Capital Punishment: New Perspectives

Capital Punishment: New Perspectives

Editor: Peter Hodgkinson
Publisher: Farnham, Surrey, UK; Burlington, VT: Ashgate Publishing, 2013. 408p.
Reviewer: Andrew Novak | January 2015

This volume, edited by Peter Hodgkinson of the University of Westminster, is a wide-ranging and long overdue critique of the death penalty abolition movement. As Hodgkinson correctly points out, those who oppose legal capital punishment spend resources and energy pursuing the same tired strategies and messaging. The two introductory chapters by Hodgkinson and Akers are the most creative in the book. They are also harsh. Hodgkinson may be right to note overreliance on “incremental” death penalty litigation as a strategy in the absence of sustainable alternatives, especially in light of the global crisis of imprisonment and a chronic weakness of legal aid in most retentionist countries. Is life without parole in place of the death penalty really a victory for human rights? Yes and no.

It is possible though that Hodgkinson is overly critical: death penalty litigation is part of a broader strategy of incremental abolition, one that has been extraordinarily successful on the whole at reducing the number of executions and improving the transparency of the death penalty process. Litigation has the consequence of increasing the structural costs of executions in the aggregate and thereby making executions less frequent. Hodgkinson believes that overreliance on human rights litigation may be counterproductive since a court, unlike a legislature, is not in a position to provide a workable alternative to capital punishment. The strategy has precedent: the NAACP Legal Defense Fund managed to challenge virtually all death sentences in the United States after 1967, creating a backlog at the appellate level that ensured that the Supreme Court would eventually address the constitutionality of capital punishment. Whether that strategy was successful given the backlash that resulted, and whether it is transferable to other countries, are open questions.

How can abolitionists use the lessons of the United States elsewhere? Hodgkinson asserts that the United States is legally and culturally peculiar, and though it has dominated the academic death penalty literature, its transferability to other global situations is limited. Limited perhaps, but not zero. The United States still follows international trends, though it lags. Hodgkinson is critical of indefinite and reversible moratoria on executions. Moratoria can and have led to permanent abolition in the United States (Illinois) and elsewhere (South Africa), though often countries remain in perpetual limbo. Even if the death penalty is abolished and reinstated, it is almost never pursued with the same vigor—true in Oregon, the Philippines, New York, Papua New Guinea, and elsewhere. The United States is no outlier here, and both moratoria and temporary abolition increase the structural costs of executions, making them rarer in the future even in the most intransigent holdouts. The end of Singapore’s de facto moratorium in July 2014 will likely confirm this result, and executions will almost certainly never again reach 1990s levels. The Gambia, where the death penalty was abolished and reinstated, is a powerful counterexample of a de facto moratorium gone wrong; but in general abolitionists have successfully made executions increasingly politically difficult even when they ultimately fail at formal abolition.

I believe Hodgkinson and Akers are too critical of mandatory death penalty litigation. In Chapter 1, the two authors summarize the unintended consequences of favorable court decisions — in Kenya, Malawi, and Uganda finding mandatory capital punishment unconstitutional in favor of judicial capital sentencing discretion — which were coordinated by British human rights lawyers. The rulings resulted in serious backlogs in resentencing prisoners; overreliance on life imprisonment as an alternative; universal shortages of legal aid and representation; and ultimately disappointed expectations among prisoners themselves. But as opposed to what? Not bringing the litigation at all? In Ghana, the Supreme Court upheld mandatory capital punishment after the British government requested assistance from British lawyers for Dexter Johnson, a British national. Certainly, a victory would have created the same legal uncertainty as in Kenya, Malawi, and Uganda, but surely Johnson’s lawyers should have done everything in their power to save his life. Hodgkinson and Akers are not convincing in distinguishing the East African “test cases” from cases such as Johnson’s. (Hodgkinson had a similar exchange in Amicus Journal in 2005 and 2006 over the political backlash to anti-death penalty litigation in the Caribbean). It may be fair to say that these constitutional challenges produce unintended consequences and take a disproportionate share of energy and resources compared to other strategies of abolition. I am not convinced that they do more harm than good.

