Death Penalty Worldwide

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04/20/2016

Congo’s Presidential Election Strengthens the Controversial New Constitution that Abolished Capital Punishment

On March 20, 2016, a tense presidential election in the Republic of the Congo resulted in the re-election of President Denis Sassou Nguesso, who has been in power for a total of 32 years. One of the election’s least discussed outcomes is its solidification of the new constitution that President Sassou introduced last year and that provides for abolition of the death penalty.

In October 2015, President Denis Sassou Nguesso announced his intention to hold a referendum on a new constitution. The proposed constitution would lift the existing age and term limits that constitutionally prevented him from running for a third consecutive term in office. The reform unleashed mass political protests as Congolese opposition parties and their supporters contested what they perceived as an illegitimate and undemocratic attempt to remain in office. There was little political discussion, however, around the constitutional provision abolishing capital punishment. After a brief campaign marred by partisan violence, the new constitution, including the abolition of the death penalty, was approved by referendum. Opposition parties contested the referendum results, but they were confirmed by the Constitutional Court and the new constitution was promulgated on November 6, 2015.

Although Congolese law contemplates applying the death penalty to a wide range of offenses, capital punishment has in practice been rarely applied over the past 30 years. The Republic of Congo was long considered an abolitionist de facto state: it has not carried out an execution since 1982, and the number of death sentences handed down by its courts has declined steeply since 2000. Congo’s shift towards abolition has been visible at the international level, where it voted in favor of all five UN General Assembly resolutions calling for a universal moratorium on capital punishment. Given the death penalty’s effective disappearance from the criminal justice system, and with political conditions favoring legal abolition, constitutional review provided an opportunity to immediately abolish the death penalty in Congolese law. It is now likely that the National Assembly will soon introduce a law abolishing capital punishment as part of broader reforms of the Congolese Criminal Code.

Electoral timing may have had an effect on the pathway to formal abolition, since its elevation to a constitutional norm is widely believed to have been a strategic political move intended to enhance the overall appeal of the constitution, especially vis-à-vis the international community. Abolition – which was not contested in the wake of the referendum – has however long been promoted by the country’s human rights organizations and enjoys the support of most of Congo’s political elite. Rights groups believe it likely that the country was poised to eliminate the death penalty by other means had the constitutional review not taken place.

The unrest surrounding the constitutional referendum raised concerns about the longevity of the constitution guaranteeing abolition, but the recent political election, which proceeded without violence, has solidified the new political framework and entrenched abolition.

it is hoped that abolition will be followed by broader reforms of the Congolese criminal justice system, which is severely underfunded and has been reported to suffer from corruption and inefficiency.

-- Marion Gauer and Delphine Lourtau

02/15/2016

A Grim Yardstick: Measuring Death Penalty Trends Within UN Human Rights Mechanisms

Professor William Schabas described the progress of death penalty abolition as a useful looking glass through which to assess the international community's broader respect for human rights. The death penalty is a human rights issue that more easily lends itself to quantifiable analysis, unlike many other human rights, such as slavery or torture.[1] It is, in essence, a grim yardstick of the world's respect for human rights as a whole. Renowned human rights expert Bryan Stevenson stated that "the moral arc of the world is long, but it bends towards justice"[2] and the death penalty's progress towards abolition is certainly evidence of this.

Despite this trend beginning to slow, the death penalty is no longer a method of punishment that death penalty States eagerly defend, nor do they proudly wear the badge of executioner. Within the context of UN human rights mechanisms, the various perceived benefits of the death penalty, those tired and false justifications of deterrence and revenge, are no longer relied upon. In their place, death penalty States fall back on conciliatory language, justifying the use of the death penalty as a temporary necessity, a means to an end, or simply the existence of popular support within the community for its retention. Indeed, my study of 91 States that had not abolished the death penalty revealed that, in the context of their review by the UN Human Rights Council, only 19 of them spoke in positive terms of the perceived benefits of the death penalty. This sits in stark contrast to the 78 States which, rather than attempting to simply justify the retention of the death penalty, highlighted the fact that it was subject to ongoing restriction. The analysis of these justifications was made possible through studying the operation of one significant UN human rights mechanism.

The Universal Periodic Review, or UPR for short, is a rather recent creation of the UN Human Rights Council. It was created to replace the monitoring role played by the United Nations Commission on Human Rights, which fell out of favour due to over-politicisation and a lack of independence. This is an important factor to be aware of as it shaped the mandate of the UPR. The new process is intended to be collaborative, inclusive, and optimistic. The process of the UPR is quite simple. All States are subject to review during a cycle which lasts approximately 4 years. The review process involves a report by the State under review and “alternative” reports by NGOs and other stakeholders. The process culminates in a working group where questions are put, recommendations for improvement made, and certain obligations accepted voluntarily. While the effectiveness of this process at bringing about concrete human rights progress on the ground is widely debated, it is nevertheless a powerful tool for identifying customary international law.

Customary international law allows for States to be bound by international minimum standards that go beyond their treaty obligations. In order to be universally binding, these standards must be widely recognised by the international community and can be identified by what States both say and do. Their existence is vitally important to the development and protection of human rights globally. Examining what States do in practice is a self-evident means for identifying customary law, but what a State says, even when it contradicts its own actions, is also relevant. If North Korea, for example, denies the use of state-sanctioned torture, this comment can be used as evidence of the universal acceptance of the prohibition against torture, even if the State does, in fact, commit acts of torture. In other words, the very denial of the existence of torture implies an acknowledgement that torture is prohibited under international law, thereby further cementing the formation of the customary international norm.

