The Death Penalty: Trends, Controversies and Challenges

On 6th May 2016, Co-Executive Director Saul Lehrfreund was invited to speak at a seminar at the Centre of Criminology at the University of Oxford.

Below is a summary of the talk by Iona Teague, MSc student in Criminology and Criminal Justice, University of Oxford: 

On Friday, 6 May 2016, the MSc cohort were privileged to welcome Saul Lehrfreund to the Centre for Criminology to talk about ‘The Death Penalty: Trends, Controversies and Challenges.’ A practicing lawyer specialising in international human rights and constitutional law, prison law, and criminal litigation, Saul is also the Co-executive Director of the Death Penalty Project, through which he has represented countless individuals facing capital punishment across the globe.

The Death Penalty Project is an international human rights organisation that provides free legal representation, advice, and assistance to those facing the death penalty around the world. It works with academics, criminologists, medical experts, and domestic lawyers to take a holistic approach to the contextualisation of capital punishment. For an organisation ‘created by accident by a single lawyer in the 1990s with no experience,’ according to Saul, the immense vale of the Project is clear.

The Death Penalty Project utilises the unique (and ever-uncomfortable in terms of its colonialist hangover) competence of the Judicial Committee of the Privy Council. Sitting in the UK Supreme Court and served by its judges, the Privy Council is the final court of appeal for criminal and civil cases. However, it’s still utilised by various countries of the former British Empire, some of which have capital punishment on the statute books.

Interestingly, therefore, a consequence of colonialism has led to a situation where death penalty cases are still heard and decided in UK courts, despite the formal abolition of capital punishment occurring in 1965, and 1998 completely. Whilst Saul described this phenomenon as a product of historical accident, there is certainly scope for further analysis as to how the paradox of a non-death penalty imposing state possessing hybrid jurisdiction to hear appeals of such cases of another state is a pertinent reminder of the legacy of colonialism and the power of the Empire―still seen today in jurisdictional sovereignty.

Nevertheless, the immense potential of the Death Penalty Project for instigating significant international jurisprudential change was demonstrated in the seminal case of Pratt & Morgan v AG of Jamaica, followed by Kigula & Others v AG in Uganda. Lawyers for the Project argued that the now widely renowned ‘death row phenomenon’ in which an inmate alternates between hope and despair, amounted to cruel, inhuman, and degrading treatment and was thus unconstitutional. The Privy Council agreed and prisoners held on death row for an extended period in the Caribbean saw their sentences commuted to life sentences. This persuasive jurisprudence resonated throughout the Commonwealth due to the unique jurisdictional reach of the court, thus marking the Death Penalty Project’s landmark strategic litigation win.

Indeed, over the past two decades, the scope of capital punishment has been severely restricted through litigation concerning delays on death row, mandatory death sentences, and administrative issues in clemency bodies, among others. The Death Penalty Project aims to achieve such restrictions in the hope that to do so creates space for a more informed and formal discourse about the potential for abolition. In achieving such a restriction, lessons can be learned from states that have been rid of capital punishment for a significant period of time, such as the United Kingdom.

For example, it’s important to focus on miscarriages of justice as a clear and strong advocating argument in favour of abolition. Prior to 1965, the UK had seen a number of controversial convictions and executions, notably those of Dereck Bentley, Timothy Evans, and Ruth Ellis. Even after abolition, cases such as the Birmingham Six, the Guildford Four, and Mahmood Matan, firmly put to bed attempts to reintroduce capital punishment because, in the words of the Lord Chief Justice at the time, justice is always only ‘human and therefore fallible.’ Of the approximately 500 cases referred to the Court of Appeal by the Criminal Cases Review Commission since 1997, about three quarters led to convictions being overturned. Criminal justice can go wrong, but the death penalty is irreversible.

Furthermore, public opinion should not be taken at face value and be a significant barrier to abolition. When capital punishment was abolished in the UK, there was certainly no clear public support for it: the majority of the public were in favour of retention. Opinion polls in 1986 still showed 74% in favour, only falling to below 50% by 2014. The methodologies of public opinion surveys must also be scrutinised, since the way a question is framed can have a significant effect on its answer, as was demonstrated by Mai Sato’s research in Japan (here you could link to her book). Indeed, abolition doesn’t occur due to popular public demand; it occurs though effective leadership enforcing strong human rights principles.

Unfounded emphasis on public opinion is thus a strong barrier to abolition. Any country concerned with the protection of human rights should not solely rely on public opinion as a reason against abolition. Opinions can be formed on misconceptions (such as the presumed deterrent effect of the death penalty), individuals can become conditioned by the status quo, and opinions differ across age, religion, and ethnicity. Furthermore, public opinion is often weak and uninformed. For example, a survey carried out by Roger Hood for the Death Penalty Project demonstrated that over 50% of respondents were poorly informed about capital punishment, and 59% claimed they were unaware it was mandatory.

Nevertheless, it’s possible to be optimistic about the global state of capital punishment. The Death Penalty Project has already ensured the abolition of mandatory death sentences in twelve countries, as well as finding the death row phenomenon unconstitutional. The question as to whether the death penalty will ever be abolished universally is impossible to answer accurately, due to volatile world powers and the presence of repressive regimes that lack democratic principles and an effective rule of law. Focusing on the Commonwealth and its high proportion of small retentionist states is a productive area to consider, as well as encouraging abolition in the United States in light of the forthcoming newly constituted Supreme Court. The hope is that abolition in the US would pressurise Japan to follow suit. Many countries are on the cusp of abolition and so it’s merely a question of when rather than how they abolish.

Such a detailed insight into the use of capital punishment across the globe was extremely valuable for the current MSc cohort, particularly those who hadn’t taken the death penalty module. It was a privilege to hear from such an experienced and influential speaker on this important subject.

Photo credit: Pablo Fernández (Flickr, Creative Commons), https://creativecommons.org/licenses/by-nc-nd/2.0/legalcode