150, 158; in Caribbean countries 284, 292; in the US 122, 123–5, 130, 132, 144–5, 156, 158, 193, 206, 318; see also Gregg v. Georgia, Furman v. Georgia constitutionality of sentencing or conviction, US 220 constitutions 326, 328, 330 Convention on the Rights of the Child 17, 58 conviction, wrongful 11–13, 137, 138, 261, 290 Coppola, Frank J. 154, 159 Cory, Justice Peter 317–18, 324, 325 Costa Rica 297–302 Council of Europe 20–9, 237; abolition of the death penalty 106, 124; Committee of Experts 52; Committee on Crime Problems 103; conditions for membership of 8, 73, 235; Council of Ministers 8, 9, 21; in Georgia (former republic of the USSR) 280; and human rights 20; prison conditions 114–15;

362 Council of Europe (cont.) Report on Treatment of Long-Term Prisoners 109 counsel: competence of 138, 209, 210–11, 220–1, 223, 225, 290; and implementation of the death penalty 209–11; investigation of mental retardation 221–2; post-conviction 210–11, 220 courts, constitutional 23, 39 Cox v. Canada 61 Coyle, Andrew 92–115 crime control 250, 277, 278 crime, serious 3, 4, 18, 33, 34, 92, 238, 261, 275 Crime Victims’ Advocate 342 crimes in the Shari’¯a: hudud 176–82, 183, 184; qesas 182–3, 185; ta’azir 183–4, 185 cruel and unusual punishment 110, 150; Atkins v. Virginia 4, 198; and the gas chamber 80; in the US 144–5, 146, 150, 326; South Africa 133; and mental impairment 18, 72, 198 cruel, inhuman and degrading punishment 50, 57, 63–79, 115, 328; customary norm 50, 326; in the Caribbean 284–6, 294; and the gas chamber 61; and prolonged periods of detention 57 Cuba, and offences attracting the death penalty 47 Cuomo, Kerry Kennedy 195 Cuomo, Mario 192, 320 Cyprus, membership of the Council of Europe 20 Czech Republic, abolition of the death penalty 311 Dando, Justice Shigematsu 265, 268 Darrow, Clarence 118 Davies v. The King 291 Davis, Allen Lee 154–5, 167 Davis, Governor Gray, California 138 Dayton Peace Agreement 42 de Freitas v. Benny 292, 302, 303, 304 Dead Man Walking 131, 201, 205; see also Prejean, Sister Helen Deans, Marie 343 death, instantaneous, painless and non-lingering 150–7, 158 death penalty: administration of 3, 6, 10, 31, 32, 34, 122; alternatives to 1, 24, 34, 92–115, 280, 315, 326; arbitrariness 212–14, 220–4; books

on 200–1, 228; categories of persons protected from 58–61; commutation to life imprisonment 89; constitutionality of 122, 130, 206; constitutionalisation of the issue 123; cost of 204; as a crime-fighting tool 194; criticisms of US implementation of 224–31; diplomatic criticism of 226; experience in particular countries 3, 12, 29, 144, 208–31, 233–49, 253–72, 273–81, 282–308; implementation of 36–40, 208–11, 215–19, 223–4, 228; jury resistance to 324–5; mandatory or discretionary 189, 284–6; moratorium 62, 208–31; objections to 3, 227; offences attracting 28, 45–8, 51, 243, 254, 266, 282; and opinion polls 237–9, 246, 257, 265, 312, 315; and political campaigns 215, 280; public policy 186; public support for 18, 29, 33, 203, 227–30, 239, 242, 312; purpose of 357, 358; and racism in the justice system 13, 158, 212–14; reinstatement of 42, 51–3; replacement of 7, 30, 34, 92–115; research into 2, 29, 192, 237, 248; retributive function 327; retroactive imposition of 56; role of health professionals 63–5; role of international factors 246; symbolic weight of 259; in the US 127–35, 136–40, 144, 208–31 Death Penalty Focus of California 139 Death Penalty Information Center 140, 200 Death Penalty Initiative 224, 226 Death Penalty Moratorium Act of 2000 138 death warrants, repeated readings of 300 Delaware, botched executions 148 democracy 23, 92, 233, 276, 309 Democratic Party, US 196–7, 232 Democratic Progressive Party, Taiwan 27 Demps, Bennie 87, 155, 167 detention, prolonged periods of 56–7 deterrence 3, 8–10, 116, 135, 228, 259, 261; belief in 311–12; collapse of theory of 119; in Confucianism 258, 271; in Japan 264; lack of evidence for 120, 121, 261; in Lithuania 235; in the Shari’¯a 176, 177, 181; in South Africa 133; in South Korea 257 Dezhbakhsh, Hashem 9 dignity, human 36, 126, 127, 256 Dinnal, Stanford 288

Index Diplock, Lord 292, 304 DiSalle, Governor Michael 192 DNA evidence 13, 138, 215, 216, 219 Dobryninas, Aleksandras 233–49 doctors 63–79, 197–8, 255; see also physicians, medical practitioners Doody case 101 Douglas, William 123, 124 due process 56, 205, 285, 299, 301, 306, 358 Duffy, Clinton 187 Dugan, Eva 143 Dukakis, Michael 130, 192, 196 Dunkins, Horace 151, 157, 161 Dwyer, Jim 218 Echegaray, Leo 86 economic development 4, 29 Egypt 178 Ehrlich, Isaac 9, 10 Ehrlich, Robert Jr 229 el-Khattab, Umar ibn 179–81 elderly people 58, 104–5 election of judges 214, 221, 330, 342 electrocution 117, 150, 358; and botched executions 151, 154–5; constitutionality of 145, 318, 319; and pain 81, 358; multiple jolts of electricity 150, 151 elites 4–5, 237, 239, 240, 246, 248 Elkins, Michael Eugene 155, 166 England and Wales: abolition of the death penalty 229; assessment process for prisoners 110; length of life sentences 96; life imprisonment 97, 98; Prison Service 114; provision for elderly prisoners 105; suspension of executions 106; whole-life sentence 101–3 Enmund v. Florida 318 Episcopal Church, US 120, 128 Equal Justice Initiative 211 Equal Justice US 205 Erickson, Nikki 352 espionage and the death penalty 48 Estonia 23, 235–6 Estrada, President Joseph 25–6, 86 ethics: and the death penalty 63–79; and the law 89–90; medical 90–1; professional 63, 65–7, 73–4, 78, 89, 90–1 European Convention for the Protection of Human Rights and Fundamental Freedoms 20, 21–5, 40, 44, 290, 292, 305; Article 2 22; Article 3 24;