Ban Ki-Moon recognised the power of the UPR to bring about change through the identification of death penalty norms, stating that "[e]ven States that are not subject to conventional obligations with respect to capital punishment have participated in the universal periodic review as if they were subject to international norms concerning the death penalty."[3] My study of the UPR process revealed fascinating insights into just how tenuous support for the death penalty truly was. For example, Barbados relies on the fact that the death penalty has been in abeyance for over 30 years as evidence that "spoke louder" than an official moratorium.[4] Similarly, Bangladesh stated that it is not able to impose a moratorium "at this stage", showing tacit support for ending executions in the future. A number of other countries, including Viet Nam, stated that the death penalty will be abolished when conditions allow. Similar progressive commitments were made by a number of other States, including Iraq, which hoped that security and stability would be "paving the way for the abolition of capital punishment".[5] It becomes immediately apparent from analysing the language of death penalty States that a large portion of them view the death penalty as either a transitionary measure, an obstacle to be overcome, or a totally defunct practice.

When one considers that only 19 States advocate for the use and expansion of the death penalty within the UPR together with the positive trend of more states abolishing capital punishment each passing year, it becomes apparent that the world embraces the restriction and ultimate abolition of capital punishment. While it cannot yet be said that total abolition is a customary norm, there is certainly a strong case to argue that the continued restriction of the death penalty is custom. This means that under international law, States may not expand the application of the death penalty and must restrict it to comply with universally recognised minimum standards. These minimum standards include ending the death penalty's application to drug offences and other non-fatal crimes, and prohibiting the execution of children. Furthermore, the way in which capital punishment is imposed is a vitally important area of restriction, and international custom arguably demands the end of mandatory death sentences, and the end of execution methods such as stoning which clearly violate the prohibition against cruel and unusual punishment.

The UPR not only reveals evidence that supports the development of customary international law, but also provides invaluable information to abolitionist States on how to conduct anti-death penalty advocacy. In particular, it demonstrates the need for an incremental approach, which takes into account the relevant issues confronting the target death penalty State. For example, one of the most recalcitrant death penalty States, Iran, received 27 recommendations regarding capital punishment. 24 of those recommendations called for total abolition, and were all rejected outright. However, the three that were accepted were far more incremental. They related to Iran adhering to minimum standards when imposing the death penalty, in particular ceasing its application to the crime of apostasy and to children. By eliciting Iran’s endorsement, these recommendations contribute to the development of an international trend and also give future advocacy a strong starting point.

The benefits of examining the death penalty within the UPR are threefold: improving our knowledge of contextual realities and tailoring advocacy accordingly, creating a firm basis upon which to commence future advocacy, and identifying customary international law. Secrecy is the death penalty's greatest ally, and the UPR creates a degree of transparency that will assist the abolitionist cause in the future. However, abolitionist States and NGOs must encourage effective and incremental recommendations to death penalty States. The international community must keep in mind that the difference between retentionist and abolitionist States is "less one of temperament than of timing".[6] In acknowledging this reality, we can better assist death penalty States in moving incrementally towards total abolition. The steady progress towards abolition demonstrates that the death penalty is becoming increasingly irrelevant as a form of punishment. The UPR will provide invaluable assistance in ensuring that a customary norm of total abolition is arrived at sooner rather than later.

-- John Riordan is an Australian lawyer and anti-death penalty advocate. He has worked as a com committee member for Reprieve Australia, as well as co-founding the Mercy Campaign in support of two Australians, Andrew Chan and Myuran Sukumaran, who were executed in Indonesia in 2015. He recently completed his LLM of Public International Law, writing his thesis on the death penalty and international law.

 

[1] Schabas, W., Accelerating world trend to abolish capital punishment, Oxford University Press Blog, 11 October 2013. (Available at: http://blog.oup.com/2013/10/world-day-against-the-death-penalty-pil/)

[2] Stevenson, B., We Need To Talk About An Injustice, TED, March 2012. (Available at: http://www.ted.com/talks/bryan_stevenson_we_need_to_talk_about_an_injustice#t-1235866)

[3] Economic and Social Council, Report of the Secretary-General: Capital punishment and implementation of the

safeguards guaranteeing protection of the rights of those facing the death penalty, UN Doc. E/2015/49, 13

April 2015, p. 61.

[4] Barbados Working Group, 12 March 2013, A/HRC/23/11, para. 92.

[5] Iraq National Report, 18 January 2010, A/HRC/WG.6/7/IRQ/1, para. 116.

[6] Warren, M., Death, Dissent, and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign

Relations, 13 Wm. & Mary Bill Rts. J. 309, 2004, p. 335.

02/08/2016

The Death Penalty in 2015: Fewer States Carry Out An Overwhelming Majority of the World’s Executions

Death Penalty Worldwide’s tally of executions carried out around the world in 2015 delivers two key insights on global attitudes towards capital punishment. First, the death penalty is increasingly a localized phenomenon, with a small and declining number of states carrying out the vast majority of the world’s executions. Second, the application of capital punishment continues to be characterized by deliberate secrecy.

