9 November 2005
The Death Penalty: the Move towards Worldwide Abolition
By: Ethics in Public Life, Human Rights, Prof. Roger Hood— 2005-2006
Roger Hood is Professor Emeritus of Criminology at the University of Oxford and an Emeritus Fellow of All Souls College. He is the Author of The Death Penalty, a Worldwide Perspective (3rd ed. 2002. Oxford University Press) and a consultant on Capital Punishment to the United Nations. Seminar on 9 November 2005
May I say that I am pleased to see here a number of our colleagues from China. I have been visiting China since the year 2000 when I went as a member of the Foreign Secretary’s Death Penalty Panel. I have noticed some remarkable changes in attitudes and in openness of discussion on the subject in your great country.
Let me begin with a little historical background. I think all of you might be aware that the movement to abolish the death penalty has its roots in the liberal, utilitarian and humanistic ideas spawned by the enlightenment in Europe at the end of the 18th century. Cesare Beccaria’s famous treatise On Crimes And Punishments published in 1764 advocated the replacement of the bloody code, by which many crimes were punished by death, with a graduated system of punishments proportionate to the gravity of the crimes committed, one that would ensure greater certainty and consistency of punishment meted out in an equitable way.
Beccaria argued that the death penalty was both inhumane and ineffective and declared that it not only contributed to uncertainty of punishment but also sent out to society the wrong moral message in that it extolled the very practice that the law was trying to prohibit, killing as revenge. Although the question of whether the death penalty should be restricted to fewer crimes or finally abolished altogether was debated widely and with passion in Europe and America, North and South, during the 19th century, progress was achieved only gradually and indeed slowly. It is, however, important to note that it was in North America that the movement first made a permanent mark. In 1764 the state of Pennsylvania was the first to restrict capital punishment to only the most serious types of murder, that is, felonious murder in the first degree. By the 1860s, about a hundred years later, the death penalty had been restricted to murder throughout the northern states of the USA, in most parts of Germany, and in England and Wales. That was over 140 years ago.
When was abolition first achieved? Again in America. It is important to remember this given a generalised perception of American views on the death penalty! In 1846 Michigan became the first modern state to abolish the death penalty for murder, soon followed by Rhode Island and Wisconsin. Then other states decided that mandatory death penalties could not be upheld. Illinois, followed by most other states, abandoned mandatory imposition of capital punishment in 1867 even for first degree murder, so that juries had discretion whether or not to impose it. In South America, Venezuela became the first nation state to abolish the death penalty for all crimes in all circumstances, in peacetime or in wartime, as early as 1863. In Europe, Portugal led the way in abolishing it for murder, again over 130 years ago in 1867, followed by the Netherlands, Romania, Italy (although later reinstated by the fascists) and Norway. After the First World War they were joined by Sweden and Denmark. After the defeat of the fascist government in World War II Italy abolished it in 1944, and the Federal Republic of Germany followed in 1949.
Nevertheless the plain fact is that the movement had not spread very far. By 1966, the year when the International Covenant on Political and Civil Rights was approved by the UN General Assembly (although of course it did not come into force for another ten years), the number of abolitionist countries still numbered only 26. It was to be another 11 years before the last execution took place in Western Europe, namely in France during 1977.
According Marc Ancel, a distinguished French jurist who, in 1962, was the first to report on the subject for the United Nations, abolition had been gradually achieved over time, through an ongoing testing of the waters so to speak. He said this:-
‘The process of abolition has usually taken a long time, following a distinctive pattern. First the reduction of the number of crimes legally punishable by death, until only murder and sometimes treason are left. Then systematic use of commutation, leading to de facto abolition and eventual abolition de jure.’
I quoted that because it has been cited back to me by my colleagues in China to suggest that it will take a very long time for their country to achieve abolition, and that it will be necessary to go through all these processes in order to get there.
While Ancel was wise and prescient enough to say that such a slow process was not inevitable, he did not go so far as to claim that it should never be applied as a matter of principle. Just 43 years ago he said: – ‘Even the most convinced abolitionists realise that there may be special circumstances or particularly troublesome times which justify the introduction of the death penalty for a limited period’. So here we have a French judge, a very distinguished jurist, who is not only stating that it takes a long time, but that abolition is not an absolute. There are circumstances, he suggests, when use of the death penalty could be justified.
From the mid-sixties to the mid-eighties the pace of change was admittedly unspectacular, with roughly one nation state a year abandoning capital punishment. Then things began to change dramatically. Indeed there was a transformation. On average over the years 1988 to 1999 more than three countries a year abolished capital punishment. The pace has slackened a little over the past five years but it shows no signs, as some had predicted, of coming to a halt. They had argued that all the countries prepared to get rid of the death penalty have done it by the turn of the century, leaving a large group of countries completely opposed to abolition, and that would be no further advance, at least not for a long time. That is far from the truth.
Status of the death penalty at the end of 1988, 1998, 2003 and April 2005
|Completely abolitionist||Abolitionist for ordinary crimes||Retentionist, but Abolitionist de facto (ADF)||‘Actively retentionist’|
|31 December 1988
|35 (19%)||17 (9%)||27 (15%)||101 (56%)|
|31 December 1998
|70 (36%)||11 (6%)||34 (18%)||78 (40%)|
|31 December 2003
|79 (41%)||12 (6%)||41 (21%)||62 (32%)|
|31 March 2005
|85 (44%)||9 (5%)||39 (20%)||61 (31%)|
The table above compares 1988 with the beginning of 2005 and various intervening periods. Now in these roughly 15 to 16 years you can see that the proportion of what I call actively retentionist countries, that is countries in which at least one execution has been carried out over the past ten years (which is not much of a test of active retention) has fallen from 56% to a little less than a third, from 101 to 61. Over the same period the proportion of states that are abolitionist, either for all crimes or for ordinary crimes in peacetime (by which we mean mainly murder) increased from 28% to 49% or very nearly a half of the total number. Also to be observed, especially in relation to the reservations I quoted from Marc Ancel in 1962, is the enormous increase in the number of countries that have become abolitionist for all crimes in all circumstances, in peacetime and well as wartime, in civilian and military law. In 1988 they numbered 35, two-thirds of the abolitionist states, by April of this year they numbered 85 or 90% of the 94 abolitionist states. It is noticeable also that a large number of retentionist countries may be said to be abolitionist in practice or de facto, either because no executions have been carried out in them for at least ten years, or because, even if an execution has been carried out within the past 10 years, that country has decided on a firm moratorium on executions and has enforced it, as has Russia for example since 1996.
