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State-Organised Murder: The Death Penalty in the 21st Century

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About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

To the shock of many, 2015 has already seen several high-profile criminal cases resulting in capital punishment. Pakistan lifted its death penalty ban after seven years, following the Peshawar school massacre in December 2014. Indonesia executed eight people in April for drug offences, despite the punishment being condemned on an international scale.  In May 2015, Dzhokhar Tsarnaev was sentenced to death following the 2013 Boston bombing, in which he played the main role. Aged 21 years old, he is the youngest person on death row in American history. This is despite the majority of people in Boston being opposed to the death penalty. Massachusetts itself does not have the death penalty available, and so Tsarnaev has been sentenced under federal law, carrying the federal death penalty.

Fortunately, the death penalty is illegal here in the UK; the last executions having taken place over half a century ago. Gwynne Evans and Peter Allen were hanged simultaneously at 8am on 13 August 1964 for the murder of John Alan West. The Murder (Abolition of Death Penalty) Act 1965 abolished the use of capital punishment in cases concerning murder, instead imposing the maximum sentence of imprisonment for life. The death penalty was abolished for treason and piracy much later by s. 36 of the Crime and Disorder Act 1998. Additionally, the UK is prohibited from extraditing an individual to a country where they could face the death penalty. As held in Soering v UK (1989), extraditing the claimant to a country where he faced the death penalty would be a violation of Article 3 of the ECHR. The UK would have exposed Soering to cruel, inhuman and degrading treatment whilst awaiting his fate on death row; however, the execution itself would have been permitted.

Members of the public who support the death penalty have unsuccessfully attempted reinstating it in the past; a public e-petition to have the matter debated in Parliament received little support back in 2011. Nevertheless, there are those who continue to believe that capital punishment would be in the public interest. Michael Gove, the new Justice Secretary, has previously voiced support for the death penalty, stating that if faced with a murder charge, he would prefer a fair trial, under the shadow of the noose.The basis of his argument is that the possibility of capital punishment forces judges and juries to ensure a reliable and scrupulous trial, due to the fatal risk. Priti Patel, the new Minister of State at the Department for Work and Pensions, has also expressed support, believing that the reintroduction of capital punishment [would] serve as a deterrent.In 2015, support for the death penalty in the UK is estimated to be at 48% of the population. Yes, the majority of the UK are opposed to it, but it is hardly a tremendous majority. With the future of the Human Rights Act currently under debate, as well as our future within the EU, it is possible that the death penalty could be brought back into public discussion. The following question therefore remains: what role does the death penalty play within a 21st Century criminal justice system?

The right to life and humane treatment

A fundamental argument against the use of capital punishment is that it is a violation of an individuals right to life. The Human Rights Act 1998 prohibits the use of the death penalty in the UK, on the basis of the ECHRs right to life. Other legal instruments, such as the European Convention on Human Rights, do allow the use of the death penalty following conviction of a crime for which this penalty is provided by law.The ECHR was of course drafted at a time when many countries, including the UK, still used capital punishment. However, the international legal framework is changing with the times. In 2002, the Council of Europes Committee of Ministers adopted Protocol 13 to the ECHR. Article 1 of the Protocol states that the death penalty shall be abolished. No one shall be condemned to such penalty of executed, and permits no derogations or reservations. It is a legally binding instrument, and has been signed and ratified by 44 Member States of the Council of Europe, including the UK. The UN has also been making progress towards abolition. In the past ten years, the UN General Assembly (UNGA) has adopted four resolutions urging States to respect international standards that protect the rights of those facing the death penalty, to progressively restrict its use and reduce the number of offences which are punishable by death.Gradually, abolition is taking place in order to respect the rights of the individual.

The process of execution itself could be considered cruel, inhuman, or degrading treatment or punishment, as prohibited by legal instruments such as the Convention Against Torture (CAT). Through the application of the death penalty, the individual is subject to both mental and physical suffering. Firstly, mental harm occurs via the death row phenomenon:

This phenomenon refers to a combination of circumstances that produces severe mental trauma and physical suffering among prisoners serving death sentences, including uncertainty and anxiety created by the threat of death and other circumstances surrounding execution, prolonged solitary confinement, poor prison conditions and lack of educational or recreational activities.

In order to ensure individuals have adequate access to the appeal system, or even just due to a lack of resources, many remain on death row for years, if not decades. These lifelong death sentencescan put an individual under extreme psychological stress, with many dying of old age as opposed to the actual sentence:

Conditions on death row are grim; inmates age fast. They are often locked up in a solitary cell for 23 hours a day. Throughout this time, they live in fear that soon they will be strapped to a gurney and pumped full of lethal chemicals.

