WORLDWIDE ABOLITION OF THE DEATH PENALTY

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25/11/2003. University of Hong Kong. 2. FOUR THEMES. How many countries have now abolished capital punishment? The pace of changeThe scope and use of capital punishment in retentionist countries What factors have been most influential in achieving abolition?What impediments remain in persuading

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WORLDWIDE ABOLITION OF THE DEATH PENALTY

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1. 25/11/2003 University of Hong Kong 1 WORLDWIDE ABOLITION OF THE DEATH PENALTY Progress and Prospects Roger Hood University of Oxford Distinguished Visiting Professor, Department of Sociology, University of Hong Kong

2. 25/11/2003 University of Hong Kong 2 FOUR THEMES How many countries have now abolished capital punishment? The pace of change The scope and use of capital punishment in retentionist countries What factors have been most influential in achieving abolition? What impediments remain in persuading countries to abandon the death penalty? I am delighted and honoured to have this second opportunity to address you on a subject that has increasingly pre-occupied me in recent years, during which time I have had the honour to be asked to draft the Secretary General’s reports on Capital Punishment in 200 and 2001. Since I spoke here in 1997, I have spoken on this subject in several parts of the world - Germany, Ireland, the UK, USA, Canada, Philippines, China and Taiwan. It’s a lecture that’s been part-way round the world so to speak; it has developed and been much up-dated, and now has come home to Hong Kong. During this talk, which must of necessity be a swift tour d’horizon, I shall try to cover four issues.I am delighted and honoured to have this second opportunity to address you on a subject that has increasingly pre-occupied me in recent years, during which time I have had the honour to be asked to draft the Secretary General’s reports on Capital Punishment in 200 and 2001. Since I spoke here in 1997, I have spoken on this subject in several parts of the world - Germany, Ireland, the UK, USA, Canada, Philippines, China and Taiwan. It’s a lecture that’s been part-way round the world so to speak; it has developed and been much up-dated, and now has come home to Hong Kong. During this talk, which must of necessity be a swift tour d’horizon, I shall try to cover four issues.

3. 25/11/2003 University of Hong Kong 3 SLOW PROGRESS The influence of the European enlightenment: Abolition in the USA, Europe and South America The position in 1965, less than 40 years ago 11 countries completely abolitionist 14 countries abolitionist for ‘ordinary’ crimes ONLY 25 IN ALL plus 9 States in USA, 2 in Australia and 24 of the 29 Mexican States The modern movement has its roots in the liberal and humanitarian ideals spawned by the philosophical movement known as the Enlightenment in Europe at the eend of the 18th century. Cesare Beccaria’s famous book On Crimes and Punishments, published in 1764, advocated the old regime of maximum terror, with hundreds of offences punishable by death ( public terrible death!) by a graded system of penalties proportionate to the crime committed and inflicted with greater certainty. Capital punishment was to have no place in that system of penalties. Indeed, it was counter-productive in the moral message it conveys, for it legitimised the very behaviour – killing – which the law seeks to repress. In 1794 Pennsylvania, and in 1796 New York, restricted capital punishment to first degree murder. In 1846 Michigan became the first state permanently to abolish capital punishment, followed by Wisconsin [ remember in relation to generalising about the USA] followed by Venezuela in 1863 and in Europe by Portugal (1867), Italy, Holland, and several north European Countries. Morris, 25 countries plus some American, Mexican and Australian states. In 1965 only two abolitionist countries outside Western Europe and Central and South America (Israel and New Zealand)The modern movement has its roots in the liberal and humanitarian ideals spawned by the philosophical movement known as the Enlightenment in Europe at the eend of the 18th century. Cesare Beccaria’s famous book On Crimes and Punishments, published in 1764, advocated the old regime of maximum terror, with hundreds of offences punishable by death ( public terrible death!) by a graded system of penalties proportionate to the crime committed and inflicted with greater certainty. Capital punishment was to have no place in that system of penalties. Indeed, it was counter-productive in the moral message it conveys, for it legitimised the very behaviour – killing – which the law seeks to repress. In 1794 Pennsylvania, and in 1796 New York, restricted capital punishment to first degree murder. In 1846 Michigan became the first state permanently to abolish capital punishment, followed by Wisconsin [ remember in relation to generalising about the USA] followed by Venezuela in 1863 and in Europe by Portugal (1867), Italy, Holland, and several north European Countries. Morris, 25 countries plus some American, Mexican and Australian states. In 1965 only two abolitionist countries outside Western Europe and Central and South America (Israel and New Zealand)