It is quite true that not all these abolitionist de facto countries are committed to abolition. For example the former British colonial states in the Caribbean; Barbados and Jamaica are both in that list although they have been stopped from executing people only because lawyers have halted executions through recourse to appeals made to the Privy Council in London. We should also recognise that this does not mean that after ten years a country will not revert to use of capital punishment. In the USA, for example, the state of Tennessee resumed executions after forty years without any. Some of you may remember the case of Timothy McVeigh, the first person to be executed under US Federal Law in 38 years. That tells us that mere suspension of the death penalty and becoming abolitionist de facto does not guarantee effective abolition. Nevertheless, 24, or well over half the countries listed here are regarded by Amnesty International as truly abolitionist in spirit and intention.
Which countries have embraced abolition? Abolition has spread across Europe, to include all members of the Council of Europe and the European Union. Belarus is the only European State to retain the death penalty, but as it has applied for membership of the Council of Europe it can comfortably be expected that abolition will come soon. Outside of Europe it has spread to states in south-central Asia, to Turkmenistan and most recently to Tajikistan. Neighbouring Kazakhstan and Kyrgyzstan have imposed moratoria with a view to abolition, as has Russia. Only three small countries in South and Central America retain the death penalty and all of them can now be regarded as abolitionist de facto. They are Belize, Surinam and Guyana. When the first edition of my book, The Death Penalty, came out in 1988 I could record no abolitionist country in the African region, but there are now 11. A further 21 have had no judicial executions for at least a decade. There are signs that the 11 abolitionist countries will soon be joined by Kenya, Sierra Leone (after the truth and reconciliation commission) and possibly Ghana, and maybe a little later Uganda.
What is striking about these developments is that abolition has usually been achieved swiftly, within a few years and often without a country going through all the stages previously identified by Ancel.
It remains true that in over 30 countries capital punishment can be imposed according to law for certain dangerous drugs offences and in about the same number for certain sexual offences, as well as, in about a dozen countries only, for non-violent serious property or economic offences. But the trend among retentionist countries has been to restrict the scope of capital punishment. For example, in Uzbekistan the death penalty is now available for two crimes only, namely aggravated murder and terrorism, compared with 13 crimes as recently as 1998. North Korea, (the country that America considers to be in the axis of evil) has reduced capital offences from 33 to just 5 and its delegation told the Human Rights Committee of the UN in 2001 that there would be a further review of capital punishment with a view to its abolition. In China, as our Chinese friends know, there has yet to be any reduction in the wide-range of offences, 68 in all, for which the death penalty may be imposed, but abolition of the death penalty for all economic crimes is now being openly debated. A book of essays entitled The Road to Abolition was published by the People’s Security University Press in 2004 as a signifier of that final goal. Many of you will have read that the People’s Supreme Court is now taking back to itself review of all capital cases, so as to ensure greater consistency in imposition of the death penalty and in the hope that there will be a substantial reduction of executions in practice. The subject has also been raised in Vietnam. In addition there has been progress towards eliminating mandatory capital statutes in the Philippines and in the Commonwealth countries of the eastern Caribbean.
Now another useful index is whether countries which have abolished the death penalty have reintroduced it. This has not happened since the Philippines did so in 1993. Even there no executions have been carried out since 2000, and it looks like President Arroyo will go on granting a commutation to anybody sentenced to death. The American states of Kansas and New York, in 1994 and 1995 respectively, reintroduced the death penalty but in neither of have there been any executions and in both of them the death penalty statues were found to violate constitutional requirements in 2003 and 2004 respectively. So that has been reversed.
It is also highly significant that the death penalty was excluded as a punishment by the UN Security Council when it established the International Criminal Tribunal to deal with atrocities in the former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda in 1994. Nor is it available as a sanction for genocide, other grave crimes against humanity and war crimes in the statutes of the International Criminal Court, established in 1998. That has led some people to ask why it should it be available for lesser crimes if not available for these greater offences.
In regard of implementation there is a difference of course between having a death penalty available and actually carrying out executions. Even among the 62 countries that have carried out an execution in the decade up to 2003, no more than 43 had executed anyone within the previous 5 years. As far as can be ascertained, only some 16 of these countries executed more than 10 people, an average of two a year. According to figures published by Amnesty International (which must be read, I must admit, with a severe health warning as many are merely estimates) only 18 countries are known to have carried out 20 or more judicial executions within this period. As can be seen from the table below only 8 countries in the world (China, The Democratic Republic of Congo, Iran, Saudi Arabia, Singapore, the USA, Vietnam and Yemen) are known to have executed at least a hundred people in this five year period.