363 interpretation of 22; and life imprisonment 103; and prolonged periods of detention 57; Protocol No. 6 21, 24, 42, 62, 236, 281; Protocol No. 13 21, 42; protocols to 51 European Convention on Human Rights: see European Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights 24, 39, 57, 99, 292, 293, 328, 330 European Forum for Victims Services 333 European Union 20–5, 29, 139; abolition of the death penalty 25; Charter of Fundamental Rights, EU 45, 321; and China 29; and US Supreme Court 25, 323; victim services 332 evangelical churches 199 Evangelical Lutheran Church, US 131 Evangelium Vitae 199 Evans, John 154, 159 Evans, Wilbert Lee 155, 162 execution, methods of 61, 63, 149–50, 157; asphyxiation 143, 149, 154; firing squad 149; hanging 61, 149, 263, 286–7, 318, 319; see also electrocution, lethal injection execution of juveniles 16–17, 205, 222; customary norm against 58–60; in Georgia (former republic of the USSR) 274; and international treaties 50, 59, 60; in Lithuania 243; in South Korea 255; in the US 16, 38, 58 execution of the elderly 58 execution of the innocent 11–13, 120, 158; Innocence Protection Act of 2000 138; in Japan 268–70; and Oklahoma police scientist 217; risk of 205, 206, 215–16, 220; in South Korea 259 execution of the mentally ill 60–1 execution of women 58, 243, 255, 274 execution witness programme 352–6 executions: botched 143–56; medicalisation of 84–8; methods of 49, 116–18, 149–50, 157; problems or delays in 147, 291–5, 297, 307; public 44, 61, 116, 243; televising 201; witnesses to 146, 256, 351, 352–6, 357 executives, chief 192–3, 319–20 exonerations 216–17 extradition 21, 24, 39, 224, 225, 226 eyewitness testimony, mistaken 13, 218

364

Index

Fain, Charles I. 216 fairness: see also justice; and administration of the death penalty 141, 205, 208–11, 223, 224–7, 228; protocols for 231 Falwell, Jerry 6, 136 families of condemned prisoners 332–56 Federal Bureau of Investigations 217 Federal Bureau of Prisons 94 Federal Court, New York City 39 Federal Court of Appeals, US 39 Feingold, Russell 138, 139 Feinstein, Diane 215 felony murder 49, 318 Ferris, Robert 63–79 Fiero v. Gomez 156, 157 Fiorenza, Bishop Joseph 139 firing squad 149 Fisher v. Minister of National Security 296 Fisher v. Minister of Public Safety 295, 297 Fisher v. Minister of Public Safety (No. 2) 299, 300 flogging 296 Florida: botched executions 148, 154–5, 161, 165, 167; and the death penalty 146, 194, 221; executions in 133, 224; lethal injection 87–8; and life imprisonment without parole 189; public opinion 315 Ford, Gerald 192 forgiveness 352, 356; in the Shari’¯a 182, 183, 184 Foster, Emmitt 153, 164 Foster, Nathan 288 Fox v. The Queen 285 France, abolition of the death penalty 229 Fraser, Sir Aubrey 288 Free Legal Assistance Group 26 Frye, Ronald Wayne 210 Funata case 266–8 Funata, Judge Mitsuo 266 Furman v. Georgia 11–12, 14, 123–5, 325; executions after this decision 129, 150, 316; Justice Marshall 11–12, 129 Gacy, John Wayne 153, 164 Galliher, John 4, 5 Gallup polls 314 Garza, Juan Raul 139–40, 225 gas chamber 61, 143, 145, 149, 318, 319 gasping for breath 153 General Motors 226 Geneva Convention 16, 45, 53, 56, 58, 59 genocide 103, 243 Georgia (former republic of the USSR) 273–81; abolition of the death penalty 273–6, 281;

Constitution 275–6; Constitutional Court 280; Criminal Code 274, 279, 280; death penalty in peacetime 274; democracy 275, 276, 278; European Convention for the Protection of Human Rights and Fundamental Freedoms 281; executions in 274, 278; history of the death penalty in 273–6; judicial reform 278; justice system 275; law and order 274, 275, 277; law enforcement 275, 276, 278; legal reform 275; life imprisonment 280; membership of the Council of Europe 280; moratorium 274, 278, 279; murder rate 277; political parties 276; political prisoners 276; public opinion 275, 279; Supreme Council (Parliament) 274 Georgia (US) 3, 104, 145, 146; botched executions 148, 157, 159, 168; cost of long-term imprisonment 104 Georgian National Party 276 Georgian Republican Party 276 Germany, Federal Republic of 5, 278 Gilchrist, Joyce 217 Gilmore, Gary 124, 147, 148 Ginsburg, Justice Ruth Bader 17, 223 Glendening, Governor Parris 7–8, 192, 229 Global Lawyers and Physicians 81 Goddard, Lord 303 Goff, Lord 294, 303, 304 Gore, Al 197 Gottschalk, Thomas A. 226 governors, state (US), attitudes to the death penalty 192–3 Graham, Gary 214 Graham, Michael 217 Gray, Jimmy Lee 154, 159 Greece 20 Gregg v. Georgia 30, 124, 190, 316, 317, 324, 325; cases since this decision 128, 137 Griffiths, Lord 293, 294, 328 Guatemala 64, 85 Guerra v. Baptiste 294, 303, 307 Guildford Four 290 habeas corpus 133, 220 Hagen, J. 5 Hahm, Pyon-choon 271 Hanbal, Imam Ahmad ibn 172 Hanbali school 172 Hands Off Cain 5 hanging 61, 149, 263, 286–7, 318, 319

