Tag Archives: Capital punishment

Pride and Prejudice: Human Frailty and the Irreversibility of Capital Punishment

30 Jun

On Friday, June 28 the UN held its second annual event to highlight key elements of efforts to eliminate the death penalty as a viable punitive option for states.   The event sought to call specific attention to the problem of wrongful convictions, a problem impacting many attempts to punish violators of the law, but especially in instances of capital crimes, as there is simply no way to reverse punishment which results in loss of life.

As UN Secretary General, Ban ki-Moon noted in his opening remarks, there have been welcome efforts in several countries (and in some US states) to reduce and/or eliminate the practice of capital punishment.   However, the practice still exists in a number of member states, and there is concern that others might be tempted to roll back hard commitments to eliminate this practice, something that this event was designed to help avoid.  The SG wisely called for a “series debate” on capital punishment in those states that have so far refused to abolish capital punishment.

The event was organized by the Office for the UN High Commissioner for Human Rights and provided an excellent case study as to why wrongful convictions are so problematic in countries that sanction at least the possibility of executions. The event featured a film clip of “West of Memphis,” the critically acclaimed documentary that follows the events of the so-called “West Memphis Three,” who were arrested for the murders of three 8-year old children in 1993 and imprisoned more than 18 years, before being released with the introduction of new DNA evidence. One of those wrongfully convicted, Damien Echols, who was actually sentenced to death, was among the experts on the panel, along with his attorney.  His reflections on treatment he received at the hands of Arkansas prosecutors, prison guards and others was a chilling reminder of how sloppy police work leads to wrongful convictions and a host of subsequent abusive practices.

One of the important contributions of this event is the degree to which legal prosecutions are potentially compromised by a host of factors – including the careers of judges, prosecutors and law enforcement officials, persons occupying important professional positions who maintain uncomfortably ‘cozy’ relationships in some US states and other countries.  “We’ve never sent an innocent person to prison,” we have heard from law enforcement officials,” a refrain that continues even after DNA evidence contradicts original judicial findings.  Especially in high profile cases, the emotional and political pressure to convict often exceeds the evidence with which to convict.  As more than one speaker at the event noted, judges and prosecutors don’t get re-elected because they set people free.  They get re-elected by putting people behind bars — whether they deserve to be there or not.

In many life circumstances, we encounter people who have strong convictions based on flimsy evidence.  The need to ‘make up one’s mind’ trumps the need to make the best judgment possible based on existing evidence.   A corollary to this is the unwillingness to allow judgments once made to adapt to changing circumstances.   Parents, for instance, often make good decisions about the way to raise their pre-school child, but some of these decisions will inevitably and rightly evolve as the child moves through stages of development.  Mature judgments are held hostage neither by pride nor prejudice, but by the need to make the best possible choices based on shifting circumstances.

This tendency to ‘rush to judgment’ coupled with a compelling need to defend such judgments and maintain career reputations make for a shaky circumstance when it comes to any policy work, but even more when it comes to capital punishments. The more any punishment approaches irreversibility, the higher the guarantees we must offer regarding the objectivity and integrity of trials.   All relevant evidence gathering must be encouraged and then heeded even once an initial judgment is rendered.   In criminal matters, it seems ironic that opportunities for identifying and overturning wrongful convictions were provided not so much by jurists but by scientists working on DNA coding.  Some of that scientific discipline – specifically the ability to resist reaching past the limits of available, credible evidence – should be mandatory for criminal justice professionals as well.

GAPW remains deeply concerned about the trend in so many areas of policy to blatantly taint sound judgment with personal pride and institutional prejudice.  In the case of capital punishment, we will continue to engage strong partners – especially FIACAT and the World Coalition against the Death Penalty – as part of broader efforts to ensure that flexible, evidence-based policy becomes the norm in both domestic and international contexts.

 

Dr. Robert Zuber

 

OHCHR Global Panel: “Moving Away from the Death Penalty – Lessons from National Experiences”

6 Jul

The Panel, presented by The Office of the High Commissioner for Human Rights offered progressive perspectives on the possible global abolishment of capital punishment, including mechanisms towards abolishment and lessons learned from existing and previous efforts. The program was divided into two sessions. First, panelists discussed the experience of their States regarding the abolition of the death penalty. In addition, participants discussed the link between the death penalty and human rights. The conversation was insightful, respectful and thoughtful. It provided a new foundation from which a human security framework surrounding capital punishment can emerge.  In addition, the meeting highlighted education and awareness as being essential roles for civil society.  Civil society, non-state and state actors hold a vital stake in this discussion with clear links to peace and security. The meeting provided a necessary public forum empowering a comprehensive and robust dialogue.