Judicial executions recorded by Amnesty International 1999-2003
|Country||Total known executions 1999-2003||Annual average number per million population|
|Democratic Republic of Congo||350||1.30|
It might be interesting to pause for a moment to look at the annual average number of executions per million of population (the figures have been taken from the UN Secretary-General’s report which I had the privilege to draft). I must warn you that we do not know how many people have been executed in China because this is a state secret. There are no published statistics, and the figures from Amnesty International were created by trawling newspaper reports and more recently reports on the internet. You might like to know that in recent years they found roughly 800 cases of executions reported by the press but something like 3400 via searching the internet. Bearing this in mind, you can see that, per million of population, China does not in fact stand high compared with several other countries. Its rate would have to be multiplied six times to come up to that in Singapore, which has the highest in the world. Saudi Arabia is high and Iran relatively high, but so is the US State of Oklahoma. However, there is evidence to suggest that where the abolitionist movement has not persuaded retentionist countries to abandon capital punishment it may have been responsible in many of them for modifying the frequency with which recourse has been had to executions. When we compare the five years 1994 to 1998 with 1999 to 2003 we see some very substantial falls. For example Nigeria was down from 248 in the first period to only 8 in the second. Singapore dropped from 242 to 138. Also within those last five years executions have continued to fall in many places. Belarus reduced executions from 29 in 1999 to only 1 in 2003. In the Chinese province of Taiwan the rate dropped from 41 in 1999 to only 7 in 2003. Other countries show a similar trend. Leaving aside China and Iran, with the biggest numbers, Amnesty International recorded news of ‘only’ 238 judicial executions worldwide in 2004, with 59 of them, one quarter of the total, having taken place in the USA.
I hope I have been able to paint briefly a picture of rapid change in the movement towards abolition, rapid change in restriction of the scope of capital punishment and very substantial change in the number of executions eventually carried out in this period.
What has generated this? It has all happened within a period of about 17 or 18 years. Why have so many countries joined this movement to remove the death penalty from the armoury of their penal sanctions? Why have so many of them now become such ardent campaigners for abolition worldwide? It must be remembered that many of these countries have only completely abolished the death penalty fairly recently. It is fair to say that the United Kingdom, which abolished capital punishment for murder in 1965, only got rid of it for treason and piracy, and under military law, as late as 1998. Of course in Eastern Europe abolition for murder came much later, with Ukraine for example taking this step only in 1997.
Foremost among the factors promoting this new wave of abolition has been the movement to transform consideration of capital punishment from an issue to be decided solely or mainly as an aspect of national criminal justice policy to the status of a fundamental violation of human rights, and not only of the right to life but also of the right to be free of excessive, repressive and torturous punishment. This approach rejects the most persistent of justifications for capital punishment, that of retribution, the belief that people who commit murder should forfeit their own lives, or, in some countries, that those who commit socially injurious or dangerous crimes should be executed. It also rejects the utilitarian justification that nothing less severe can act as a sufficient general deterrent to those who contemplate committing those capital crimes. This is not only because abolitionists believe social science evidence does not support the case for capital punishment having a unique deterrent over and above the threat of life imprisonment. They would reject the deterrence argument even if it could be shown that there was some evidence in favour of it. They would argue that such deterrence could only be achieved by high rates of execution, regularly enforced if not mandatory, and that this would lead to unjust executions of people who, because of mitigating circumstances, did not deserve to die. Very few people believe that all persons who commit murder deserve to die, even if they believe that some deserve to die. They would also argue that it is precisely when there are strong reactions to crimes that the use of the death penalty as an instrument of crime control is most dangerous, for example in the case of the ‘Strike Hard’ campaigns carried out in China a few years ago. Pressure on the police and prosecutors to bring to justice offenders, especially those suspected of committing outrages, is likely to lead to shortcuts, breaches of procedural protection, and simple myopia in investigation once a suspect is identified. Anatoly Pristavkin, a famous Russian writer and former head of Russia’s Pardons Commission, has stated that prominent jurists in Russia have estimated that wrongful convictions amounted to between 10 and 15% of the total number of people sentenced to death.
In England wrongful convictions of Irishmen following terrorist outrages turned even the strongest supporters of a return to capital punishment against the idea. In the United States investigative journalists have uncovered cases of wrongful conviction which had passed through all the lengthy appeal processes without the errors being spotted. There, the use of DNA analysis by organisations like the Innocence Protection Project has produced convincing evidence of innocence. The problem appears to abolitionists to be endemic wherever the death penalty is enforced and not simply a reflection of this or that fault in the administration of criminal justice in any particular country. We prided ourselves in this country that we had the finest system of administration of criminal justice, but it failed lamentably in a substantial number of cases where people had been convicted of grave crimes.
The dynamo for the new wave of abolition was therefore the development of international human rights law arising in the aftermath of the World War II and the emergence of countries from totalitarian imperialism and colonialism. This created a climate in which the search for democracy and freedom readily embraced notions of protecting citizens from the power of the state and from the tyranny of the opinions of the masses. In a long process lasting from 1948 until 1966 when the International Covenant on Civil and Political Rights was adopted by the UN General Assembly, the question of capital punishment in relation to the Right to Life was keenly debated. What emerged was a compromise allowing for limited retention. For, as I mentioned, at that time only a minority of states had embraced the abolitionist position. Article 6.2 of the ICCPR states that in countries that have not abolished the death penalty sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time the crime was committed. In the circumstances pertaining in 1957 when that clause was drafted it was hardly surprising that it was not possible to get agreement to define more precisely those offences for which capital punishment could be retained.
Certainly some countries would have preferred a clearer enumeration of crimes for which it would be permissible to impose the death penalty instead of relying on the vacuous concept of ‘most serious’. This is probably because they recognised that ‘most serious’ could be interpreted differently according to national culture, tradition and political complexion. In fact the term ‘most serious offences’, and I stress this point to our Chinese colleagues, is nothing more than what I might call a marker for a policy of moving towards abolition through restriction. Far from indicating that those countries that have not abolished the death penalty could proceed with the policy of retaining it under the protection of article 6.2, the chairman of the working party on the drafting of article 6 stated:- ‘It is interesting to note that the expression “In countries which have not abolished the death penalty” was intended to show the direction in which the drafters of the covenant hoped that the situation would develop’. The same applies to the addition of article 6.6:- ‘Nothing in this article, Article 6, shall be invoked to delay or prevent the abolition of capital punishment in any state party to the present covenant’. The very notion of progressive restriction makes it clear that the degree of seriousness that would justify the death penalty would need to be evaluated and re-evaluated always in a narrowing of definition until abolition was eventually achieved. Indeed in 1971 and again in 1977 UN General Assembly resolutions declared, in conformity with the Universal Declaration of Human Rights, that every human being has an inherent right to life and that policy should be progressively to restrict the number of offences for which capital punishment might be imposed with a view to its eventual abolition.
