Death Penalty Worldwide



Could Iran End the Death Penalty for Drug Offenses?

It is easy to be cynical when observing the interactions between the government of Iran and much of the rest of the world. Posturing followed by counter-posture has been the only overt form of communication since the Iranian revolution of 1979. It is no different when it comes to Iran’s prolific use of the death penalty, but there may be some promising signs of progress regarding Iran’s use of capital punishment in its drug enforcement program.

According to the Iran Human Rights Documentation Center, Iran executed nearly 1,000 people in 2015. Other estimates are even higher.[1] Numerous persistent executioner states, including Iran, continue to carry out executions for non-violent drug related offenses, which do not fall into the category of “most serious crimes” to which capital punishment is limited under a foundational human rights treaty to which Iran is party, the International Covenant on Civil and Political Rights. Today, it is widely accepted that only intentional homicides constitute “most serious crimes” under international law.

The UN Special Rapporteur on human rights in Iran reported that 69% of Iran’s executions in the first half of 2015 were for drug related crimes. Indeed, Iran’s anti-narcotics law 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. These amendments were made in response to a growing drug problem in Iran. The government responded by issuing stricter sanctions and this resulted in an expansion of the death penalty. However, there have been recent admissions within the country from government officials that the increased execution rate for drug related offences has not reduced drug crimes in Iran. This has prompted some Iranian officials to call for review of the death penalty for all drug crimes, with the exception of armed trafficking.

On December 8, 2015, members of Iran’s Parliament, the Majlis, brought forward a bill to eliminate the death penalty for 16 of the 17 drug offenses criminalized in Iran’s anti-narcotics law. While the bill was signed by at least 21 members of the Majlis, reports suggest that 70 MPs presented the bill. Under this legislation, it appears those offenders caught with weapons while involved in drug trafficking would still be eligible for execution. While the Majlis, made up of 290 members, has the power to present bills and pass laws, the Guardian Council must approve all bills before they can become law. The Guardian Council, in turn, is comprised of six theologians appointed by the Supreme Leader and six jurists nominated by the judiciary and approved by the Majlis. Although the language of the bill itself has not been made public, up to 70 MPs (which would represent nearly 25% of Parliament), have reportedly proposed to replace the death penalty for nearly all drug crimes with a life sentence. If this bill were to pass, it would be applied retroactively, ending executions for all drug crimes with the exception of armed trafficking.

Iranian officials claim that the execution rate would decline by 80% should the bill pass. Investigations led by human rights organizations, have concluded that many of those executed for drug crimes were unarmed, but that many of these cases were not thoroughly investigated, and that defendants did not receive a fair trial or have proper access to counsel. Some have even involved juvenile offenders.

While it is the first time such a proposition has come directly from Iranian politicians, others within Iran’s government have previously advocated for similar reforms. Last year, the Iranian judiciary proposed ending the death penalty for drug offences but, once proposed, no known steps were taken to implement this recommendation. There have also been reports that the deputy head of the anti-narcotics task force recently unsuccessfully attempted to garner support within Parliament to eliminate the death penalty for drug crimes. There may be a genuine change in the air.

It may be helpful to consider the broader context of this most recent parliamentary proposal and the history of UN funding of Iranian anti-narcotics programs. The United Nations Office on Drugs and Crimes (UNODC) first established a presence in Iran in 1999 with the aim of minimizing drug related crimes. For the first six years, UNODC primarily provided technical assistance to Iran and, in 2005, a new program was initiated to reduce drug trafficking, assist with developing a prevention and treatment infrastructure to address drug abuse, and promote the rule of law regarding drug crimes. In 2010, a Country Program was launched to assist Iranian efforts on drugs and crime, while promoting UN standards and international best practices. Its focus points were trafficking and border management, reducing drug demand and HIV control, and assisting with crime, justice and corruption.