Index Harding, Donald Eugene 143, 154, 157, 163 Harding, Roberta M. 156 Hargrove, Frank 227–8 Harris, Robert Alton 355 Hawkins, C. 5 health professionals 63–79, 81, 90–1 Hegel, G. W. F. 256 Henfield v. Attorney-General of the Commonwealth of the Bahamas 294, 295 Herrera, Leonel 203 hierarchical society 271 Higgs v. Minister of National Security 297, 300, 301 Higgs v. Minister of Public Safety 295 High, Jose 157, 168 Hilaire v. Trinidad and Tobago 305 Hill, Joe 201 Hill, Samuel 141 Hillman, Harold 153 Hindley, Myra 93, 101–2, 103 Hippocratic Oath 75, 77, 78, 197 Hirasawa case 263 Hodgkinson, Peter 1, 332–56 Hoffmann, Lord 296, 300, 301, 304 Holmes, Robert 192 Holovatiy, Serhiy 23–4 Home Secretary, and life imprisonment 99–100, 102 homicide 182, 243, 333; see also murder Homicide Act 1957, UK 283 Hood, Roger 3, 9, 10, 27, 47, 238 Horton, Willie 130 Howard, Michael 12, 102, 337, 341 human rights: in Asia 253–72; in Caribbean countries 305; in China 29; in Georgia (former republic of the USSR) 276, 279; international 330, 357; law 36–8, 270, 326–30; and the Judicial Committee of the Privy Council 290; in Lithuania 233, 237, 251; movement 1, 3, 15, 125; norms 37, 328; and relativism 253; standards 41, 44, 69, 237, 238, 289–91, 358; in the US 129, 136, 226 Human Rights Act 1998, UK 102 Human Rights Committee, UN 5, 202, 297, 298, 309, 330 human rights organisations 68, 202, 291, 293, 297–300, 301, 302, 306 human rights tribunals 327 Hunter, Bert Leroy 156, 157, 168 Ichikawa case 263 Illinois: botched executions 148, 162, 164; commission of inquiry into the death

365 penalty 75, 227–31, 357; see also Ryan, Governor George; and the death penalty 78–80, 206; fixed sentences 105; moratorium 6–7, 31, 89–90, 137, 192–3, 206, 227, 231; medical practitioners and executions 76–8, 80, 89–90; wrongful convictions 204 Illinois State Attorneys Group 230 impartiality 55, 190, 205, 348 imprisonment, long-term 106–8, 113, 280; see also life imprisonment independence, judicial 214–15 India 48, 316, 323 Indiana 83, 148, 154, 157, 160, 165 Indonesia 14 inequality 120, 220–1 informants, jailhouse 218, 224 information, public 201 innocence, presumption of 54 Innocence Protection Act of 2000, US 138 innocent, execution of the 11–13, 120, 158; Innocence Protection Act of 2000, US 138; in Japan 268–70; and Oklahoma police scientist 217; risk of 205, 206, 215–16, 220; in South Korea 259 insanity and the death penalty 17–18, 60–1, 69, 222–3, 255, 274; see also mental illness Institute on Religion and Public Policy 140 Inter-American Commission on Human Rights 50, 57, 59, 60, 225, 296, 298 Inter-American Court of Human Rights 51, 56, 298, 299, 300 International Association of Chiefs of Police 194 International Commission of Jurists 134, 196, 330 International Committee of the Red Cross 45 International Council of Nurses 67 International Court of Justice 60, 225 International Covenant on Civil and Political Rights 16, 21, 40, 43, 262, 297, 309, 319; and abolition of the death penalty 52; and China 28; and execution of juveniles 59; and execution of the elderly 58; and the gas chamber 61; goal of abolition in 6; and human rights 51; limitations on capital punishment 52; and offences attracting the death penalty 46, 47; and procedural safeguards 56; ratification process 29; and reinstatement of the

366

Index

International Covenant on Civil and Political Rights (cont.) death penalty 42; Second Optional Protocol 42, 51, 202, 310; and Taiwan 27; Trinidad and Tobago, denunciation of 298–9; US reservation 38, 50, 59, 130, 202 International Criminal Court 37, 321, 323 International Criminal Tribunals for Rwanda and the former Yugoslavia 254, 310, 321, 327 International Forgiveness Institute 352 international law: see law, international International Victimology 332–3 Iran 16, 49, 58 Ireland 44, 311 Islam 3, 169–85, 253, 357 isolation of prisoners 109, 112–13, 283 Israel 25 Ithna-Asharia school 172 Jackson, Justice Robert 328–9 Jamaica: and the American Convention on Human Rights 301; appeals to human rights bodies 298; Constitution 33, 292, 293, 301, 303; crime, violent 33; and the death penalty 33, 287, 288; International Covenant on Civil and Political Rights 297; justice system 289, 293; moratorium 320; Offences Against the Person (Amendment) Act 1992 283, 288 Japan; and the death penalty 3, 253–70, 272; executions in 263, 264, 266, 268–70; hierarchical society 270; High Court 267; life imprisonment 266; Ministry of Justice 264; moratorium 270; murder 266; observer status at the Council of Europe 22; offences attracting the death penalty 48, 266; opinion polls 265; penal code 262, 266; post-conviction review 268; public opinion 265–70; relativism 253; Supreme Court 262, 263, 267; treatment of condemned prisoners 264, 265 Jehovah’s Witnesses 187 Jewish religious communities 198, 231 Johnson, Elliot Rod 155, 160 Johnson, Malcom Rent 217 Jordan 47 Journey of Hope 131, 343, 344 judges: and public opinion 330; appointment of 214, 221, 342; attitudes to the death penalty 190; independence of 214–15

