PENALTY

Most justice systems, in deciding guilt, accept the ethical principle
in dubio pro reo (when in doubt, [decide] for the accused). By way of
analogy, if there is no proof that the death penalty deters crime, why
would we continue to apply it? It may be out of ignorance, or deterrence
may be a fig leaf covering other motives: the desire for talionic
revenge, 13 or to protect dominant social groups and their interests; in
most retentionist states the death penalty disproportionately affects
socially marginalised groups—migrants, racial and ethnic minorities,
the poor and people with mental disabilities—some of them victims
of compounded discrimination.
Chapter 3 raises concern over the disproportionate effects of the death
penalty on marginalised groups in Africa, the Caribbean, India and
the United States. Marginalised groups are overrepresented among
the wrongfully convicted to a disturbing extent. 14 People with a
mental disability or without a competent defence lawyer are more
vulnerable to pressure to make a false confession, and jurors may be
more prone to suspect a defendant who is different from them. Also,
in too many legal systems, financial resources, or the lack thereof,
determine the quality of legal representation.
From a moral perspective, the attitude and response to crimes
committed by members of marginalised groups should not be to discriminate
against them further, but precisely the opposite: to look for
mitigating circumstances, which may have been a consequence of the
discrimination they have been subjected to.
There needs to be some soul-searching and recognition of responsibility
on the part of society, when members of marginalised groups
are involved in crimes. To what extent have discrimination and unjust
treatment of members of racial or ethnic minorities contributed to
the commission of crime? How has a life of deprivation and lack of
opportunity for the poor, uneducated or mentally disabled contributed
to the commission of their crimes? From the perspective of justice,
13 Talion, or lex talionis in Latin, is a principle that perpetrators should receive as punishment the
same injuries that they inflicted upon their victims. Its origins can be traced to early Babylonian
law, which subsequently influenced Biblical and early Roman views on punishment. It is
also reflected in later (including some current) justifications of corporal punishment.
14 See Brandon L. Garrett, Convicting the Innocent (Cambridge, Massachusetts, Harvard University
Press, 2011), p. 235.
should there not be more questioning of individual guilt and mitigating
circumstances of alleged perpetrators belonging to marginalised
groups, instead of discrimination against them?
Besides the three main issues relevant for abolition or retention of
the death penalty, around which the first three chapters of this book
are organised, there are many other issues. The economic effect of the
death penalty is one of them.
In various circumstances, this
“THE EVOLUTION OF
may be astonishingly different. HUMAN RIGHTS HAS
I was present at a meeting REDUCED STATE SOVERduring
which the top United EIGNTY IN MANY AREAS;
Nations official, speaking to THE DEATH PENALTY SHOULD
the leader of a developing BE ONE OF THEM AS WELL.”
country that carried out frequent
executions after legal
—Ivan Šimonović
proceedings that were considerably below international standards,
pleaded for abolition or at least a moratorium on executions. “I have
no money to feed them or build them prisons,” the leader responded;
“a bullet is cheaper. But if you want them,” he added, “you can take
them back with you to New York.”
International norms are clear that if the death penalty exists, those
facing it should be afforded special protection and guarantees to
ensure a fair trial, above and beyond the guarantees afforded to defendants
in non-capital cases. This creates a paradox. The death penalty
is cheaper than other forms of punishment only if its execution does
not require complex legal proceedings or safeguards, such as the use
of forensics and reviews. However, in such cases the likelihood of
wrongful conviction is exacerbated. But if the number of safeguards
is increased, the death penalty becomes the most expensive form of
punishment, as the bulk of US research clearly indicates. 15
In fact, the cost of the death penalty is so much higher than the cost
of a life sentence without parole that abolitionists, especially in the
United States, use this argument in their campaigns. 16 Even when the
15 For a summary of these studies, see Rudolph J. Gerber and John M. Johnson, The Top 10 Death
Penalty Myths (Westport, Connecticut, Praeger, 2007), pp. 165-171.
16 See Death Penalty Information Center, Smart on Crime: Reconsidering the Death Penalty in a Time
of Economic Crisis (Washington, DC, 2009).
14 15