Death Penalty Worldwide



New Report Finds That Malawi’s Traditional Leaders Oppose the Death Penalty, Favor Rehabilitation

On 18 April 2018, the Cornell Center on the Death Penalty Worldwide and Malawi’s Paralegal Advisory Services Institute (PASI) released their report on "Malawian Traditional Leaders’ Perspectives on Capital Punishment" before a group of public officials and stakeholders in Lilongwe.

The report analyses data from surveys of 102 traditional leaders in villages across Malawi. Clifford Msiska, the National Director of PASI, informed an audience in Lilongwe that over ninety percent of traditional leaders surveyed did not support the use of the death penalty to punish individuals convicted of murder.  Only six traditional leaders stated that death was the appropriate penalty for murder. The rest preferred a term of years, life imprisonment with opportunity for early release, or (least frequently of all) life imprisonment with no opportunity for release.

The report grew out of the Malawi Resentencing Project. Following the Malawi Supreme Court’s decision to overturn the mandatory death penalty in Kafantayeni and others v Attorney General, the inmates sentenced under the now-unconstitutional law each received new sentence hearings.  Of the more than 150 prisoners who were resentenced, 125 have now been released after serving their sentences. 

In preparation for the resentencing hearings, PASI paralegals observed that many of the village chiefs supported the prisoner’s release.  This ran counter to the popular view that traditional leaders supported the death penalty.  Since no data existed to support or refute this assumption, Cornell Law School’s Center on the Death Penalty Worldwide teamed up with PASI and the London-based NGO Reprieve to carry out a survey to ascertain traditional leaders’ views on the death penalty.  The survey focused on traditional leaders presiding over villages to which released prisoners had returned, sometimes decades after they had been sentenced to death.

The Cornell team that analyzed the survey responses found that traditional leaders opposed the death penalty for a variety of reasons.  The most common explanation was rooted in the belief that people can change—and that prison is a place for reform. Many noted that rehabilitation is impossible if a prisoner is executed. As one traditional leader noted, “There is no reform in death.”  Many traditional leaders also expressed concerns that innocent people could be hanged.

Mtilosera PindaniTraditional leaders also see the death penalty as enormously taxing on the community. Many families did not know whether their loved ones had been executed. For one family, the imposition of the death sentence was so shocking that his mother “mourned him for 2 weeks as if he was already dead.” Other families became convinced that the prisoner had been put to death. Many leaders noted that, rather than providing a sense of justice in the community and acting as a deterrent to others, losing a member of their community to a sentence of death “traumatized” local communities which have been left “in shock” and “depressed”. Members of close communities like those where many of the prisoners returned are often the indirect victims of a death sentence.

Closely linked to their conviction that prisoners are capable of reform is the notion that returning prisoners benefit the community and their family once released. Released prisoners have, according to the traditional leaders, served as mentors for young men and women who might be tempted to commit crime. One released former prisoner, Byson Kaula–who was wrongly convicted and sentenced to death–now works full time at Malawi’s only halfway house, counselling other recently released prisoners.

Another man, Mtilosera Pindani, has been elected traditional leader in his home village since his release. Countless others have married, had children, provided support to ailing parents, built schools, maintained roads, started businesses, and provided food from their farming.  The story of Malawi’s released prisoners is a story of individual redemption, and of communities made whole by their return

-- Sandra Babcock

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New Center Report: "Justice Denied: A Global Study of Wrongful Death Row Convictions"

On March 7, 2018, the Cornell Center on the Death Penalty Worldwide launched its new report entitled Justice Denied: A Global Study of Wrongful Death Row Convictions at the United Nations in Geneva, Switzerland. The report is a first-of-its-kind comparative study of the risk factors that increase the likelihood of wrongful convictions. The report illuminates the similarities in wrongful conviction risk factors in six countries across the geographical and political spectrum: Cameroon, Indonesia, Jordan, Malawi, Nigeria, and Pakistan.

What animates the report, however, is not just crisp analysis. Instead, stories about the wrongfully convicted people who populate death rows around the world bring this problem to life. These men and women languish with little hope of freedom—or even of living out their natural lives—for the very same reasons they were condemned in the first place: lack of resources and lack of effective counsel.

For capital defendants, poverty and injustice often go hand-in-hand. People who cannot afford to pay their own lawyers must accept whatever representation the state has chosen to fund. And most states grossly underfund and under-resource the public defenders and court-appointed counsel who defend those branded “the worst of the worst”. Low salaries, high caseloads, and difficult working conditions also deter experienced lawyers from taking these jobs.

