Hundreds, possibly thousands, of people are put to death across the world every year. The majority of these are poor. IBA Global Insight assesses the socio-economic arguments for death penalty abolition.
‘There are no millionaires on death row’ goes the mantra, oft-repeated among death penalty abolitionists. It sounds glib, yet across the world, from the sharia courts of Iran to the jury trials of the United States, evidence suggests the poorest are indeed paying the highest price.
Death, like life, it seems, is essentially unfair. Even hardened pragmatists, who may not flinch at depriving a brutal murderer of his life, often concede that the law surrounding capital punishment is both flawed and ineffective.
In many countries the problem is not simple prejudice – though this too plays a part – but stems from the economics of the judicial system, in which the poor are reliant on the limited coffers of state aid for representation, while the rich retain the top talent for themselves. Elsewhere, where due process is weak, those without the means to pay bribes or blood money find themselves equally powerless. It is often in these less democratic countries that the harshest drug trafficking penalties are applied, in which stigmatised young mules are sacrificed and the kingpins go free.
The US and due process
Clive Stafford Smith, founder of human rights NGO Reprieve, is clear on the matter where the US is concerned. ‘The death penalty is not for the worst criminal,’ he says, quoting fellow attorney Stephen Bright. ‘It’s for the person with the worst lawyer.’
Stafford Smith, who has saved more than 300 people from death row and last year won the IBA Human Rights Award, claims ‘it’s not that hard to persuade 12 jurors not to kill somebody’.
‘But you’ve got to do your work,’ he stresses. ‘You’ve got to be prepared and you’ve got to know what you’re about. And, unfortunately, when you look at lawyers, the most effective, high-powered lawyers represent huge corporations. The person whose life is at stake is killed.’
Stafford Smith is far from alone in this opinion. When prompted, US criminal defence attorneys working on death row will eagerly recount tales of flawed and feckless capital trials – horror stories of innocence ignored and justice violated. Their view is skewed, of course, by the nature of their position, and often fails to reflect the many cases where the rule of law is carefully and conscientiously applied. But, considering what is at stake, many are concerned that any such cases exist at all.
One case involves Linda Carty, currently on death row in Texas for the 2001 murder of Joana Rodriguez. After what was described by Reprieve as ‘a catastrophically flawed trial’, in which an ‘utterly implausible’ defence was mounted by a lawyer with 20 death row convictions to his name – the most of any attorney in the US – the British grandmother was sentenced to death in February 2002, and is now reliant on the Pardons Board and Governor of Texas for clemency.
Indeed, the issue of capital punishment has long been under scrutiny in Texas, which was responsible for 41 of 98 nationwide executions in 2009–10. In 2002, murder defendant Calvin Jerold Burdine, whose attorney slept through parts of the trial, gained a last-minute reprieve from the Supreme Court after surviving six execution dates and losing three federal appeals. More recently, strong evidence has emerged that Cameron Todd Willingham, executed in 2004 for an arson attack that killed his three children, may have been innocent after a series of experts attested that forensic data presented at trial had no scientific basis.
Death penalty supporter Josh Marquis, District Attorney for Astoria, Oregon, who is on the Board of Directors of the National District Attorney Association and is the US delegate to the International Association of Prosecutors, admits that ‘there have been instances of innocent people on death row, no question about it’, but says such instances are ‘rare’. He also points out there is no conclusive evidence anyone innocent has been executed, stressing the rigorous 15–25-year appeals process designed to catch mistakes.
‘The death penalty is not for the worst criminal, it's for the person with the worst lawyer.’
Clive Stafford Smith
Founder of human rights NGO Reprieve
‘Though the conventional wisdom says the defence is threadbare, the lawyers don’t know what they are doing and the prosecution is well funded, that’s just not true,’ he says. ‘It probably was 20 years ago, but not anymore. I’ve just finished a case where the state has spent almost US$3m on the defence, which is not tremendously unusual. I am regularly outspent ten or 20 to one.’
Marquis admits, however, that his expertise is limited to Oregon, ‘which probably spends more money than any other state’, and that ‘some states still pay a lot less than others’. Richard Dieter, Executive Director of the Death Penalty Information Center (DPIC), a non-profit, anti-death penalty website, agrees. Though the quality of representation has improved significantly in the past ten years, he says, stringent standards proposed by the American Bar Association (ABA) are yet to be adopted by the majority of the 35 retentionist states and even competent lawyers are often prevented from doing a good job by lack of funds.