In actual fact, the death penalty is indeed a double punishment. The individual is sentenced to   a lengthy imprisonment followed be execution, or even life imprisonment if the combination of harsh conditions and old age takes its toll. Of course, the longer the time spent on death row, the more opportunities the individual will (ideally) have to appeal the decision. Conversely, this counter-argument still provides no reason as to why the death penalty sentence is appropriate in the first place. It merely attempts to justify the double punishment.

The method of execution may also be deemed as cruel, inhuman, or degrading treatment. Following execution by lethal injection, US citizen Clayton Lockettwrithed and groanedfor 43 minutes prior to death. The injection had not been entirely successful, and Lockett appeared to die from a severe heart attack. This case is not in isolation; another US citizen, Joseph Wood, was estimated to take 660 gasps of air prior to death in an execution which lasted almost two hours. Due to opposing countries refusing to supply execution drugs, countries such as the US are forced to develop new drugs and combinations of drugs, with often unreliable results. Earlier this year, four inmates attempted to sue Ohio for passing a law which ensures the anonymity of death penalty drug suppliers. The law aimed to prevent more suppliers from withdrawing their supply due to public scrutiny following botched executions, however the inmates argued it was unconstitutional as it breached freedom of expression and the right to petition (First Amendment of the US Constitution). The lawsuit was dismissed, as the law in question did not sufficiently suppress speech or the ability to oppose the death penalty.Hopefully the anonymity will be waived should a supplier be directly responsible for a failed execution, like that of Clayton Lockett, however this remains to be seen.

Even if you were adamant that the death penalty is a proportionate punishment for a murderer, there are other factors to consider. Perhaps the greatest procedural reason not to advocate the death penalty is its absolute and irreversible nature. The criminal justice system is a human invention and is consequently subject to human error. Sentences of life imprisonment can be overturned if new evidence comes to light, and compensation awarded if appropriate, but execution is final.

Since 1973, over 150 people on death row in the US have been exonerated due to later evidence of their innocence. It has been estimated that at least 4.1% of all defendants sentenced to death in the US in the modern era are innocent. Tragically, there are also many whose executions take place prior to this evidence being unveiled. One example of such a case is that of Cameron Todd Willingham. In 2004, Willingham was executed in Texas for the murder of his three daughters. It was claimed that he had purposely committed arson in order to orchestrate their deaths. Since his execution, a great deal of scientific evidence has come to light suggesting his innocence. Here in the UK, there have been instances where calls for execution were later met with evidence of innocence. The Birmingham Sixis one of the most well-known miscarriages of justice in UK history. Following confessions obtained under torture, six men were imprisoned for 16 years prior to their innocence being proven. Whilst in prison, many called for the strictly prohibited death penalty to be restored, including the infamous Lord Denning. Six perfectly innocent men could have been executed.

Unswayed by the moral reasons?

The main argument in favour of the death penalty is, of course, deterrence. By executing murderers, society clearly prevents the possibility of him or her committing the same crime in the future. Those who argue for capital punishment on the grounds of deterrence believe that additionally, having the death penalty available as an option could theoretically prevent potential murderers from committing the crime in the first place. It is not, after all, a tempting fate. This argument, however, does not account for those who commit murders in the spur of the moment, or due to mental illness. Furthermore, it is not supported by evidence that imposing the death penalty reduces the number of murders (in fact, the opposite is commonly found).  In 2013, the average murder rate of US death penalty states was 4.4 per 100,000 persons, whereas the average murder rate of US non-death penalty states was 3.4. If these statistics were found amongst other countries, those in favour of capital punishment could simply argue that it is nothing more than evidence of a cultural and geographical gap. Nevertheless, for this difference to be found across neighbouring US states is solid evidence of the deterrence arguments invalidity. Another argument in favour of execution is retribution; in other words, an eye for an eye. What some may view as pay-back, I would view as vengeance. This is especially the case when countries utilise the death penalty for political reasons; a truly terrifying concept.

With the UK set to scrap the Human Rights Act, and potentially leave the EU, the future of death penalty abolition is not as definite in nature as an execution itself. 52% is not a staggering majority, and with many key members of Government expressing support for judicial execution, there is always an unfortunate potential for its restoration. Thankfully, the international legal consensus is strongly against the death penalty, due to its barbaric and ill-founded nature. Fuelled by anger and a desire for retribution, a State with the legitimacy and approval to murder a citizen is a seriously horrifying thought. The UK will hopefully continue to treat the possibility of restoration with absolute disregard, whilst promoting the UNs efforts for its total abolition. There are no acceptable reasons for its use within a 21st Century criminal justice system.

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Tagged: Criminal Law, Human Rights

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