These UNODC programs have all been funded through voluntary contributions by UN member states, including European countries such as France and Germany, while others, including the United Kingdom, Denmark and Ireland, have recently withdrawn support over Iran’s execution rate.[2] A number of human rights organizations have lobbied European countries to make their contributions conditional on Iran ending executions for drug related offences. All European countries (with the exception of Belarus) have abolished the death penalty, and the abolition of capital punishment is a pre-requisite for entry into the European Union and the Council of Europe. The complicity of European countries in Iranian executions violates the spirit of these laws. Although the UNODC’s policy indicates that it may temporarily freeze or withdraw its support if executions for drug related crimes persist, it has yet to take such action. This has allowed Iran to legitimize its surge in executions, claiming it has UN backing.

It is noteworthy that the latest parliamentary proposition came just ahead of final negotiations to renew funding for its counter-narcotics efforts by the UNODC. Sure enough, despite international pressure and Iran’s execution surge, the UN announced renewed funding for counter-narcotics efforts in Iran in the amount of $20 million on December 21, 2015, doubling its contributions. It is not clear whether the parliamentary reform will now progress at all.

The recent proposal for death penalty reform by a group of Iran’s parliamentarians may simply have been window dressing ahead of UNODC’s funding decisions. However, there have been other indications in Iran’s criminal justice system that the time is ripe for change. Iran’s use of capital punishment for drug offenses is not only a bad policy, but may also be bad politics.

[1] The Abdorrahman Boroumand Foundation reports 1,052 executions in 2015.

[2] For a breakdown of funders by program see here:


Mongolia becomes the fifth country to abolish the death penalty in 2015

On December 3, Mongolia’s parliamentary assembly, the State Great Khural, passed a historic law abolishing the death penalty under all circumstances. The newly amended Criminal Code had been expected since 2012, when Mongolia ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, an international treaty whose purpose is to achieve worldwide abolition of capital punishment. State parties to the Protocol are bound not only to refrain from carrying out executions and handing down death sentences, but also to anchor abolition in national law. As of today, 84 of the UN’s 193 member states are parties to the universal abolition treaty. By September 2016, when Mongolia’s new Criminal Code comes into force, 103 countries will have eliminated capital punishment from their legal systems – a solid majority of the world’s states.

Mongolia is the fifth country to legally abolish the death penalty this year, marking an acceleration of the global trend towards the elimination of capital punishment. Unlike the four other states that abolished the death penalty in 2015 – Fiji, Suriname, Madagascar, and the Republic of Congo – Mongolia carried out executions regularly until relatively recently, the last execution having taken place in 2008. Interestingly, states that are de facto abolitionist – in other words, states that have not carried out an execution in the last ten years – are at least as slow to legally abolish the death penalty as those that regularly execute. In fact, countries that do not apply capital punishment sometimes develop a deep political attachment to its symbolic presence in the legal system, a marker of the magnitude of the state’s authority over its citizens’ lives. Thus although Suriname, Fiji, and Madagascar had not carried out a single execution since they gained their independence in 1975, 1970, and 1960 respectively, it has taken until this year for their legislatures and governments to do away with the state’s legal power over life and death.

The worldwide movement towards abolition and the resolutely abolitionist stance of many international and regional institutions have certainly contributed to achieving abolition in these states. The commitment of the United Nations to exclude death as a punishment in war crimes tribunals, the European Union’s concerted effort to make universal abolition a foreign policy priority, and the current endeavors to develop a regional African treaty prohibiting capital punishment have all contributed to shifting the death penalty debate from the realm of criminal policy to that of human rights. Moreover, the last few years have seen the number of death penalty free states in the world tip over into a critical majority, accelerating the momentum towards worldwide abolition. After Mongolian President Elbegdorj was elected in 2009 and began systematically commuting all death sentences, he declared that a “majority of the world’s countries have chosen to abolish the death penalty. We should follow this path.”