Aftab Bahadur was only 15 or 16 years old when he was convicted of killing a politically-connected woman and her two sons in Pakistan. At the time of his arrest, Aftab worked as a plumber’s apprentice. His meager wages weren’t enough to buy a lawyer’s time, so Aftab relied on his state-assigned counsel who failed to investigate even a basic biographical fact: Aftab’s age. Pakistani law forbids the execution of juveniles. But Aftab’s counsel never asked his age or gathered school records to confirm he was a child. So the judge, believing Aftab was 20 years old, sentenced him to death.

Though pro bono lawyers represented Aftab in post-conviction proceedings, by that time, 20 years had passed. Records corroborating the alibi Aftab had given his trial counsel had been destroyed. Aftab’s family was too poor to negotiate a private reprieve available under Shariah law. And the President rejected his clemency petition without meaningful review. As the execution date approached, both the head prison warden and a recanting witness pleaded for Aftab’s life. Their efforts were not enough. Aftab was executed on June 10, 2015.

Poor representation heightened Moctar Amadou and Salissou Moussa’s vulnerability as well. The two men, an uncle and nephew, were hauled before a military tribunal. Their village headman had accused them of crossing into Nigeria to provide medical care to injured Boko Haram fighters. The only evidence was the village headman’s word, and at the time, the three men were embroiled in disputes over the village chieftainship and a property inheritance matter. The state granted no resources for investigation and permitted trainee lawyers who were not licensed to practice law to represent them. The prosecution relied entirely on hearsay. Since none of the accusers testified, it was impossible to cross-examine them, and the defense presented no evidence of its own. Even so, the court convicted the men and sentenced them to death.

Unlike Aftab, however, Moctar and Salissou had family who could afford to hire an experienced lawyer for their appeal. The family convinced nine witnesses to travel to the intimidating, distant military tribunal for the appeal hearing and covered all of their travel expenses. The witnesses established the men’s alibis and explained the accusers’ political motivations to the court. In a rare act, the military tribunal overturned Moctar and Salissou’s convictions, finding that they had been based on rumor. Had their families been poor, they would still be on death row today.

While Aftab, Moctar, and Sailssou’s stories are unsettling, they are far from uncommon. Every country that retains the death penalty runs the risk of executing innocent people. As these men’s stories show, that risk is even higher for vulnerable people—especially the poor. Though no system, however well-funded, can entirely eliminate error, the reversal of Moctar and Salissou’s convictions shows the difference experienced, resourced legal counsel can make. As long as states fail to fund the representation of capital defendants, they undervalue justice, and innocent people pay the price.

-- Madalyn K. Wasilczuk, Clinical Teaching Fellow, Cornell Center on the Death Penalty Worldwide

Click for full report: Justice Denied: A Global Study of Wrongful Death Row Convictions



Kentucky Court Finds Execution of Offenders Aged 18-20 Unconstitutional

On 1 August 2017, a Kentucky court issued the first judicial ruling in the United States finding that the execution of offenders under the age of twenty-one amounted to cruel and unusual punishment in violation of the Eighth Amendment to the US Constitution. The court relied heavily on the opinions of experts regarding adolescent brain development in finding that eighteen- to twenty-one-year-olds are “categorically less culpable” than adults:

(1) they lack maturity to control their impulses and fully consider both the risks and rewards of an action, making them unlikely to be deterred by knowledge of likelihood and severity of punishment; (2) they are susceptible to peer pressure and emotional influence, which exacerbates their existing immaturity when in groups or under stressful conditions; and (3) their character is not yet well formed due to the neuroplasticity of the young brain, meaning that they have a much better chance at rehabilitation than do adults.

Kentucky v. Bredhold, Order Declaring Kentucky’s Death Penalty Statute as Unconstitutional, No. 14-CR-161, slip op. at 11 (Aug. 1, 2017).

One of the experts cited by the court was Laurence Steinberg, an expert in adolescent development whose research was cited by the US Supreme Court in Roper v. Simmons (where the Court found the execution of those under the age of 18 was cruel and unusual punishment).  Steinberg testified that “adolescents,” defined as individuals under the age of twenty-one, lack the capacity of adults to control their impulses, understand and assess risk, regulate their behavior and control their emotions.  Similar to child offenders, they also possess an increased capacity for change, making them particularly good candidates for rehabilitative programs.