Analyzing global trends on the use of the death penalty is partly an exercise in informed guesswork. Most retentionist states either treat capital punishment as a state secret or provide only partial information on their use of the death penalty, conducting capital trials behind closed doors and carrying out covert executions. The inscrutability of death penalty practices makes it difficult to assess the real prevalence of capital punishment in national justice systems and prevents monitoring for human rights abuses. This almost universal lack of transparency sets the death penalty apart as a punishment with more political than penological underpinnings.

Still, it is clear that judicial executions are increasingly confined to a very small number of states that execute at disproportionately high rates. Only 18 of the world’s 195 states and territories were known to carry out a death sentence in 2015 – the smallest number since 2009 – and only 8 of these executed more than 10 people. (It is possible, however, that other retentionist states carried out secret executions that we don’t know about, notably in Vietnam, North Korea and Yemen.) China is believed to carry out thousands of executions – more than the rest of the world combined – but its tight control over death penalty data has forced most organizations to give up gauging execution figures. Even there, however, use of capital punishment has decreased in recent years. One of the few organizations to venture an estimate, the Dui Ha Foundation, reported that around 2,400 people were executed in 2013 and again in 2014, reflecting a significant decline in the number of executions over the past decade. Collectively, the following four top executioners – Iran, Pakistan, Saudi Arabia and the United States – carried out 875 executions at a conservative estimate. Setting aside China, this represents 91 percent of the 954 executions confirmed for 2015. Moreover, this figure is based on the 364 executions officially announced by the Iranian authorities, but several non-governmental rights groups, all of which acknowledge that their figures are likely underestimates, report that as many as 966 or even 1,084 individuals were executed in 2015. As in past years, Iran’s execution numbers represent the world’s highest per capita execution rate.

Our available data also shows that most executions are carried out in two regions: the Middle East, where 6 states executed 540 individuals, and Asia, where in addition to China 8 countries executed 354 people. But even in Asia, executions are largely confined to only a few countries: Pakistan alone accounted for 92 percent of all executions in Asia outside of China. Only two Sub-Saharan African countries executed prisoners in 2015, Somalia and Chad, and the United States was the only state to carry out executions in the Americas last year. No executions were recorded in Europe or the Pacific region.

While the global use of capital punishment has been declining steadily for years, there are exceptions. Pakistan resumed executions after a 7-year moratorium in December 2014 following the Peshawar terrorist attack. While at first the measure was sanctioned only for prisoners convicted of terrorist acts, the government quickly broadened the authorization to execute for other offenses. With a total of 325 executed prisoners in 2015 – almost one a day – Pakistan was catapulted in the space of a year to one of the world’s most prolific executioners, second only to China and Iran. Executions have also surged in Saudi Arabia, which beheaded 158 prisoners in 2015 against 90 in 2014 (and 79 in the two previous years). Some analysts believe that the increase in executions is “a survival move by a kingdom still shaken by the Arab uprisings of 2011 and a leadership in a power struggle.”[1]

Further underlining the political dimension of capital punishment, two more states in which the death penalty had fallen into disuse resumed executions in 2015 in a show of the state’s strength against terrorism. In February, Jordan executed two Al Qaida fighters in retaliation for the Islamic State’s capture and murder of a Jordanian pilot, ending an 8-year moratorium on executions. Chad, which after 12 years without executions was classified by the UN as an abolitionist de facto state unlikely to implement capital punishment, executed ten members of Boko Haram in August.

Death Penalty Worldwide’s global executions monitor for 2016, updated on a weekly basis, is available here.

-- Delphine Lourtau

 

Global Executions Monitor 2015

By number of executions:

China (1000’s), Iran 364 (official) up to 966 – 1,084, Pakistan 325, Saudi 158, United States 28, Somalia 22 (including Somaliland and Puntland), Indonesia 14, Egypt 12, Chad 10, Taiwan 6, Bangladesh 3, Iraq 3, Japan 3, Jordan 2, Afghanistan 1, India 1, Singapore 1, United Arab Emirates 1.

By region:

MENA: Saudi 158, Egypt 12, Iran 364 (official) up to 966-1084, Iraq 3, Jordan 2, United Arab Emirates 1.

Asia: Afghanistan 1, Bangladesh 3, China (1000’s), Japan 3, India 1, Indonesia 14, Pakistan 325, Singapore 1, Taiwan 6.

Sub-Saharan Africa: Chad 10, Somalia 22 (including Somaliland and Puntland).

North America: United States 28.

 

[1] Middle East Eye, Saudi mass executions about political survival, http://www.middleeasteye.net/news/analysis-saudi-mass-executions-about-survival-more-anything-82067822, Jan. 2, 2016.