In contrast, a small minority of countries have significantly increased their use of the death penalty. Last April, Indonesia attracted widespread international criticism and lasting diplomatic fallout for restarting use of the death penalty by executing a group of drug offenders, many of them foreign nationals. Although the government initially said the executions were justified by a drug-related state of “national emergency,” there have been no further executions since, at least in part due to the volume of the international outcry. In December 2014, Pakistan ended a long moratorium and resumed executions at a staggering rate; it has since executed over 300 people. Saudi Arabia has doubled its rate of executions in recent months, beheading at least 150 prisoners so far this year against 87 for all of 2014.

-- Delphine Lourtau


Death Penalty Worldwide’s New Look!

As some of our regular users have undoubtedly noticed, Death Penalty Worldwide has a new, more dynamic home page, thanks to the brilliant design team at Cornell Law School. In addition to a new color scheme and photos, the Cornell team improved the look of our advanced search page instructions. The result is a brighter and cleaner presentation that makes our content easier to read and understand.

Cornell Law School is an ideal new home for us. With four full-time faculty members whose research interests and professional experience focus largely on efforts to limit the application of the death penalty in the United States and abroad, Cornell is one of the leading centers on scholarship and advocacy around capital punishment. John Blume and Sheri Johnson both have rich scholarly and litigation backgrounds, particularly in the area of racial and ethnic disparities in the administration of the death penalty. They have also been at the forefront of efforts to require states to conform to the Supreme Court’s mandate in Atkins v. Virginia (2002) barring the execution of persons with intellectual disability. Keir Weyble is one of the nation’s leading experts in the area of capital post-conviction remedies.

My research interests lie in the application of international norms restricting the death penalty, including the prohibition on the execution of individuals with mental illnesses and intellectual disabilities and the right to effective legal representation. My clinic students play a key role in the work of Death Penalty Worldwide: over the last nine years, I have taken 60 students to Malawi to improve access to justice for prisoners there. Our most recent project aims to obtain new sentencing hearings for Malawian prisoners who were formerly sentenced to death under the now-defunct mandatory sentencing regime. As of today, fifty-two prisoners have been released as a result of this project.

Delphine Lourtau remains Death Penalty Worldwide’s Research Director. She is currently piloting several research projects that will lead to new publications in 2016. Delphine is fluent in four languages, and her expertise in comparative research has been vital to DPW’s emergence as the most accessible and comprehensive source for international data on the death penalty.

Best wishes to all of our users for the new year ahead.

 -- Sandra Babcock


Pakistan executes juvenile tortured into confessing crime


Early on Tuesday morning, Pakistan executed Shafqat Hussain despite allegations that he may have been only 14 at the time of his offense, and amid serious concerns that the basis of his conviction was a confession extracted by torture. His execution defies two international human rights principles that are universally recognized: the exclusion of children from capital punishment and the absolute prohibition on torture.   

Shafqat’s execution was the country’s 193rd since last December, when Pakistan lifted a 6-year moratorium on civilian executions. Since then, Pakistan has carried out executions at the staggering rate of roughly a person a day, outstripping many of the world’s most active and controversial executioners, including Saudi Arabia, Iraq and the United States. Only Iran and China are now known to execute more people than Pakistan.

The twists and turns taken by Shafqat’s case show a criminal justice system that is failing, amid this onslaught of executions, to implement fundamental human rights or to respect Pakistan’s international commitments in this regard.

Shafqat was originally scheduled to be executed in January 2015, but his execution was stayed after his lawyers at the Justice Project Pakistan challenged his death sentence on the grounds that he was a juvenile at the time of the offense. The Ministry of the Interior promised to conduct an investigation into the circumstances surrounding his arrest, citing the government’s concern for human rights. It took two more execution warrants and two more last-minute stays, however, before an investigation materialized.

