CAPITAL PUNISHMENT BRIEFING PAPER - University of Westminster

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Issues arising from litigating capital crimesThere is some evidence that indicates that a strategy to remove thedeath sentence relying solely on litigation is as much a part of the problem asof the solution. 238 The unintended, though entirely foreseeable,consequences of legal victories can be illustrated by reference to theexperiences of the USA and in the British Commonwealth Caribbean wherereliance solely on litigation strategies has arguably had the effect ofentrenching capital punishment as each legal ‘victory’ sets off a chain offurther litigation and counter-litigation. In the USA, the effectiveness of thefederally funded capital defence resource centres in stalling executions canbe said to have led to an increase in capital punishment legislation, anincrease in the number of capital crimes, severe restrictions to the appealprocess and the removal of federal funding. 239 The damage that this couldhave caused was in great measure mitigated by the presence of an otherwiserichly resourced activist infrastructure available in the USA, but not in otherparts of the world.For several decades, lawyers from the UK have been actively involvedin capital litigation in the British Commonwealth Caribbean throughrepresentation in the Judicial Committee of the Privy Council and supportinglocal lawyers with challenges in the domestic courts. A consequence of these‘victories’, which laudably had secured fundamental protections for theirclients, has been to attract considerable hostility from all sectors of Caribbeansociety. Against this background and in a climate of endless litigation, it wasonly a matter of time before the region raised the stakes, which is preciselywhat happened in Belize, Barbados, Trinidad & Tobago and Jamaica, all ofwhom began the process of amending their Constitutions in such a way as tooverturn the fundamental protections secured by the domestic and UK legalcommunities. The ‘retaliatory’ nature of their responses even found their wayinto the discussions about the recently established Caribbean Court ofJustice, which was characterised as a ‘hanging’ court, one of whose purposeswas to restore ‘justice’ and the ‘will of the people’ to the region, though theframers refuted this. 240 To date, Belize and Barbados have amended theirConstitutions though it is only Barbados that has enacted the amendments.More recently Barbados’s Attorney General Freundel Stuart confirmed, in aninterview that the government is moving to abolish the mandatory deathpenalty. There has not been a hanging - the method used to carry out thedeath penalty in Barbados - since 1984. 241 In October 2009 the Inter-American Court of Human Rights [IACHR] quashed the death sentenceimposed on Tyrone DaCosta Cadogan and declared that all mandatorysentences of death in Barbados are a violation of the right to life.238239240241Hodgkinson, P. (2005), The Unintended, Entirely Foreseeable Though Perhaps UnavoidableConsequences of Litigating the Abolition of Capital Punishment, 13 Amicus Journal, 2005For example, the 1996 Antiterrorism and Effective Death Penalty Act, signed into law on 24April 1996.For a summary of some of the discussions, see Anthony (2003).Caribbean360.com 5 th May 200963
The Jamaican debate has taken place against a backdrop of analarming number of homicides and other violent crimes, pressing the politicalimperative of being seen to do something – anything. Jamaica, with apopulation of 2.7 million recorded 1,671 homicides in 2005, 1,300 in 2006 242and 1574 in 2007. Jamaica has not carried out an execution since 1988 andthus sits very comfortably in the de facto abolition statistics. Leading up to theelections in 2007, both main parties focussed attention on the high homiciderate and the party then in opposition, the Jamaica Labour Party, chastised thegoverning party the Peoples’ National Party for failing to reinstituteexecutions. The Jamaica Labour Party were returned to government after alengthy period in opposition and have recently decided to hold a consciencevote on the question of whether the death penalty should be retained. If thevote supports the retention of the death penalty, the Jamaican governmenthas said that it will work towards speeding up the appeal process 243 so thatexecutions can take place within the 5 year time limit imposed under Pratt andMorgan 244 . The resumption of executions is of even greater concern inTrinidad & Tobago, which is a friend of the death penalty. 