4. 25/11/2003 University of Hong Kong 4 WAS THERE A PATTERN? Marc Ancel in First UN Report 1962 “even the most convinced abolitionists realise that there may be many special circumstances, or particularly troublous times, which justify the introduction of the death penalty for a limited period” the process of abolition has usually taken a long time and followed a distinctive pattern: first the reduction of the number of crimes legally punishable by death until only murder (and sometimes) treason are left, then systematic use of commutation, leading to de facto abolition, and eventually abolition de jure. These views have been frequently referred to by some scholars in China and elsewhere to point to the long period that might have to pass before capital punishment can be abolished in their countries.These views have been frequently referred to by some scholars in China and elsewhere to point to the long period that might have to pass before capital punishment can be abolished in their countries.

5. 25/11/2003 University of Hong Kong 5 A TRANSFORMATION A three-fold increase in the number of abolitionist countries within 35 years Abolition embracing all crimes, whether in peacetime or wartime, in civil or military law Spread to new areas of the world - Eastern Europe and Africa Abolition often achieved swiftly and with no de facto period The average annual rate at which countries abolished the death penalty trebled: From roughly one a year in the period 1965-1988 to Over three a year in the years 1989-2001 First edition of my book in 1986, no African country – now 11 plus promise from Kenya All Eastern European and Balkan countries, Ukraine, Georgia, Azerbaijan, Moldova, Turkmenistan, Armenia. No executions in Russia since 1996. International pressure triumphed when the maximum penalty that could be imposed by the tribunals to try acts of genocide in the former Yugoslavia and in Rwanda were not given the power to sentence to death those who had committed the very worst of crimes. Similarly the maximum penalty available to the International Criminal Court for genocide, crimes against humanity and genocide is life imprisonment.The average annual rate at which countries abolished the death penalty trebled: From roughly one a year in the period 1965-1988 to Over three a year in the years 1989-2001 First edition of my book in 1986, no African country – now 11 plus promise from Kenya All Eastern European and Balkan countries, Ukraine, Georgia, Azerbaijan, Moldova, Turkmenistan, Armenia. No executions in Russia since 1996. International pressure triumphed when the maximum penalty that could be imposed by the tribunals to try acts of genocide in the former Yugoslavia and in Rwanda were not given the power to sentence to death those who had committed the very worst of crimes. Similarly the maximum penalty available to the International Criminal Court for genocide, crimes against humanity and genocide is life imprisonment.

6. 25/11/2003 University of Hong Kong 6 COMPARISON 1988 - 2003

7. 25/11/2003 University of Hong Kong 7 NO ROOM FOR COMPLACENCY Capital punishment throughout Asia, except Cambodia and Nepal and small Pacific island States: but Laos, Brunei Darussalam, Papua NG, Sri Lanka ADF. India ‘rarest of the rare’ last 1997 Capital punishment embedded in most Islamic countries Capital punishment supported by governments of the USA, P.R.China and Japan Capital punishment can be revived after years of non-use Only three countries that abolished the death penalty re-introduced it: the Philippines, Gambia and New Guinea. Plus Kansas and New York State. Of these only the Philippines has carried out executions (7 and now has an uneasy moratorium). But several other countries which appeared to be abolitionist de facto, resumed executions after many years. De facto abolition had not established a taboo. Since the beginning of 1994, 11 countries that had been presumed abolitionist in practice, resumed executions, even if only occasionally: Guinea after 17 years, Qatar after 11 years. In the USA, Timothy McVeigh, the Oklahoma bomber, was the first person executed by the federal authorities for 38 years, and in Tennessee an execution was carried out after a 40 years period of de facto abolition. Thus Amnesty International only lists 22 countries as ADF not 34. But because the use of capital punishment can be influenced so quickly by political change, these countries are really better thought of as ‘non-practicing retentionist’, until they do finally abolish it de jure and ratify the 2nd Optional protocol to the ICCPR.Only three countries that abolished the death penalty re-introduced it: the Philippines, Gambia and New Guinea. Plus Kansas and New York State. Of these only the Philippines has carried out executions (7 and now has an uneasy moratorium). But several other countries which appeared to be abolitionist de facto, resumed executions after many years. De facto abolition had not established a taboo. Since the beginning of 1994, 11 countries that had been presumed abolitionist in practice, resumed executions, even if only occasionally: Guinea after 17 years, Qatar after 11 years. In the USA, Timothy McVeigh, the Oklahoma bomber, was the first person executed by the federal authorities for 38 years, and in Tennessee an execution was carried out after a 40 years period of de facto abolition. Thus Amnesty International only lists 22 countries as ADF not 34. But because the use of capital punishment can be influenced so quickly by political change, these countries are really better thought of as ‘non-practicing retentionist’, until they do finally abolish it de jure and ratify the 2nd Optional protocol to the ICCPR.