judicial authority 95 judicial reform 208 judicial review 303, 307–8 juries, trial 189–90, 212, 323–5; instructions to 211–12; nullification 189; selection 11; sentencing 189, 190, 212 jurisprudence, schools of in Shari’¯a 171–2, 173, 174–5, 178, 183 jus cogens 44, 60 just desert 327, 348 justice 119, 129, 141; in Confucianism 254, 271; in Islam 185; miscarriage of 12; restorative 349, 352; retributive 45; victim-driven 346–7 Justice Department, US 139, 188, 213 Justice for All 333, 342–4, 345 Justice for Victims 340 justice system 31, 120, 141, 244, 246; anc racism 14; reform of 251; treatment of young people 16; USA 13, 129, 192; victim 348 juveniles, execution of 16–17, 205, 222; customary norm against 58–60; in Georgia (former republic of the USSR) 274; and international treaties 50, 59, 60; in Lithuania 243; in South Korea 255; in the US 16, 38, 58 Kahan, Andy 342 Kalamov, Malhaz 277 Kant, Immanuel 256 Kbilashvili, Eldar 275 Kelley, William 342 Kennedy, John F. 195 Kennedy, Robert F. 195 Kennedy v. Trinidad and Tobago 298 Kentridge, Justice Sydney 320, 326 Khaldoun, Ibn 174 Khma Erisa 276 Kikuta, K. 265 Kim, President Dae-Jung 259 Kim, Yong-u 261 Kindler v. Canada 52, 324 King, Coretta Scott 195 King, Rev. Martin Luther 195 Knights of Columbus 139 knowledge, social 238 Knowles, Julian B. 32, 282–308 Kochosun 258 Kogan, Gerald 224 Kohausvili, Paata 275 Korea, ancient 258, 271 Korean Constitutional Court 256

Index Krone, Ray 216 Kvarachelia, Sergo 277 La Forest, Justice 314, 323 labour unions, attitudes to the death penalty 201 Lamey case 57 Lamm, Gus and Audrey 345 Landry, Raymond 153, 160 Lane, Lord 102 Latin America, abolition of the death penalty 44 Latvia 23, 235–6 law: black letter 38; common 69; constitutional 282; criminal 327; customary 17, 37–8, 43–4, 54, 59; enforcement 221, 275; and ethics 89–90; human rights 36–8, 270, 326–30; natural 272; philosophy of 271; principles of 37–8, 53; rule of 233; ‘soft’ 54, 270; traditional 271, 272; see also international law; law reform Law, Cardinal 135 law, international 36–61, 202, 224, 262, 270, 320–3; and national legal systems 38–40, 62; customary 56, 59, 69; prohibition of capital punishment 40–5; protections offered by 32 law reform 208, 306–8 Lawes, Lewis E. 187 lawyers 195–6, 209–11, 230; see also attorneys, counsel leadership 3, 27, 28, 187, 194, 203 League of United Latin-American Citizens 139 Leahy, Senator Patrick 138, 139 Lebanon, extension of the scope of the death penalty 53 legal counsel, entitlement to 54 Legal Defense and Education Fund 199 Legal Defense Fund 122 legislation 192, 313 legislatures 3, 193–4, 248, 316–19, 330 LeGrand, Karl and Walter 225 Leopold and Loeb case 118 lethal injection 61, 64, 84–8, 146, 150, 151–3, 358; and botched executions 148, 155–6, 157; participation of doctors 87, 197 Lewis, Sinclair 118 Liebman, James 11, 138, 220, 221, 223 life imprisonment 9, 94–6, 103, 105; age restrictions 280; cost of 280; in Georgia

367 (former republic of the USSR) 279, 280; indeterminate 95; in Japan 266; in Lithuania 236, 252; mandatory or discretionary 98–9; number of years in prison 95; offences attracting 96–8; regimes and programmes 108; release 95, 99–100; symbolic weight of 95, 98, 105; without parole 4, 24, 94, 100–5, 189, 203, 204–5 life, sanctity of 120, 133, 138, 256 Lifton, Robert Jay 309, 313 Lighting the Torch of Conscience 130 Lithuania 233–49; abolition of the death penalty 233–49, 252; Constitution 252; Constitutional Court 23, 251; crime rate 234, 236; Criminal Code 252; and the death penalty 3, 23, 234–7; democratic reforms 233, 234; elites 242, 246, 248; European Convention for the Protection of Human Rights and Fundamental Freedoms 236, 252; human rights 234, 237, 238, 251; integration into Europe 235, 236, 246; justice system 233–4, 244, 246, 250, 251, 252; legislation for abolition 236; life imprisonment 236, 252; opinion polls 233, 236, 238, 239–48; penal policy 234; professional associations 250, 251; public awareness 237, 248–51; support for the death penalty 237 Lithuanian Centre for Human Rights 237 living will 347 Lockett v. Ohio 347 Long, David Martin 64 Longmire, Dennis 313 Louisiana 104, 148, 217 Lubuto v. Zambia 49, 50 Lychner, Pam 342 MacMillian, Walter 12–13 Maharaj, Ramesh 288 Mahoney, Cardinal Roger 138 Malawi 34 Malaysia 14 Manhattan Central Synagogue 231 manslaughter 49 Maritain, Jacques 125 Market and Opinion Research International (MORI) 19, 92 Marquart, James 9 Marshall, Justice Thurgood 11–12, 123, 129, 130, 317 Martin, Tony 99 Martinez, Manuel 85

