« March 2014 | Main | May 2014 »

8 posts from April 2014

04/30/2014

Oklahoma’s Execution Process: Unlawful, Inhumane, and Immoral

Last night, Oklahoma executed Clayton Lockett using a combination of drugs that had never before been used to kill a human being.  Oklahoma refused to disclose the source of the drugs in the weeks leading up to the execution, dismissing attorneys’ concerns that using the untested drugs could cause an excruciatingly painful death.  The Oklahoma Supreme Court issued a short-lived stay of execution, but then backed down after pressure from the Oklahoma Governor (who said she would disregard the Court’s stay order) and Oklahoma legislators (who threatened to impeach the justices).

The sequence of events leading to Lockett’s death has been described by a number of sources, including the New York Times.  There is no dispute that Lockett died an agonizing death.  He was executed using a three-drug combination that included midazolam, pancuronium bromide, and potassium choride.  The first drug, midazolam, should have rendered him unconscious, but it failed to do so—either because it wasn’t administered in a high enough dose, or because it was not properly injected into one of his veins.  The second drug, pancuronium bromide, should have paralyzed him so that he couldn’t move.  Yet Lockett was still moving after more than 13 minutes had passed—and by some accounts, he was writhing in pain, grimacing, speaking, and struggling to sit up.  The third drug, potassium chloride, causes a massive heart attack that experts say would cause unbearable pain if the prisoner is not sedated.  In fact, Clayton Lockett died of a heart attack 43 minutes after the drugs were first injected into his body.

Attorneys around the country have fought to persuade the courts that they should not permit executions to go forward in the absence of evidence that lethal injection drugs are reliable and effective.  Courts in Texas, Oklahoma, and Missouri, among other states, have rejected these arguments, largely because of a U.S. Supreme Court decision called Baze v. Rees.  In Baze, the Supreme Court dismissed the petitioner’s argument that poorly trained prison staff could administer improper doses of the sedative that renders a prisoner unconscious.  In essence, the Supreme Court held that an execution method that results in pain, “either by accident or as an inescapable consequence of death,” does not constitute cruel and unusual punishment.  The Court shifted the burden to the prisoner to establish that “the State’s lethal injection protocol creates a demonstrated risk of severe pain.”

Baze must now be re-examined.  The botched execution of Clayton Lockett calls for effective judicial oversight of state lethal injection protocols.  Moreover, there can be little doubt that an execution procedure that results in prolonged agony for the prisoner is not only inhumane, it is torturous. 

More than 20 years ago, in Ng v. Canada, the United Nations Human Rights Committee held that executing prisoners using the gas chamber constituted cruel, inhuman or degrading treatment or punishment.  Their rationale:  “asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes.”  In light of the 43 minutes that it took Clayton Lockett to die, there can be little doubt that his execution violated international norms providing that the death penalty can only be carried out in a manner that causes “the least possible physical and mental suffering.” 

Given the evidence that Oklahoma's actions violated the Torture Convention, President Obama should ensure that an impartial investigation is carried out under Article 12 of the Convention.

 

-- Sandra Babcock

 

04/21/2014

The Impact of the Death Penalty on Defense Lawyers

Our guest blogger, Susannah Sheffer, is the author of Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys, and has worked for the past decade as staff writer at Murder Victims' Families for Human Rights. 

Having worked for years with families of murder victims and families of people who have been executed, I have spent many hours listening and trying to learn as much as I can about the impact of both murder and the death penalty. More recently, I got curious about how capital defense attorneys fit into this emotional landscape, particularly those attorneys who have lost clients to execution. When I began interviewing attorneys and exploring the impact of the immense responsibility and loss that is inherent in their work, it became clear that this was largely unexplored territory. Capital defense attorneys don't tend to talk openly about how their work affects them and what it is like, personally, to do what they do and see what they see. 

The book Fighting for Their Lives http://www.susannahsheffer.com/fighting-for-their-lives.html, which came out last year, is the result of interviews with 20 post-conviction capital defense attorneys in the United States. A few weeks ago, Penal Reform International invited me to contribute a short briefing paper on the topic. It was meant to be a summary of the material in Fighting for Their Lives, but given that PRI is an international organization, it made sense to include voices from lawyers in other countries as well. Despite the differences in some aspects of the death penalty and of capital defense, it seems to me that the emotional impact on the attorneys is essentially the same. Here is the paper that PRI published earlier this month:

http://www.penalreform.org/resource/fighting-clients-lives-impact-death-penalty-defence-lawyers.