8. 25/11/2003 University of Hong Kong 8 SCOPE OF THE DEATH PENALTY STILL WIDE ICCPR 1966 (entry into force 1976), article 6 (2) “only for the most serious crimes” … being “intentional crimes with lethal or other extremely grave consequences” But: Can be imposed for drugs offences: 34 countries, in some mandatorily For sexual offences: at least 30 countries For property-related non-violent offences: 17 countries In China for at least 68 offences , Vietnam 29, Philippines 10 (42 defined circs, 21 mandatory). UN Economic and Social Council in 1984 confirmed that where the death penalty continues to exist it “may only be imposed for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences” The UN Human Rights Committee has laid down that this must be read ‘restrictively to mean that the death penalty should be a quite exceptional measure” The UN Commission on Human Rights and the Special Rapporteur on Extra-judicial, summary or arbitrary executions, have urged all states not to impose it for ‘non-violent crimes, or non-violent religious practice, or expressions of conscience’UN Economic and Social Council in 1984 confirmed that where the death penalty continues to exist it “may only be imposed for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences” The UN Human Rights Committee has laid down that this must be read ‘restrictively to mean that the death penalty should be a quite exceptional measure” The UN Commission on Human Rights and the Special Rapporteur on Extra-judicial, summary or arbitrary executions, have urged all states not to impose it for ‘non-violent crimes, or non-violent religious practice, or expressions of conscience’

9. 25/11/2003 University of Hong Kong 9 SCALE OF EXECUTIONS 56 countries have carried out judicial executions since 1994, 17 in public (UN HRts Committee: ‘incompatible with human dignity) Executions reported from 31 countries in 2001 and 2002; but only 10 have averaged 20 or more in last five years.Compared with 15 during 1994-1998 Large fluctuations year-by year (e.g. over 4,000 in 1996, 1,500 in 2000, 3,000 in 2001 and about 1,500 in 2002) In 2002 according to Amnesty International, death sentences were imposed in 67 countries on at least 3,250 people. But executions in only 31 of the 69 retentionist countries: 10 were in the Middle East 9 in Asia 4 in countries formerly in the USSR 7 in Africa And 1 in the Western hemisphere (USA) In the USA two-thirds of the executions have taken place in only five states: Texas, Virginia, Florida, Missouri and Louisiana. In 2002 executions in 13 States, 33 of the 71 in Texas alone. This meant that in addition to the 13 wholly abolitionist states 25 of those with the death penalty on their statute books executed no one (38 of the 51 states)In 2002 according to Amnesty International, death sentences were imposed in 67 countries on at least 3,250 people. But executions in only 31 of the 69 retentionist countries: 10 were in the Middle East 9 in Asia 4 in countries formerly in the USSR 7 in Africa And 1 in the Western hemisphere (USA) In the USA two-thirds of the executions have taken place in only five states: Texas, Virginia, Florida, Missouri and Louisiana. In 2002 executions in 13 States, 33 of the 71 in Texas alone. This meant that in addition to the 13 wholly abolitionist states 25 of those with the death penalty on their statute books executed no one (38 of the 51 states)

10. 25/11/2003 University of Hong Kong 10 Countries executing over a hundred persons in the 5 years 1996-2000 and estimated annual average per million population China 10,275 1.65 Iran 559 1.76 Saudi Arabia 446 4.46 USA 370 0.27 DR Congo 236 0.98 Taiwan 133 1.22 Belarus 130 2.48 Egypt 124 0.40 Kazakhstan 115 1.35 Singapore 112 6.40 Note the high level in Singapore(242 1994-1998) Vietnam 145, 1994-1998; 64, 1996-2000. Also the fact that the figures for China might greatly under-estimate the true total. Need to publish the data. But of course, note the high level of extra-judicial, summary or arbitrary executions in some countries (Thailand in its war on drugs) or even genocide. In 2000 Amnesty International named 61 countries where extra-judicial executions had been alleged, including some that had officially abolished the death penalty: Columbia and Israel come readily to mindNote the high level in Singapore(242 1994-1998) Vietnam 145, 1994-1998; 64, 1996-2000. Also the fact that the figures for China might greatly under-estimate the true total. Need to publish the data. But of course, note the high level of extra-judicial, summary or arbitrary executions in some countries (Thailand in its war on drugs) or even genocide. In 2000 Amnesty International named 61 countries where extra-judicial executions had been alleged, including some that had officially abolished the death penalty: Columbia and Israel come readily to mind