The investigation, conducted by Pakistan’s federal police, the Federal Investigation Agency, was so unreliable that it was later called “prima facie illegal” by the Islamabad High Court and deemed “inadmissible’ by the Sindh Human Rights Commission. The organization Reprieve notes that “it ran the full gamut of outrageous misconduct from witness intimidation and evidence tampering to leaking case information to journalists and releasing the results of the inquiry the day before Shafqat’s lawyers were scheduled to give evidence on their client’s behalf.” No other investigations were launched, however, and Shafqat was executed without a court ever examining evidence that he was a minor at the time of the crime and that his “confession” was extracted through torture.

In his decade on death row, Shafqat was informed six times that he had seven days left to live, only to be reprieved at the last minute – an experience that Shafqat described to his lawyers in a piece that was published shortly after his execution. International human rights bodies and national courts around the world have increasingly recognized that such long incarcerations, under a constant threat of death, amount to cruel, inhuman or degrading treatment in violation of international standards.

Pakistan has one of the world’s largest death rows: over 8,500 prisoners are believed to be currently under sentence of death. In light of the systemic failures brought to light by Shafqat Hussain’s case, Pakistan should refrain from any further executions and restore a death penalty moratorium.

-- Delphine Lourtau


Malawi Man Released, Nineteen Years After Being Sentenced to Death

Nineteen years ago nearly to the day, Abraham Galeta was sentenced to death for the murder of Philip Machesa, his stepfather.  On May 26, 1996, Machesa came home drunk and began to beat Abraham’s mother.  Machesa had beaten her many times before, but this time was worse.  She believed he would kill her, and called out to the neighbors for help.  Word quickly traveled to Abraham (then 20 years old), who rushed to his mother’s house with his uncle Zaima.  Instead of apologizing, Machesa began to berate Abraham for eating his food, then grabbed a chain and hit him.  Furious, Abraham grabbed the chain and hit him back, beating him until he fell.  Machesa died from his injuries.  One witness claimed that Zaima also took part in the beating, and on that basis, both men were condemned to die.

On April 8, 2015, the Malawi High Court agreed to hear mitigating evidence in support of a reduced sentence for both defendants.  Surprisingly, the state requested that the Court re-impose the death sentence.  This was the first case in which the state sought the death penalty since the Malawi courts began holding resentencing hearings pursuant to the High Court’s judgment in Kafantayeni and Others v. Attorney General.  (See my April 24 blog post for more on this).

With the support of the Cornell Human Rights Clinic (including law student Aysha Valery, who assisted in drafting the written submissions to the court) and Reprieve fellow Tom Short, legal aid lawyer Chimwemwe Chithope-Mwale argued persuasively that Abraham’s actions had been provoked by Machesa’s vicious beating of his mother.   

But the prosecution refused even to entertain the argument that Abraham deserved compassion for what he had done.  In essence, I believe this case is as much about the widespread acceptance of violence against women as it is about the death penalty.  If domestic violence were not tolerated in Malawi, it is hard to imagine how the state could possibly request the death penalty for a crime committed under these circumstances.  Indeed, in case after case in which domestic violence is described in judicial proceedings, it is presented as a “quarrel” between husband and wife.  Sometimes it is said that the husband “picked a fight” with his wife.  This quaint phrasing belittles the gravity of domestic violence and the real risk to human life that it presents. 

Thankfully, the Malawi High Court rejected the state’s arguments, and decided that Abraham had served enough time for his crime—although Zaima must serve an additional year before his release.  Abraham walked out of prison yesterday. Here’s a photo of him enjoying his first chips in 19 years at a nearby café:

Abraham sitting - smile-2

Abraham is still young enough that he may be able to marry and have children.  Soon, Zaima will join him in their village, and one hopes that the two men will live long, healthy, and productive lives.  The Malawi High Court is to be commended for this outcome.  As of today, the Malawi courts have resentenced 26 prisoners who were originally sentenced to death under the now-unconstitutional mandatory death sentencing regime.  Sixteen have been released, and another nine have been given determinate sentences.  None have been resentenced to death or life imprisonment.  One hopes that this trend will continue.


