Death Penalty Worldwide

Innocence and Wrongful Convictions

No criminal justice system is perfect, and fallibility leads to miscarriages of justice. Even when all the standards for a fair trial are upheld, wrongful convictions can occur. Many countries that practice capital punishment, however, do not meet these standards. For instance, in Japan, the prosecution’s failure to disclose exculpatory evidence has led to a number of wrongful convictions[1]. In India, prosecutorial misconduct has also led to several high profile cases of wrongful convictions[2]. In China and the United States, torture and police misconduct have contributed to the conviction of innocent persons[3]. Inadequate legal representation, shoddy police investigations, eyewitness misidentification, racial prejudice, and falsified evidence are additional factors that contribute to wrongful convictions around the world.

In the case of the death penalty, victims of wrongful convictions pay the ultimate price. Innocent people have been convicted and sentenced to death in every region of the world. In the United States alone, 143 people have been released from death row since 1973 on grounds of innocence[4]. In Japan, four death row inmates were exonerated between 1983 and 1989[5]]. In March 2014, Japan released a man believed to be the longest-serving death row inmate in the world after courts concluded that the evidence used against him was likely fabricated[6]. The discovery of several wrongful convictions of individuals sentenced to death prompted public outrage and, subsequently, legislative reform in China[7]. One of those wrongfully convicted was executed, which has led to a public debate about the abolition of the death penalty[8]. In Zimbabwe, a man was acquitted after being convicted of rape five years earlier. The High Court reasoned that his trial was “riddled with several and serious contradictions.”[9]

In some countries, such as Malawi, police are poorly trained, and defense attorneys lack resources to investigate their clients’ cases. Many attorneys do not meet their clients until the day of trial. This lack of training and resources creates an enormous risk of wrongful convictions. Moreover, most prisoners in Malawi are unable to appeal their convictions since defense counsel are not automatically assigned to handle appeals. The lack of exonerations in many African countries should not be taken as evidence that all who are convicted are guilty; rather, there are simply no resources available for post-conviction investigations that are essential to uncover exculpatory evidence.

The availability of more reliable DNA testing has been a major factor in the uncovering of false convictions in the United States, and DNA exonerations have revealed the startling inadequacies of criminal justice systems. DNA technology, however, is not a universally effective method to redress wrongful convictions. Genetic analysis requires resources and expertise which not always available in underfunded judicial systems. Moreover, many retentionist countries do not preserve biological samples under conditions that allow for post-conviction testing, and in some cases do not gather any at all.

In addressing wrongful convictions, national and international legal systems deal with front-end and back-end issues: (1) minimizing the potential for wrongful convictions in the first place and (2) compensating victims of wrongful convictions.

I) Prevention of Wrongful Convictions

The right to a fair trial is guaranteed under international law in order to protect individuals from unlawful detention and to minimize the possibility of wrongful convictions. Indeed, the UN Safeguards Protecting the Rights of Those Facing the Death Penalty states that capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in the International Covenant on Civil and Political Rights. U.N. ECOSOC, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, para. 5, E.S.C. Res. 1984/50, U.N. Doc. E/1984/92, 1984/. International standards relating to a fair trial are constantly evolving, but include: the right to a fair hearing; the presumption of innocence; freedom from compulsory self-incrimination; the right to know the accusation; adequate time and facilities to prepare a defense; the right to legal assistance; the right to examine witnesses; the right to an interpreter; and the right to appeal in criminal cases.

Numerous human rights treaties and covenants affirm the need for a fair trial. Article 10 of the Universal Declaration of Human Rights states “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” The right to a fair trial is further guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), Article 6 of the European Convention on Human Rights, Article 8 of the American Convention on Human Rights, and Article 7 of the African Commission on Human and Peoples’ Rights. Several commissions and courts have elaborated upon that right. See, e.g., European Court of Human Rights, Golder v. the United Kingdom, 18 Eur. Ct. H.R. (ser. A, 1975), Feb. 21, 1975.