02/01/2016

A pioneering study of public opinion on the death penalty in Ghana suggests the unpopularity of the death penalty as punishment for crime

Contrary to popular perceptions, a survey by the Centre for Criminology and Criminal Justice (Ghana) finds that the majority of Ghanaians are opposed to the death penalty. When asked specifically about abolition of the death penalty for murder, 61.7% expressed support for abolition while 39.3% opposed abolition for murder. The study arose in the context of recent efforts by the Government of Ghana to abolish the death penalty. In 2010, the Government of Ghana set up a Constitutional Review Commission to review key aspects of the Ghana Constitution. One of its terms of reference was to reconsider the death penalty as an entrenched provision in the Constitution. The final report of the Commission in 2011 recommended abolishing the death penalty and replacing it with imprisonment for life without parole. The Commission’s recommendation was based on four main arguments. First, Ghana’s current status as a de facto abolitionist ‘does not adequately punish people convicted of crimes that are punishable by death.’ Second, that the death penalty has the danger of ‘invariably transforming [the State] into a killer and there is no justification for the State to become a killer’. Third, that ‘in almost every part of the globe, countries have abolished the death penalty…It can thus be seen that current international opinion is predominantly in favour of abolishing of the death penalty’. The fourth justification offered was based on an argument about the sanctity of life.

The Government issued a White Paper in 2012 in which it accepted the Commission’s recommendation to abolish the death penalty. It justified its decision on the basis of the sanctity of life, which it contended was ‘a value so much ingrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties’.

With this strong indication that the government supports the abolition of the death penalty, it would be easy to conclude that the main hurdle confronting abolitionists has been overcome. However, this might not be the case. There are reasons for caution, not least because the death penalty is an entrenched constitutional provision. This means that the abolition of the death penalty is only possible through a nationwide referendum receiving majority support. Given what we know from research evidence on public opinion on the death penalty, this requirement is a major concern for death penalty abolitionists. Unfortunately, there is no research on public opinion on the death penalty in Ghana. While the Commission carried out a public consultation prior to making its recommendations, there are a number of problems with the procedure adopted. Its restrictive approach and almost exclusive focus on opinion leaders and key stakeholders such as professional bodies and advocacy groups meant that the majority of ordinary Ghanaians could not participate fully in the consultation process.

Knowing what the public thinks about the death penalty is no trivial matter for governments in sub-Saharan Africa, where the criminal justice systems are perceived as corrupt and ineffective. For example, uncertainties about public opinion have fueled concerns about a possible backlash effect in the form of vigilante violence following abolition. Abolishing the death penalty in a context of perceived high crime rates and feelings of insecurity could have real political costs (which perhaps explains Ghana’s hesitation in signing the Second Optional Protocol to the International Convention on Civil and Political Rights).

This underscores the importance of a methodologically rigorous public opinion survey to understand the nature of public attitudes to the death penalty and factors that might be implicated. This was the rationale for our survey, carried out under the auspices of the Centre for Criminology and Criminal Justice (Ghana). The survey presented the first serious effort to empirically investigate public opinion on the death penalty in Africa. The survey, which was funded by the Smuts Memorial Fund and the Cambridge-Africa Alborada Research Fund, comprised a total sample of 2460 adults (18+) randomly selected from four communities in Accra, reflecting the varying socio-economic and ethnic composition of the capital city: high-class communities; middle-class communities; indigenous lower-class communities; and migrant lower-class communities.

The results from the survey were both interesting and surprising. Perhaps the most important finding was that views on the death penalty in Ghana did not appear to be polarized. Contrary to popular belief, 54.3% of the Ghanaians sampled were strongly opposed to the death penalty. This compares with 9.7 % who expressed strong support, while 36% were moderately in support of the death penalty. When asked specifically about abolition of the death penalty for murder, 61.7% expressed support for abolition while 39.3% opposed abolition for murder. Among the small minority who strongly endorsed the death penalty (9.7%), 7 in 10 would support a discretionary death penalty in place of the current mandatory death penalty. The most preferred replacement for the death penalty was life imprisonment without the possibility of parole. This was closely followed by those who preferred life with a possibility of release based on some future risk assessment. Whether or not one was a victim of crime or had a close family member or friend who had been a victim of crime mattered little. Among the proponents of abolition, the two prominent reasons for their position were the sanctity of life and the possibility of executing innocent people.

The second important finding was that the public had very limited knowledge of the type of crimes that attracted the death penalty. The majority of people interviewed wrongly identified robbery as a crime that attracts the death penalty. A possible reason for this misperception might be that robberies, as reported in the media, sometimes involve details about the rape and maiming of victims. Third, there was evidence that demographic factors influenced support for the death penalty. The two most important demographic factors were level of education and type of neighbourhood. People with higher levels of education and residents in high-class neighbourhoods were more likely to oppose the death penalty and to support abolition. Surprisingly, people living in lower-class indigenous areas were more opposed to the death penalty than residents in middle-class areas and lower-class migrant areas. A possible explanation could be the strong kinship or affinity in indigenous lower-class neighbourhoods, which meant that people were more likely to be associated with both victims and offenders. The survey found no evidence of a possible backlash effect in the form of vigilante violence among people interviewed. Finally, we examined the role of evidence in changing attitudes towards the death penalty, focusing on evidence on deterrence, innocence and the global trend towards abolition. Of these three, providing evidence of the possibility of executing innocent people had the greatest impact on people’s attitudes toward death penalty. The least convincing was presenting evidence on global trends towards abolition. Such evidence did not change peoples’ views on the death penalty.