‘The ABA has outlined the goals to shoot for, but very few states are willing to do that. To do it you would have to pay lawyers a lot more to get the requisite experience, and you’d need a team of four or five specialists for each case. These things are not always done when a public defender has ten other cases going on at the same time.’
States with relatively well-funded public defender programmes, such as Oregon and California, experience their own set of problems. Because of the high standards set for counsel, demand far outweighs supply; a recent estimate suggests that more than 100 of the 700 death row inmates in California are currently without counsel for their direct appeal.
‘If there is a problem with capital litigation, it is not during the trial itself, it is during the appeals process,’ says death penalty supporter Michael Ramos, District Attorney for San Bernardino County and President of the California District Attorneys’ Association. ‘The delay in appeals is very frustrating for everyone involved. We need to have additional resources to increase numbers of appellate attorneys, not only for defendants but for the state attorney general office, so they can handle the volume of appeals.’
Despite these problems, Marquis and Ramos are adamant that capital punishment is fair, pointing out that only one in 800 murderers receive the penalty, so it is reserved for the very worst offenders. For Ramos, the justification is simple – ‘an eye for an eye’, he feels, ‘is justice for taking someone’s life’ due to the irreparable trauma inflicted on victims’ families. For Marquis, it is a ‘cost–benefit analysis’, the prospect of due process error counterbalanced by the potential lives of innocent victims saved. Capital punishment, he believes, acts both as a general and specific deterrent, the latter meaning that the particular person convicted will never have the opportunity to kill again – as happened in the cases of Kenneth McDuff, Robert Massie and Richard Marquette.
‘If you have a system of capital punishment, there are going to be errors,’ he says. ‘But it’s a cost–benefit analysis, and it’s something we do in our societies all the time. Pharmaceutical companies are allowed to produce drugs that kill a small percentage of people. We don’t ban prescription medicines, we try to do better.’
Since 1973, the year after the death penalty was briefly ruled unconstitutional in the US, 138 people have been released from death row after evidence emerged of their ‘innocence’, according to the DPIC – though Marquis claims only five of these were exonerated by DNA. Overall, between 1976 – when the death penalty was revived – and 1995, around two in three death row inmates had their sentences overturned on appeal, according to a study by Columbia University. Proponents of the punishment cite this as evidence of the system working effectively and catching mistakes before it is too late. Others point out the trauma inflicted on both defendants and victims during the decades-long wait for their appeals to be heard.
‘These men are prejudiced against because they haven't been educated, or are suffering from psychological problems,' says Phillips. 'They are often refused writing materials and other means of contacting their lawyers.’
Indeed, having a conviction – rather than sentence – overturned is extremely difficult, Dieter says. Proving the original evidence was a little shaky tends not to be enough for most appellate courts; you need something nonsubjective. ‘If there is just a little doubt, they have no problem with going ahead – especially in Texas.’
Responding to Dieter’s comment, Rob Kepple, the Executive Director of the Texas Justice District and Country Attorneys Association, said: ‘After all the legal appeals are done, shouldn’t it be a challenge to get a conviction thrown out just because 15 years later an original witness now says he lied at the trial, and that another guy did it – who is usually dead?
‘In our country, the state proves cases beyond a reasonable doubt, so by definition all lawyers agree that prosecutors will proceed if there is “just a little bit of doubt.” Remember, there are no perfect trials, only fair ones. There is no such thing as beyond all doubt.’
Kepple, Ramos and Marquis are far from alone in their opinions. In an October 2010 Gallup poll of 1,025 adults, 64 per cent of respondents said they supported the penalty compared to 29 per cent who said they opposed it. However, support dropped to 49 per cent when life without the possibility of parole was given as an option, and death penalty opponents are confident support among legislators is waning. Indeed, the number of executions across the country dropped from 98 in 1999 to 46 in 2010, and Illinois voted in January to become the 16th abolitionist state.