The Kentucky court’s ruling embraced arguments that have recently been raised by anti-death penalty advocates in the United States, who in turn have relied on scientific studies demonstrating that the brain does not fully develop until the early twenties, and that the prefrontal cortex—which controls executive functions such as planning, impulse control, and reasoning—is the last to develop. In a 2009 amicus curiae brief submitted in the US Supreme Court case of Graham v. Florida, the American Psychological Association observed that while “[s]cience cannot, of course, draw bright lines precisely demarcating the boundaries between childhood, adolescence and adulthood,” the “qualities that distinguish juveniles from adults do not disappear when an individual turns 18.”

The Kentucky court acknowledged that the “study of brain development conducted in the past ten (10) years has shown that these key brain systems and structures actually continue to mature well into the mid-twenties (20s).” Indeed, several studies have concluded that the brain continues to develop—especially in young men—until the age of about twenty-five. In light of this, shouldn’t courts bar the execution of young offenders up to the age of twenty-five?

Critics of this proposal might argue that age can be taken into account as a mitigating factor at sentencing.  But this presupposes that judges and juries are capable of fairly weighing the scientific evidence demonstrating that young adults, like juveniles, lack the cognitive capacity of older adults. The US Supreme Court considered and rejected this argument in Roper: “An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” 

On an international level, every human rights treaty to set an age cut-off for youthful offenders provides that only those under eighteen are categorically exempt from capital punishment.  During the drafting of the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child, there was little debate as to why eighteen marked the dividing line between child and adult.  In Roper, the US Supreme Court noted merely that “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood.”    

Notwithstanding the multiple definitions of “child” as anyone under the age of eighteen, some nations already recognize that for the purposes of capital sentencing, the line should be drawn differently.  Zimbabwe’s 2013 Constitution prohibits the execution of offenders who were under the age of twenty-one at the time the offense was committed, and Cuba prohibits the execution of those who committed crimes while they were under twenty years old.  And in Malawi, courts have accepted that crimes committed by offenders aged 19-25 “may be a result of impetuous, immaturity, youth or adventure.” Republic v. Keke, Confirmation Case No 404 (HC) (2010) (unreported).

It is likely the Kentucky court’s ruling will be overturned on appeal.  But the opinion represents the first recognition by a judicial body that drawing the line at eighteen makes no sense in light of the new research on brain development and its effects on adolescent behavior.  It is time for the international community to take note of this evidence as well.  At a minimum, a powerful argument could be made that the execution of young adults under the age of 25 would be impermissibly arbitrary in violation of Article 6 of the ICCPR.

-- Sandra Babcock


Iranian Lawmakers Vote to End Death Penalty for Some Drug-Related Crimes

In a significant move that could prevent the execution of 5,000 convicted prisoners in Iran, lawmakers have voted to end the death penalty for certain drug-related crimes.

Current Law

Iran’s anti-narcotics law currently includes 17 different drug-related crimes punishable by death, ranging from possession to manufacturing and trafficking. Iran’s anti-narcotics law was drafted in 1988 and amended in 1997, and again in 2011. The government made these amendments in response to a growing drug problem in Iran. In recent years, there have been discussions regarding a need to reduce the number of executions, and a growing effort to expand rehabilitation facilities to accommodate more individuals. However, this has not resulted in a decrease in the number of arrests for drug-related crimes.

Further, the majority of death sentences issued by the Revolutionary Courts are for drug offences. Established in 1979 and intended to be temporary, the Revolutionary Courts notoriously lack transparency and contribute significantly to the lack of basic due process extended to those facing drug-related charges that carry the penalty of death. Not only are the individuals arrested for drug offences systematically subjected to torture, those tried in Revolutionary Courts are not given adequate access to lawyers.

Background to the Bill

 Last year, we wrote a blog about how, in December 2015, Iranian politicians proposed to limit the death penalty for certain drug-related crimes. Although the bill was never published, it appeared that those offenders caught with weapons while involved in drug trafficking would still be eligible for execution. It was not clear then whether this parliamentary reform would progress after the United Nations announced renewed funding for counter-narcotics efforts in Iran in the amount of $20 million in late December 2015, doubling its previous contributions.

Subsequently in October 2016, 150 MPs—over 50% of the Parliament—signed the bill limiting the application of the death penalty for drug-related certain crimes. According to most recent reports, Parliament voted on the reform bill on August 13, 2017. Originally scheduled for June 7, 2017, the vote was postponed until after the summer recess due to pushback from security bodies overseeing Iran’s anti-narcotics program. Prior to the vote, the Legal and Judicial Affairs Committee had requested that executions for drug offenders be halted until the law was passed, but executions for drug crimes continued despite pressure from several prominent human rights organizations. The Guardian Council—comprised of six theologians appointed by the Supreme Leader and six jurists nominated by the judiciary and approved by Parliament—must now approve this bill before it becomes law.