As can be seen, there is much to be gained from conducting a methodologically sound empirical survey on public opinion on the death penalty. Such research could help provide evidence-based insight into a rather complex issue. Preparations for the referendum on the proposals of the Constitutional Review Commission have stalled due to a court case challenging the constitutionality of the process. In October 2015, the Supreme Court dismissed the case, thereby clearing the way for the preparation to resume. We hope that the important findings from this survey will contribute to shaping the debate and inform advocacy work on the abolition of the death penalty in Ghana.

-- Kofi E. Boakye, PhD, is a Lecturer at Anglia Ruskin University and a Visiting Scholar at the Institute of Criminology, University of Cambridge.

-- Justice Tankebe, PhD, is a Lecturer in Criminology at the Institute of Criminology, University of Cambridge.

01/05/2016

Could Iran End the Death Penalty for Drug Offenses?

It is easy to be cynical when observing the interactions between the government of Iran and much of the rest of the world. Posturing followed by counter-posture has been the only overt form of communication since the Iranian revolution of 1979. It is no different when it comes to Iran’s prolific use of the death penalty, but there may be some promising signs of progress regarding Iran’s use of capital punishment in its drug enforcement program.

According to the Iran Human Rights Documentation Center, Iran executed nearly 1,000 people in 2015. Other estimates are even higher.[1] Numerous persistent executioner states, including Iran, continue to carry out executions for non-violent drug related offenses, which do not fall into the category of “most serious crimes” to which capital punishment is limited under a foundational human rights treaty to which Iran is party, the International Covenant on Civil and Political Rights. Today, it is widely accepted that only intentional homicides constitute “most serious crimes” under international law.

The UN Special Rapporteur on human rights in Iran reported that 69% of Iran’s executions in the first half of 2015 were for drug related crimes. Indeed, Iran’s anti-narcotics law includes 17 different drug related crimes punishable by death, ranging from possession to manufacturing and trafficking. Iran’s anti-narcotics law was drafted in 1988 and amended in 1997, and again in 2011. These amendments were made in response to a growing drug problem in Iran. The government responded by issuing stricter sanctions and this resulted in an expansion of the death penalty. However, there have been recent admissions within the country from government officials that the increased execution rate for drug related offences has not reduced drug crimes in Iran. This has prompted some Iranian officials to call for review of the death penalty for all drug crimes, with the exception of armed trafficking.

On December 8, 2015, members of Iran’s Parliament, the Majlis, brought forward a bill to eliminate the death penalty for 16 of the 17 drug offenses criminalized in Iran’s anti-narcotics law. While the bill was signed by at least 21 members of the Majlis, reports suggest that 70 MPs presented the bill. Under this legislation, it appears those offenders caught with weapons while involved in drug trafficking would still be eligible for execution. While the Majlis, made up of 290 members, has the power to present bills and pass laws, the Guardian Council must approve all bills before they can become law. The Guardian Council, in turn, is comprised of six theologians appointed by the Supreme Leader and six jurists nominated by the judiciary and approved by the Majlis. Although the language of the bill itself has not been made public, up to 70 MPs (which would represent nearly 25% of Parliament), have reportedly proposed to replace the death penalty for nearly all drug crimes with a life sentence. If this bill were to pass, it would be applied retroactively, ending executions for all drug crimes with the exception of armed trafficking.

Iranian officials claim that the execution rate would decline by 80% should the bill pass. Investigations led by human rights organizations, have concluded that many of those executed for drug crimes were unarmed, but that many of these cases were not thoroughly investigated, and that defendants did not receive a fair trial or have proper access to counsel. Some have even involved juvenile offenders.

While it is the first time such a proposition has come directly from Iranian politicians, others within Iran’s government have previously advocated for similar reforms. Last year, the Iranian judiciary proposed ending the death penalty for drug offences but, once proposed, no known steps were taken to implement this recommendation. There have also been reports that the deputy head of the anti-narcotics task force recently unsuccessfully attempted to garner support within Parliament to eliminate the death penalty for drug crimes. There may be a genuine change in the air.

It may be helpful to consider the broader context of this most recent parliamentary proposal and the history of UN funding of Iranian anti-narcotics programs. The United Nations Office on Drugs and Crimes (UNODC) first established a presence in Iran in 1999 with the aim of minimizing drug related crimes. For the first six years, UNODC primarily provided technical assistance to Iran and, in 2005, a new program was initiated to reduce drug trafficking, assist with developing a prevention and treatment infrastructure to address drug abuse, and promote the rule of law regarding drug crimes. In 2010, a Country Program was launched to assist Iranian efforts on drugs and crime, while promoting UN standards and international best practices. Its focus points were trafficking and border management, reducing drug demand and HIV control, and assisting with crime, justice and corruption.

These UNODC programs have all been funded through voluntary contributions by UN member states, including European countries such as France and Germany, while others, including the United Kingdom, Denmark and Ireland, have recently withdrawn support over Iran’s execution rate.[2] A number of human rights organizations have lobbied European countries to make their contributions conditional on Iran ending executions for drug related offences. All European countries (with the exception of Belarus) have abolished the death penalty, and the abolition of capital punishment is a pre-requisite for entry into the European Union and the Council of Europe. The complicity of European countries in Iranian executions violates the spirit of these laws. Although the UNODC’s policy indicates that it may temporarily freeze or withdraw its support if executions for drug related crimes persist, it has yet to take such action. This has allowed Iran to legitimize its surge in executions, claiming it has UN backing.