Now these are words, of course, and the policy would have lacked political force had it not been taken up and insisted upon by two powerful emerging political entities, first the Council of Europe and then the European Union. The first move to put this into treaty form came in 1983 when the Council of Europe established Protocol Number 6 to the European Convention on the Protection of Human Rights and Fundamental Freedoms, the ECHR, which abolished the death penalty in peacetime. Then, just over fifteen years ago in 1989, the UN General Assembly adopting a Second Optional Protocol to the ICCPR, article 1 of which states:- ‘No one within the jurisdiction of a State party should be executed’. In 1990 the General Assembly of the Organisation of American States also adopted a Protocol. Of particular significance in 2002 was the adoption by the Council of Europe of Protocol Number 13 to the ECHR which abolishes the death penalty in all circumstances, including times of war or imminent threat of war. By February of this year  altogether 74 countries had ratified one or other of the international treaties or conventions which bar imposition of capital punishment. These conventions do not allow any of these countries to reinstate it.
It is true that the desire to join the Council of Europe as a political entity and in particular the hope of joining the EU so as to gain the economic benefits of it, was a large carrot for countries which had become free from the Soviet Union (if I may put it that way) and wished to become part of a broader Europe. Pressure was applied. In 1994 and four years later in 1998 respectively the Council of Europe and the European Union made it a condition of entry that a country must abolish the death penalty. However, important as this has been, it is not the only reason for abolition in Eastern Europe. For example the former East Germany, the GDR, had already abolished the death penalty in 1987. Slovenia did so when it became free of the former Yugoslavia in 1989. So did the Czech and Slovak republics in 1990. All of these countries took it upon themselves to do so.
The Council of Europe and the European Union have emphasised a principled opposition to the death penalty. They have declared that it has no legitimate place in the systems of modern civilised societies and its application may well be compared with torture and be seen as inhuman and degrading punishment. The language is uncompromising. The Council of Europe will not accept the argument that capital punishment can be defended on relativistic grounds of religion or culture or as a matter which sovereign powers ought to be left simply to decide for themselves. The European Charter of Fundamental Rights adopted at Nice in the year 2000 prohibits the extradition of persons charged with a capital offence to retentionist countries unless there is a firm guarantee that the death penalty will not be imposed. The South African Constitutional Court and the Canadian Supreme Court have done the same thing. The UN Human Rights Committee also has recently endorsed such a policy.
What is important to note is that abolition has been achieved not by popular consensus or by a demand from the population in general or as an outcome of some sudden cultural shift of sentiment towards criminals because at the same time that this has happened we have seen a great increase in the prison population and the ‘upping’ of punishments in Western societies. Abolition has come about through political and/or judicial leadership, aided in some countries by the activities of pressure groups . For example in France in 1981, François Mitterand, with the support of his Minister of Justice to be, Robert Badinter, pledged, himself, ahead of a general election, to abolish capital punishment despite the fact that opinion polls showed that a majority of the electorate favoured its retention. He was elected, abolished the death penalty, and was re-elected. In some countries the abolition of the death penalty has been achieved through the commitment of presidents, as in Georgia, Azerbaijan, Turkmenistan and Tajikistan, or through the determination of constitutional courts, as in Hungary and the Ukraine, and in South Africa after the fall of apartheid.
The judgement of Justice Arthur Chaskalson, the President of the South African Constitutional Court, rejected public opinion as the yardstick for deciding the issue of the death penalty and instead emphasised the need to create in the country what he called ‘a human rights culture’. In a remarkable passage he stated;
‘Public opinion may have some relevance to the enquiry but in itself it is no substitute for the duty invested in the courts to interpret the constitution and uphold its provisions without fear and favour. The very reason for investing power of judicial review in the courts was to protect the rights of minorities and others who cannot protect their rights properly through the democratic process. Those who are entitled to claim this protection include the social outcasts and the marginalised people in our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected.’
Let me now say a few words about resistance to abolition. It has to be accepted that for the time being capital punishment seems to be embedded across Asia and, with the exception of Israel, throughout the Middle East. Cambodia, Nepal and Bhutan are the only Asian countries so far to have abolished it. But in many other countries executions have become rare events. Indeed in India it is now reserved by Constitutional Court judgment for ‘the rarest of rare cases’. In South Korea there have been no executions since 1998 and the National Human Rights Committee has recently pronounced in favour of abolition. In Japan the Federation of Bar Associations has begun a vigorous assault on the death penalty. Even in the Middle East executions are rare in several countries such as the Gulf States and likewise in North Africa, including Tunisia and Morocco, neither of which has carried out a judicial execution for at least ten years.
On the other hand it cannot be denied that attempts to press for resolutions in the UN, calling for a moratorium on death sentences and executions, have been met with hostility from many retentionist nations on the grounds that the death penalty is not an issue of universal human rights and that every country should be free to determine its own legal measures and penalties to combat crime. While there were 76 co-sponsors of the resolution for a moratorium on executions at the UN Commission on Human Rights last year, 64 other countries issued a joint statement, introduced by Saudi Arabia, dissociating themselves on the grounds that there is no international consensus that capital punishment should be abolished. Indeed, several of these countries have characterised such resolutions as a form of cultural imperialism. Among these countries are those Muslim states that base their criminal justice system on Islamic law. However a Scholar with a deep knowledge of the Muslim faith, the distinguished human rights lawyer Professor Bassouini, has recently argued that there is nothing in the Koran that requires the death penalty, except, he says, in the case of brigandage where death occurs. Bassouini’s view is that Muslim society should emphasise the need to interpret scripture in the light of scientific knowledge and Islamic emphasis on mercy in order to create a just and humane society. In this regard it is interesting to note that several secular states with large Muslim majorities have joined the abolitionist movement, namely Bosnia and Herzegovina, Turkey, Turkmenistan and Senegal.