368

Index

Maryland: and the death penalty 206, 212, 213; moratorium 7–8, 31, 192, 206, 229 Massachusetts 188, 191, 192, 194 Matsuyama case 269 Mattox, Jim 153 May, Justin Lee 157, 164 McCarver, Ernest 72–3 McClesky v. Georgia 194 McClesky v. Kemp 15, 129 McCoy, Stephen 161 McLachlin, Justice Beverley 317–18 McNeirney, Frank and Ellen 131 McVeigh, Timothy 31, 133, 135, 227, 228 media 206, 231; attitudes to the death penalty 5, 200–1, 208; in Georgia (former republic of the USSR) 276; newspapers 200, 221, 276; radio and television 127, 201 Medical Practice Act, Illinois 80 medical practitioners: and the death penalty 63–8, 79, 88–9, 197–8, 255; and executions in Illinois 76–8, 80; legal action by 78–81 medical treatment, involuntary 71 Medina, Pedro 154, 157, 165, 167 Megivern, James J. 116–38 Mencken, H. L. 118 Menda case 269 mental competence to be executed 70 mental health 68, 69–73; treatment to restore 70, 88, 89 mental illness 17–18, 60–1, 83–4, 222–3, 255 mental impairment 11, 17–18, 60, 71–3, 76–8, 205, 221–2, 318 mental retardation 71, 82, 83, 198, 221–2, 223 mercy 185, 291, 292, 293, 302–4; see also clemency Mesner, Janet 345 Methodist Church, US 119, 187 Mexico 24 Michigan 116, 194 Millett, Lord 296, 300 minorities, religious 36 Mississippi 134, 148, 159, 210, 355 Missouri 148, 164, 168, 221 Mitchell, Greg 309, 313 mob rule 275, 277, 327 Model Penal Code (American Law Institute) 196 Mohamed, Khalfan Khamis 225 Mooney, Tom 201 Moors murderers 93, 101, 102, 103

Moose, George 309 Moral Majority 199 moratorium 5–8, 31, 76–7, 205–6, 208–31, 319, 320; in the USA 122, 138–40, 191, 196, 224; Moratorium 2000 140, 205; Moratorium Now 205 Morgan v. Illinois 212 Morin, Stephen Peter 160 Mormon Church 187, 357 Muhammad, Prophet 169, 179, 181 Muhammed Nawaz v. King Emperor 289–90 murder 92; aggravated 283, 288; and the death penalty 19, 49–50, 282; effects on other individuals 334; felony 49, 318; and life imprisonment 97; in Lithuania 234, 238; race of victims 221; and victim services 334 Murder (Abolition of the Death Penalty) Act 1965, UK 97 murder rate 9, 10, 197, 238, 261, 277 Murder Victims Families for Reconciliation 131, 195, 343, 344, 345 Murray v. Giarratano 210 Najaf 173 Nakayama case 266–8 National Association for the Advancement of Colored People 122, 199 National Association of Attorneys General 196 National Association of Victim Support Schemes 348 National Bar Association 196 National Black Police Officers Association 194 National Catholic Conference for Interracial Justice 124 National Coalition of American Nuns 124 National Coalition to Abolish the Death Penalty 139, 200 National Committee to Prevent Wrongful Convictions 138 National Conference of Catholic Bishops 126–7, 139 National Conference on Wrongful Convictions and the Death Penalty 137 National Council of Churches of Christ 121, 124 National Council of Churches in Korea 260 National Council of Crime and Delinquency 198 National District Attorneys Association 196

Index National Independence Supporting Powers 274 National Induction Centre, Scotland 109 National Jewish-Catholic Consultation 137 National Jury Project 212 National Lawyers Guild 196 National Legal Aid and Defender Association 196 National Mental Health Association 223 National Organization for Victim Assistance 343, 344 National Organization of Parents of Murdered Children 341 natural justice 303–4, 347 natural life, sentence of 100, 103–4, 341 Ndiaye, Bacre Waly 313 Neal, Howard Monteville 210 Neal v. Puckett 210 Nebraska 345 Nepal 105 Neufeld, Peter 218 Nevada 148, 167 Neville Lewis v. Attorney-General of Jamaica 301, 302, 303–4, 305, 306, 307; delayed execution 295; ill-treatment of prisoners 297; international human rights bodies 301 New Jersey 213, 229 New Mexico 193 New York 188, 192 New Zealand 14, 25, 98 newspapers 200, 221, 276 Newton Spence and Peter Hughes v. The Queen 285 Nigeria 16 Nixon, Richard 192, 196 norms 37; abolitionist 44; customary 37–8, 43–4, 50, 53, 59, 60, 326; human rights 328; international 43, 50, 58, 62, 125 North Carolina 72, 148, 206, 210, 213, 221 North Carolina Council of Churches 132 North Korea 253 Nowell, S. 343 nurses, role in the death penalty 64, 67 Ocalan v. Turkey 61 O’Connor, Justice Sandra Day 18, 219, 223 offences attracting life imprisonment 96–8 offences attracting the death penalty 28, 45–8, 51, 243, 254, 266, 282

369 Ohio 192, 194, 227 Oklahoma 148, 163, 166, 217 Olvera, D. R. 83 Onoprienko, Anatoly 93 opinion polls 237–9, 246, 257, 312, 314–16; and the death penalty 238, 246, 265, 315; in Lithuania 233, 236, 238, 239–48; in Japan 265; methodology of 238, 315; in South Korea 257 Oregon 192 organ transplantation 68 Organisation of Commonwealth Caribbean Bar Associations 288 Organization of American States 225, 298, 299 Orthodox Church 276 O’Sullivan, John 117, 118 Pacem in Terris 126 pain 150–7, 286 Pakistan 16, 58 Panday, Basdeo 306 Parents of Murdered Children 334, 339, 342 Parks, Robyn Lee 163 Parliamentary Assembly of the Council of Europe 21, 22 Parliamentary Commission Against Organised Crime 106 parole 92, 100, 219 Paternoster, Ray 7, 213, 229 Patterson, Prime Minister Percival 33, 305 Patterson, Toronto 17 Payne v. Tennessee 195, 347 Peabody, Endicott ‘Chub’ 192 Penal Colony 56, Lozva, Russia 108 penal reform 92, 358 Pennsylvania 61 Penry v. Lynaugh 18, 71–2, 83 People of Faith Against the Death Penalty 132 Peterhead Prison 113 Peterson, Derick Lynn 162 Peterson, R. D. 10 Philippines 25–6, 28, 64, 86, 334 physicians 63, 64, 65–6, 90; see also doctors, medical practitioners Physicians for Human Rights 81, 197 Piandong v. Philippines 49, 52 Pickett, Carroll 229, 356 Pierce, G. L. 10 plea-bargaining 188, 189, 224 Pocar, Fausto 52 Pokorak, Jeffrey 15