As it stands, the bill would change the punishment for some drug offenses to a prison term of up to 30 years, but maintain the death penalty for some non-violent drug crimes, including a range of drug trafficking crimes based on the type of drug and quantities seized. The bill proposes an increase in the quantities of drugs required to impose the death penalty: currently, possession of 30 grams of synthetic drugs, or trafficking, possession or trade of more than 5 kg of opium, or 30 grams of heroin carries a mandatory death sentence. The proposed bill increases the quantities to 50 kg of opium and 2 kg of synthetic drugs. The death penalty would also still apply to individuals convicted of a number of drug-related crimes including: those armed in the commission of a drug-related crime; leaders of trafficking cartels; using a child to traffic drugs; and previous drug-related crime offenders. The approved amendments also specify that possession, purchase, or concealing more than 3 kg of synthetic drugs such as methamphetamines is punishable by death.

Executions in Iran

Although executions are down from nearly 1,000 in 2015, Iran remains one of the most prolific executioner states worldwide.

Iran Human Rights reported that drug offences accounted for 48% of all of Iran’s executions in 2013, 49% in 2014, 66% in 2015, and 56% in 2016. This organization also reported that of the 239 executions carried out in the first half of 2017, 129 of those were for drug-related crimes. Amnesty International and the Abdorrahman Boroumand Foundation have recorded 319 executions in 2017 as of July 26, with 183 of those for drug-related offences.

Iran is a party to the International Covenant on Civil and Political Rights, a foundational human rights treaty, under which capital punishment’s applicability is limited to a category of “most serious crimes.” Despite this, Iran continues to carry out executions for non-violent drug-related offences. Given that it is widely accepted that only intentional homicides constitute “most serious crimes,” these executions for drug-related offences violate international law.

As the world’s second-most prolific executioner worldwide and with drug convictions underlying the majority of Iran’s executions, abolishing the death penalty for a portion of drug-related crimes would be significant news. If the amendment becomes law, it will reportedly affect up to 5,000 prisoners on death row for drug-related crimes in Iran. However, until executions for all drug-related crimes cease (as required by international law) and fundamental issues of due process are addressed, execution numbers are bound to remain high.

-- Safa Ansari-Bayegan


Benin Abolished Death Penalty in 2016, But 14 Prisoners Remain on Death Row

In January 2016, the Constitutional Court of Benin effectively abolished the death penalty in a ruling that stated that “no one can now be sentenced to capital punishment.”  Prior to this ruling, in 2013, the National Assembly repealed death penalty provisions in the Criminal Procedure Code.  Currently, a bill is pending in the National Assembly that seeks to completely remove death penalty provisions in the Criminal Code. 

The Constitutional Court’s ruling is the latest development in a series of events leading to abolition of the death penalty in this West African country.  The last known execution in Benin was carried out in 1987 and the last death sentence was handed down in 2010.  In 2012, the country signed on to the Second Optional Protocol to the International Covenant on Civil and Political Rights, committing to immediately cease applying capital punishment and to fully abolish the death penalty in law in the near future.

Despite these reforms, 14 prisoners remain under sentence of death. And while Benin has committed not to execute these prisoners, their sentences have not been commuted.  The prisoners include 10 Beninese, two Nigerians, one Togolese and one Ivorian. In 2016, Amnesty International visited the prison where these prisoners are still being held and described substandard conditions.  The prisoners researchers talked to have lived for decades under the constant fear of death. At least three prisoners have died from serious illnesses such as malaria and tuberculosis while on death row. 

According to Article 7 of the International Covenant on Civil and Political Rights (ICCPR), “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”  In the last 20 years, jurisprudence has developed in support of the idea that continued incarceration on death row (also known as "death row phenomenon") constitutes cruel, inhuman, or degrading punishment.  In Pratt v. Morgan, the Judicial Committee of the Privy Council determined that a five--year wait between conviction and execution presumptively cruel and inhuman punishment.  Courts in Canada and Uganda have reached similar conclusions.  In the United States, the issue has not yet reached the Supreme Court; however, two justices have voiced their support for recognizing the phenomenon as a violation of fundamental rights. 

Amnesty has urged authorities in Benin to commute the death sentences of the 14 prisoners remaining on death row in order to comply with the country’s international obligations. Noting that 104 countries worldwide have abolished the death penalty, Amnesty has urged Benin, as a member of this global majority, to completely eliminate any remnants of the old death penalty system and to commute the sentences of these men who have suffered for decades under the old regime. 