 

-- Susannah Sheffer

04/16/2014

The Death Penalty in Iran – No Improvement and Broken Promises

Despite a change in leadership and the introduction of an amended penal code, Iran’s aggressive use of the death penalty continues unabated. Our recent assessment of Iran (which you can read here) confirms that hundreds of people are regularly executed every year.  Furthermore, Iran has resumed secretly executing large groups of people, after temporarily halting the practice in 2011 due to international criticism.  The number of people executed in one occasion has been as high as 50.

Amendments to the Islamic Penal Code in 2013 did not limit the application of the death penalty.  On the contrary, the Penal Code retained the death penalty for most crimes that were previously death-eligible and added a few more.  It expanded upon the category of national security crimes, including vaguely worded crimes like “sowing corruption” and “armed rebellion,” which further criminalize political dissent.   The Penal Code also continues to treat some “crimes” as capital offences even though they do not meet the “most serious” standard under international law, which requires that capital offenses result in the death of a person.  Particularly troubling, the amended Penal Code retains stoning as a possible method of execution for individuals convicted of adultery and apostasy.

Iran continues to be the world’s biggest executioner of child offenders, despite requests from the former head of judiciary in 2003 and 2008 that judges not issue execution verdicts for children under eighteen. Based on reports by non-governmental organizations, we estimate that nineteen juveniles have been executed in the past five years. Although the Iranian government has stated that the amended Penal Code abolishes the execution of children, it only prohibits the execution of children for drug offenses and other “discretionary crimes.”  Article 91 of the amended Islamic Penal Code permits the execution of juveniles for other offenses, such as crimes under shariah, if judges deem that the juvenile is mature enough to understand the nature and consequences of the offense. Iran Human Rights has reported that just last month, one person was executed for a murder allegedly committed when he was 17.[1]

The new Islamic Penal Code amendments do nothing to improve the administration of the death penalty in Iran.  Individuals can be executed for a great number of crimes with minimal due process protections.  Iran, regrettably, continues to steer further and further away from compliance with its international human rights obligations.

 

-- Shubra Ohri



[1] Iran Human Rights, Execution of a minor offender in Iran, http://iranhr.net/2014/03/execution-of-a-minor-offender-in-iran, Mar. 7, 2014. 

04/14/2014

The Consequences of Wrongfully Convicting the World’s Longest Serving Death Row Inmate

Iwao Hakamada, a man widely believed to be the world’s longest serving death row inmate, may have been serving time for nothing at all.  On March 27, 2014, the Shizouka District Court in Japan suspended his sentence because new evidence suggests that he was wrongfully convicted.  Mr. Hakamada was sentenced to death in 1968 for murder, but new DNA evidence points to his innocence, leading many to believe that his original conviction was based on falsified evidence.  The Court released Hakamada from the Tokyo Detention House after his petition for a retrial was granted.  To date, Hakamda has served nearly 50 years on death row; 30 of those years were spent in solitary confinement.  Hakamada is not the first person in Japan to be wrongfully convicted, but his case exemplifies the abhorrent consequences of violations to the right to a fair trial.

Hakamada’s retrial represents the 6th time since 1945 that the courts in Japan have granted a retrial in a death penalty case. Incidences of wrongful convictions are being uncovered more frequently in Japan.  This may be on account of pretrial detentions in police custody, the daiyo kangoku system, which can lead to lengthy interrogations.  The United Nations Committee Against Torture has expressed concern about the system, stating that the lack of effective monitoring and reported abuse raised concerns about human rights violations.  Indeed, physical and psychological torture during interrogations  is a significant source of false confessions.  Iwao Hakamda’s interrogation lasted for 20 days, and although he confessed during the interrogation, he ultimately claimed he was innocent at trial. About half of the people on death row in Japan claim they are not guilty of all or part of the charges for which they have been convicted.