    -- Sandra Babcock


Freedom, But No Justice, For Two Innocent Men in Malawi

Last Thursday, brothers Jamu Banda and John Nthara were released from Zomba Central Prison in Malawi, after serving 21 years in prison for a crime they did not commit.  Here’s a photo of their first steps as free men. 

Jamu and John stepping out of prison as free men

Jamu and John were convicted and sentenced to death without legal representation.  Their lawyer abandoned them the day before their trial started.  They had no means of contacting witnesses in their remote village who would have testified that they were innocent of any wrongdoing. The prosecution’s case remained unchallenged, and the court had no choice but to impose the death penalty, which was the mandatory penalty for murder at the time of their trial.  After they were sent to prison, the system simply forgot about them. 

Twenty years after their arrest, Northwestern law students Jessica Dwinell and Hannah Jurowicz interviewed the two men and became convinced of their innocence.  Under my supervision, they launched an investigation with the help of the Paralegal Advisory Services Institute and the Director of Public Prosecutions.  They interviewed seven witnesses, all of whom related consistent accounts of the events that led to the brothers’ arrest.  Here’s what they said.

In December 1994, John and Jamu were farmers in a small village in central Malawi.  Both were married with children; neither had ever been in trouble with the law.  One day, as they were out in the fields, villagers told them that a stranger armed with a machete had broken into one of their homes.  It was apparent to everyone that he was deranged, whether as a result of psychosis or drugs, no one knows.  He was impossible to reason with, and impossible to approach because he threatened to strike anyone who came near.  As the community called for help from village elders, he grabbed a burning piece of wood from a cooking fire and ran into the latrine, which had a thatched roof.  It caught fire.  John, Jamu, and their brother Michael ran into the latrine to save him, but it was too late:  he had already suffered severe burns all over his body.

John, Jamu, and Michael were all taken into custody shortly after the incident.  When the trespasser died 5 days later, all three were charged with murder.  The villagers were adamant that the men were innocent, but they never had a chance to testify at trial. 

The brothers suffered greatly during their long incarceration.  Michael, the youngest brother, tested positive for HIV in 2007, and later contracted malaria and tuberculosis.  By early 2014, he had open sores covering his head and anus, which resulted in severe pain while defecating. He was frail and weak, weighing less than 41 kilos.  In April 2014, after the prosecution agreed that he was likely innocent, he died in prison.  By the time Jamu and John were released, they were both 66 years old. 

Although Jamu and John are now free, this is not a happy story.  Their wrongful conviction was the consequence of a system that failed.  Without a lawyer to defend them, the outcome of their trial was preordained.  While in theory they were entitled to an appeal under Malawi’s Constitution, they had no means of formulating cogent legal arguments and presenting them to the courts.  The state failed to appoint a lawyer to represent them, and all three brothers were illiterate.

In March 2015, the Malawi High Courts began to rehear the cases of all prisoners given mandatory death sentences prior to the 2007 judgment in Kafantayeni and Others v. Attorney General (discussed in my previous blog on April 24).  On March 19, the court heard prosecution and defense arguments in John and Jamu’s case, aided by a pleading drafted by a Cornell law student named Jordan Manalastas.  Although both sides agreed the two men should be released, there was one problem:  their trial record could not be located.

Missing case files are an enormous problem in Malawi. Of the 175 prisoners entitled to be resentenced pursuant to the Kafantayeni judgment, the courts have lost the files of more than half.  The courts have waffled over the consequences that should follow from this sorry state of affairs, but the emerging consensus is that in such cases, prisoners cannot be penalized for the state’s ineptitude.  One recent case rightly concludes that where the missing portion of the file is substantial, material and consequential, the prisoner’s conviction must be set aside.

After receiving supplemental briefing on the issue of missing case files, the High Court issued its judgment on May 7, and ordered the immediate release of both men. 