-- Jenna Kyle


Malawian Prisoner Released After Twelve Years on Death Row

Malawian prisoner Ishmail Gome has been released from death row, nearly 12 years after he was convicted and sentenced to death for a crime he did not commit.

Cornell law students working with my International Human Rights Clinic were instrumental in securing his release. Maame Esi Austin (JD ’17) worked with the Malawi Human Rights Commission and Malawian lawyer Chimwemwe Chithope-Mwale to draft the legal arguments seeking his immediate release. Charlotte Hopkinson (JD ’18) and Thalia Gerzso (LLM ’17) drafted an amicus curiae brief on behalf of myself, Professor William Schabas, and Professor Christof Heyns that outlined the risk factors for wrongful convictions present in Mr. Gome’s case. The clinic team also obtained a declaration from neuropsychiatrist Dr. George Woods, who attested to the psychological torment Mr. Gome had endured on death row.

Ishmail Gome had been accused of killing a rival for the chieftainship of his village. All of the physical evidence, however, pointed to his co-defendant, Pitilizani Chabuka. Mr. Chabuka testified against Mr. Gome at trial in exchange for the prosecution’s agreement to reduce the charges against him. Ten years later, he came forward and admitted that he had fabricated the charges against Mr. Gome.

Mr Gome is the only son and the last of nine children in his family. He was unable to attend school because of his family’s poverty. Nevertheless, he grew to become the breadwinner of his family, working long hours to provide for his parents and eight older sisters by farming and selling maize, soya beans, tobacco and nuts. Mr Gome eventually got married and had five children of his own.

On the morning of January 12, 2004, Foliasi Chibwazi was found dead. The police discovered a single set of footprints, beginning at the scene of the crime and leading to the home of Pitilizani Chabuka, Mr Gome’s nephew. After Mr Chabuka was arrested, he implicated his uncle Ishmail Gome as an accomplice in the murder.

Mr Gome was later brought to the police station, where he was detained for 10 days. He was beaten, deprived of food, and coerced into confessing guilt.

There was no evidence linking Mr Gome to the murder other than the testimony of Mr Chabuka and his coerced confession. All the physical evidence pointed to Mr Chabuka as the sole perpetrator of the crime.

On 13 October 2015, Pitilizani Chabuka finally admitted that he alone carried out the crime at the request of his grandfather, who did not wish to see the deceased take over the chieftaincy. He was adamant that Ishmail Gome “did not play any role in the offence and is innocent.” He came forward after realizing that his false testimony contravened his religious beliefs, and stated that he felt terrible about falsely implicating Mr Gome in the offence, “because God knows I have sinned.”

For the last 10 years, my clinic has been assisting Malawian prisoners facing the death penalty. In 2007, the Malawi High Court struck down the mandatory death penalty under the Malawian Constitution. Since then, the clinic has assisted in the representation of approximately 170 prisoners, all of whom were once sentenced to death under the unconstitutional mandatory sentencing regime.

The High Courts have now held 152 resentencing hearings at which Malawian defense attorneys presented mitigating evidence obtained by Malawian paralegals trained by the clinic. Volunteers funded by the NGO Reprieve and Cornell’s Center on the Death Penalty Worldwide have played a crucial role in this project by interviewing prisoners and their families, drafting legal documents, and serving as a liaison with local stakeholders.

As a result of this work, 121 former death row prisoners have been released, and another 28 have received a determinate sentence. None have been resentenced to death, and only one has received a life sentence. The results are a testament to the power of mitigating evidence, and to the joint efforts of Malawian lawyers, judges and NGOs working in tandem with their international partners.

-- Sandra Babcock


The Death Penalty in 2016: trends confirm global movement toward restricted use of the death penalty

The number of abolitionist countries continued to grow in 2016, but national crises have created a political climate that heightens the risk that the death penalty will be reintroduced in a handful of abolitionist nations.

In 2016 the Center documented executions in 21 of the world’s 195 states and territories. It is possible that other retentionist states—notably Syria, Yemen, Vietnam, and South Sudan—carried out secret executions not reported in the media or other sources, but the fact remains that a minority of the world’s states retain the death penalty, and a smaller minority still carry out judicial executions.

The Center’s data also shows that most executions are carried out in two regions: the Middle East and Asia. In the Middle East, our research indicates that Iraq carried out 101 executions and Iran carried out 545 executions in 2016. In both countries the actual number of executions is likely to be higher, given the governments’ underreporting of executions. According to a tally based on official announcements, Saudi Arabia carried out 153 executions in 2016, maintaining the high number of executions begun after King Salman took power in January 2015.