Amnesty International USA Chair Rick Halperin doesn’t mince his words where the death penalty is concerned: ‘Capital punishment is class warfare against the poor. It doesn’t approach anything associated with justice. It is about money, race and power.’ Halperin is avowedly on the left of the political spectrum, but such opinions are not the preserve of the liberal elite: in 2000, Illinois Governor George Ryan (Rep) commuted all death sentences to life imprisonment due to concern about the way the law was being applied, and in 1994, Republican Supreme Court Justice Harry Blackmun, who began his tenure on the court in 1970 as a staunch death penalty defender, lamented the Court’s failure to prevent ‘the biases and prejudices that infect society generally’ from influencing decisions on who should be put to death.
One well-documented legal bias is that against African–Americans. Since 1976, 15 white people have been put to death for killing black people, compared to 246 black people killed for murdering whites, according to the DPIC. It is statistics like this that have convinced many non-ideologues, like Michael Radelet, sociology lecturer and death penalty expert at the University of Colorado, to become vehement abolitionists.
‘The question is not how you support the death penalty in theory, but how it is actually applied,’ says Radelet. ‘If the world were a fair place, maybe it would be different. But that would be the death penalty in DisneyLand. If applied equally, it would be the only thing in the US that is.’
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In almost every one of the 58 countries still retaining the death penalty, ‘poverty has the same parameters’, says Emmanouil Athanasiou, Asia Programme Officer at the International Federation for Human Rights (FIDH). ‘Rich people pay good lawyers and get good representation. Poor people end up with lawyers not even specialised in the death penalty.’
In Malaysia, nearly 90 per cent of the 300 people on death row are below the poverty line, according to lawyer and human rights activist Charles Hector. In China, the number of annual executions is a state secret, but is reported by Amnesty International to be in the thousands. Here, subjugated groups such as unskilled workers, the minority Muslim Uighurs and the Falun Gong spiritual sect all have little means of defence if arrested on a capital charge in China – charges that cover 55 separate offences, cut down from 68 in August 2010. Sufficient money to create a workable system will never be provided, Athanasiou believes, both because the threat of death acts as a useful tool of repression and because the more defence lawyers who develop expertise, ‘the bigger the risk of state secrets being leaked’.
In sub-Saharan Africa, Marie-Dominique Parent, of the Penal Reform Institute (PRI), says that few countries provide workable legal aid schemes offering ‘quality defence’ for the poor. The most populous country, Nigeria, has around 600 people on death row, all of whom are believed to be without adequate counsel. According to a 2008 Amnesty International report, hundreds of these inmates – most of whom were convicted of robbery and armed robbery – were not given a fair trial, with many of their confessions made under torture.
‘The police are over-stretched and underresourced,’ says Amnesty International’s Nigeria researcher Aster van Kregten. ‘Because of this, they rely heavily on confessions to “solve” crimes, rather than on expensive investigations.’
According to former Detective Superintendent Bob Denmark, of Lancashire Constabulary, who has worked with officers in Eastern Europe, Asia and Africa, forced confessions and police treatment of the poor is a bigger global issue than judicial discrimination. ‘The police are simply not given any other tools to work with, such as interview skills or the means to collect evidence,’ he says. ‘I think police prejudice can be so overwhelming that often whether the judiciary is prejudiced can be something of a nuance compared to that.’
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But what of cases where the crime is clearcut and no corruption of due process has occurred? After all, it may be the poorer members of society who face the severest penalties, but perhaps this is because it is these people who commit the most crimes. For many, however, this argument in itself points to a more profound social concern among oppressive states. The trend is a common one: government policies help create polarities of wealth, socio-economic tensions erupt and harsh punitive measures are unleashed against those least able to retaliate, to demonstrate that ‘order’ has been restored.
‘The Chinese regime creates the social and economic conditions that make crime inevitable,’ says sinologist and author Marie Holzman. She uses the case of Wang Bingyu as an example – a young man who killed his factory boss after he refused to pay him, despite knowing Bingyu needed the money to fund a life-saving operation for his father. ‘The Party had to execute him fast because they knew a lot of workers would follow his example, because they treat them so badly.’
It is not hard to find similar tales from across the world. Herbert Smith lawyer Anita Phillips represents death row prisoners from Trinidad, Tobago and Jamaica before the Privy Council, the highest court of appeal for Commonwealth countries, most of which still retain capital punishment. She confirms that most of her clients are poor, illiterate young men in gangs. Though there have been no executions in Trinidad and Tobago since 1999, soaring homicide rates have recently prompted the government to consider lifting the unofficial moratorium.