John and Jamu received a hero’s welcome in their village when they arrived after their long journey from Zomba.  But their lives, and those of their families, were destroyed by their wrongful convictions and long incarceration.  They can never recover those lost years.  

John and Jamu’s case brings home the need for abolition of the death penalty where the state cannot guarantee a fair trial in accordance with international law.  A moratorium does not go far enough.  Malawi has not executed anyone since 1994, but it has continued to sentence individuals to death—some of whom, like John and Jamu, are innocent of the crimes for which they were convicted.  And Malawi is not unique in this respect:  in South Sudan, most of the people currently on death row had no legal representation whatsoever at the time of their trials. 

Until the death penalty is abolished, states must provide a means for post-conviction review of the convictions and sentences of those sentenced to death.  Without it, there is no question that other innocent men and women will risk execution for crimes they did not commit.

-- Sandra Babcock


Malawian Prisoners Receive Long-Awaited Sentence Rehearings

Today, Grace Phiri (name changed to protect her privacy) was released from prison in Malawi after being sentenced to death eleven years ago for killing her husband as he was battering her.   Grace is 61 years old, HIV-positive and mentally ill; she had not been taking anti-retrovirals because she believes the medicine is bewitched.  She is extraordinarily frail.  Grace is now on her way home to her village in northern Malawi, where she will reunite with family members she has not seen since her death sentence was imposed.

Grace is the thirteenth prisoner to be released since the Malawi High Courts began holding resentencing hearings in February 2015.  Five more have been given determinate sentences, and should be out within 5 years.  Eleven prisoners are awaiting judgment, and more hearings are scheduled to take place in coming weeks.  Here’s a link to an incredibly joyful video of the release of Nelly Mtambo (name changed to protect her privacy) last month.  Guaranteed to make you smile or cry, it shows a group of women prisoners singing and dancing as they accompany her to the prison gates:

The resentencing hearings are being held pursuant to a 2007 judgment of the Malawi High Court (Kafantayeni and Others v. Attorney General) that found the mandatory death penalty unconstitutional.  Grace, Nelly, and 190 other prisoners had been sentenced to death for murder, without any consideration of the circumstances of the offense or their individual backgrounds.  This meant that Grace’s experience as a battered woman could not be taken into account at the time she was sentenced to death. 

Law students at the human rights clinics at Cornell and Northwestern Law Schools, under my supervision, have been working for the last six years to assist Malawian stakeholders participating in the resentencing hearings.   We interviewed approximately 190 prisoners, researched their cases, analyzed potential mitigating factors, and conducted trainings for Malawian lawyers, paralegals, judges, and mental health workers on mitigation investigations and the relevance of mental health to sentencing.  We have traveled to remote villages with paralegals to interview family members and village headmen who knew the prisoners before they were arrested.  We discovered that some of the prisoners were innocent of the crimes for which they were convicted.  Others were juveniles at the time of the crime.  We discovered evidence that many others were intellectually disabled, mentally ill, or had suffered traumatic brain injury as a result of cerebral malaria or other illnesses.  The circumstances of the crimes themselves often involved substantial provocation, such as the case of one young man who was convicted of killing his stepfather after the latter had beaten the defendant’s mother to the point where she thought she would die.

Malawi should be saluted for giving these prisoners their day in court, and for implementing the mandate of the High Court in the Kafantayeni case.  It will be many more months until all of the prisoners have been resentenced, but the progress over the last two months has been encouraging.  The Malawi Human Rights Commission, with funding provided by the Tilitonse Fund, has led a coalition of local stakeholders engaged in this effort, including the Director of Public Prosecutions, Legal Aid, the Paralegal Advisory Services Institute, the Judiciary, the Law Society, and Chancellor College of Law.  They have been ably assisted by volunteer Reprieve fellows Tom Short and Harriet McCulloch, and volunteer lawyer Emile Carreau.  American neuropsychiatrist Dr. George Woods, and U.S. capital litigator Denny LeBeouf have participated in trainings and helped assess the mental status of prisoners.  More volunteers are needed.  As the saying goes, it takes a village.