In Asia, sources estimate that China carried out thousands of executions in 2016 (although the number of executions remains a state secret). After China, the highest numbers of executions in Asia were carried out in Pakistan, which executed 87 people in 2016. This is a dramatic reduction in the number of executions from 2015, when Pakistan executed approximately 320 people. The drop in executions may be attributable to public concern about the application of the death penalty. For example, there was public outcry in October 2016 when the Pakistan Supreme Court found that two men executed in 2015 were innocent, and in late 2016 public pressure led to a stay in the execution of Imdad Ali, a mentally ill man.

As the only country to apply the death penalty in Europe, Belarus carried out 3 executions in 2016, with 1 person remaining on death row in Belarus and at risk of execution.While Belarus is described as “the death penalty’s final frontier in Europe,” the Turkish president Recep Tayyip Erdogan has signaled a desire to reinstate the death penalty—abolished in Turkey in 2004—in response to the failed coup in July 2016.

The United States was the only state to carry out executions in the Americas last year, as has been the case for the past 8 years in a row. In the United States, executions have fallen to a 25-year low, with 20 executions carried out in 2016 (compared to 98 in 1999, the highest number in the past 25 years). Nevertheless, the number of people on death row in the United States has only slightly declined in the last twenty years, from 3,219 in 1996 to 2,905 in 2016.

A majority of African countries with death penalty laws are considered abolitionist de facto, having not carried out an execution in over 10 years. A small number of countries in Africa carried out executions in 2016. Botswana and Egypt each executed 1 person, South Sudan carried out a reported 2 executions, and Nigeria carried out 3 executions. Somalia carried out 4 executions (with Somaliland executing 8 people and Puntland 1 person). Secrecy surrounding executions, especially in Egypt, Somalia, and Sudan, means that estimates of executions may be unreliable. Burundi, which abolished the death penalty in 2009, is another country in danger of reintroducing the death penalty. In February 2016, Minister Emmanuel Ntahomvukiye stated in parliament that the death penalty should be reinstated to punish those involved in the failed 2015 coup. Other countries in Africa continue to restrict their use of capital punishment: in October 2016 Kenyan president Uhuru Kenyatta commuted the sentences of 2,655 men and 92 women to life imprisonment.  Nevertheless, Kenyan courts continue to impose death sentences.

In 2016, two countries—Benin and Nauru—confirmed that they had abolished the death penalty for all offences. The Constitutional Court of Benin ruled in January 2016 that Benin’s 2012 ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights (aiming at the abolition of the death penalty) rendered all legal provisions stipulating the imposition of the death penalty inoperative, effectively confirming the 2012 abolition of the death penalty.

In June 2016, Nauru, which had not carried out an execution since its independence in 1968, implemented a new criminal code that removed any mention of the death penalty left over from the previous 1899 criminal code. It appears, however, that Nauru’s Constitution retains an article allowing for the imposition of the death penalty if new legislation prescribing the death penalty for an offence is enacted. In 2016, Guinea abolished the death penalty for ordinary offences, but retains the death penalty for crimes under military law or in exceptional circumstances.

Every two years the world gains insight into the political status of the death penalty worldwide, when the UN General Assembly votes on a resolution calling for the progressive restriction and eventual abolition of the death penalty. Confirming the global trend toward abolition of the death penalty, the 2016 resolution on a global moratorium on the use of the death penalty resolution passed with 117 votes in favor, 40 against and 31 abstentions. Notably, Guinea, Malawi, Namibia, Swaziland, Solomon Islands, and Sri Lanka moved from abstention to voting in favor and Zimbabwe from voting against to abstention.

Since 2007, when the resolution was introduced, the number of states favoring the moratorium has increased from 104 in 2008 to 117 in 2014 and 2016, but last year’s vote was marked by a record-breaking number of states withdrawing their support for the moratorium. Two countries—Burundi and South Sudan—moved from voting in favor of the resolution to voting against. Equatorial Guinea, Niger, Philippines, and Seychelles moved from vote in favor to abstention, in the case of the Philippines reflecting the newly-elected president’s campaign promise to reinstate the death penalty.

The resolution included an important addition aimed at improving transparency in the application of the death penalty: a request that retentionist countries provide information on scheduled executions. Opponents of the moratorium, who contend that international law allows for the imposition of the death penalty for “the most serious crimes," successfully inserted a new paragraph to the resolution on state sovereignty. This paragraph reaffirms “the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations.” A similar amendment was proposed and rejected in 2014.