It is noteworthy that the latest parliamentary proposition came just ahead of final negotiations to renew funding for its counter-narcotics efforts by the UNODC. Sure enough, despite international pressure and Iran’s execution surge, the UN announced renewed funding for counter-narcotics efforts in Iran in the amount of $20 million on December 21, 2015, doubling its contributions. It is not clear whether the parliamentary reform will now progress at all.

The recent proposal for death penalty reform by a group of Iran’s parliamentarians may simply have been window dressing ahead of UNODC’s funding decisions. However, there have been other indications in Iran’s criminal justice system that the time is ripe for change. Iran’s use of capital punishment for drug offenses is not only a bad policy, but may also be bad politics.

[1] The Abdorrahman Boroumand Foundation reports 1,052 executions in 2015.

[2] For a breakdown of funders by program see here: https://www.unodc.org/islamicrepublicofiran/en/funds-and-partnership.html.

12/14/2015

Mongolia becomes the fifth country to abolish the death penalty in 2015

On December 3, Mongolia’s parliamentary assembly, the State Great Khural, passed a historic law abolishing the death penalty under all circumstances. The newly amended Criminal Code had been expected since 2012, when Mongolia ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, an international treaty whose purpose is to achieve worldwide abolition of capital punishment. State parties to the Protocol are bound not only to refrain from carrying out executions and handing down death sentences, but also to anchor abolition in national law. As of today, 84 of the UN’s 193 member states are parties to the universal abolition treaty. By September 2016, when Mongolia’s new Criminal Code comes into force, 103 countries will have eliminated capital punishment from their legal systems – a solid majority of the world’s states.

Mongolia is the fifth country to legally abolish the death penalty this year, marking an acceleration of the global trend towards the elimination of capital punishment. Unlike the four other states that abolished the death penalty in 2015 – Fiji, Suriname, Madagascar, and the Republic of Congo – Mongolia carried out executions regularly until relatively recently, the last execution having taken place in 2008. Interestingly, states that are de facto abolitionist – in other words, states that have not carried out an execution in the last ten years – are at least as slow to legally abolish the death penalty as those that regularly execute. In fact, countries that do not apply capital punishment sometimes develop a deep political attachment to its symbolic presence in the legal system, a marker of the magnitude of the state’s authority over its citizens’ lives. Thus although Suriname, Fiji, and Madagascar had not carried out a single execution since they gained their independence in 1975, 1970, and 1960 respectively, it has taken until this year for their legislatures and governments to do away with the state’s legal power over life and death.

The worldwide movement towards abolition and the resolutely abolitionist stance of many international and regional institutions have certainly contributed to achieving abolition in these states. The commitment of the United Nations to exclude death as a punishment in war crimes tribunals, the European Union’s concerted effort to make universal abolition a foreign policy priority, and the current endeavors to develop a regional African treaty prohibiting capital punishment have all contributed to shifting the death penalty debate from the realm of criminal policy to that of human rights. Moreover, the last few years have seen the number of death penalty free states in the world tip over into a critical majority, accelerating the momentum towards worldwide abolition. After Mongolian President Elbegdorj was elected in 2009 and began systematically commuting all death sentences, he declared that a “majority of the world’s countries have chosen to abolish the death penalty. We should follow this path.”

In contrast, a small minority of countries have significantly increased their use of the death penalty. Last April, Indonesia attracted widespread international criticism and lasting diplomatic fallout for restarting use of the death penalty by executing a group of drug offenders, many of them foreign nationals. Although the government initially said the executions were justified by a drug-related state of “national emergency,” there have been no further executions since, at least in part due to the volume of the international outcry. In December 2014, Pakistan ended a long moratorium and resumed executions at a staggering rate; it has since executed over 300 people. Saudi Arabia has doubled its rate of executions in recent months, beheading at least 150 prisoners so far this year against 87 for all of 2014.

-- Delphine Lourtau

12/07/2015

Death Penalty Worldwide’s New Look!

As some of our regular users have undoubtedly noticed, Death Penalty Worldwide has a new, more dynamic home page, thanks to the brilliant design team at Cornell Law School. In addition to a new color scheme and photos, the Cornell team improved the look of our advanced search page instructions. The result is a brighter and cleaner presentation that makes our content easier to read and understand.

Cornell Law School is an ideal new home for us. With four full-time faculty members whose research interests and professional experience focus largely on efforts to limit the application of the death penalty in the United States and abroad, Cornell is one of the leading centers on scholarship and advocacy around capital punishment. John Blume and Sheri Johnson both have rich scholarly and litigation backgrounds, particularly in the area of racial and ethnic disparities in the administration of the death penalty. They have also been at the forefront of efforts to require states to conform to the Supreme Court’s mandate in Atkins v. Virginia (2002) barring the execution of persons with intellectual disability. Keir Weyble is one of the nation’s leading experts in the area of capital post-conviction remedies.

My research interests lie in the application of international norms restricting the death penalty, including the prohibition on the execution of individuals with mental illnesses and intellectual disabilities and the right to effective legal representation. My clinic students play a key role in the work of Death Penalty Worldwide: over the last nine years, I have taken 60 students to Malawi to improve access to justice for prisoners there. Our most recent project aims to obtain new sentencing hearings for Malawian prisoners who were formerly sentenced to death under the now-defunct mandatory sentencing regime. As of today, fifty-two prisoners have been released as a result of this project.