370

Index

Poland 311 police 19, 194, 218, 250 political crimes 48, 258, 262 political parties, attitudes to the death penalty 196–7 Pope John Paul II 133, 136, 137, 139 Pope John XXIII 125, 126 population diversity 4, 14, 204 Porter, Anthony 75, 216–17, 218 Powell, Justice 15, 129, 329 power 186, 192 Pratt and Morgan v. Attorney-General of Jamaica 293, 294, 297; constitutional amendments following 304, 306, 307; delayed execution 287, 292, 294; international human rights bodies 298; legal resources 293 pregnant women or mothers, execution of 58, 255 Prejean, Sister Helen 131, 140, 205, 231, 355 Presbyterian Church 120, 121, 187 Prescott, Elton 288 Presidential Commission on Law Enforcement and Administration of Justice 122 Price, Justice Tom 211 prison conditions 106, 107, 108, 114–15, 291, 295–7 prison officers 35, 93, 106, 187, 250 Prison Officers’ Association of England and Wales 106 prison population, race of 94 prison systems, undeveloped 94, 106 prisoners, long-term: assumption of dangerous nature of 106, 107, 109; contact with family and others 111; cost of 106; group isolation 112; incentives to rehabilitation 104; individual assessments for 108, 109–10; isolation of 109, 112–13; management of 93, 104, 106, 107, 110, 111–13; opportunities for 109, 110–11; progression to less secure conditions 104, 111; regimes and programmes for 108, 109; release from 336, 340; standards for treatment of 107, 109, 114 prisoners, political 254, 258, 276 Privy Council, Judicial Committee of 33, 39, 282, 285, 298, 328, 330, 331; and the Caribbean countries 304–5, 306; constitutional jurisprudence 289–91; and prolonged periods of detention 57; right to petition 289–90

pro-punishment lobby 333, 346, 352, 355, 357, 358 probation 95 procedural safeguards in capital trials 53, 56, 103, 191, 259 professional associations 65, 84, 87–8, 89, 91, 198, 250, 251; amicus curiae submissions 78, 81 proportionality of penalty to crime 45, 50, 214, 347 prosecutorial abuse 13, 138 prosecutors 188–9, 218, 220–21, 250; attitudes to the death penalty in Georgia (former republic of the USSR) 276 protection of the public 110, 141 Protestantism 187, 198, 260 Provenzano, Thomas 87–8 psychiatrists; role in the death penalty 64, 66–7, 68, 70, 76, 88–9 psychiatry, forensic 77, 78 public awareness 208, 215–19, 227, 232, 237, 248–51 public education 18–20, 34, 92, 192, 201, 216, 235, 248–51, 252 public interest (maslaha) 170 public opinion 19, 202–5, 238–9, 310, 311–12, 313–25, 330; and botched executions 158; and the death penalty 3, 18–20, 248, 252, 309–31; in Georgia (former republic of the USSR) 278; in Japan 265–70; in Lithuania 236; in South Korea 257 punishment 271, 319, 326, 327 punishment, cruel and unusual 110, 150; Atkins v. Virginia 4, 198; and the gas chamber 80; in the US 144–5, 146, 150, 326; South Africa 133; and mental impairment 18, 72, 198; cruel, inhuman and degrading punishment 50, 57, 63–79, 115, 328; customary norm 50, 326; in the Caribbean 284–6, 294; and the gas chamber 61; and prolonged periods of detention 57 Putin, President 23 Putnam, C. 13 Quixote Center 205 Qum 173 Qu’r¯an 169–70, 184, 185 R. v. Secretary of State for the Home Department, ex parte Bentley 303 racism 4, 13–16, 31, 123, 129, 158, 220–1 Radelet, Michael L. 13, 26, 143–56

Index radio 201 Radzinowicz, Sir Leon 2 Rakoff, Judge Jed S. 190 rape 14, 194, 243, 318, 334 Reagan, Ronald 124, 126, 128, 192, 196 Reckley v. Minister of Public Safety 302–4 Recommendations on Life Imprisonment, United Nations 109 Rector, Rickey Ray 74, 87, 155, 162 redemption 120 Reeder, Patrick 228 Reeves, Dame Helen 348 Reeves, Randy 345 rehabilitation 120, 135 Rehnquist, Justice William 123 relativism 253 release from prison 336, 340 religion and the death penalty 116–38, 187 religion, fundamentalist 6, 199 religious organisations 230, 231, 260, 276, 357; amicus curiae submissions 123; attitudes to the death penalty 198–9; contribution to the debate on the death penalty 141 Religious Organizing Against the Death Penalty 135, 199 Reno, Janet 139, 188 reparation 115 repeat offenders 97, 103, 104 repentance, as a bar to punishment 184, 185 Republican Party 196, 199, 228 Resolution on the Abolition of the Death Penalty, Baltic Assembly 235 restitution 94, 203 restoration 115 retribution 45, 99, 115, 120, 135, 256, 257, 326, 358; in Confucianism 254, 258, 271 revenge 128, 277, 324, 344, 354 reversal rates in capital cases 220, 221 Reyes v. The Queen 283, 285 Rhode Island 116 right to life 3, 21, 23, 27, 36, 40–1, 257, 321; in Georgia (former republic of the USSR) 275; and international treaties 41; and jus cogens 45 rights 45; civil 1, 142; common law 300, 307; fundamental 137, 257; of individuals 36, 141; legal 1, 55; of prisoners 55, 56–7, 300; procedural 340; protection of 56; of states 36–8