11. 25/11/2003 University of Hong Kong 11 SIX FORCES FOR CHANGE 1 Transformation from a ‘national criminal justice issue’ to a ‘human rights issue enshrined in International Treaties 2 Pressure of International politics 3 Internal political leadership 4 Rejection as symbol of totalitarian power, cruelty and injustice 5 Social science evidence: arbitrariness and discrimination; errors in administration; no proof of extra general deterrent effectiveness 6 Execution of the innocent UN General Assembly in 1971 stated that the main objective of the UN, in accordance with article 3 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Civil and Political Rights, that ‘every human being has an inherent right to life’ is to: ‘progressively restrict the number of offences for which capital punishment might be imposed, with a view to its eventual abolition’. Protocol No 6 has been ratified by 43 countries, two others who do not use the death penalty have signed it. The 2nd optional Protocol by at least 47 By the end of December 2001 69 countries had irrevocably abolished the death penalty, at least for all common crimes, through one or another of these treaties. UN General Assembly in 1971 stated that the main objective of the UN, in accordance with article 3 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Civil and Political Rights, that ‘every human being has an inherent right to life’ is to: ‘progressively restrict the number of offences for which capital punishment might be imposed, with a view to its eventual abolition’. Protocol No 6 has been ratified by 43 countries, two others who do not use the death penalty have signed it. The 2nd optional Protocol by at least 47 By the end of December 2001 69 countries had irrevocably abolished the death penalty, at least for all common crimes, through one or another of these treaties.

12. 25/11/2003 University of Hong Kong 12 I THE TRANSFORMATION FROM A ‘NATIONAL CRIMINAL JUSTICE ISSUE’ TO A ‘HUMAN RIGHTS ISSUE ENSHRINED IN INTERNATIONAL TREATIES 1966 (1976 entry into force): ICCPR Article 6(2) restricting the scope of the death penalty 1971 and 1977: UN Policy - abolition the goal 1982/3 - ECHR Protocol No 6 to abolish the dp 1989 - ICCPR 2nd Opt. Protocol to abolish the dp 1990 - Protocol to American Convention on Human Rights to abolish the dp 2003 - ECHR protocol No 13 total abolition UN General Assembly in 1971 stated that the main objective of the UN, in accordance with article 3 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Civil and Political Rights, that ‘every human being has an inherent right to life’ is to: ‘progressively restrict the number of offences for which capital punishment might be imposed, with a view to its eventual abolition’. Protocol No 6 (just 20 years ago) has been ratified by 43 countries, two others who do not use the death penalty have signed it. The 2nd optional Protocol (just 13 years ago), article 2 “the death penalty shall not be re-established in States that have abolished it: ratified by 49 with 7 signatures. By the end of December 2001 69 countries had irrevocably abolished the death penalty, at least for all common crimes, through one or another of these treaties. UN General Assembly in 1971 stated that the main objective of the UN, in accordance with article 3 of the Universal Declaration of Human Rights and article 6 of the International Covenant on Civil and Political Rights, that ‘every human being has an inherent right to life’ is to: ‘progressively restrict the number of offences for which capital punishment might be imposed, with a view to its eventual abolition’. Protocol No 6 (just 20 years ago) has been ratified by 43 countries, two others who do not use the death penalty have signed it. The 2nd optional Protocol (just 13 years ago), article 2 “the death penalty shall not be re-established in States that have abolished it: ratified by 49 with 7 signatures. By the end of December 2001 69 countries had irrevocably abolished the death penalty, at least for all common crimes, through one or another of these treaties.