Nevertheless, the resolution does not shy away from framing the death penalty as a human rights issue and continues to call upon states to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at the universal abolition of the death penalty. 

-- Sharon Pia Hickey


Cornell Law School Launches the Cornell Center on the Death Penalty Worldwide

The Cornell Center on the Death Penalty Worldwide celebrated its official launch on October 25, 2016, with an expert panel on challenges and opportunities on the path to abolition. The Dean of Cornell Law School, Eduardo Peñalver, welcomed the opening of the Center and highlighted that Cornell was the perfect institution to host it, considering that Cornell houses such outstanding scholars on the death penalty as Sandra Babcock, John Blume, Sheri Lynn Johnson, and Keir Weyble. The Center builds upon the Death Penalty Worldwide database that started in 2011 and will continue to conduct research on the death penalty with the goal of bridging knowledge and advocacy gaps on state practices related to capital punishment. The Center’s research areas will include Latinos on death row in the U.S., women on death row, defendants with mental illness or intellectual disabilities, as well as fair trial violations and wrongful capital convictions. This research and related projects will involve Cornell Law School students, who will work with Center staff to advance the rights of prisoners facing capital punishment.

One of the Center’s main objectives is to increase the quality of legal representation for capital defendants around the world. The Center will launch an annual intensive workshop for capital defenders in summer 2017. Named for the seminal South African judgment abolishing the death penalty, the first session of the Makwanyane Institute will welcome capital defenders from common law countries in Africa for specialized capital training, litigation support and community building.

The Center was privileged to have renowned anti-death penalty activist Sister Helen Prejean, the author of Dead Man Walking, open the launch through videoconference. Sister Helen emphasized how important it was to be part of the global movement to end the death penalty. She shared the story of how she became aware of the conditions of death row inmates in the U.S. after she started writing letters to a death row inmate in Louisiana whom she later accompanied to his execution. She highlighted how crucial it is to conduct research on the death penalty and expressed her appreciation that the Center will continue to bring reliable information to the public.

The expert panelists covered a wide range of issues and challenges surrounding the death penalty, both in the U.S. and abroad. Delphine Lourtau, Executive Director of the new Center, highlighted the current global decline of the death penalty, with executions being concentrated in a handful of states. China executes more defendants than the rest of the world combined, and together the five following top executioners (Iran, Pakistan, Saudi Arabia, Iraq and the United States) account for over 90% of the world’s remaining executions. Ms. Lourtau also mentioned that global terrorism has become a new challenge on the path towards abolition as several states, such as Pakistan for instance, have increased their use of the death penalty in response to terrorism.

When asked for her predictions on the abolition of the death penalty in the U.S., Denny LeBoeuf, director of the ACLU’s John Adams Project, expressed confidence that the death penalty would one day be abolished, but stated that systemic changes in the death penalty take place over many generations. She also underlined that the death penalty is increasingly seen as a human rights issue, not a criminal justice issue. Professor Sheri Lynn Johnson, Professor of Law at Cornell Law School, opined that she was not optimistic about abolition in the near future, but foresaw that the U.S. would likely see a continued decrease in the use of the death penalty by states.

Victor Uribe, Head of Legal Affairs in the Embassy of Mexico, explained that Mexico is strongly opposed to the death penalty in every circumstance and evoked the Avena case, Mexico’s lawsuit against the U.S. before the International Court of Justice on the violation of the consular rights of Mexican nationals facing capital prosecutions. Mr. Uribe emphasized the vulnerability of foreign prisoners on death row, who often do not speak English and are very isolated. During the question and answers session the audience also raised the issues of death row conditions, the death row phenomenon, how the emotional response to crime affected abolition prospects, and of the costs associated with death row.

Following this engaging panel discussion, Professor Sandra Babcock, founder and Faculty Director of the Center, gave a keynote speech in which she recounted her career path and how her different experiences in the U.S. and abroad culminated in the creation of the Cornell Center on the Death Penalty Worldwide. Her first client facing the death penalty in the U.S. was a Canadian national. Professor Babcock was intrigued by the fact that he did not have any contact with the Canadian consulate, which was attributable to a violation of the Vienna Convention on Consular Relations. After raising this treaty violation in a domestic U.S. court, but finding the court unresponsive to the issue, Professor Babcock became an advocate for the U.S. upholding its obligations under the Vienna Convention on Consular Relations. This led her to later become counsel for Mexico in cases of Mexican nationals facing the death penalty in the U.S. She was Mexico’s counsel before the International Court of Justice in Avena and Other Mexican Nationals, a landmark judgment in which the court found that the United States had breached its international obligation to notify detained Mexican nationals of their rights to have Mexican consular officers notified of their detention, depriving them of the assistance of the Mexican government at the time of their capital prosecutions. The Avena litigation led to groundbreaking decisions from the Oklahoma and Nevada courts implementing the Court’s judgment, ultimately leading to the commutation of the death sentence of Osbaldo Torres. For her work, she was awarded the Aguila Azteca, the highest honor bestowed by the government of Mexico upon citizens of foreign countries, in 2003.