Although Hodgkinson has decried the lack of nuance among abolitionists, some of the other authors in the book fall into this trap. Alasti presents a helpful primer on the juvenile death penalty in Islamic countries, describing the religious and theoretical basis for imposing capital punishment on offenders under age 18 for hudud offenses authorized by Islamic law. Less clear is why she roped in the United States as a comparator; the death penalty for juvenile offenders has been abolished for nearly ten years, and only persisted as long as it did because of the peculiar federal system that made the decentralized process of abolition in the United States so time-consuming. The chapter overstates the comparison, and falls victim to the lack of nuance that Hodgkinson seeks to avoid. To international law, the execution of a 13-year old girl for adultery and of an adult for a premeditated murder committed at age 17 may be the same, but in practice death penalty supporters see them as quite different. The persistent tendency of abolitionists to compare the United States and countries such as Iran, North Korea, and Pakistan is unhelpful messaging, and simply not convincing to death penalty supporters with deep, honestly-held views, who see the American justice system as generally fair and transparent. Bishop and Osler, writing in Chapter 3, would probably agree; they take up the question of messaging to death penalty opponents and describe how absolutist language fails to change minds.

The crux of Part I: New Perspectives and Challenging Questions is Hodgkinson’s view that abolitionists must expand the audience and the constituency for death penalty abolition if it is to be successful in the long term. Bishop and Osler’s second chapter, Chapter 5 on victim’s rights, is charismatic if anecdotal, and provides at least a starting point for placing victims at the center of the debate. The Ginbar, Wetzel, and Zilli chapter on extradition of death-eligible prisoners to retentionist countries purports to discern a “well-established rule in international human rights law” that such prisoners should not be extradited absent assurances that the death penalty would not be sought in a case. The authors are imprecise, and this weakens their thesis: it is a norm of abolitionist countries, and many retentionist countries to their credit provide these reciprocal assurances. But surely this norm does not apply to extraditions among retentionist countries, such as the transfer of a prisoner from Japan to the United States. The authors cite only favorable jurisprudence from abolitionist nations and supportive international tribunals, but I doubt this alone makes the norm “universal.” Chapter 6 on family visits to the condemned, Chapter 7 on children of death row inmates, and Chapter 8 on death penalty internships in the American South present novel perspectives on expanding the audience for abolition and increasing the stakeholders in the debate. Like the two Bishop and Osler chapters, the trio of contributions at the end of Part One reminds us how vast the audience for abolition is.

The real gem of Hodgkinson’s book, besides the two introductory chapters, is Part II: Country Perspectives. The best chapter in the book is Volha Charnysh’s contribution on Belarus. Charnysh convincingly describes how the European Union and the Council of Europe strategies toward abolition in Belarus are counterproductive, feeding into a narrative that Europe is trying to undermine the government of Belarus, ultimately pushing the country closer to Russia. This original analysis provides a workable theory and a well-supported conclusion that refreshingly reframes abolitionist orthodoxy. A close second is the groundbreaking chapter on Afghanistan by Cody and Day, which, as Hodgkinson asserts, is the first analysis in the English language on judicial capital punishment in modern Afghanistan. The chapter provides a compelling discussion of the death penalty in both law and practice, emphasizing the competing political pressures on President Hamid Karzai regarding executions. The chapter is timely, relevant, and original, encompassing both the doctrinal and the empirical.

One of Hodgkinson’s primary goals with the book is to present new voices in the capital punishment debate, especially those of practitioners in the field. He succeeds at this on the whole. The volume includes two historical contributions: Dudgeon’s chapter on Canada between formation of the dominion in 1867 and abolition in 1976, continuing with the death penalty in foreign relations since that time; and Stancu’s chapter on the death penalty in Romania between 1969 and 1989. Although Canada is an extensively-researched case, Dudgeon aggregates prior research and describes the softening of Canada’s stance on global abolition under the conservative government of Stephen Harper. Romania, however, is less extensively researched, an outlier even among post-Soviet Eastern European countries. Stancu’s chapter sheds new light on the decline of the death penalty for political crimes, one of the most important consequences of improved transparency in the death penalty process worldwide.