‘These men are prejudiced against because they haven’t been educated, or are suffering from psychological problems,’ says Phillips. ‘They are often refused writing materials and other means of contacting their lawyers.’
‘I've never seen any credible case that it acts as a detterent. I've only seen aspirational cases, which, when unpicked, were actually based on somebody's revenge theories of justice.’
Paul Lomas, partner
‘It is not uncommon for clients to meet lawyers on the first day of the trial,’ adds Saul Lehrfreund, Co-founder of the Death Penalty Project, which provides legal aid to death row prisoners in Caribbean countries. ‘There just aren’t enough funds to call medical experts or psychiatrists. Because of this, often the medically impaired are sentenced to death.’
Fortunately, many are saved in the Caribbean by a 1993 Privy Council ruling that restricted death row tenure to five years; after this point, all sentences must be commuted to life imprisonment. Prisoners in many other countries, including the US, are not so lucky. Here, the immense cost of a death penalty case due to the lengthy appellate process – US$3 million, compared to around US$1 million for life imprisonment – is a valuable argument employed by abolitionists when trying to persuade policy-makers to consider their options. For them, the choice is clear: spend millions punishing people haphazardly and ineffectually or use the same money to tackle the underlying causes of social unrest.
‘Say the government is spending US$300 million a year on the death penalty, that money could go towards more police on the streets, better lighting in crime areas, open libraries,’ says Dieter. ‘You have to ask if this is the best use of crime fighting dollars.’
The US administration may not be actively seeking to punish its poorest, but its high crime rate and harsh penal system align it uncomfortably with countries whose nominal value systems differ markedly from its own. In Vietnam, for example, where 22 crimes are punishable by death, the regime’s rejection of long-term solutions for superficial fixes is not unfamiliar. Here, where polarities of wealth have sky-rocketed since the country opened its doors to the market economy in 1986, the death penalty is viewed more as a tool of social control than of justice.
Recently, Vo Van Ai, President of the Vietnam Committee on Human Rights (VCHR), appealed for a presidential pardon for 20-year-old student Phan Minh Man, condemned to death in July 2010 for the murder of his alcoholic father, who savagely beat his family after failing to find work. ‘The death sentence on this student should be a reminder to us all, and to you, Mr President, that Vietnam still suffers from chronic economic and social problems that plunge millions of citizens into insecurity and despair, and gives rise to innumerable tragedies,’ Ai writes. ‘It is vital that the government respond to these problems by prevention rather than repression, by protecting worker rights and providing adequate social safeguards for the unemployed.’
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Topping the list of social ills in Vietnam is the problem of drugs. According to VCHR Vice- President Penelope Faulkner, the police and Communist Party ‘unofficially connive’ with dealers, giving immunity to those at the top of the food chain. The people caught instead are the young, poor and easily manipulated.
Vietnam is not alone. Since 1948, the number of countries with death penalties for drugs offences has rocketed from one to 32, while the number of annual executions has risen to the hundreds – or possibly even the thousands once the secret data of China, Vietnam, North Korea, Malaysia and Singapore is taken into account. ‘In the places where we have data, we know it is almost always poor and vulnerable people, and often foreigners, who receive the death penalty for drugs offences,’ says Human Rights Analyst Patrick Gallahue, from the International Harm Reduction Association. ‘Pablo Escobar was never swallowing drugs and crossing borders, so the idea it will act as some sort of deterrent to the highest levels of drug trafficking is some kind of fallacy.’
In Iran, occasional announcements from the authorities suggest that some cities have up to 500 death row convicts for drugsrelated offences alone. In 2009, there were 172 recorded executions for perpetrators of drug crimes, all of whom were tried in Revolutionary Courts. The European Union must be more aware, says Gallahue, that when it offers support for anti-narcotics programmes overseas, it ‘takes into consideration the possibility of these programmes leading to the death penalty being enforced’.