Delphine Lourtau remains Death Penalty Worldwide’s Research Director. She is currently piloting several research projects that will lead to new publications in 2016. Delphine is fluent in four languages, and her expertise in comparative research has been vital to DPW’s emergence as the most accessible and comprehensive source for international data on the death penalty.

Best wishes to all of our users for the new year ahead.

 -- Sandra Babcock

08/05/2015

Pakistan executes juvenile tortured into confessing crime

 

Early on Tuesday morning, Pakistan executed Shafqat Hussain despite allegations that he may have been only 14 at the time of his offense, and amid serious concerns that the basis of his conviction was a confession extracted by torture. His execution defies two international human rights principles that are universally recognized: the exclusion of children from capital punishment and the absolute prohibition on torture.   

Shafqat’s execution was the country’s 193rd since last December, when Pakistan lifted a 6-year moratorium on civilian executions. Since then, Pakistan has carried out executions at the staggering rate of roughly a person a day, outstripping many of the world’s most active and controversial executioners, including Saudi Arabia, Iraq and the United States. Only Iran and China are now known to execute more people than Pakistan.

The twists and turns taken by Shafqat’s case show a criminal justice system that is failing, amid this onslaught of executions, to implement fundamental human rights or to respect Pakistan’s international commitments in this regard.

Shafqat was originally scheduled to be executed in January 2015, but his execution was stayed after his lawyers at the Justice Project Pakistan challenged his death sentence on the grounds that he was a juvenile at the time of the offense. The Ministry of the Interior promised to conduct an investigation into the circumstances surrounding his arrest, citing the government’s concern for human rights. It took two more execution warrants and two more last-minute stays, however, before an investigation materialized.

The investigation, conducted by Pakistan’s federal police, the Federal Investigation Agency, was so unreliable that it was later called “prima facie illegal” by the Islamabad High Court and deemed “inadmissible’ by the Sindh Human Rights Commission. The organization Reprieve notes that “it ran the full gamut of outrageous misconduct from witness intimidation and evidence tampering to leaking case information to journalists and releasing the results of the inquiry the day before Shafqat’s lawyers were scheduled to give evidence on their client’s behalf.” No other investigations were launched, however, and Shafqat was executed without a court ever examining evidence that he was a minor at the time of the crime and that his “confession” was extracted through torture.

In his decade on death row, Shafqat was informed six times that he had seven days left to live, only to be reprieved at the last minute – an experience that Shafqat described to his lawyers in a piece that was published shortly after his execution. International human rights bodies and national courts around the world have increasingly recognized that such long incarcerations, under a constant threat of death, amount to cruel, inhuman or degrading treatment in violation of international standards.

Pakistan has one of the world’s largest death rows: over 8,500 prisoners are believed to be currently under sentence of death. In light of the systemic failures brought to light by Shafqat Hussain’s case, Pakistan should refrain from any further executions and restore a death penalty moratorium.

-- Delphine Lourtau

05/27/2015

Malawi Man Released, Nineteen Years After Being Sentenced to Death

Nineteen years ago nearly to the day, Abraham Galeta was sentenced to death for the murder of Philip Machesa, his stepfather.  On May 26, 1996, Machesa came home drunk and began to beat Abraham’s mother.  Machesa had beaten her many times before, but this time was worse.  She believed he would kill her, and called out to the neighbors for help.  Word quickly traveled to Abraham (then 20 years old), who rushed to his mother’s house with his uncle Zaima.  Instead of apologizing, Machesa began to berate Abraham for eating his food, then grabbed a chain and hit him.  Furious, Abraham grabbed the chain and hit him back, beating him until he fell.  Machesa died from his injuries.  One witness claimed that Zaima also took part in the beating, and on that basis, both men were condemned to die.

On April 8, 2015, the Malawi High Court agreed to hear mitigating evidence in support of a reduced sentence for both defendants.  Surprisingly, the state requested that the Court re-impose the death sentence.  This was the first case in which the state sought the death penalty since the Malawi courts began holding resentencing hearings pursuant to the High Court’s judgment in Kafantayeni and Others v. Attorney General.  (See my April 24 blog post for more on this).

With the support of the Cornell Human Rights Clinic (including law student Aysha Valery, who assisted in drafting the written submissions to the court) and Reprieve fellow Tom Short, legal aid lawyer Chimwemwe Chithope-Mwale argued persuasively that Abraham’s actions had been provoked by Machesa’s vicious beating of his mother.   

But the prosecution refused even to entertain the argument that Abraham deserved compassion for what he had done.  In essence, I believe this case is as much about the widespread acceptance of violence against women as it is about the death penalty.  If domestic violence were not tolerated in Malawi, it is hard to imagine how the state could possibly request the death penalty for a crime committed under these circumstances.  Indeed, in case after case in which domestic violence is described in judicial proceedings, it is presented as a “quarrel” between husband and wife.  Sometimes it is said that the husband “picked a fight” with his wife.  This quaint phrasing belittles the gravity of domestic violence and the real risk to human life that it presents. 