This created a bridge between Professor Babcock’s U.S. and international death penalty work. In 2007, as she was a clinical professor leading a trip with students in Malawi, the Malawian High Court issued the Kafantayeni decision striking down the mandatory death penalty. Professor Babcock decided to help prisoners sentenced under Malawi’s mandatory death penalty to be resentenced and worked with the judiciary, the Malawi Human Rights Commission, lawyers and paralegals to make it happen. Through her work in Malawi, 93 former death row prisoners have been released, many of whom appeared in a photo slideshow recording the joy and emotion of former death row inmates as they walked out of prison as free men and women.

The Center is the culmination of many years of hard work and will cement Cornell as a center of excellence on death penalty research and advocacy. It will lead to important collaborations on many issues, including identifying the persistent racial, ethnic and gender bias in the application of the death penalty; implementing international safeguards protecting the rights of persons facing the death penalty; and improving the quality of legal representation in countries where resources are scarce.

-- Anna Kiefer, Research Fellow, Cornell Center on the Death Penalty Worldwide


Announcing Cornell's Makwanyane Institute for Capital Defense Lawyers

A fair trial is essential to safeguard individuals’ human rights, including the right to life and liberty of the person. In states that continue to impose the death penalty, those accused of capital crimes often lack access to effective legal representation—a violation of their human rights that heightens the risk of wrongful convictions and death sentences. The duty of states to provide adequate legal representation is not fulfilled by the mere presence of an attorney: the right to legal representation entails the right to both effective and meaningful representation, as set forth in the best practices manual for capital defense attorneys published by the Center for the Death Penalty Worldwide.

Even though the quality of legal representation is “[p]erhaps the most important factor in determining whether a defendant will receive the death penalty,” inadequate legal representation remains, as catalogued by the Center on the Death Penalty Worldwide, a critical issue in all countries that impose capital punishment.

The Cornell Center on the Death Penalty Worldwide is pleased to announce the launch of the Makwanyane Institute, an intensive workshop that will provide capital defenders specialized training, litigation support, and community-building opportunities.

Named in honor of the South African Constitutional Court’s seminal decision abolishing the death penalty, the Makwanyane Institute will focus on a different geographical region and legal system each year. The first Makwanyane Institute, which will be held from 12 to 20 June 2017 in Cornell University Law School, will welcome 15 attorneys from common-law countries in Africa.

Application materials will be available in mid-October here on the Cornell Center for the Death Penalty Worldwide website. Click here to register your interest and to receive updates about the Institute.


Guatemalan Decision Striking Down Death Penalty May Affect Other States

A recent decision by the Guatemalan Constitutional Court may have implications for the application of the death penalty in Texas and other states where juries may recommend death sentences upon a finding that the defendant is likely to be a danger in the future.

Art. 132 of the Guatemalan Penal Code provides (rough translation) that “A murderer shall be punished by imprisonment from 25 to 50 years, however the death penalty may be applied instead of the maximum term of imprisonment if the facts and circumstances of the offense, its commission and motives, reveal that the defendant is especially dangerous.”

In February 2016, the Guatemalan Constitutional Court held that this violated Article 17 of the Constitution, which provides: “Those actions or omissions that are not characterized as crimes or misdemeanors [falta] or sanctioned by a law preceding their perpetration are not punishable.” In essence, this prohibits ex post facto laws.

The court reasoned that a penalty linked to “hypothetical future conduct” is invalid. It also observed that the concept of “future dangerousness” stems from positivist beliefs that a person’s “dangerousness” is biologically determined and therefore insurmountable. The court condemns this as an archaic concept that is antithetical to modern conceptions of human rights, according to which sanctions must be imposed on the basis of what the offender has actually done, not on the basis of who he is.

The court also found that language in the penal code that provided for an alternative sentence of life without parole violated Article 19 of the constitution, which requires that the objective of any criminal punishment is the rehabilitation and social re-adaptation of the offender.

Presumably, in the wake of this decision, Guatemalan courts may no longer impose death sentences for murder unless and until the penal code is re-written.

-- Sandra Babcock