13. 25/11/2003 University of Hong Kong 13 II International Politicisation European Parliamentary Assembly: 1994: abolition made condition of entry to Council of Europe 1998 European Union condition of entry 1998 EU policy towards ‘third countries’ 2000 Charter of Fundamental Rights: no extradition no co-operation Canadian and South African Supreme Courts take same position The European stance is uncompromising - the C of E will not accept the argument that capital punishment can be defended on relativistic grounds, of religion or culture, or as a matter for sovereign powers to devcide for themselves. They wish it to have the status of a universal human rights norm. Both the Council of Europe and the EU have declared that “The death penalty has no legitimate place in the penal systems of modern civilised societies, and its application may well be compared with torture and be seen as inhuman and degrading punishment”. United States v Burns 2001: “While the evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty, it does show significant movement towards acceptance internationally of a principle of fundamental justice Canada has adopted internally, namely the abolition of capital punishment …It also shows that the rule requiring that assurance be obtained prior to extradition in death penalty cases not only accords with Canada's principled advocacy on the international level, but also is consistent with the practice of other countries with which Canada generally invites comparison, apart from retentionist jurisdictions in the United States.”The European stance is uncompromising - the C of E will not accept the argument that capital punishment can be defended on relativistic grounds, of religion or culture, or as a matter for sovereign powers to devcide for themselves. They wish it to have the status of a universal human rights norm. Both the Council of Europe and the EU have declared that “The death penalty has no legitimate place in the penal systems of modern civilised societies, and its application may well be compared with torture and be seen as inhuman and degrading punishment”. United States v Burns 2001: “While the evidence does not establish an international law norm against the death penalty, or against extradition to face the death penalty, it does show significant movement towards acceptance internationally of a principle of fundamental justice Canada has adopted internally, namely the abolition of capital punishment …It also shows that the rule requiring that assurance be obtained prior to extradition in death penalty cases not only accords with Canada's principled advocacy on the international level, but also is consistent with the practice of other countries with which Canada generally invites comparison, apart from retentionist jurisdictions in the United States.”

14. 25/11/2003 University of Hong Kong 14 III - Political leadership The case of France (last execution 1977): President Mitterand and Robert Badinter in 1981 GDR in 1987 Georgia: President Shevardnadze in 1997 The Presidents of Azerbaijan (1998) and Turkmenistan (1999 - over 100 executed in 1996) The case of South Africa: The rejection of ‘public opinion’ in favour of ‘human rights principles’ in order to create a “human rights culture”. Justice Arthur Chaskalson, President of the South African Constitutional Court (1995 State v Makwanyane); “Public opinion may haves some relevance to the enquiry, but in itself is no substitute for the duty invested in the Courts to interpret the Constitution and uphold its provisions without fear or favour … The very reason for investing the power of judicial review 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 proclaim this protection include the social outcasts and marginalised people in our society. It is only if there is a willingness to protect the worst and weakest amongst us that all of us can secure that our own rights will be protected”.Justice Arthur Chaskalson, President of the South African Constitutional Court (1995 State v Makwanyane); “Public opinion may haves some relevance to the enquiry, but in itself is no substitute for the duty invested in the Courts to interpret the Constitution and uphold its provisions without fear or favour … The very reason for investing the power of judicial review 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 proclaim this protection include the social outcasts and marginalised people in our society. It is only if there is a willingness to protect the worst and weakest amongst us that all of us can secure that our own rights will be protected”.

15. 25/11/2003 University of Hong Kong 15 IV - As a symbolic rejection of cruelty and injustice Italy 1947, Germany 1949 Romania 1989 Cambodia 1989; East Timor (Timor Leste) 1999 East European countries 1990 onwards The ‘death row phenomenon’: European Court of Human Rights decision in 1989 in the Soering case; inhuman or degrading treatment or punishment. The Parliament of the Czech and Slovak Republic in 1990 voted to abolish capital punishment “after the elimination of the totalitarian regime”. Article 7 of the ICCPR states that; No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. AND Article 10 that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. But death row has been defined as ‘a species of tortuous confinement’ (Robert Johnson, Death Work). Not only in the USA, but in Japan (an execution after 28 years in 1997), Indonesia, Malaysia, Zimbabwe, Saudi Arabia). By the year 2000 the average time while on death row in the USA had risen to 11 years 5 months. Gary Graham was executed in June 2000 for a crime he had committed when age 17 after 19 years on death row. But reducing time and possibilities for appeals increases the risk of a wrongful execution. The Parliament of the Czech and Slovak Republic in 1990 voted to abolish capital punishment “after the elimination of the totalitarian regime”. Article 7 of the ICCPR states that; No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. AND Article 10 that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. But death row has been defined as ‘a species of tortuous confinement’ (Robert Johnson, Death Work). Not only in the USA, but in Japan (an execution after 28 years in 1997), Indonesia, Malaysia, Zimbabwe, Saudi Arabia). By the year 2000 the average time while on death row in the USA had risen to 11 years 5 months. Gary Graham was executed in June 2000 for a crime he had committed when age 17 after 19 years on death row. But reducing time and possibilities for appeals increases the risk of a wrongful execution.