371 Riley v. Attorney-General of Jamaica 292, 293, 294 Ring v. Arizona 11, 190, 207 Robertson, Pat 6, 199, 228 Rock, Paul 333, 338, 339, 340 Rockefeller drug laws 97 Rockefeller, Winthrop 193 Rodger of Earlsferry, Lord 285 Rohatyn, Felix G. 226 Roman Catholic Church 125–7, 199, 260 Romania 5, 311 Roncalli, Angelo 125 Rosenberg, Julius and Ethel 119, 314 Royal College of Psychiatrists 73–4 Royal Commission on Capital Punishment 19, 20, 291 Rubin, Paul 9 rule of law 233, 302 Runyowa v. The Queen 284 Rushdie, Salman 177 Russell, Lord 96 Russia 23, 108 Rwanda 310 Ryan, Governor George 6–7, 137, 192–3, 227, 229, 232; commission of inquiry into the death penalty 75, 227–31, 357 Ryden, Edmund 26–7 Sacco and Vanzetti case 118 Saitakawa case 269 sanctions, criminal 93 Sarat, Austin 324 Sarkaria, Justice 323 Saudi Arabia 16 Scalia, Justice Antonin 329 Scarman, Lord 292 Schabas, William 26, 36–61, 309–31 Scheck, Barry 218, 231 Scheinin, Martin 49 Schutz, Alfred 238 Scopes trial 118 Scotland 98, 109, 112; Scottish Prison Officers’ Association 107; Scottish Prison Service 112; Select Committee of the House of Commons on Scottish Prisons 96 Second Vatican Council 124, 126, 133 Sellin, Thorsten 9 Selvage, John Henry 74–5 Senate Judiciary Committee 191 sentencing 10–11, 105, 323 Seo, Yoon-bum 261 sexual offenders 340, 342

372

Index

shackling 296 Shari’¯a 169–85, 346; fiqh 171, 175; forgiveness 182, 183, 184; hudud crimes 176–82, 183, 184; qesas crimes 182–3, 185; reasoning 170, 174, 176; reconciliation 183; repentance 184, 185; ta’azir crimes 183–4, 185; victim compensation 183 Shaw, Justice Leander 155, 167 Shepherd, Joanna 9 Shevardnadze, Eduard 279 Shi’a 171, 173, 174, 175 Shimada case 269 Shiratori case 268, 269 shorb al-Khamra (drinking alcohol) 181–2 Simnirok casebook 271 Simon, Lord 290 Singapore 14, 25 Skylstad, Bishop 135 Slovak Republic 237 Slynn, Lord 301, 304 Smith, Frank Lee 216 Smith, Godfrey 308 Smith, Tommie J. 155, 157, 165 Sobion, Keith 288 Social Work Program, University of Texas 355 Society of General Internal Medicine 81 Soering v. United Kingdom 57, 292, 293 solitary confinement 283, 291, 296 Somalia 17 Sopinka, Justice John 317 Sorenson, John 9 South Africa 14, 225; abolition of the death penalty 133, 310, 320; Constitution 39, 40; Constitutional Court 225, 320, 326, 329 South Carolina 148, 166 South Korea 253–72; abolition of the death penalty 254–62; clemency 259; commutation to life imprisonment 259; Constitution 257; Constitutional Court 256; corruption 260; crime, serious 260, 261; and the death penalty 3, 34, 256, 257, 258, 260; democracy 258; executions in 255, 256, 259, 262; hierarchical society 270; Juvenile Act 255; Military Penal Code 254; National Security Law 254, 259, 262; opinion polls 257; penal code 254, 257; penal system 258; political crimes 258; public opinion 257; relativism 253; religious

organisations 260; Supreme Court 256, 259; three-trial system 258 Southern Baptist Convention 141 sovereignty 23, 36, 270 Soviet Union: see USSR; see also Russia Spain 105 Spungen, Deborah 356 Sri Lanka 14, 19, 49 St Christopher and Nevis 285 St Lucia 285 St Vincent and the Glenadines 285 Standard Minimum Rules for the Treatment of Prisoners 56 Stanford v. Kentucky 17 Steering Committee for Human Rights 21 Stephens, Alpha Otis 159 Stevens, Justice John Paul 17, 124, 195, 222 Stevenson, Bryan 12 Stewart, Justice Potter 123, 316, 325 Steyn, Lord 295, 296, 297 stoning, death by 180 Strickland v. Washington 210 Sunna 169–70 Sunni 171–2, 173, 174, 175 Supermax prisons, US 112–13 supervision of life sentence prisoners 95, 115 Supreme Court, US 10–11, 191–2, 206, 207, 214, 222, 225; abolition of the death penalty 194; constitutionality of capital punishment 323; execution of the mentally retarded 221–2, 318; and racism in the justice system 14–15 Survey of State Prison Inmates 94 Survivors of Murder and Manslaughter (SAMM) 338, 339 suspension of executions 7, 8 Suzy Lamplugh Trust 338–9 Svanidze, Eric 273–81 Sweden 98, 110 Synagogue Council of America 124 Tabak, Ronald J. 208–31 Tafero, Jesse 151, 154, 161, 167, 203 Taiwan 10, 26–8, 34, 63, 84 talk-radio hosts 127, 201 Talley, Judge Alfred J. 118 Tamar, Regina 273 Tanzania 327 tariff for life imprisonment, UK 99–100, 102 Taymia, Ibn 174 televangelists 127 television 201

Index Tennessee 128, 209, 213 terrorism 133, 226, 243 Texas: Board of Pardons and Paroles 219; botched executions 148, 160, 161, 163, 164, 166, 167; clemency 214; Court of Criminal Appeals 219; and the death penalty 146, 148, 188, 194, 206, 212, 218–19, 229; Department of Criminal Justice 350, 353; executions in 9, 133, 139; justice system 342; moratorium 206; Penry case 18; post-conviction counsel 211; Post Trauma Support Team 354; prison officers 187; public opinion 313, 314; victim-offender mediation/dialogue 349–50, 352; Victim Witness Preparation Process 353; Witness Execution project 351, 357 Texas Court of Criminal Appeals 211 Thailand 87 Thomas, Dr David 87 Thomas v. Baptiste 296, 297, 299, 300, 301, 306 Thomas v. Baptiste (No. 2) 299 ‘three strikes’ legislation 104, 203 Tihar Jail, India 115 torture, medical participation in 65 totalitarian regimes 3, 27, 234 Townes, Richard Jr 155, 165 Trakas, Representative Jim 227 treason 178, 282 treaties, international 37, 320, 357; and customary law 38; human rights 41, 54, 61, 326, 328, 330; and Lithuania 235; and mental disability 17; protocols to 41–2, 43; US reservations 38, 50, 59, 130, 202 Treatment of Long-Term Prisoners, Council of Europe 109 trials, fair 53–5, 56, 103 Trinidad and Tobago 14, 33, 283, 286, 289, 320; Constitution 299, 301, 306; and the death penalty 288; human rights 298, 307; International Covenant on Civil and Political Rights 297, 298–9; justice system 299, 307–8; mercy 302 Tucker, Karla Faye 136 Tunisia 47 Turkey 20, 44, 47 Turkmenistan 105 Turow, Scott 356 Tyrell, R. Emmett Jr 228 Tyrer v. United Kingdom 293