Thankfully, the Malawi High Court rejected the state’s arguments, and decided that Abraham had served enough time for his crime—although Zaima must serve an additional year before his release.  Abraham walked out of prison yesterday. Here’s a photo of him enjoying his first chips in 19 years at a nearby café:

Abraham sitting - smile-2

Abraham is still young enough that he may be able to marry and have children.  Soon, Zaima will join him in their village, and one hopes that the two men will live long, healthy, and productive lives.  The Malawi High Court is to be commended for this outcome.  As of today, the Malawi courts have resentenced 26 prisoners who were originally sentenced to death under the now-unconstitutional mandatory death sentencing regime.  Sixteen have been released, and another nine have been given determinate sentences.  None have been resentenced to death or life imprisonment.  One hopes that this trend will continue.

 

    -- Sandra Babcock

05/14/2015

Freedom, But No Justice, For Two Innocent Men in Malawi

Last Thursday, brothers Jamu Banda and John Nthara were released from Zomba Central Prison in Malawi, after serving 21 years in prison for a crime they did not commit.  Here’s a photo of their first steps as free men. 

Jamu and John stepping out of prison as free men

Jamu and John were convicted and sentenced to death without legal representation.  Their lawyer abandoned them the day before their trial started.  They had no means of contacting witnesses in their remote village who would have testified that they were innocent of any wrongdoing. The prosecution’s case remained unchallenged, and the court had no choice but to impose the death penalty, which was the mandatory penalty for murder at the time of their trial.  After they were sent to prison, the system simply forgot about them. 

Twenty years after their arrest, Northwestern law students Jessica Dwinell and Hannah Jurowicz interviewed the two men and became convinced of their innocence.  Under my supervision, they launched an investigation with the help of the Paralegal Advisory Services Institute and the Director of Public Prosecutions.  They interviewed seven witnesses, all of whom related consistent accounts of the events that led to the brothers’ arrest.  Here’s what they said.

In December 1994, John and Jamu were farmers in a small village in central Malawi.  Both were married with children; neither had ever been in trouble with the law.  One day, as they were out in the fields, villagers told them that a stranger armed with a machete had broken into one of their homes.  It was apparent to everyone that he was deranged, whether as a result of psychosis or drugs, no one knows.  He was impossible to reason with, and impossible to approach because he threatened to strike anyone who came near.  As the community called for help from village elders, he grabbed a burning piece of wood from a cooking fire and ran into the latrine, which had a thatched roof.  It caught fire.  John, Jamu, and their brother Michael ran into the latrine to save him, but it was too late:  he had already suffered severe burns all over his body.

John, Jamu, and Michael were all taken into custody shortly after the incident.  When the trespasser died 5 days later, all three were charged with murder.  The villagers were adamant that the men were innocent, but they never had a chance to testify at trial. 

The brothers suffered greatly during their long incarceration.  Michael, the youngest brother, tested positive for HIV in 2007, and later contracted malaria and tuberculosis.  By early 2014, he had open sores covering his head and anus, which resulted in severe pain while defecating. He was frail and weak, weighing less than 41 kilos.  In April 2014, after the prosecution agreed that he was likely innocent, he died in prison.  By the time Jamu and John were released, they were both 66 years old. 

Although Jamu and John are now free, this is not a happy story.  Their wrongful conviction was the consequence of a system that failed.  Without a lawyer to defend them, the outcome of their trial was preordained.  While in theory they were entitled to an appeal under Malawi’s Constitution, they had no means of formulating cogent legal arguments and presenting them to the courts.  The state failed to appoint a lawyer to represent them, and all three brothers were illiterate.

In March 2015, the Malawi High Courts began to rehear the cases of all prisoners given mandatory death sentences prior to the 2007 judgment in Kafantayeni and Others v. Attorney General (discussed in my previous blog on April 24).  On March 19, the court heard prosecution and defense arguments in John and Jamu’s case, aided by a pleading drafted by a Cornell law student named Jordan Manalastas.  Although both sides agreed the two men should be released, there was one problem:  their trial record could not be located.

Missing case files are an enormous problem in Malawi. Of the 175 prisoners entitled to be resentenced pursuant to the Kafantayeni judgment, the courts have lost the files of more than half.  The courts have waffled over the consequences that should follow from this sorry state of affairs, but the emerging consensus is that in such cases, prisoners cannot be penalized for the state’s ineptitude.  One recent case rightly concludes that where the missing portion of the file is substantial, material and consequential, the prisoner’s conviction must be set aside.

After receiving supplemental briefing on the issue of missing case files, the High Court issued its judgment on May 7, and ordered the immediate release of both men. 

John and Jamu received a hero’s welcome in their village when they arrived after their long journey from Zomba.  But their lives, and those of their families, were destroyed by their wrongful convictions and long incarceration.  They can never recover those lost years.  

John and Jamu’s case brings home the need for abolition of the death penalty where the state cannot guarantee a fair trial in accordance with international law.  A moratorium does not go far enough.  Malawi has not executed anyone since 1994, but it has continued to sentence individuals to death—some of whom, like John and Jamu, are innocent of the crimes for which they were convicted.  And Malawi is not unique in this respect:  in South Sudan, most of the people currently on death row had no legal representation whatsoever at the time of their trials. 

Until the death penalty is abolished, states must provide a means for post-conviction review of the convictions and sentences of those sentenced to death.  Without it, there is no question that other innocent men and women will risk execution for crimes they did not commit.

-- Sandra Babcock