Similar problems continue to plague Thailand, where nearly half of the current 708 death row population were convicted on drugs-related charges. Here, corruption is endemic, with the level of sentence determined on the basis of a police report sent to the prosecutor. ‘So the officers will ask the prisoner whether they want the death penalty or not,’ says Danthong Breen, Chairman of the Union for Civil Liberty, a leading human rights organisation based in Bangkok. ‘And that depends on how much you pay them.’
In Nigeria, bribes are the best hope of survival for the 750-plus people on death row, and those unable to join the cash-for-clemency scheme are left to flounder. Speaking in July 2008, Owens Wiwa, the brother of an executed Ogoni activist, said: ‘From their first contact with the police, through the trial process to seeking pardon, those with the fewest resources are at a serious disadvantage in Nigeria’s criminal justice system.
‘Some death row prisoners were arrested when they went to a police station because they knew a suspect or had witnessed a crime. Many said the police rounded them up and thendemanded money for their release.’
‘People who pay enough to the judge can buy their life back.’
China expert Marie Holzman
Bribery among the judiciary in China is now ‘worse than ever’, according to Holzman. The practice gained new life in 2007, she says, when laws were brought in that required the Supreme People’s Court to revise every death penalty case. ‘People who pay enough to the judge can buy their life back,’ says Holzman. ‘But if you are poor and can’t pay, you’ll get it, no questions asked.’
In Muslim countries, buying one’s life back is a familiar practice, but it is from the families of crime victims rather than the state. Diyat, or blood money, is paid to the victim’s family, who then have the power to pardon or commute the perpetrator’s sentence. Indeed, Article 220 of the Islamic Penal Code states that a father who kills his own child is only required to pay diyat and is subject to a discretionary punishment. ‘If someone who is accused is rich, they can sometimes even change the accusation,’ says Athanasiou. ‘This is the case in every Muslim country.’
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So what hope is there of global reform – of making the death penalty a fair and equitable punishment, applied only according to the most stringent standards of due process – when so many forces collude to mire it in prejudice and corruption? For most campaigners, reform is not the issue; for them, capital punishment is an infringement of basic rights, irrespective of the crime. Yet even those who simply oppose the penalty as currently practised do not place reform high on the agenda. No government has enough resources to make the requisite changes, they argue, even should they have the will to do so.
‘To convince me reform was an option, you would have to convince me that everyone had a fair trial and that the system was infallible,’ says Lehrfreund. ‘You would have to convince me that criminal justice was science.’
‘I could probably be persuaded that the death penalty was a necessary evil if it could be proved that it would produce a safer society because its deterrent effect was so strong,’ adds Freshfields partner Paul Lomas, who represents Caribbean death row prisoners before the Privy Council. ‘The problem is, I’ve never seen any credible case that it acts as a deterrent. I’ve only seen aspirational cases, which, when unpicked, were actually based on somebody’s revenge theories of justice.’
Whether worldwide abolition is on the horizon is difficult to judge. Most staunch advocates give forecasts ranging from ten to 50 years, in the hope capital punishment will soon be as much an anachronism for modern society as slavery or apartheid. Global trends seem to support this view. In 1977, only 16 countries had abolished the death penalty for all crimes; in December 2009, the figure stands at 95, and more than two-thirds of countries have abolished the penalty in law or practice, according to Amnesty International. Countries are perhaps feeling the pressure of developing international human rights standards: in 1976, Article 6 of the International Covenant on Civil and Political Rights declared the death penalty should only be imposed ‘for the most serious crimes’, now generally accepted to exclude drugs and economic offences, and in 2007, the UN General Assembly passed a resolution calling upon members to establish moratoriums of executions, with a view to abolition.
Yet considering how deeply embroidered the practice is in the legal and social infrastructures of so many retentionist states, many activists could be accused of a somewhat blinkered optimism. In Iran, according to the World Coalition Against the Death Penalty, at least 346 people were executed in 2008 – more than four times the number killed in 2005. And in China, most activists believe abolition is impossible while the Communist Party remains in power.
It is clear, however, that abolitionists have a passion, focus and coherence lacking from their opponents – and they will not stop fighting until their objective is achieved. ‘You rarely see people actively campaigning in the street to keep the death penalty, do you?’ says Athanasiou. ‘Anyone who has strong enough feelings to make a stand invariably argues against it.’
Rebecca Lowe is senior reporter at the IBA and can be contacted at email@example.com.
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