I shall finish by saying something about the position of the USA. The persistence of capital punishment in the United States has become, in my opinion, one of the greatest obstacles to the acceptance of the view that the ultimate penalty inherently involves the abuse of human rights. So what prospect is there that the USA might join those nations, particularly those nations in Europe, with which it shares and political and cultural heritage, in abandoning capital punishment? The negative attitude of the United States government towards international treaties abolishing the death penalty, the refusal even to embrace abolition as an ideal goal, and the hesitant approach of the US Supreme Court towards claims based on international human rights norms, have been significant factors in resisting change. However the US Supreme Court has recently started to take notice of international trends and developments in international customary law in interpreting what in calls ‘evolving standards of decency’. First in 2002 in a case called Atkins v Virginia the court cited the worldwide condemnation of the practice of executing the mentally retarded as laid down in the UN Safeguards for those Facing the Death Penalty among its reasons for deciding that it should be regarded now as a cruel and unusual punishment. It had not been thought so before. In 2002 what had been the normal punishment became cruel and unusual. Even more significant, in March of 2005, by a majority, the Supreme Court decided in Simmons v Roper that the execution of those who commit offences as juveniles (that is those under the age of 18 at the time they committed the offence) is unconstitutional. Furthermore, the majority accepted that it had been shown that the USA stood alone among nations in formally approving of the practice. An international human rights norm had become established.
In reality the death penalty is rarely enforced in the USA in relation to the number of persons to whom it could potentially be applied. The substantial fall in the murder rate across the USA in the past decade in both abolitionist and retentionist jurisdictions alike (it is not simply where they have the death penalty that it has fallen; it has fallen equally in all states) and the decline in the number of death sentences imposed from a high of 98 in 1999 to 59 last year suggests that a change is under way.
The proportion of the population who say that they favour the death penalty, around 80% a decade ago, is around two-thirds now, and indeed less than half would support the death penalty if they were given the option of life imprisonment without parole . The patent flaws that have emerged from the Commission set up in Illinois and from a major piece of research carried out a Colombia University by Professor Liebman and his colleagues, which showed that two-thirds of death sentences imposed in the courts were overturned later during the long appeals processes and that in those cases of murder that were retried the court actually re-imposed the death sentence in less than one in ten cases, have led to the system being stigmatised as ‘broken’ . Executions are confined to relatively few States. Over the five years 1999 to 2003 just 25 of the 38 states with the death penalty in place carried out an execution. Only 12 states did so in 2004 – 26 states with the death penalty on their statute books did not execute anybody. When the 12 wholly abolitionist states and the District of Columbia added to them, three-quarters of the US states had no executions in 2004. Indeed 89% of all executions since they began again in 1976 have been in southern states, two-thirds of them in just five states and one-third in Texas alone. The common picture of the USA held by foreign observers of American jurisdictions as wholly supporting capital punishment is thus misleading. The truth is that in large parts of the country capital punishment has no more than a symbolic retributive status. My view is that if this trend continues the Supreme Court will, sometime not too long in the future, decide that the death penalty is indeed a cruel and unusual type of punishment.
So what have I tried to say? I have attempted to demonstrate that a greater emphasis on the human rights perspective on the death penalty has added greatly to the moral force propelling the abolitionist movement. Those who still favour capital punishment in principle have been faced with convincing evidence of the abuses, discrimination, mistakes and inhumanity which appear inevitably to accompany it in practice. There remains a large gap between believing that some persons deserve to die for the crimes they commit and believing that a state system can be devised for the administration of capital punishment which meets the high ideals of equal, effective, procedurally correct and humane justice that civilised societies seek to implement.
Discussion following paper by Prof. Hood
Andrew Hegarty: I should like to pick up on a point you made towards the end of your paper, about democratic sentiment. Many of those who speak most often and most passionately about human rights would also be usually among the first to uphold the democratic wishes of a majority. How are committed abolitionists to handle the problem of strong majority opinions against their point of view? Texas, where public opinion polls suggest a massive majority for retaining, and using, the death penalty, is perhaps the most obvious example of a place where such a state of affairs pertains.
Professor Hood: It is a very good question and one that I am often asked. In Texas I think the majority in favour of the death penalty is less than it once was. It has been falling because of the problems that have arisen in application. The situation in America is different from here of course. Democracy in America is populist: judges, prosecutors and state Governors are all elected and their stance on Capital Punishment will determine whether they hold their jobs. This is certainly a very big factor in many states. It is quite clear that some of those who have stood for abolition, notably Governor Mario Cuomo in New York State, have lost office because of their opposition to reintroduction of the death penalty. If you have a system which relies upon popular sentiment you are always going to have a difficulty with abolition. My view is that if you allow populist sentiment, that is emotional anger, to determine criminal policy you are very deep trouble.
Andrew Hegarty: Is there, then, a sense then in which one would have to argue that legal systems should be in some degree immune from the pressures of democracy?
Professor Hood: I do indeed think they should be immune from what we might call mass sentiment. We saw what happened here when cases of paedophilia were reported. People went on the streets and hounded people suspected of being paedophiles out of their homes. The naming and shaming of such persons has had for such people very severe consequences which really cannot be upheld under the rule of law. I think the passage I quoted from Judge Chaskalson’s judgment was very powerful in this regard, with its declaration that the law should protect people from the mass sentiment and popular anger that wells up at times. I believe myself that what people want in terms of punishments is determined over a certain period of time in part by expectations of punishments available.
