Last Friday, Judge Brinkema reaffirmed her earlier ruling that it is unconstitutional to automatically put death row inmates in solitary confinement. She rejected Virginia’s arguments that she should delay the implementation of her order on the grounds that it would be too difficult for the prisons to make the changes that she demanded. Before her November 2013 ruling, capital offenders in Virginia were automatically placed in solitary confinement upon sentencing, without the possibility of subsequent review. Judge Brinkema’s ruling is significant in bringing US practices one step closer to being in line with international human rights law. Her holding is consistent with the growing international consensus that recognizes the cruel and inhuman aspects of solitary confinement.
Chinese Version of the Manual "Representing Individuals Facing the Death Penalty" Published Online for Use by the World’s Lawyers
On the occasion of Cities for Life Day on November 30, the Taiwan Alliance to End the Death Penalty (TAEDP) and the World Coalition Against the Death Penalty are proud to announce the online publication of the Chinese version of Representing Individuals Facing the Death Penalty: A Best Practices Manual. This publication is intended for lawyers who defend people facing the death penalty around the world.
This guide was made possible through cooperation between Death Penalty Worldwide, a website managed by Sandra Babcock, Professor at the Center for International Human Rights, Northwestern University School of Law; the World Coalition Against the Death Penalty; and lawyers from around 15 countries including Taiwan and China. The traditional Chinese version follows the publication of the English and French editions last May. It was revised by TAEDP, lawyers Weng Guoyan, Li Ailun, Chen Youning and Professor Jin Menghua. This version is now available for download by defence lawyers working on capital cases. (A simplified Chinese version will soon follow after revisions by lawyer Teng Biao of China Against the Death Penalty.) You can download the guide here: http://www.deathpenaltyworldwide.org/pdf/death-penalty-manual-chinese.pdf
In a statement welcoming the publication of the Chinese version, Prof Babcock said: “Taiwanese and Chinese lawyers are facing enormous difficulties when they defend people facing the death penalty. Those cases are a lot thornier than the average criminal case. I hope this manual will be useful to them and will help them advocate more efficiently for their clients’ rights to a fair trial, from the time of their arrest to their final appeal.”
TAEDP, the Legal Aid Foundation and the Human Rights Commission of the Taipei Bar Association are planning a series of workshops in the New Year to teach lawyers how to best use the guide. The three organizations are also planning to adapt the manual to publish a guide dedicated to defence lawyers in capital cases in Taiwan specifically by the end of 2014.
For more information, watch the following videos:
- Sandra Babcock presents Representing Individuals Facing the Death Penalty: A Best Practices Manual
- Weng Guoyan of the Human Rights Commission of the Taipei Bar Association explains the difficulties lawyers experience when representing defendants in capital cases in Taiwan and how useful the guide is going to be.
- Teng Biao of China Against the Death Penalty explains the difficulties faced by lawyers in capital cases in China and the role of the guide.
On November 12, 2013, Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia held that automatic and permanent placement of death row prisoners in solitary confinement violates the U.S. Constitution in Prieto v. Clark. In the United States, a majority of prisoners on death row will serve years in solitary confinement, awaiting execution. Although international human rights bodies have recognized that solitary confinement can constitute a form of torture; Prieto is one of a few U.S. cases that highlight the inhuman aspects of prolonged solitary confinement.
In Virginia, capital offenders are automatically placed in solitary confinement upon sentencing, without the possibility of subsequent classification review. Death row prisoners are isolated in their cells for 23 hours a day, the lights are always on, and they are only allowed five hours of recreation a week. The judge described these conditions as “dehumanizing.”
In her holding, Judge Brinkema commented that while not all incidences of solitary confinement are unconstitutional, conditions that constitute “atypical and significant, hardship” without the potential for reclassification violate the Due Process Clause of the Fourteenth Amendment. The plaintiff’s confinement, in this case, was held to be such a hardship. Judge Brinkema noted that the prisoner’s solitary confinement furthered few, if any, penological interests.
Solitary confinement, in combination with the mental torment of a pending execution, causes severe mental suffering. The UN Special Rapporteur on Torture recently concluded that solitary confinement can amount to torture because of the devastating and irreversible psychological effects it has on detainees. Likewise, the Human Rights Committee concluded that prolonged solitary confinement can amount to torture or other cruel, inhuman or degrading treatment. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment explains that torture includes “the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses.”
