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Access to Courts
Around the world, individuals facing the death penalty are routinely held without access to counsel or to the courts. The right of meaningful access to the courts is recognized in every major human rights instrument.
Arbitrariness and the Death Penalty
A number of human rights instruments provide that a state may not take a person's life "arbitrarily." The text of these articles does not make clear what would constitute an arbitrary deprivation of life, but the Human Rights Committee (HRC) has held that “arbitrariness" encompasses "elements of inappropriateness, injustice and lack of predictability."
Death Row Conditions
Death row conditions in many countries fall far short of international norms prohibiting cruel, inhuman or degrading treatment or punishment. Conditions range widely, from the sterile, solitary confinement that pervades death row in many states in the United States, to the unsanitary and overcrowded prisons in some parts of the Caribbean and Sub-Saharan Africa. Solitary confinement leads many prisoners to develop debilitating mental illnesses, and overcrowding, combined with poor nutrition and hygiene, threatens their health and in some cases can lead to premature death.
Death Row Phenomenon
Article 7 of the ICCPR provides that "no one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." Other human rights treaties contain identical language.
Both the ICCPR and the Convention for the Elimination of All Forms of Racial Discrimination serve to protect defendants in criminal cases from discriminatory application of the laws. In relevant part, the Race Convention obligates member states to "prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law," including the "right to equal treatment before the tribunals and all other organs administering justice."
One of the greatest challenges facing practitioners in retentionist states involves the lack of sufficient due process safeguards. Due process is a broad concept, but in general refers to those procedural protections that are necessary to ensure that the accused is subject to a fair and impartial trial. The concept of equality of arms is also essential to this definition: the defense must be granted autonomy, confidentiality, the power to challenge the government's case, and adequate resources that are at least equal to those provided to the government to investigate the charges and prepare a defense.
A number of countries prohibit the application of the death penalty for individuals over a certain age either at the time of the crime’s commission or at the time of sentencing.
Many countries now refuse to extradite fugitives to retentionist states in the absence of assurances that the death penalty will not be sought. This practice derives from two separate, but related developments. First, international tribunals and national courts have issued a series of decisions condemning the extradition of suspects from abolitionist countries to retentionist countries. Second, inter-governmental organizations such as the European Union ("EU") and individual nations such as Mexico have long opposed the death penalty as a matter of principle. The EU, Mexico, and many other abolitionist nations have made abolition of the death penalty one of the key items on their foreign policy agenda.
In certain countries with large numbers of foreign guest workers, foreign nationals make up a sizeable percentage of those on death row. Foreign nationals are vulnerable to discriminatory treatment and deprivations of due process as a result of cultural and linguistic barriers. In countries in which Islamic law is applied, foreign guest workers often lack the financial resources to pay diyat, or blood money, to the victim's family, which could result in commutation of their death sentence.
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. In India, prosecutorial misconduct has also led to several high profile cases of wrongful convictions. In China and the United States, torture and police misconduct have contributed to the conviction of innocent persons. Inadequate legal representation, shoddy police investigations, eyewitness misidentification, racial prejudice, and falsified evidence are additional factors that contribute to wrongful convictions around the world.
A number of international human rights bodies have recognized that intellectually disabled individuals should not be subjected to the death penalty. In 1989, the UN Economic and Social Council passed a resolution recommending Member States to take steps to “eliminat[e] the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution.” The UN Commission on Human Rights has also adopted several resolutions urging all states not to execute any person “suffering from any form of mental disorder."
Juvenile Offenders and the Death Penalty
The execution of juveniles is squarely prohibited by a number of multilateral treaties, including the ICCPR (art. 6); the American Convention on Human Rights, art. 4(5); and the Convention on the Rights of the Child, art. 37(a).
Most international human rights instruments provide for the right to legal representation in criminal proceedings as part of the right to a fair trial. The right to counsel would be pointless if it didn’t encompass a right to effective counsel. Both national courts and international human rights tribunals have held that states must ensure that legal assistance is both effective and substantial.
Mandatory Death Penalty
There are at least 28 countries that maintain a “mandatory” death penalty for specified offenses. Those countries are: Afghanistan, Brunei, Equatorial Guinea, Guinea, Guyana, Iran, Jordan, Kuwait, Libya, Malaysia, Mauritania, Myanmar, Niger, Nigeria, Pakistan, Palestinian Authority, Qatar, Saudi Arabia, Singapore, Sri Lanka, Sudan, Syria, Tanzania, Thailand, Trinidad, United Arab Emirates, Yemen and Zambia. A mandatory sentencing scheme is one where the imposition of a death sentence is automatic upon conviction of a crime. The court (or other sentencing authority) retains no discretion to take into account the facts of the offense or the characteristics of each individual offender; instead, each offender is sentenced to death regardless of any mitigating circumstances that may apply. For instance, in countries that have the mandatory death penalty for drug trafficking, a court would not be permitted to consider a defendant’s lack of criminal record or the desperate circumstances that may have contributed to his decision to traffic in narcotics before imposing sentence.
Customary international law prohibits the execution of prisoners who are insane. However, international human rights norms go further by recognizing that the prohibition extends to prisoners with any form of severe mental disability.
Methods of Execution
There are nine common methods of execution which include: hanging, shooting by firing squad, shooting, beheading, lethal injection, stoning, gas chamber, electrocution, and falling from an unknown height. The most common method authorized by law is hanging, with sixty countries authorizing this practice, while the least common methods include electrocution, gas chamber, and falling from an unknown height. The United States is the only country to authorize both electrocution and gas chamber and Iran is the only country to authorize pushing individuals from an unknown height. Additionally, the method of execution for Maldives is unknown and Sudan uses a method which calls for retributive sentences to be carried out in the same manner in which the offender caused death.
Over the last several years, the United Nations General Assembly has adopted three different resolutions calling on all member States to establish moratoria on executions “with a view to abolishing the death penalty.” In 2007, the death penalty moratorium resolution garnered a majority vote in the General Assembly for the first time, with 104 votes in favor, 54 votes against, and 29 abstentions. The resolution’s text emphasized “that the use of the death penalty undermines human dignity” and that a moratorium would contribute “to the enhancement and progressive development of human rights.”
Most Serious Crimes
Article 6 (2) of the International Covenant on Civil and Political Rights provides that the death penalty may only be imposed for the "most serious crimes."
Public Opinion on the Death Penalty
Public officials in retentionist or de facto abolitionist countries often invoke public support for the death penalty as one of the reasons why they do not promote abolition. A closer look at this justification, however, reveals some common flaws. First, public officials tend to affirm strong public support for capital punishment without actually consulting the public, relying on general impressions or unreliable data. Second, even when public officials rely on opinion polls, these are often misleading and methodologically problematic. This note offers a critical assessment of public opinion polls on the death penalty and suggests tools to properly gauge the level of public support for the death penalty.
In all countries that retain the death penalty for which data is available, fewer women than men are sentenced to death and executed. In the United States, for instance, 2.1% of death sentences handed down between 1973 and 2011 were imposed on female offenders, and 2.9% of the executions confirmed in the United States since 1608 were carried out on women. While some observers have taken these statistics as proof that gender bias affects capital sentencing decisions, others have pointed out that death-eligible crimes are often crimes of violence and that these are more frequently committed by male offenders.