16. 25/11/2003 University of Hong Kong 16 V- Social science research Evidence of arbitrariness and discrimination leading to restriction of scope of death penalty Failure of evidence to show a unique general deterrent effect, especially when capital punishment is used parsimoniously within the rule of law. If deterrence could be achieved it could only be done so by not respecting humanity and human rights. Research leading to Furman v Georgia 1972. The chances of receiving the death penalty like the chances of being struck by lightening’ Under new 1976 limiting statutes: famous Baldus study with the ironic title Equal Justice and the Death Penalty (1990). Race of victim effects found in all but 5 of 55 studies carried out between 1973 and 1997. A study carried out by Prof James Lieberman of Columbia University (2000) of every capital conviction and appeal between 1973 and 1995 found that in 68 per cent of cases that had reached the third and final stage of state and federal appeals during this period (a process that took on average 9 years), an error had been found sufficient to overturn the original capital conviction.. In over at third of these cases the error had been due to ‘egregiously incompetent defense lawyers’ In 20 per cent, police and prosecutors suppressed evidence favourable to the accused; in another 20% the judge gave faulty instructions to the jurors. At retrial only 11 per cent of those originally sentenced to death were again sentenced to death. Mandatory death sentences struck down as unconstitutional in the USA and now in the Caribbean states, as giving no opportunity for the condemned to seek to persuade the court that in all the circumstances it would be disproportionate and inappropriate is to treat him as no human being should be treated, and thus to deny his basic humanity” (Lord Bingham in the Belize case: Patrick Reyes v The Queen 2002) Thus, whether mandatory of discretionary: inequity will persist.Research leading to Furman v Georgia 1972. The chances of receiving the death penalty like the chances of being struck by lightening’ Under new 1976 limiting statutes: famous Baldus study with the ironic title Equal Justice and the Death Penalty (1990). Race of victim effects found in all but 5 of 55 studies carried out between 1973 and 1997. A study carried out by Prof James Lieberman of Columbia University (2000) of every capital conviction and appeal between 1973 and 1995 found that in 68 per cent of cases that had reached the third and final stage of state and federal appeals during this period (a process that took on average 9 years), an error had been found sufficient to overturn the original capital conviction.. In over at third of these cases the error had been due to ‘egregiously incompetent defense lawyers’ In 20 per cent, police and prosecutors suppressed evidence favourable to the accused; in another 20% the judge gave faulty instructions to the jurors. At retrial only 11 per cent of those originally sentenced to death were again sentenced to death. Mandatory death sentences struck down as unconstitutional in the USA and now in the Caribbean states, as giving no opportunity for the condemned to seek to persuade the court that in all the circumstances it would be disproportionate and inappropriate is to treat him as no human being should be treated, and thus to deny his basic humanity” (Lord Bingham in the Belize case: Patrick Reyes v The Queen 2002) Thus, whether mandatory of discretionary: inequity will persist.

17. 25/11/2003 University of Hong Kong 17 Professor Bedau’s conclusion “Anyone who studies the century and more of experience without the death penalty in American abolitionist jurisdictions must conclude that these jurisdictions have controlled criminal homicide and managed their criminal justice system, including their maximum security prisons with life-term violent offenders, at least as effectively as have neighbouring death penalty jurisdictions. The public has not responded to abolition with riot and lynching; the police have not become habituated to excessive use of lethal force; prison guards, staff and visitors are not at greater risk; surviving victims of murdered friends and loved ones have not found it more difficult to adjust to their grievous loss.” This is not only a criminologist’s judgement A poll of 386 randomly selected police chiefs and county sheriffs conducted in 1995 throughout the USA found that only one per cent of them chose the death penalty as the ‘primary way to reduce violent crime: it was the last among their options. Furthermore, two thirds of them said that the statement ‘the death penalty significantly reduces the number of homicides’ was inaccurate. My own conclusion: “The absence of sufficient controls, when taken in conjunction with other problems of measurement, should lead any dispassionate analyst to conclude from the findings of the many studies that it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment” Capital punishment is in most countries that retain it merely Symbolic: occasionally and arbitrarily applied, but for those sentenced to death accompanied often by years of torment before they are relesed from its threat.This is not only a criminologist’s judgement A poll of 386 randomly selected police chiefs and county sheriffs conducted in 1995 throughout the USA found that only one per cent of them chose the death penalty as the ‘primary way to reduce violent crime: it was the last among their options. Furthermore, two thirds of them said that the statement ‘the death penalty significantly reduces the number of homicides’ was inaccurate. My own conclusion: “The absence of sufficient controls, when taken in conjunction with other problems of measurement, should lead any dispassionate analyst to conclude from the findings of the many studies that it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment” Capital punishment is in most countries that retain it merely Symbolic: occasionally and arbitrarily applied, but for those sentenced to death accompanied often by years of torment before they are relesed from its threat.