 -- Sandra Babcock


Roger Hood and Carolyn Hoyle reflect on the movement towards worldwide abolition of the death penalty

Today sees the publication by Oxford University Press of the 5th edition of Roger Hood and Carolyn Hoyle’s book, The Death Penalty: A Worldwide Perspective. Followers of the excellent blog hosted by Cornell University’s Death Penalty Worldwide website, and their active twitter feed, may be forgiven for thinking that the picture is rather depressing for abolitionists. As most of us in the US and Europe were welcoming tidying up after our New Years Eve parties, Iran was busy executing 14 people, including four women, and carrying out a punitive amputation of a man’s hand in a prison near Mashhad. In the week since New Years Day, Iran has executed at least another four prisoners, apparently following the trend set in 2014 for very high execution rates, rates that have increased since President Rouhani assumed office in August 2013.

Jordan brought us depressing news just before Christmas when it executed 11 Jordanian men by hanging, ending an eight-year de facto moratorium on the death penalty. A country that had provided a beacon of hope in that region had slipped back in line with its neighbours.

But particular concern has been expressed over Pakistan. Nine persons have been hanged in Pakistan since the lifting of the moratorium on capital punishment in the aftermath of the atrocious attack, in December 2014, on the school in Peshawar that left approximately 150 people dead, most of them children, and left scars within that community that will never heal. Pakistan’s response to terrorism is perhaps not surprising, given the fear that such acts can spread across not only the target nation but the whole world. Last night the world’s media expressed dismay and anger at the murders of 12 people, some of them high- profile journalists – in Paris in an act of Islamic terrorism. Instead of reacting with calls for the resumption of the death penalty, France and her European neighbours reached for their pencils to demonstrate the importance of freedom of speech. For a country that has been at the forefront of the abolitionist movement, this might be expected. But we need to remind ourselves that a few decades ago, this would not have been the case. These terrorists, once caught and convicted, would have been executed.

The attack on the staff of Charlie Hebdo, and the resulting demonstrations around Europe provide clear evidence of how far Europe has come since it enforced the death penalty. However, Europe no longer stands alone. As the fifth edition of The Death Penalty shows, there have been considerable changes in the use of capital punishment in all regions of the world over the past quarter of a century; changes which have shifted our pessimism towards increasing optimism that worldwide abolition may be achieved in the foreseeable future.

Since the end of 1988, the number of actively retentionist countries (by which we mean countries that have carried out judicial executions in the past 10 years) has declined from 101 to 39, while the number that has completely abolished the death penalty has almost trebled from 35 to 99, with 33 regarded as abolitionist in practice. In 2013 only 22 countries were known to have carried out an execution and the number that regularly executes a substantial number of its citizens has dwindled. Only seven nations executed an average of 20 people or more over the five year period from 2009 to 2013: China (by far the largest number), Iran (the highest per head of population), Iraq, North Korea, Saudi Arabia, the US, and Yemen. The change has been truly remarkable.

The dynamo for this new wave of abolition is the development of international human rights law and norms. Arising in the aftermath of the Second World War and linked to the emergence of countries from totalitarian imperialism and colonialism, the acceptance of international human rights principles transformed consideration of capital punishment from an issue to be decided solely or mainly as an aspect of national criminal justice policy to the status of a fundamental violation of human rights: not only the right to not to be arbitrarily deprived of life but the right to be free from cruel, inhuman or degrading punishment or treatment. The idea that each nation has the sovereign right to retain the death penalty as a repressive tool of its domestic criminal justice system on the grounds of its purported deterrent utility (for which there is no convincing evidence) or the cultural preferences and expectations of its citizens was being replaced by a growing acceptance that countries that retain the death penalty – however they administer it – inevitably violate universally accepted human rights, as this new edition of The Death Penalty convincingly demonstrates yet again.