I mentioned to my Chinese friends that not so long ago, less than a hundred years ago certainly, offenders in China and elsewhere, too, were dealt with really very severely. They were put into a kind of triangle stock holding their necks and left to strangle to death with their feet dangling off the ground. Now I am sure that at the time you could have taken a poll and found a majority to declare that this was what should be done to criminals. Now it is regarded as part of a brutal past, and nobody would wish to have that back. In this country I have certainly noticed a change since we conclusively abolished the death penalty and it ceased to be a political issue. Since 1994 there have been no debates in Parliament on restoring capital punishment. Those members of the Conservative Party who had previously wanted it restored came to recognise that it was a terribly fallible system and that innocent persons would have been executed. It has gone right out of political debate. We have now committed ourselves by international treaties not to reintroduce it. In recent cases, horrible cases, where a number of children have been abducted and murdered the parents have not asked for the death penalty. They have actually expressed themselves satisfied with life imprisonment. As a new generation grows up which has not had the death penalty as an expectation they will come to regard it as something of the past, similar to cutting heads off and placing them on stakes. People change, and opinions will change.
Michael Elmer: As the number of theoretically abolitionist countries grows there will be parts of the world in which this will not be deeply rooted in the culture. Do you not fear that in these, and indeed perhaps in some places which have been theoretically abolitionist for quite some time, there may be resort to extrajudicial killing? I am a retired diplomat who spent quite a lot of time in Latin America where the death penalty has not been on the statute book in many republics for a very considerable length of time. Nonetheless, when Che Guevara was captured he was executed. That was admittedly under a military dictatorship lead by Barrientos. When Sendero Luminoso (‘The Shining Path’) was defeated by a democratically elected Peruvian regime there were a lot of ‘field executions’. Some of those slain were trying to flee but it is clearly established that in other cases they were not. They were simply lined up against walls and shot. I suspect that is also likely to be the case in what Clare Short describes as the ‘Stans’ – Kazakhstan, Tajikistan, and so on. There are in many places undocumented killings which are examples of elimination by the State of its rivals and people whose presence it finds inconvenient.
The second point I wanted to make is a factual one. Am I not right in saying that at the time of the execution of Eichmann in Israel capital punishment was in fact theoretically abolished?
Professor Hood: The death penalty is available in Israel only for genocidal crimes relating to the holocaust. You may well be right that this was brought onto the statute book on order to have Eichmann executed. Israel is also a very good example of a place where there are many extrajudicial killings: people involved in what the State regards as terrorist activities, but whom others see as freedom fighters, are targeted and killed.
I absolutely agree with you on your first point. Indeed if I had gone on further and not felt I had to cut short my paper due to constraints of time I had a paragraph prepared to deal with this matter. I should have said that the issue cannot be ignored and that it is very regrettable that abolition of the death penalty cannot offer a guarantee against state forces carrying out such executions. They are carried out in many countries. I think, however, that this is a different question, one of controlling the manner in which the police and the armed forces act. The fact that the state lays down that it is not acceptable under law to execute people is at least a strong factor in trying to halt executions. If it is wrong to kill people even under due process it must certainly be very wrong to kill people outside the law! But it does happen, and it happens in some countries on a very large scale. We have seen terrible massacres in a number of states and this is deeply to be regretted. It is not acceptable to declare that the death penalty has been abolished in law, without actually abolishing it throughout the system, including the military and the police.
Russell Wilcox: My question relates to Andrew Hegarty’s earlier one. You mentioned that the real impetus for abolition came, at least theoretically, out of the drafting of the Universal Declaration of Human Rights and then from the European Union’s mimicking of that. I wonder if there has been a shift, anthropological or philosophical, along the way in justification of the clause on the right to life. Many of those involved in drafting the Universal Declaration of Human Rights would have been committed to the notion of a Natural Law which underwent something of a revival immediately after World War II. I am thinking of figures like Jacques Maritain who played a major part at the United Nations, and in Europe of people like Schuman and Monet. They would have defined the right to life in a far broader sense than has now come to be accepted. They would certainly, I think, have opposed capital punishment but would also have opposed liberalisation of the law in relation to abortion. You mentioned a shift in attitudes during the nineteenth century when utilitarian approaches were prominent. I feel that there may have been a philosophical shift in recent decades whereby utilitarian considerations have taken the place of natural law arguments. The passage you quoted from the judgement of the President of the South African Constitutional Court resorts to classic natural law rhetoric, but I feel sure that at the same time as the death penalty has been abolished in South Africa there will have been significant liberalisation in issues such as abortion. That trend is common throughout the world.
Professor Hood: I have sometimes been asked that very question. I think it is really rather difficult to answer because these things have been kept compartmentalised. That is really the truth of the matter. The issue of the State killing its captives has been kept separate from that of the destruction of other types of human life in other circumstances, particularly by abortion. That has of course been argued on the right of women to determine their maternity and whether or not they wish to give birth to a child. The arguments have been made on rather different planes.
The argument about the death penalty has followed the right of the individual not to be subject to cruel, torturous punishment by the State. Originally many Europeans took the line that it is akin to torture. If torture and the ripping out of finger nails are not allowed, why do we permit the breaking of the neck? Why do we put people under suspended fear of death for long periods of time, at times in the United States for something like 20 years, or in Japan for very long periods of time under terrific psychological pressure, if we do not accept other kinds of torturous punishment? We have come to see the death penalty as an anachronism in terms of criminal justice and power of the State over individuals.