If exonerated, Hakamada has a right to compensation under Japanese and international law.  Article 14 of the International Covenant on Civil and Political Rights protects the right to compensation, which can be satisfied in several ways.  Conferring discretion to a judicial body to determine compensation is the means that Japan has chosen to fulfill its obligations under the ICCPR.  Article 40 of the Japanese Constitution stipulates that courts will decide the amount of compensation as provided by law.  The Criminal Compensation Act further provides that the amount of compensation shall be determined after considering the length of detention, mental and physical loss suffered, and negligence by the police and prosecutors.

Hakamada’s resentencing, accompanied by public outrage, will add further ammunition to the movement for criminal justice reform in Japan.  For more information on wrongful convictions under international law, see the Death Penalty Worldwide’s post on innocence and wrongful convictions here.

-- Shubra Ohri

04/10/2014

The World’s Top Executioner: Capital Punishment in China

Death Penalty Worldwide has just updated its research on capital punishment in China. China executes thousands of people every year, but it’s difficult to provide exact figures because of the secrecy surrounding executions.  Another non-governmental organization, the Dui Hua Foundation, estimates that China executed 3000 people in 2013—more than the rest of the world put together.  

The number of executions in China is particularly troubling in light of reports that capital defendants do not receive fair trials according to international standards. Suspects are sometimes denied access to attorneys, lawyers are barred from representing certain clients, and courts withhold evidence in politically sensitive cases. Moreover, defendants are presumed guilty and must prove their innocence, with the result that 99.9% of criminal defendants are found guilty.  Appeals are rarely successful. Recent cases have also raised the concern that the death penalty is applied primarily against the poor. In September 2013, an impoverished street vendor who claimed to have stabbed two officers in self-defense during an interrogation was executed for murder. His attorney maintains that key evidence was missing during his trial. In contrast, Gu Kailai, the wife of former Politburo member Bo Xilai and daughter of a revolutionary general, was given a suspended death sentence in August 2012 on grounds of mental illness after being convicted of planning and carrying out the murder of a foreign businessman.

Despite China’s seeming enthusiasm for the death penalty, the country has enacted important reforms in recent years aimed at reducing the total number of executions.  In 2007, the Supreme People’s Court reclaimed its right to review every death sentence, after which the estimated number of executions was reduced by half. China took a further step away from the death penalty in 2011 by reducing the number of death-eligible crimes from 68 to 55 and banning the death penalty against those aged over 75 in an amendment to the Criminal Law. Recently, the president of the Supreme People’s Court publicly urged courts to hand out fewer death sentences. China may be far from abolishing capital punishment, but these are noteworthy reforms for the world’s top executioner.

Although the Chinese government is striving to curb its use of the death penalty through legal reform, it has yet to ratify any international treaties that impose restrictions on the use of the death penalty. China is not a party to the ICCPR and has repeatedly voted against the UN General Assembly’s Moratorium on the Death Penalty Resolution. Even in the absence of international commitments, China should enact reforms that will enhance fair trial protections and reduce the arbitrary application of the death penalty. The extent to which Chinese leaders are willing to implement additional domestic reforms will be paramount in China’s efforts to reduce the volume of executions.

-- Jee Won Oh

You can access Death Penalty Worldwide’s full research on capital punishment in China here.  

04/09/2014

Capital Punishment in Eritrea

Death Penalty Worldwide recently updated its research on the death penalty in Eritrea. You can read the full Eritrea report here.

04/07/2014

Political Fragmentation and the Death Penalty under the Palestinian National Authority

Since its establishment in 1994, the Palestinian National Authority (“PNA”) has issued 131 death sentences against Palestinian civilians charged with various crimes. To date, at least 29 of these sentences have been carried out. Sixteen executions were carried out by the Hamas de facto government in Gaza, which resumed executions in 2009, while the remaining 13 executions were carried out by the PNA in the West Bank. All of the PNA’s executions were carried out before 2005.  This last fact illustrates the divergent policies by the PNA in the West Bank and the Gaza de facto government regarding the issue of the death penalty.