Although Prieto does not cite this international authority, the court’s conclusions are consistent with the growing consensus that solitary confinement is unnecessarily cruel and inhumane. Judge Brinkema’s holding, which explicitly recognizes the cruel and inhuman aspects of solitary confinement, represents a step in the right direction.
- Shubra Ohri
Although North Korea goes to great lengths to conceal its use of capital punishment, our research reveals that the country sentences its citizens to death for an astonishing array of crimes, ranging from political offenses to petty theft. We have just updated our research based on our review of North Korea’s amendment to its Penal Code (in the original language) and other sources that shed light on the country’s arbitrary use of the death penalty as an instrument of state power.
The North Korean Criminal Code includes 22 death-eligible crimes, most of them defined simply as “especially serious” categories of criminal offenses. But the term “especially serious” is interpreted with Orwellian irony: executions have reportedly been carried out for offenses such as stealing six cows or half a sack of rice. Perhaps the most farcical provision of the North Korean penal code provides that an individual convicted of an “especially serious” case of being a “scoundrel” is punishable by death.
Death sentences may also be imposed for political offenses such as “ideological divergence,” “opposing socialism,” and “counterrevolutionary crimes.” In practice, the regime appears to use capital punishment not only to punish perceived dissidents, but also to rid itself of individuals who have somehow embarrassed the regime. For instance, a former Cabinet official who was in charge of talks with South Korea was reportedly executed by firing squad for policy failure in 2010, and in 2012, Kim Chol, North Korea’s Vice Minister of the People’s Armed Forces, was reportedly executed for drinking alcohol during the mourning period for former leader Kim Jong-il.
Most executions reportedly take place in North Korea’s notorious political prison camps that hold prisoners who have allegedly committed political crimes, along with every member of their families for “guilt by association.” Political or “anti-state” offenses are considered most serious, and those who are convicted of such offenses are never released from detention. People have reportedly been detained for listening to South Korean broadcasts, possessing Bibles (in spite of constitutional protection of religious freedom), and attempting to flee the country.
At the political prison camps, living conditions are reported to be barely habitable. In Yodok camp, for instance, detainees and prison guards report that extreme hunger causes inmates to resort to eating snakes or rats. Sanitation is poor and prisoners do not change their clothes during their incarceration and are rarely able to bathe or wash their clothing. One toilet is reportedly shared by 200 prisoners, no blankets are available in the winter, and public executions are carried out in front of prisoners, including executions of family members. Yet North Korean representatives have told the UN Human Rights Council that public executions are carried out to punish “very brutal violent crimes” and used only “in very exceptional cases.”
North Korea’s practices provide the clearest example of how the death penalty may be used for political ends. With no respect for the rule of law, no independent judiciary, and no respect for fundamental human rights, the current regime is unlikely to reform its use of the death penalty in the near future.
-- Jee Won Oh and Sandra Babcock
Based on newly obtained information on South Korea’s criminal legislation (in the original language), Death Penalty Worldwide has significantly updated and revised its research on South Korea. Since its last execution in December 1997, South Korea’s stance on the death penalty has seemed rather ambivalent. When former President Kim Dae-jung took office in 1998, it seemed as though South Korea was beginning to inch toward abolition. Kim was a former death row inmate and an outspoken opponent of the death penalty. Yet efforts to abolish capital punishment have never moved forward – the National Assembly has failed to pass three bills aimed at abolition and the Constitutional Court has twice upheld the death penalty in the face of constitutional challenges. In fact, South Korea passed new legislation in 2010 that expanded the number of death-eligible crimes.
South Korea’s official position in the international arena has been just as ambivalent. While repeatedly abstaining from voting on the UN General Assembly’s Moratorium on the Death Penalty Resolution, the South Korean government has expressed its willingness to consider ratifying the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.
It appears, however, as though South Korea may be moving backwards in the midst of a global trend against the death penalty. Current President Park Geun-hye publicly expressed her support for capital punishment five months prior to taking office, and a recent survey of college students indicated that 76% of the respondents were in favor of resuming executions in response to the rise in heinous crimes. In 2012, the government delegation stated at South Korea’s Universal Periodic Review at the UN Human Rights Council that the abolition of the death penalty required careful review of “public opinion and … social realities.” In our view, an official moratorium on executions, let alone abolition of the death penalty, cannot be expected in the short term.
-- Jee Won Oh
In Bangkok this week, representatives from several Southeast Asian governments have come together to discuss the prospects for abolition in the region. The conference, hosted by the office of the UN High Commissioner on Human Rights and the Thai Ministry of Justice, has already generated surprising new information on government plans for abolition in the region. Long considered a stronghold of the death penalty, the reality on the ground is much more complex.