18. 25/11/2003 University of Hong Kong 18 VI Evidence of Wrongful Conviction Its recent influence in the USA: since 1973 111 death-sentenced prisoners released after evidence of innocence, some after all appeals had been concluded, the most recent in Missouri after serving 15 years Decisive evidence from the UK Influence elsewhere? After Anthony Porter, who had earlier come within 2 days of his scheduled execution, was found to be innocent by a project carried out by journalism students, and 12 others on Illinois’s death row had been released on grounds of innocence, Governor Ryan declared a moratorium and established a Commission to study the imposition of the death penalty. After it reported in 2002, and on his last day in office he pardoned 4 prisoners and commuted the death sentences of 167 to life imprisonment. His policy has been followed by his successor Governor Rod Blagojevich, who recently declared: “I don’t feel any artificial pressure to lift the moratorium. I’d like to one day be in a position to do that, if I thought the position was foolproof. But I don’t believe a series of reforms that the legislature will pass, most of which I support, will do enough to have me feel that the system won’t make these kinds of mistakes”.After Anthony Porter, who had earlier come within 2 days of his scheduled execution, was found to be innocent by a project carried out by journalism students, and 12 others on Illinois’s death row had been released on grounds of innocence, Governor Ryan declared a moratorium and established a Commission to study the imposition of the death penalty. After it reported in 2002, and on his last day in office he pardoned 4 prisoners and commuted the death sentences of 167 to life imprisonment. His policy has been followed by his successor Governor Rod Blagojevich, who recently declared: “I don’t feel any artificial pressure to lift the moratorium. I’d like to one day be in a position to do that, if I thought the position was foolproof. But I don’t believe a series of reforms that the legislature will pass, most of which I support, will do enough to have me feel that the system won’t make these kinds of mistakes”.

19. 25/11/2003 University of Hong Kong 19 WHAT IMPEDIMENTS TO FURTHER CHANGE? Refusal by many countries to accept that the death penalty is a human rights issue: only a criminal justice issue. Reaction to so-called ‘cultural imperialism’ Religious support for the death penalty Reliance on article 6(2) of the ICCPR ‘the death penalty may only be imposed for the most serious crimes’, yet article 6(6) states that article 6(2) “shall not be invoked to delay or prevent abolition”. Reliance on the deterrence argument Primacy given to public opinion or sentiment Representatives of Libya and Singapore at the 57th Session of the UN Commission on Human Rights in 2001, opposing an international moratorium on executions, declared that “the death penalty concerns the justice system and is not a question of human rights. In Japan the official line is that the death penalty is an issue for the penal system, not of human rights “a means of taking responsibility to atone for one’s own crime” Article 6(2) was of course, written well before (1966 and entry into force 1976) International protocols banning the death penalty came into force. It had to be intentionally broad at the time. But needs amending.Representatives of Libya and Singapore at the 57th Session of the UN Commission on Human Rights in 2001, opposing an international moratorium on executions, declared that “the death penalty concerns the justice system and is not a question of human rights. In Japan the official line is that the death penalty is an issue for the penal system, not of human rights “a means of taking responsibility to atone for one’s own crime” Article 6(2) was of course, written well before (1966 and entry into force 1976) International protocols banning the death penalty came into force. It had to be intentionally broad at the time. But needs amending.