II) Compensating Victims of Wrongful Convictions

Several international instruments provide for the right to compensation in the case of wrongful convictions. The International Covenant on Civil and Political Rights, for example, requires that states compensate wrongfully convicted individuals under article 14(6). Article 3 of the European Convention on Human Rights and Article 10 of the American Convention on Human Rights similarly require compensation. Furthermore, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, endorsed by the African Commission on Human and People’s Rights, require that victims of wrongful convictions be compensated. African Comm. on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX)247, 2001.

Generally, the right to compensation requires that there be a reversal or pardon of a final conviction, based on new, or newly discovered, facts that demonstrate that the conviction was unjust. The duty to compensate may not arise if the person somehow contributed to the wrongful decision. The terms and procedures of the compensation are to be established by national laws.

Under the ICCPR, States Parties meet their obligations under article 14(6) in one or more of the following ways: incorporating the article directly into domestic legislation to create a statutory right to compensation; conferring discretion to an administrative or judicial body to determine whether awards of compensation should be paid; and utilizing the general power of domestic governments to make ex gratia payments. In addition, in states that have adopted the First Optional Protocol to the ICCPR, victims of wrongful convictions may submit individual complaints to the UN Human Rights Committee when their right to compensation under Article 14 of the ICCPR is not respected.

Many national laws provide citizens with the right to seek review of unjust convictions and compensation for the damages they suffered—although most of the countries that have passed such legislation no longer apply the death penalty. In some countries, these rights are expressly enshrined in the Constitution. See, e.g., Constitution of Portugal, art. 29(6); Constitution of Italy, art. 24; Constitution of Brazil, art. 5(LXXV). The Constitution of Spain, for example, guarantees compensation if damages arise from judicial errors. See, e.g., Constitution of Spain, sec. 121, 1978. In others, like the United Kingdom, the rights are enshrined in specific acts. See, e.g., U.K.’s Criminal Justice Act, sec. 133. The terms and conditions of the revision and the compensation are often outlined in the Codes of Criminal Procedure or in specific statutes. A few countries have instituted specific commissions that have the power to investigate and refer claims of wrongful convictions to a court. Scotland, England, Wales, Northern Island, and Norway, for example, have established a Criminal Cases Review Commission. The Scottish Criminal Cases Review Commission has referred 122 cases from its inception in 1999[11]. The United States has failed to adopt federal legislation to provide compensation to the wrongfully convicted. Still, some states have adopted compensation laws, and exonerated people are sometimes able to receive compensation through state laws or civil lawsuits.

Cases

- Shilayayev v. Russia, 9647/02, ECtHR, Oct. 6, 2005, http://hudoc.echr.coe.int.
The ECtHR found a violation of Article 6 §1 of the European Convention on Human Rights (right to a fair trial) and of Article 1 of Protocol No. 1 to the Convention (right to property) in that a State took more than two years to pay the compensation that had been awarded for the petitioner’s wrongful conviction and imprisonment.

- Poghosyan and Baghdasaryan v. Armenia, 22999/06, ECtHR, June 12 2012, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-111416#{"itemid":["001-111416"]}.
The ECtHR found, unanimously, a violation of Article 3 of Protocol No. 7 to the ECHR (compensation for wrongful conviction) in that the national law did not provide for non-pecuniary damages. The Court stated that compensation is due even where the domestic law or practice does not provide for such compensation; and that the purpose of Article 3 of Protocol No. 7 is not merely to recover any pecuniary loss caused by wrongful conviction but also to provide a person convicted as a result of a wrongful conviction with compensation for any non-pecuniary damage such as distress, anxiety, inconvenience and loss of enjoyment of life.

Commentary

Simon A. Cole, The Prevalence and Potential Causes of Wrongful Conviction by Fingerprint Evidence, https://webfiles.uci.edu/scole/Publications/GGULRfinal-J15.pdf, Sep. 17, 2006.

Richard A. Leo & Steven Drizin, The Problem of False Confessions in the Post-DNA World, http://web.williams.edu/Psychology/Faculty/Kassin/files/drizenl.leo.04.pdf, Mar. 1, 2005.

Peter Neufeld, Preventing the Execution of the Innocent: Testimony Before the House Judiciary Committee, Hofstra Law Review, Vol. 29: 1155, 2011.