In his opening remarks at the conference, Dr. Naras Savestanan of the Thai Ministry of Justice announced that the government will soon propose legislation to abolish the death penalty in the country. Dr. Savestanan catalogued the problems with the application of the death penalty, including the possibility of wrongful convictions, racial and ethnic bias in its application, the lack of any deterrent value, and the pain associated with execution. He concluded that the death penalty was a cruel and unreasonable punishment. If Thailand abolishes the death penalty, it will become the fourth abolitionist nation in the region along with the Philippines, Cambodia, and Mongolia.
Myanmar’s government has prevented all executions in the country as a matter of official policy since 1988. According to the Myanmar Attorney General’s office, the country is now considering ratification of the ICCPR, and will continue its moratorium while it decides whether to move toward abolition. Laos ratified the Torture Convention just last year, and has had a de facto moratorium for more than 20 years. Mr. Phoukhong Sisoulath from the Laos Foreign Ministry commented that the concept of proportionality in Laos dates back several hundred years to one of the country’s early kings, who was revered for his humane approach to the treatment of prisoners. Laos is now examining its penal code with an eye toward reducing the number of death-eligible crimes. Brunei has not executed any prisoners since 1957.
One of the most interesting panel presentations during the seminar was given by Dr. Mai Sato from the Centre for Criminology at Oxford University. Dr. Sato explained how opinion polls on the death penalty in Japan, which are frequently cited by the Japanese government to justify its retention, are skewed by the nature of the questions asked. Official opinion polls indicate that an overwhelming majority (about 86%) of Japanese residents oppose abolition of the death penalty. Her own polling revealed that the actual number of “hard core” supporters of the death penalty is around 56% of the population. Moreover, when those hard core supporters of the death penalty are subjected to “deliberative polling,” which solicits their views after they have discussed the application of the death penalty with experts, about half of them changed their minds.
-- Sandra Babcock
June 14, 2013
Today in Madrid, Death Penalty Worldwide released the first-ever international manual of best practices for capital defense lawyers. Lawyers from Pakistan, China, Taiwan, Nigeria, Uganda, Cameroon, Guinea, Belgium, France, Portugal and the United States contributed to the manual, which draws from international human rights law as well as the practical experience of defense attorneys around the world. It is available on DPW’s website in both English and French at http://www.deathpenaltyworldwide.org/dpw-publications.cfm and http://www.deathpenaltyworldwide.org/dpw-publications.cfm?language=fr.
Lawyers in the global south– particularly in Africa, Asia, and the Middle East—have little recourse to training materials to guide them in defending a capital case. Defense attorneys are almost universally underfunded, and most have never attended a single training session on how to
handle the representation of a person who is facing the death penalty. The new manual is a step-by-step guide designed to assist a legal representative through all stages of a capital case, from the moment of an individual’s arrest to their final clemency application. Among other things, the manual provides practical guidance regarding pretrial litigation, investigation of mitigating
evidence, trial strategy, working with the media, appeals, and petitions to international human rights bodies.
At the launch of the manual, lawyers from Pakistan and China discussed the challenges they face in defending individuals facing the death penalty. Sarah Belal, the director of Justice Project Pakistan, described how she has struggled to educate lawyers in her own country about the importance of
investigation in capital cases. “Many lawyers in Pakistan have never attended a training session in their entire professional careers. If lawyers begin to implement the practices described in this manual, countless prisoners will be saved from execution.”
The manual has already been translated into French, and will be translated into Chinese and Arabic by the end of 2013. The Minneapolis-based law firm of Fredrikson and Byron provided critical support in the production of the manual, along with an international team of lawyers, academics, and students associated with Northwestern University’s Center for International Human
Death Penalty Worldwide recently updated its entry for India. For the first time in eight years, India has carried out two executions, the first in November 2012 with the hanging of 2008 Mumbai attack gunman Mohammad Ajmal Amir Qasab and the second in February 2013 with the hanging of Muhammad Afzal, who was convicted of plotting the 2001 attack on India’s Parliament. Commentators have linked both executions to the new president’s swift denials of clemency, which break with his predecessors’ practice of delaying a decision and thus creating a de facto moratorium on the use of capital punishment. Both recent executions also came shrouded in controversial secrecy. The public and the convicted prisoners’ families were not informed of the new president’s clemency denial or the executions until after they took place.