Indeed, one of the main barriers to abolition of capital punishment in the PNA is the state of deep fragmentation that characterizes the PNA in the Occupied Territories (“POT”). This fragmentation is partly political:  in 2007, inter-Palestinian clashes in the Gaza strip between Fatah and Hamas factions led to the establishment of two contesting Palestinian authorities, one in the West Bank controlled by President Mahmud Abbas and the Fatah, and another in the Gaza strip as a de facto administration controlled by Hamas. The question of the death penalty became a highly political issue between these two parties in 2009 after president Abbas’ term in office expired.  No elections could be held to replace him because Hamas and Fatah failed to reach a political settlement regarding the necessity for new elections.  The political differences between the two authorities are exacerbated by the Israeli siege on the Gaza Strip that has isolated Gaza from the outside world and from the rest of the West Bank, as well as the international political and economic pressure exerted on the PNA, mainly by the American administration and Israel, to resist accommodating Hamas (thereby preventing national unity in the POT). This inability to hold new elections,  amongst other things, meant that there was a constitutional vacuum regarding the question of the ratification of death sentences, since imposing the death penalty under the Palestinian judicial system requires the approval of the PNA President. This constitutional vacuum led the Interior Ministry in Gaza to resume carrying out death sentences without the mandated presidential approval.

The interior minister’s decision in Gaza to carry out death sentences has more to do with inter-Palestinian political struggles over constitutional power than with the actual debate on the question of the death penalty in Palestinian society. The decision was designed to challenge President Mahmoud Abbas’s presidential authority on the one hand, and on the other, to assert Hamas’ political authority and constitutional legitimacy as the sole legally elected government in the Palestinian occupied territory. This decision is consistent with a growing political and legal strategy adopted by both sides that adds to an ever-growing number of human rights violations and breaches of the rule of law in an effort to oppress political opponents on both sides in the controlled area. As such, the resumption of death penalty was accompanied by other human rights violations like widespread torture, the increased use of military courts for both criminal and political prisoners, and a general disrespect of the law.     

But the fragmentation in the PNA over the application of the death penalty is not merely political:  its origins are rooted in the unique and complex legal, geographical and historical context of the POT and the creation of the PNA.   No fewer than three different Penal Codes entrench the death penalty. These codes are the Jordanian Penal Law No. 16 of 1960 which contains sixteen different crimes punishable by death (this code is applicable to the West Bank); the Penal Law No. 74 of 1936 amended by Egyptian Military Decree No. 555 of 1957, which contains fifteen different capital crimes (this code is applicable in the Gaza strip); and lastly the PLO Revolutionary Code of 1979 that was applicable to the diaspora and which contains 42 different crimes punishable by death. These different codes are, as one can imagine, archaic, ambivalent in their language, and most important many of the capital offenses they define have to do with political crimes against the states.

Jurisdiction over capital crimes is also fragmented: some capital crimes are referred to military courts or state national security courts, and others are referred to civilian courts. This fragmentation creates problems such as the arbitrary use of a court by the state, or civilians being charged in military courts, thus violating their rights to due process as well as their rights to appeal.  The fragmentation of the judicial system and the involvement of military courts in civilian life weakens the power of the judicial system to develop better legal protections for individuals charged with capital crimes.

The judicial system is further compromised by Israel’s application of its own legal system in the occupied territories, which weakens the PNA judicial system and prevents it from developing a strong, independent and coherent judiciary that can restrain the executive branch.

There are of course many other continuing obstacles to the ongoing attempts by civil society, legislatures and national and international bodies to bring the PNA to abolish the death penalty - such as the ongoing Israeli occupation, the Israeli use of Palestinian collaborators for targeted killing, the  enforcement of  Israel’s security apparatus that undermines the PNA’s effective control over its population in terms of maintaining law and order, and finally the ongoing political crises of 2007 and the constitutional crises of 2009. One possible and effective solution to these crises would be the creation of a new unitary PNA Penal Code and the abandonment of the other Penal Codes along with the death penalties they mandate. To reach this outcome, however, the PNA must hold new elections or establish an interim government with Hamas that will have the mandate to revise the PNA Penal Code. In the short term, the president of the PNA, Mr. Abbas, can issue a presidential decree declaring that he will not sign any execution orders until a more modern and unified Penal Code is implemented. One more step towards abolition would be for the PNA to sign the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, in order to establish an international obligation for the future PNA government to abolish the capital punishment in law. 