20. 25/11/2003 University of Hong Kong 20 WHAT PROSPECTS FOR THE FUTURE? Abolitionists heartened by the degree and swiftness of change in so many parts of the world But has the movement now reached a plateau? Key role of the USA Straws in the wind: Kenya? Taiwan? South Korea? Several states with Muslim majorities have abolished capital punishment or rarely use it China’s willingness to discuss the issue in Human Rights Dialogues and accession to the ICCPR with intention of ratification. Muslim majority states that are abolitionist: Bosnia-Herzegovina, Turkey, Turkmenistan, Azerbaijan Initiative under-way in South Korea to introduce a bill to abolish the death penalty Taiwan’s Minister of Justice has stated that he wants to abolish the death peanlty within 3 years. Executions pa. dropped from 37 to 9 last year. IN CONCLUSION: Not every country of course has yet subscribed to the view that there should be an international human rights norm banning capital punishment for all crimes in all circumstances. However, the abundant and growing evidence of how the death penalty is enforced – which has revealed degrees of cruelty, violating human rights, and many breaches of legal principles that demand the equitable, proportionate, impartial, and unbiased administration of criminal justice – may one day convince even those governments which (in their ideal world) favour capital punishment that it cannot safely be administered in human societies founded on the principles of human rights, equality and justice.Muslim majority states that are abolitionist: Bosnia-Herzegovina, Turkey, Turkmenistan, Azerbaijan Initiative under-way in South Korea to introduce a bill to abolish the death penalty Taiwan’s Minister of Justice has stated that he wants to abolish the death peanlty within 3 years. Executions pa. dropped from 37 to 9 last year. IN CONCLUSION: Not every country of course has yet subscribed to the view that there should be an international human rights norm banning capital punishment for all crimes in all circumstances. However, the abundant and growing evidence of how the death penalty is enforced – which has revealed degrees of cruelty, violating human rights, and many breaches of legal principles that demand the equitable, proportionate, impartial, and unbiased administration of criminal justice – may one day convince even those governments which (in their ideal world) favour capital punishment that it cannot safely be administered in human societies founded on the principles of human rights, equality and justice.

21. 25/11/2003 University of Hong Kong 21 The Key Role of the USA The American attitude towards international human rights law: becoming its “Achilles heel” Growing concerns in the USA: Governor Ryan and the Illinois Commission Failure to make a ‘broken system’ work Judicial doubts expressed A ‘Southern phenomenon’ only? The position of the Supreme Court The need for political leadership USA in ratifying ICCPR entered reservations both to article 6(5) which prohibits the imposition of the death penalty on persons who committed the crime when below the age of 18 and to article 7, which proscribes cruel and unusual treatment or punishment. The USA declared that it would only be bound by the latter article to the extent that ‘cruel, inhuman or degrading treatment or punishment means that which is defined by the US Supreme Court. Harold Koh’s (former US Assistant Sec of Sate for Human Rights) opinion of effect on European\USA relations." The death penalty has become America’s Achilles heel … in almost every human rights forum”. Illinois Commission concluded “that no system given human nature and frailties could ever be devised or constructed that would work perfectly”. Former Chief Justices of Illinois (Harrison) and Florida (Kagan) and former Supreme Court Justices Blackmun and Powell spoken out against the death penalty. Two federal Judges questioned its constitutionality Largely a Southern phenomenon: in 2002 only 3 states (2 if one excludes Missouri) executed anyone. But still State department support. Decision in Atkins v Virginia in 2002 regarding the mentally retarded referred to international norms. In October 2002 4 of the 9 Supreme Court Justices declared that the execution of juveniles (barred by 16 States) “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”. USA in ratifying ICCPR entered reservations both to article 6(5) which prohibits the imposition of the death penalty on persons who committed the crime when below the age of 18 and to article 7, which proscribes cruel and unusual treatment or punishment. The USA declared that it would only be bound by the latter article to the extent that ‘cruel, inhuman or degrading treatment or punishment means that which is defined by the US Supreme Court. Harold Koh’s (former US Assistant Sec of Sate for Human Rights) opinion of effect on European\USA relations." The death penalty has become America’s Achilles heel … in almost every human rights forum”. Illinois Commission concluded “that no system given human nature and frailties could ever be devised or constructed that would work perfectly”. Former Chief Justices of Illinois (Harrison) and Florida (Kagan) and former Supreme Court Justices Blackmun and Powell spoken out against the death penalty. Two federal Judges questioned its constitutionality Largely a Southern phenomenon: in 2002 only 3 states (2 if one excludes Missouri) executed anyone. But still State department support. Decision in Atkins v Virginia in 2002 regarding the mentally retarded referred to international norms. In October 2002 4 of the 9 Supreme Court Justices declared that the execution of juveniles (barred by 16 States) “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”.

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