You are quite right about that argumentation taking precedence over utilitarian arguments of deterrence. The truth of the matter is that recent opinion polls, to go back to the idea of public opinion, show that in the United States the proportion of people who support the death penalty because they believe it is the most effective deterrent is relatively low. It has been falling rapidly. People understand the situations in which murders are committed. If someone goes out with a gun in order to make drug deals he is taking a hell of a risk. There is a far greater likelihood of being shot to death by the one with whom the dealing takes place, or by a policeman, than by execution. What supporters of the death penalty are relying on is a kind of retributive argument that some people, but only a few, deserve to die. What has been shown is that attempts to define those people who deserve to die in legislative terms results a system that is arbitrary and discriminatory.
Russell Wilcox: That is interesting because in a sense some of the great philosophical grandfathers of this whole movement would have agreed very much with that point of view, but on a rather different basis. There is an alternative abolitionist position which is not necessarily represented in worldwide movements, particularly in the western world. It is particularly interesting because in America, given the current balance of public opinion, that might be a useful avenue of argumentation to take.
Barrie Nathan: The overall picture you have presented is a very optimistic one where there is a question of policy in a democracy. What, however, is your view about the impact of the resurgence or spread of fundamentalist theocracies? You cited one opinion suggesting that Islam does not in fact approve of a generalised use of the death penalty, but the fact is that there has been a spread of fundamentalist theocracies wherein it is not regarded as a political question, but rather one of religious duty.
Professor Hood: That is a very big issue. Insofar as such theocracies achieve power in government and in the law they will go on using the death penalty. It is very important, however, to recognise that under Islamic law the death penalty is applied only , as I understand it, for a few crimes like killing, and robbery with violence and brigandage. It is entirely discretionary for murder. Indeed the law of Qesas means that in fact the death penalty is not required at all. What is required is compensation. So as long as the victim’s family are willing to accept compensation from the family of the person who has done the killing, the murderer need not die. There have been some very interesting cases. In Iran a young man was about to be hanged in public for the murder of a child when the father of the child forgave him as the noose was going around his neck. It comes down to the relationship between victims and offenders. There is, I think, some ‘give’ in the interpretation of Islamic law.
Where it is being applied fiercely there is a problem. A real conflict is going to occur in Nigeria, because the northern states have introduced the Sharia law. A number of women have been sentenced to death for sexual impropriety, giving birth to a child outside of wedlock, for which the punishment is to be buried in sand up to the neck and stoned to death. Fortunately none of these cases have ended in execution. The Federal Government, certainly the President, is pretty well committed to move towards abolition. The federal Supreme Court also is committed to a human rights view. It is quite clear that a conflict between state law and federal law is coming. I was privileged to be at a conference recently in which a lawyer from Nigeria pointed out that this is really going to become a trial between the federal constitution and the states in Nigeria.
Neil Pickering: At a recent seminar in this series we heard of a great increase in drug-related crimes. Some countries use capital punishment as a deterrent. I noticed that Singapore came quite high up on your ‘Richter scale’ with about 6.9%. You mentioned Malaysia, too. I just wondered if there were any statistics to measure the effectiveness of this policy as a deterrent, since this would be the argument put forward in these countries.
A second question. Do you think Pope John Paul II’s stance on capital punishment has had any impact worldwide or on any particular nation?
Finally, just a comment on Nigeria. I do not know if you were present when the President of Nigeria gave a talk in London recently. He was asked about the Sharia law and he said that in practice the decision is always referred to the federal government and the federal government always refuses to confirm the death sentence. That how they deal with it on a practical basis.
Professor Hood: To start with your first question, there are a number of countries where possession of drugs with intent to supply is a capital offence. Indeed there are few of them, notably Singapore and Malaysia, where the sentence is mandatory on conviction, and the amounts of the drug the convicted person must possess are very small. There are also other countries, like China, where possession in order to supply drugs, including cannabis, is a capital offence, but where the court has discretion about imposing the death sentence. Incidentally, in China, as I understand it, there are no mandatory death sentences at all, and courts always have discretion.
There are no statistics about this. The whole point about deterrence, in my view, has to do with what Beccaria pointed out back in 1764, namely that certainty is more effective than severity. Certainty in punishment trumps random severity. If you think you can get away with it you will take the risk. People take risks all the time. As my colleague Professor Schabas has pointed out, people take risks when they smoke. They know they are likely to die earlier yet they still smoke! You take a risk driving your car. What matters is what the nature of that risk is. What we do know is that nobody with any sense is going to take a large amount of drugs into Singapore because if caught they are going to be sentenced to death. Yet I would bet that they would not take a large amount of drugs into Singapore likewise if they knew they were going to get ten years in prison and were pretty sure they were going to be caught. People take risks depending on perceptions of impunity. We do not have any data to demonstrate this but it is interesting that despite people having been executed there are still new cases arising in Singapore. Whether fewer people bring in drugs than would have done so without the death penalty being in place I simply cannot tell you.
One thing is clear, however, and that is that if you execute people for dealing in drugs, they are more likely to attempt to kill law enforcement officers in order to try to make an escape. If they are to be executed for drugs they might as well be executed for murder as well. If you execute people for lesser offences you encourage them in practice to commit more serious offences. You lose proportionality between the most serious punishments and the most serious crimes. One thing that punishments do is to make a public declaration on how different offences should be regarded. If you put together a number of offences of varying seriousness under the same penalty you just destroy the notion of proportionality.
Another point that has been shown up throughout the history of the death penalty is that if the death penalty is applied to crimes that are not generally considered most serious it becomes much harder to obtain convictions for those crimes wherever the jury system is in place. Both the United Kingdom and the United States have found that jury systems make it more difficult to convict. Since we got rid of capital punishment the percentage of homicide cases that result in convictions for murder, as opposed to manslaughter, has risen dramatically. It is much easier to convict murderers when more appropriate sentences are to be applied.