245Other derogations from international human rights standards andprotections have been undertaken, for instance, removal of the protectionsafforded by the First Optional Protocol of the ICCPR in Jamaica in January1998, Trinidad & Tobago in May 1998, and Guyana in December 1998. Thishas the effect of denying to all citizens of these countries the right to individualpetition of the Human Rights Committee. Both Guyana and Trinidad & Tobagoattempted to re-accede to the First Optional Protocol on the day ofwithdrawing but with a reservation attempting to exclude all those on deathrow from taking up the right to individual petition. The Human RightsCommittee concluded that to exclude a whole group of persons from this rightwas so discriminatory and contrary to the object and purpose of the ICCPRthat the reservation was invalid. 246 Therefore, in the latter states, all citizens,not just those on death row, continue to be denied the right to individuallypetition the Human Rights Committee.Thus a strong argument could be advanced that the ‘victories’ of thedefence and the pique of the vanquished have led to an entrenchment of thedeath penalty, as well as the far reaching consequences of denying everycitizen protection against violations of other human rights. It is difficult to knowquite how this impasse can be negotiated without recourse to furtherresource-sapping litigation. 247242243244245246247Gayle, B. and Sinclair, G. (2007), ‘2006 Year in Review: Crime and Justice - Police gainground but murders still high’, Jamaica Gleaner, 15 January 2007, available at:http://www.jamaica-gleaner.com/gleaner/20070115/lead/lead9.html,Henry, B. (17th December 2007). More Death Penalty Delays. Jamaica Observer. Availablefrom http://www.jamaicaobserver.com/news/html/20071217T010000-0500_130460_OBS_MORE_DEATH_PENALTY_DELAYS_.aspPratt and Morgan v. Attorney-General of Jamaica (1993, 4 ALL ER 769).Trinidad and Tobago, with a population of 1 million recorded 386 homicidesin 2005 (Seelal 2006) and 269 in 2006 (Ramnarine 2007).Rawle Kennedy (Communication 845, 1999).Mendes, D. and Delzin, G. (2005), ‘Using the Bill of Rights to halt executions: A reply toPeter Hodgkinson’, 15 Amicus Journal, 18-2164
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CAPITAL PUNISHMENTBRIEFING PAPERPet
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PETER HODGKINSON, OBEDirector, Cent
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Subsequently, she worked at the Cen
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Preamble 1The objective of this bri
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a unique deterrent, 3] the administ
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effects’ are not uncommon even in
Page 13 and 14: debate, not hide behind the views o
Page 15 and 16: place with tougher institutions for
Page 17 and 18: supported capital punishment. The p
Page 19 and 20: Death Penalty for MurderRed = major
Page 21 and 22: prosecutors had withheld evidence,
Page 23 and 24: By comparison, Europe is almost ent
Page 25 and 26: have very low rates of recidivism a
Page 27 and 28: It will be interesting to see how t
Page 29 and 30: While some death penalty opponents
Page 31 and 32: manifest itself in the often violen
Page 33 and 34: death row, which was more than the
Page 35 and 36: would be to obtain a complete suspe
Page 37 and 38: developed largely through the impro
Page 39 and 40: Religion and capital punishment[sec
Page 41 and 42: automatically. For example, in case
Page 43 and 44: punishment is to be administered, i
Page 45 and 46: money). Given the victim-orientated
Page 47 and 48: certifying death, removing organs f
Page 49 and 50: The WPA held that “the participat
Page 51 and 52: Mental health and the death penalty
Page 53 and 54: sparse and apparently limited to ge
Page 55 and 56: Table 2: Elements of death penalty
Page 57 and 58: squad on the grounds that beheading
Page 59 and 60: It was on the grounds of physician
Page 61 and 62: The Protocol to the American Conven
Page 63: is an integral part of the state, t
Page 67 and 68: Privy Council 252 describing the ef
Page 69 and 70: sentence. 274 Those were sentences
Page 71 and 72: The situation in MoroccoLegal Syste
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Page 75 and 76: Prison conditionsThe conditions of
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Page 81 and 82: Execution data and processIn Vietna
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Page 87 and 88: APPENDIX ONESTATUS OF THE DEATH PEN
Page 89 and 90: NEPAL 1997 1990 1979NETHERLANDS 198
Page 91 and 92: The Russian Federation introduced a
Page 93 and 94: De Facto abolitionist*Korea (South)
Page 95 and 96: Guinea R R R N R RGuinea b S S R S
Page 97 and 98: Thailand R R R R R RYugoslav R R R
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