Most of the chapters succeed at balancing the doctrinal and the practical, and several do it very well. Giao Vu Cong’s chapter on Vietnam is the most lopsided in this regard, extensively discussing the letter of the law with only brief discussion of the death penalty in practice. Future research will need to explore media coverage, abolitionist civil society, and the role of religion in the death penalty debate. The chapters on Taiwan and Liberia provide interesting counterexamples of the influence of international law on the death penalty debate, reaffirming Hodgkinson’s point that the local matters at least as much as the global. The Li, Chen, and Li contribution describes an interesting quirk of Taiwan: since it is not a UN member, it has adopted the International Covenant on Civil and Political Rights (ICCPR) into its domestic law without formal ratification, creating an opening for expansive interpretation beyond the formal text, intent of the drafters, and jurisprudence of the UN Human Rights Committee. However, the chapter spends too much time framing the issue and ultimately lacks a description of present reality. Munton’s chapter on Liberia does this better, providing an engaging and expansive look at how death penalty abolition failed, even after Liberia ratified the Second Optional Protocol to the ICCPR. Munton’s chapter concludes that abolition will be unlikely without deeper structural reform, including a search for alternatives, adding a new contribution to the emerging literature on the death penalty in emerging and post-conflict regimes.

As someone who has extensively researched the global decline of the mandatory death penalty, I found the Malawi chapter by Babcock and McLaughlin and the Hall chapter on Uganda to be both poignant and persuasive. Malawi and Uganda have abolished the mandatory death penalty in favor of a discretionary regime, but without an endgame: prisoners who languished on death row now languish in indefinite detention. With court backlogs reaching crisis proportions and legal aid almost non-existent, the authors are not shy in asking whether this litigation was worth it, and whether it actually advanced the ultimate goal of abolition. I do not know the answer. It is possible that Uganda’s new sentencing guidelines will help even out some of the inconsistencies that Hall describes, or that Kenya, another country that has recently abolished the mandatory death penalty, will show more promise once the Supreme Court resolves lower court splits and interprets a new constitutional provision. I hope so.

My only response to these troubling indictments of “death penalty incrementalism” as a litigation strategy is that we should not forget the importance of developing legal doctrine for its own sake. In the 1990s, the Supreme Court of Zimbabwe issued groundbreaking human rights precedents restricting the scope of capital and corporal punishment, most of which were later reversed by constitutional amendments. Those decisions caught fire, especially the most famous among them, Catholic Commission for Justice and Peace v. Attorney General, cited and followed by courts and tribunals worldwide, including by a justice of the United States Supreme Court in dissent. Death penalty jurisprudence is increasingly a transnational sharing process. In March 2012, the Supreme Court of India cited the Malawian, Ugandan, and Kenyan courts in a decision finding the mandatory death penalty for aggravated arms possession unconstitutional by discerning an emerging international norm toward discretionary capital sentencing. Hodgkinson’s book purports to privilege nuance at the country-level over cross-country comparisons, but we should not ignore the comparative as well: decisions that have mixed results at home may have great impact elsewhere. This is my quibble with Hodgkinson’s project: we cannot forget the transnational and the doctrinal in the death penalty debate as much as we cannot forget the local, boots-on-the-ground perspective.

Ultimately, Hodgkinson’s volume is a handsome and provocative contribution to the existing death penalty literature. Despite slight variation in quality, expected of edited volumes, the very best contributions make the book more than worth it. The book is ambitious, not only for its scope, but also for its courage in tackling the echo chamber of death penalty abolition. On the whole, it succeeds at its stated purpose of providing new perspectives by emerging scholars. This practical, real-world perspective is painfully needed and, despite occasional blips, the book does a superb job of advancing this scholarship. 

Andrew Novak is Adjunct Professor of Criminology, Law, and Society, George Mason University, and author of The Global Decline of the Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Ashgate 2014)

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