Your other question concerned Pope John Paul II. I think he has certainly had some impact in the Philippines. The Catholic Church and the Catholic bishops there are vehemently opposed to capital punishment and they have had an effect. In the United States I do not think he has had so big an impact. Actually most of the churches are against capital punishment there.
Barrie Nathan: I wish only to make a short comment. I wholeheartedly agree with what you said about deterrence being a question of getting caught. One of the fascinating things that I have found is that in the 18th and 19th centuries when there were public executions for theft at Tyburn (now Marble Arch) huge crowds turned up and there were always pickpockets operating among them!
Michael Elmer: In the 1970s the Nigerians made widespread use of capital punishment which was carried out on Bar Beach by machine-gunning people tied to oil drums filled with sand. The bullets which did the killing were believed to possess special powers because they had passed through a human body. They were highly sought after and there was extensive racketeering in the bullets dug out of the oil drums.
Professor Hood: Well that is a very good example of what might be called the opposite of the deterrent effect of capital punishment; that is the glorification of criminals. Some criminologists have argued that what capital punishment does is to brutalise societies.
Michael Elmer: Nigeria radio used to interview the people to be executed when they were strapped to these oil drums, asking: ‘You are about to be shot, what do you think about that?’ .
Judge Liu Weibo: Professor, I have some small questions for you. I think most people have realised that the death penalty is not a good punishment. It is easy to criticise use of the death penalty from several angles:- from its obvious deficiencies; from a human rights perspective; as revenge; from the development of civilisation; from the point of view of deterrence. When, however, we argue for the abolition of the death penalty, with what precisely should we seek to substitute it?
Professor Hood: That is a very good question. If I had had a little more time this evening I should have come onto this point. What cannot be sought is an alternative which is just as inhumane as the death penalty. The great utilitarian philosopher John Stuart Mill was in favour of the death penalty, and argued for it in a famous debate at the House of Commons in 1867, on the grounds that it was worse than death to keep someone in prison for life. This he called a ‘living death’. Now I know from what has been said in Russia, the Ukraine, etc., where they have abolished the death penalty, that conditions for those sentenced to life imprisonment are so severe that criminals have been pleading to be executed rather than suffer that punishment. So it certainly must be the case that the system to be pursued must be one of imprisonment and with it, – here I make no apology for using what is now considered an old fashioned word – the rehabilitation of offenders. I am against the substituting for the death penalty mandatory life-imprisonment with no possibility of release. That seems to me to be equally inhumane. In this country we have been fortunate in developing a system of life-imprisonment which, except for a few people, amounting only to about 20, who are so dangerous that they cannot be released, ensures that all lifers will over a period of years, up to 20 or so, progress from a very high level of confinement to lesser levels of it. This endures until they are released into the community by a graded system of release with many checks and balances. They will then be on licence, and subject to recall, for the remainder of their lives. This has proved very successful. Very few of those released have ever killed again. It has happened but only with a very small number. Very few have gone on to commit serious crimes again.
Judge Liu Weibo: Well, moving on to life-imprisonment, policy makers in China now have a difficult decision to face. Many think we can reform and introduce a system of life-imprisonment but we are going somehow to have to meet the very high cost of this. There are very many people in China sent to prison. We will have to build many more prisons. Following that we will need people to supply to the prisoners. It is obvious that the cost will increase greatly.
Professor Hood: Yes, it is very expensive. But from a human rights point of view I do not think you can reasonably say it will cost you so much money that you should kill them.
Judge Liu Weibo: If I were a policy maker I should have to compare the costs of education and the cost of imprisonment. Everyone will agree that the best way to eliminate or reduce crime is through education. Now should we invest our limited money in education, or in the prison service? I think everyone would choose to invest in education. It is very difficult for a developing country when its resources are very limited.
Professor Hood: This is a very difficult issue, one that haunted the prison system in this country for many years. It was called ‘the principle of lesser eligibility’. It referred basically to the system of poor relief. The idea was that people who had not committed crimes and were free and working should not have to face conditions worse than those who were in prison. In other words, the real problem of the prison system is that we build prisons, and these prisons have to be heated if you do not want people to die in them. Prisoners have to have food, and they must have sanitation. Yet many people in the cities and in the countryside in the 18th and 19th centuries had no heating, inadequate food and no sanitation. A big argument raged about why criminals should be treated better than those who were not criminals. The argument you raise is of a similar kind. There is no easy solution, but I think that if the State is going to use its power to punish people, which it does as a means to the end of securing public order and maintaining public confidence in law, it cannot treat those punished in such a way as to kill them or to lead to their death by disease. That would be morally indefensible. It is a great dilemma but I am sure your great country will work it out.
Judge Liu Weibo: Another question. The Chinese government is currently preparing to sign the International Covenant on Civil and Political Rights. As you have mentioned, by its terms the death penalty may be applied only to the most serious crimes. Is there any objective criterion by which to judge what a serious crime?
Professor Hood: No there is not. That is the point I was trying to make in my paper. You must read the clause to which you refer as not meaning that there are objective criteria for the most serious crimes. The clause was inserted because it was not possible at that time to have a clause which said that nobody should be executed. It was put in to restrict the use of capital punishment to the most serious offences. The countries most involved would, if they had had their way, almost certainly have restricted the death penalty to murder, only murder. The idea here is to restrict it, while that of other clauses in article 6 is to abolish it altogether. Article 7 says that no cruel or inhumane punishments should be imposed. Many legal scholars now say that that clause should ‘trump’ Article 6. China is going to face this issue because you have signed up to ICCPR but have yet to ratify it. When your country does ratify it will find itself in breach of what the Commission on Human Rights would regard as most serious offences. The Commission has clearly stated that economic crimes, crimes of non-violence and crimes of a political nature cannot fall under ‘most serious offences’. I believe there is a political decision to be made, one to restrict the range of offences effectively to murder only and then eventually to eliminate the death penalty altogether.