Following the highly publicized case of a 23-year-old woman who was gang raped and murdered, India also recently expanded its laws to include the death penalty as punishment for some instances of rape that cause the victim to fall into a permanent “vegetative state.” The heinousness of the crime prompted wide protests throughout the country demanding swifter and harsher punishments. Also in response to the recent rape case, the age of juvenile eligibility for punishment has been brought into question because one of the accused was allegedly 17 at the time of the offense. Some states have proposed bills lowering the age of eligibility for capital punishment from 18 to 16 - in contravention of international human rights treaties. However, the Indian government has made it clear that it would not seek to expose juveniles to the death penalty, and has begun juvenile proceedings against the 17-year-old accused.
-- Sophia Bairaktaris
Death Penalty Worldwide recently updated its entry for Afghanistan. Over the last few years, executions in Afghanistan had taken placeinfrequently. There was even a brief, 2-year unofficial moratorium in 2009 and 2010, interrupted in June 2011 with the hanging of two men convicted of killing at least 40 people during a bank siege in Jalalabad in February 2011. This past November, however, fourteen hangings took place within two consecutive days for offenses ranging from aggravated rape and murder to terrorism-related acts. On November 20, eight prisoners were hanged in Pol-e Charki Prison. According to a government official quoted by media sources, some of the men were convicted of rape and murder of women and children and some were convicted of murdering security officers. Another six men, alleged to be members of the Taliban, were hanged on November 21. The six men hanged were convicted of terrorist acts, including plotting suicide bombings, kidnappings and assassinations. Moreover, President Hamid Karzai approved a total of 16 executions, so an additional two executions may soon occur. It is unclear what prompted executions to resume at this accelerated pace.
In addition to state–imposed executions, the death penalty continues to be imposed by the Taliban and tribal courts for social crimes under harsh interpretations of Shariah law in areas outside the Afghan government’s direct control, according to the 2011 U.N. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, In one case in August 2010, the Taliban carried out the execution by stoning of a couple that had eloped without permission. In a more recent incident in 2012, the Taliban executed a 22-year-old woman accused of adultery without an actual trial.
The full entry on capital punishment in Afghanistan can be read here.
-- Sophia Bairaktaris
UN General Assembly Committee adopts draft resolution on death penalty moratorium and for the first time comdemns executions based on gender identity
On November 19, 2012, a majority of the world’s states voted in favor of a resolution calling upon all States to “establish a moratorium on executions with a view to abolishing the death penalty” (see full text of the resolution here). The vote took place in the UN General Assembly’s Third Committee, which addresses social, humanitarian and human rights issues. This is the Third Committee’s fourth resolution for a moratorium on the use of the death penalty, and the vote paves the way for a full General Assembly vote in late December.
After resolutions passed in 2007, 2008 and 2010, this year’s resolution looks set to be approved by a record-breaking number of states. In the Third Committee, 110 member states voted in favor of the resolution, which had been sponsored by 91 states. Thirty-nine states voted against (2 less than in 2010) and thirty-six states abstained from voting (1 more than in 2010). Eight states were absent from the vote.
While this year’s resolution garnered only one more favorable vote than in 2010, the numbers mask several significant and encouraging changes of position, notably an increase in support from Africa. Among African nations, the Central African Republic, Niger and South Sudan voted in support of the resolution for the first time. South Sudan’s vote is particularly meaningful given recent reports that legal representation is unavailable for many defendants who face the death penalty.
The break-down of the vote was more mixed for Asia and the Arab-speaking world, but there, too, signs of change emerged. While Sri Lanka and Maldives withdrew their prior support and abstained, three retentionist states, Afghanistan, Indonesia and Papua New Guinea, passed from opposition to abstention. Tunisia supported the resolution for the first time, and although Morocco abstained, its representative delivered a statement recognizing the importance of campaigning efforts to raise awareness around death penalty issues. Oman and Mauritania, meanwhile, voted against the resolution after previously abstaining.
One day later, on November 20, the Third Committee also passed its twelfth resolution condemning extrajudicial, summary or arbitrary executions. The resolution urges States to protect the right to life and to investigate killings based on discriminatory grounds. In a historic development, the resolution for the first time included “gender identity” as well as “sexual orientation” as grounds of discrimination (the full text of the resolution is available here). Introduced by Sweden, the references to gender identity and sexual orientation were criticized by Egypt, Sudan, the United Arab Emirates, and the Holy See, but most opposing countries chose to abstain from voting. Only one country registered an unfavorable vote: Iran.
-- Delphine Lourtau