Two Wrongs & No Rights: The Death Penalty

The death penalty in Britain was last employed in 1964, with the Murder Act of the following year abolishing it in the UK (excluding Northern Ireland). Following a 20-year campaign headed by Labour MP Sidney Silverman, the 1965 legislation suspended the death penalty for five years and was consequently made permanent four years later, representing a victory for the right to life in the UK.

Although the death penalty was still legally permitted until 1998 for archaic crimes like piracy with violence and treason, the Murder Act spelt the end of state execution in practice. 2015 marks the 50th anniversary of abolition in Britain – let this be the impetus to compare with two nations in which state execution is still practiced.

Europe

The European Convention on Human Rights (ECHR) features Protocol 13, which provides for the abolition of the death penalty in Europe and has been ratified by 44 states and signed by one. Only three states have not signed or ratified Protocol 13: Russia, Azerbaijan and Belarus. Of these three, Belarus is the only state to continue to employ capital punishment in practice.

In 2014, three Belarussian state executions took place after a two-year break from the practice. 2015 has seen one prisoner on death row awaiting his fate since 2013 and another sentenced to death in March. The situation in Belarus looks set to remain unchanged given the recent election of President Alexander Lukashenko for his fifth consecutive term with a majority of 83.47% of the vote. This perpetuates a political climate that has led some media outlets to brand Belarus ‘the last dictatorship in Europe.’ The attempted boycott of the vote by the opposition, combined with the most popular leadership option after Lukashenko being ‘against all others’, certainly calls into question both the freeness and the fairness of these recent presidential elections.

A black mark on Europe’s otherwise impressive relationship with capital punishment, the international community has not shied away from criticising Belarus’ continued use of state executions. In it's most recent Universal Periodic Review at the UN level in 2015, several countries including the United Kingdom made recommendations to the Belarussian State to, at the very least, issue a moratorium on the death penalty as the first step towards abolition. Others called for the ratification of the 2nd Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), which provides for the abolition of the death penalty and is the international equivalent of Protocol 13 of the ECHR. Perhaps predictably, Belarus did not support any of the recommendations made regarding its use of state execution, again casting doubts over its willingness to abolish the death penalty.

Across the Pond

As an ally and a far closer political relative of the UK than Belarus, the United States (U.S.) serves as a much starker comparison with our own relationship with capital punishment. As the last Western democracy that employs judicial state executions, the self-proclaimed land of the free is, as in so many other ways, not so free.

Like Belarus, the U.S. has not ratified or signed the 2nd Optional Protocol on the abolition of the death penalty, meaning it is under no legal obligation to do away with the outdated punitive measure. Its lack of legal obligation of course does not absolve the U.S. from its burning moral obligation to sanctify the right to life constitutionally.

The death penalty in the U.S. brings with it a couple of sinister consequences. The first of these, unsurprisingly, is the issue of racial discrimination.

Interestingly, the main driving force behind racial discrimination with regards to the death penalty is not the race of the murderer but the race of the victim. Statistics published by Death Penalty Info make for uncomfortable reading. Between 1977 and 2014, 77% of death sentences for murder featured white victims – half of all homicides in the U.S. are committed against black victims.

In 2011, in the state of Louisiana, the odds of a death sentence for murder were a staggering 97% higher for those whose victim was white than for those whose was black. This kind of racial disproportionality is out of keeping with Article 26 ICCPR: ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.’ The right to life in the U.S., as far as the death penalty is concerned, appears to be worth more for white victims than any other race.

Human beings are fallible, and mistakes are made. This is unfortunately no different for investigations into crimes punishable by death. The finality of the death penalty yields no room to rectify mistakes made in the judicial system should new evidence come to light. The exoneration of Anthony Ray Hinton this April after 30 years on death row in Birmingham, Alabama serves as sound evidence for the replacement of the death penalty with a life sentence. Mr. Hinton suffered 30 years in solitary confinement on death row after a severe miscarriage of justice. Police were reported to have told him upon his arrest:

“[F]irst of all you're black, second of all you've been in prison before, third, you're going to have a white judge, fourth, you're more than likely to have a white jury, and fifth, when the prosecution get to putting this case together you know what that spells? Conviction, conviction, conviction, conviction, conviction."

However, at least he could walk free upon new and compelling evidence being brought before a court. It goes without saying that had Anthony Hinton been executed, this possibility would have been stripped from him. His Article 6 right to protection from arbitrarily having his life taken from him hung in the balance – abolition of capital punishment at least affords him the chance to see new evidence brought forward.

It’s not all doom and gloom, however. The trend towards abolition of the death penalty has been picking up steam, with Nebraska becoming the 19th abolitionist state in 2015.

Particularly recently, this trend has been spurred on by some European pharmaceutical companies boycotting the trade of the chemicals necessary for the lethal injection. NGOs continue to campaign for the abolition of the death penalty, and no fewer than nine states passed comment on the continued use of the death penalty in the U.S.’ Universal Periodic Review in July this year.

Outrage at the suffering of inmates executed by lethal injection compounded this trend and sparked a re-examination of the collective American conscience. The opportunity for judicial comment on the death penalty was presented in the Supreme Court case Glossip vs. Gross in which the Court avoided discussion of the practice. Though the merits of the case may not have warranted directly addressing the death penalty itself, the refusal of all but two Justices (Breyer and Ginsburg) to comment on its unconstitutionality and moral repugnance was disappointing to say the least.

The avoidance of the Supreme Court to address the question of the death penalty’s place in the 21st century does not detract from the general trend towards abolition. Only time will tell, but if pressure from pharmaceutical companies, the international community, NGOs and treaty bodies continue then perhaps the future is bright for the sanctity of the right to life in the Western world’s last executing democracy. With the two dissenting Justices’ in the Supreme Court calling for judicial review of the death penalty, you can sign the petition for the U.S. to reassess its state execution policy and join the UK in appreciating freedom from capital punishment.