Lawyers Committee for Human Rights, What is a Fair Trial? A Basic Guide to Legal Standards and Practice, http://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf, March 20, 2000.

Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Harvard University Press, 2011.

D. Ronald Huff and Martin Killias (Eds), Wrongful Conviction. International Perspectives on Miscarriages of Justice, Philadelphia: Temple University Press, 2008.

Jason Costa, Alone in the World: The United States' Failure to Observe the International Human Right to Compensation for Wrongful Conviction, 19 Emory Int'l L. Rev. 1615 (2005).

Kazuko Ito, Wrongful Convictions and Recent Criminal Justice Reform in Japan, 80 U. Cin. L. Rev. 1245 (2012).

Death Penalty Project, The Inevitability of Error: The Administration of Justice in Death Penalty Cases, http://www.deathpenaltyproject.org/news/1795/1795, Jun. 2014.

Websites

UN Web TV, Moving away from the death penalty - Wrongful Convictions, OHCHR Global Panel, http://webtv.un.org/meetings-events/watch/moving-away-from-the-death-penalty-wrongful-convictions-ohchr-global-panel/2517414411001, Jun. 28, 2013.

The Innocence Project (USA)- www. Innocenceproject.org

Center on Wrongful Convictions, Bluhm Legal Clinic, Northwestern University School of Law (Chicago, USA) – http://www.law.northwestern.edu/legalclinic/wrongful

Center on Wrongful Convictions of Youth, Bluhm Legal Clinic, Northwestern University School of Law (Chicago, USA)- http://www.cwcy.org

RED Inocente - http://www.redinocente.org/index.php

References

[1]Kazuko Ito, Wrongful Convictions and Recent Criminal Justice Reform in Japan, p. 1252, University of Cincinnati Law Review, Sep. 8, 2013.
[2]Prayaag Akbar, Presumed Guilty: After 14 wasted years in prison, life begins anew, http://www.sunday-guardian.com/g20columnists/presumed-guilty-after-14-wasted-years-in-prison-life-begins-anew, last accessed Mar. 3, 2014.
[3]Fox News, China tries to curb miscarriages of justice as anger over torture, other abuses, grows, http://www.foxnews.com/world/2013/11/27/china-tries-to-curb-miscarriages-justice-as-anger-over-torture-other-abuses/, Nov. 27, 2013. Ken Armstrong, Steve Mills, and Maurice Possley, Coercive and Illegal Tactics Torpedo Scores of Cook County Murder Cases, http://www.chicagotribune.com/news/watchdog/chi-011216confession,0,1748927.story, Dec. 16, 2001.
[4]Death Penalty Information Center, the Innocence List, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row, last accessed Feb. 18, 2014.
[5]Kazuko Ito, Wrongful Convictions and Recent Criminal Justice Reform in Japan, p. 1254, University of Cincinnati Law Review, Sep. 8, 2013.
[6]Kiroko Tabuchi, Soul-Searching as Japan Ends a Man’s Decades on Death Row, New York Times, http://www.nytimes.com/2014/03/28/world/asia/freed-after-decades-on-death-row-man-indicts-justice-in-japan.html, Mar. 27, 2014.
[7]Wrongful Convictions Blog, Miscarriages in China Prompt New Guidelines, http://wrongfulconvictionsblog.org/2013/08/15/miscarriages-of-justice-in-china-prompt-new-guidelines/, Aug. 15, 2013.
[8]Patrick Boehler, China’s top judge calls for fewer executions, South China Morning Post, http://www.scmp.com/news/china-insider/article/1332237/chinas-top-judge-calls-fewer-executions, Oct. 15, 2013.
[9]The Herald, High Court Upholds HIV+ Man’s Rape Appeal, http://www.herald.co.zw/high-court-upholds-hiv-mans-rape-appeal/, Mar. 25, 2014.
[11]Scottish Criminal Review Commission, Case Statistics, http://www.sccrc.org.uk/casestatistics.aspx, last accessed Feb. 28, 2014.

Information Current as of: April 1, 2014

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