Three significant and highly related perspectives materialized from the discussion:

1)      Capital punishment is more likely to be supported in countries that lack awareness and education on the topic as well as the institutions and resources to support other means of punishment;

2)      The death penalty is a human and civil rights issue and in many cases it is utilized to specifically target marginalized and vulnerable groups therefore increasing inequality and undermining efforts to eliminate discrimination.

3)      State capacity to back-check and scientifically rule out human and judicial error is significantly lacking in the international community (specifically in those countries lacking in economic development and the rule of law) resulting in far too many innocent victims being sentenced to death.

These three perspectives raise significant questions surrounding the purpose of capital punishment laws and their effect on human rights and more specifically on human security.  The assumed purpose of capital punishment is to deter crime through instilling fear in punishment by death. Yet, as demonstrated at the meeting, a significant link between the death penalty and crime deterrence does not exist.  It was mentioned that in fact the opposite is true – abolishment of the death penalty is associated with increased human security and decreased human rights violations by States. Therefore, the following questions emerge: What is the death penalty actually accomplishing and for whom? Why should civil society be so concerned?

In States where capital punishment is upheld violence is more likely to become a state-endorsed cultural norm from which a vicious cycle of incapacitating human insecurity can evolve. This cultural norm establishes the use of violence as an acceptable form of problem solving and punishment setting an example of such behavior at the highest levels. Violence is thus encouraged and promoted at every level, opening the door to street-level retribution and gross human rights violations, while often specifically targeting marginalized communities.  Moreover human security is threatened when a government sets the tone of essentially allowing “an eye for an eye” mentality to ensue without thinking through the actions, costs or consequences of such a stance – consequences such as increased inequality, low economic development and enduring poverty and violence. In such a setting civil society recognizes and must address this grave risk.

In order to reduce risks in States that continue to apply capital punishments, Mr. Barry Scheck and others recommended that standards and regulations be required at the international level to enforce the use of DNA and scientific evidence testing to eliminate wrongful convictions. In many States which continue to uphold the death penalty, instances of wrongful conviction and death sentences are likely to occur due to the fact that there are no national or international regulations or standards in place to require a “back check” on possible human and judicial errors.  However, even though this is an admirable point and one that requires additional study it derails the conversation and shifts the focus from the goal of globally eliminating capital punishment for human security to one of legal procedures to ensure fairness in punishments.

In this case the argument should be re-framed to address how the possibility of wrongful convictions can be used to eliminate public support of the death penalty.  Furthermore, many States upholding the death penalty lack the resources and capacity necessary to support testing mechanisms, in particular they may lack strong institutions, the rule of law and the ability to finance DNA testing. Therefore it is essential as a first step to address the underlying issues through institution building and development in order to even begin a discussion about standardizing the use of procedures and scientific evidence.  In order to do so, the best approach may be to first encourage a moratorium on the death penalty and second to educate citizens on the effects of the death penalty and its impact on human security and human rights.

In a society where the death penalty is upheld, human security is threatened due to violence perpetuated at government levels. Civil Society therefore has a significant role to play in this debate requiring a strong and informed voice. Involving civil society in the conversation on the death penalty is essential to its abolition. Therefore it is important to heed the recommendation of increased education and public awareness – a theme that remained a constant thread throughout the meeting. (Education was specifically noted multiple times by Guatemala and Mr. Federico Mayor) Education and awareness play a vital role in successfully shedding light on the death penalty as a violation of human rights and as a punishment that actually decreases human security.  For example; in Trinidad (discussed at the meeting by Mr. Mendes) awareness o f the consequences of wrongful conviction, framed within a human security perspective, significantly decreased public support for the death penalty.

Although panelists suggested that public opinion should be separated from human rights, it is necessary to keep the perspective that public opinion is indispensable when trying to achieve change in a State’s human rights climate.  Education and awareness should therefore be appropriately instituted and targeted to enhance bottom-up change and limit top down influence in setting a tone of violence. However; the question remains: how can bottom-up change occur in a society that is not democratic?  It may be necessary in this case to re-frame the issue beyond a human rights perspective and instead demonstrate the cost-benefits of abolition. Ultimately, a two-pronged approach may be best in order to connect the national security risks and costs with the human rights and security issues in order to induce a paradigm shift to eliminate the death penalty on a global scale.

“Moving away from the death penalty” provided an important forum for discussion on this still controversial issue. Framing a compelling strategy for abolishment of the death penalty requires multiple approaches to reach the ultimate goal.  Most importantly it is essential that the global abolishment remains the goal and that the debate is not led off track.  At a minimum, the moratorium on the death penalty should continue to be pushed, and we must continue to address the systemic and underlying issues that lead to its use.  As we edge closer to upholding the right to human life as the global standard, it is essential that governments set an example that violence is not the answer to human security and that civil society uses its collective voice to set the stage for change.

–Cara Lacey