373 Ukraine 23–4, 40, 106 Union of American Hebrew Congregations 121 Union of Georgian Citizens 276 Unitarians 120 United Kingdom 84, 205; convictions for homicide 98; and the death penalty 12, 19, 283; life imprisonment 94, 95; victim services 333, 336–41 United Nations 5, 20–9, 36, 37, 96, 140, 270, 332; Economic and Social Council 17, 46, 54, 55, 262; High Commissioner for Human Rights: see UNHCHR; Human Rights Committee 5, 202, 297, 298, 309, 330; Recommendations on Life Imprisonment 109; Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty 17, 46, 58, 60–1; Secretary-General 46, 47, 140, 322; Security Council 254, 321; Standard Minimum Rules for the Treatment of Prisoners 56; Sub-Commission on Human Rights 16, 59 UNHCHR 36, 39, 47–8, 54, 202, 253, 262, 270, 310; and execution of juveniles 38, 59; and execution of pregnant women or mothers 58; and execution of the mentally ill 61; extension of the scope of the death penalty 53; moratorium 6; and offences attracting the death penalty 48, 49; and procedural safeguards 56; and prolonged periods of detention 57; and public executions 61; Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions 46, 53, 57, 224, 313 United States 116–38, 186–207, 208–31; Constitution 18, 72–3, 80, 143, 144–5, 146, 191; and the death penalty 3, 29, 31, 127–30, 136–40, 144, 208–31; execution of juveniles 16, 38, 58; executions in 122, 129, 131, 133, 134, 135, 143; fairness 208–11, 220–3, 224–7; and the international community 140; justice system 129; human rights 136–7; lethal injection 64, 84; life imprisonment 97, 100, 103–4; medical professional ethics 74–5; moratorium 122, 138–40, 146, 191, 196, 224; observer status at the Council of Europe 22; opinion polls 312; penal system 127;

374

Index

United States (cont.) racism 4, 13–16, 31, 123, 129, 158, 220–1; replacing the death penalty 30; Supermax prisons 112–13; victims of crime and their families 341–6 United States Catholic Conference 129 Universal Declaration of Human Rights 27, 36, 37, 40–1, 125, 126 Universalists 120 universities, Islamic 173 University of Minnesota Victim Offender Mediation programme 350 USSR 29, 274; collapse of 274; and the death penalty 274; see also Russia values: ‘Asian’ 253–72; community 324; human rights 305; traditional 271 van den Haag, E. 13 Vandiver, William E. 154, 160 victim, race of 7, 14, 221 Victim Impact Statement 195, 335, 336, 347–9 Victim Justice System 348 victim movement 334, 335, 338–40, 341–6, 348 victim–offender mediation/dialogue (VOM/D) 349–52, 356 Victim Personal Statement 335, 348–9 victim services 34, 332, 335, 344, 352, 357 Victim Services Division, Texas Department of Criminal Justice 350, 351, 353, 354 Victim Support 336–7, 342 Victims of Crime Act 1984, US 344 victims of crime and their families 35, 195, 229, 276, 332–56; compensation for 182, 183; effects experienced 337; information for 344, 357; interests of 348; meeting families of condemned offenders 351, 354, 355; needs and rights 335, 336, 338, 340, 357, 358; and opposition to the death penalty 344, 345; participation in sentencing 335, 336, 342, 348; research into 332, 336, 337; respect for 1, 339, 348; in the US 341–6; witnesses to executions 351 victims, secondary 335, 350, 351, 355 Vietnam, opposition to war in 122 violence, reducing 344

Virginia: botched executions 148, 154, 155, 159, 162, 165; and the death penalty 133, 188, 212, 227–8; jury instructions 211; reversal rate 220 von Hentig, H. 337 Waddington, David, Home Secretary 102 Wahab, Abdel 172 Wahabi school 172 Walker, Charles 78–80, 151, 162 Walsh, Justice Brian 328 war criminals, execution of 22 Ward, Judith 290 Warren, Chief Justice Earl 326 Washington (state) 212 Washington, Earl 216 Washington Legal Foundation 196 Weeks v. Angelone 212 Welsh, James 63–79 Weston, Russell Jr 70–1 White, Billy Wayne 163 White, Justice Byron 123 White, Judge Ronnie 215 White, Justice Penny 214 whole-life sentence 101–3, 104–5 Widgery, Lord Chief Justice 101–2 Wilkinson, Beth A. 224 Wilson, Jon 350 Wisconsin 116 Witness Execution project, Texas 351 women, execution of 58, 243, 255, 274 Won-Buddhism 260 Woolf, Lord Chief Justice 102 Woolls, Randy 160 work, for offenders 94, 109, 110–11 World Medical Association 65–6, 255 World Psychiatric Association 67, 73, 77 World Society of Victimology 333 Wright, Chief Justice 315, 319, 323, 324, 329 Wrinkle, Robert 9 Yassar, Ishaq ibn 170 Yeltsin, Boris 108 Yemen 16 Zane, J. Peder 228–9, 230 Zimbabwe 39, 320 Zimring, F. E. 5 Zito, Jayne 339 Zito Trust 338–9