 

-- Tamer Massalha                             

04/02/2014

Death row kids

Yemen is a party to the Convention on the Rights of the Child, which expressly prohibits the execution of individuals who were under the age of 18 at the time of the offense for which they were convicted.  Article 31 of Yemen’s Evidence Code also expressly prohibits the execution of a person who at the time of the alleged crime was a minor: “If the perpetrator was between fifteen and eighteen of age he shall be sentenced to no more than half the maximum penalty prescribed by the law, and when such punishment is the death penalty he shall be sentenced instead to imprisonment for a term of not less than three years and not more than ten years.” Article 47 of the Yemeni constitution states that, “there shall be no crime nor a punishment without a reference in the law.” Furthermore, Article 48 (a) states that, “the state will ensure personal freedom, dignity and security.” And Article 48 (h) of the same constitution states that “physical or psychological torture is a crime punishable by the law.

These constitutional principles taken together mean that, in theory, there should be no Yemeni children on death row. However, as a Human Rights Watch (“HRW”) report shows,[1] Yemen is one of four countries that still executes children in disregard of both national and international law.

According to the HRW report, as of March 4, 2013 there were 23 juveniles on death row in Yemen, all of whom had been convicted and sentenced to death despite being under the age of 18 at the time of the crime, and despite serious allegations that they were systematically tortured during their interrogation.

Juvenile convictions are often obtained in Yemen because of the simple fact that many individuals have no governmental ID or birth certificate to prove their age at the time of the crime or at the time of the future execution. As such, Yemen fails twice in observing its obligations under international law. First, each state is obligated to provide children with a universal, mandatory, free and adequate registration system. Such an obligation is widely recognized under various instruments of international law. For example, the right of registration is recognized in Article 24 of the ICCPR that states, “Every child shall be registered immediately after birth.”   It had been also recognized in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.  In its 1997 “Guidelines for Action on Children in the Criminal Justice System,” the Economic and Social Council (ECOSOC) stated that, “States should ensure the effectiveness of their birth registration programmes.  In those instances where the age of the child involved in the justice system is unknown, measures should be taken to ensure that the true age of the child is ascertained by independent and objective assessment.

The second failure has to do with the judiciary’s reluctance to protect juvenile offenders by giving them access to a reliable medical test to determine their actual age and by giving them the right to contest their age determination. A child without a provable date of birth is extremely vulnerable, since he will not have the legal and procedural rights and assurances that are linked to his juvenile status, particularly in relation to sentencing.     

The risk of sentencing children to death becomes more pronounced when the judiciary fails to ensure that the burden of proof for establishing a juvenile’s age falls on the state. Such standards were established by the Committee on the Rights of the Child in its 10th General Comment where the Committee stated: “If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.”  In other words, in case of doubt as to a defendant’s actual age, the court must observe and extend the presumption of innocence and the doubt shall be interpreted in favor of the suspect.

However, as was documented by HRW, in many cases the Yemeni courts and the justice system in general failed to observe these well-established international standards and chose to ignore the claims and the evidence raised by juveniles, making it virtually impossible, without the existence of official documents, to convince the court of the juvenile’s age at the time of the crime. By doing so, the justice system denies children the protection of Yemen’s law forbidding the imposition of the death penalty on juvenile offenders. By denying them their right to prove their age, the court fails its obligation to protect and observe the right of minors not to be sentenced as adults, in accordance with article 31 of the Yemeni Evidence Law that clearly states that: “A person does not have a full criminal liability if he was less than eighteen at the time of the committed act, and if the age of the accused cannot be established the judge must estimate his age with help of an expert.

Finally, the HRW report shows that some of these juveniles were sentenced to death based on confessions that were extracted by torture and cruel and degrading treatment. This practice must stop immediately. Yemen’s government and its judiciary must discharge their responsibility to protect children in conflict with the law. They must investigate the allegations of widespread torture in its prisons and during police investigations. The government should also re-open all criminal cases which ended with death sentences for alleged juvenile offenders.

For more information, watch this video of Human Rights Watch’s report:

http://www.youtube.com/watch?v=qUo16UkIF0Q

 

--Tamer Massalha



[1] Human Rights Watch, “Look at Us with a Merciful Eye”, March 4, 2013. http://www.hrw.org/reports/2013/03/04/look-us-merciful-eye.