The human rights dynamic has not only resulted in fewer countries retaining the death penalty on their books, but also in the declining scope of the death penalty.   There has been a significant reduction in the range of offences for which the ultimate penalty can be imposed in many of those countries. Since the introduction of Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, which were first promulgated by the UN Economic and Social Council resolution 1984/50 and adopted by the General Assembly 30 years ago, there have been attempts to progressively restrict the use of capital punishment to the most heinous offences and the most culpable offenders and various measures to try to ensure that the death penalty is only applied where and when defendants have had access to a fair and safe criminal process. Hence, in many retentionist countries juveniles, the mentally ill and the learning disabled are exempt from capital punishment, and some countries restrict the death penalty to culpable homicide.

There has been some strong resistance to the political movement to force change ever since the Second Optional Protocol to the ICCPR was adopted by the UN General Assembly in 1989. Attempts by the abolitionist nations at United Nations Congresses, in the General Assembly, beginning in 1994, and at the Commission on Human Rights, annually from 1997, to press for a resolution calling for a moratorium on the imposition of death sentences and executions met with hostility from many of the retentionist nations. By 2005, when an attempt had been made at the Commission on Human Rights to secure sufficient support to bring such a resolution before the United Nations, it had been opposed by 66 countries on the grounds that there was no international consensus that capital punishment should be abolished. Since then, as the resolution has been successfully brought before the General Assembly, the opposition has weakened as each subsequent vote was taken in 2007, 2008, 2010, and 2012, when 111 countries (60 per cent) voted in favour and 41 against. Just three weeks ago, 114 of the UN’s 193 member states voted in favour of the resolution which will go before the General Assembly Plenary for final adoption this month. The notion behind Human Rights 365 – that we are a part of a global community of shared values – is reflected in this increasing support for a worldwide moratorium as a further step towards worldwide abolition. We encourage all those who believe in human rights to continue working towards this ideal and not response to the fear caused by terrorism by reaching for the noose.

                -- Roger Hood and Carolyn Hoyle


The fifth edition of Roger Hood and Carolyn Hoyle’s The Death Penalty: A Worldwide Perspective is published on 8 January 2015. This completely up-to-date and substantially revised new edition of a highly praised study remains the most authoritative account of abolition and retention, and the use and administration of capital punishment in law and practice around the world.

Professor Roger Hood is Professor Emeritus of Criminology and an Emeritus Fellow of All Souls College, and former Director of the Centre for Criminology at the University of Oxford.

Professor Carolyn Hoyle is Director of the Centre for Criminology in the Faculty of Law and Fellow of Green Templeton College at the University of Oxford. @CarolynHoyle1


UK High Court of Justice says unlawful to extradite mentally ill man facing mandatory death penalty in Ghana

Our guest blogger is Zoe Bedford, Casework Lawyer at Reprieve.  Julian Knowles QC (Matrix Chambers) along with Rachel Barnes (Three Raymond Buildings) acted for Mr Gambrah, with the support of the Death Penalty Project and Reprieve.

Lord Justice Moses, sitting in the High Court in London, has ruled that the extradition of a mentally ill 34 year-old British father would breach his rights under Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment, regardless of whether a moratorium is in place or not. Frank Gambrah, who spent over two years in prison awaiting the outcome of the extradition proceedings, was granted immediate release on 16 May 2014, when the judgment was handed down.

In August 2007, Mr. Gambrah, a British national, was accused of a murder outside a nightclub in Ghana’s capital Accra.  Unaware of the charges against him, Mr. Gambrah returned to the UK later in the year and was only arrested in 2009, when he arrived at Kotoka International Airport to visit his son, who was unwell. He was released on bail in February 2010 and returned to the UK.  In February 2012, five years after the murder took place, the Ghanaian Government requested the UK Government extradite Mr. Gambrah to Ghana to face trial for the alleged offence.

Ghana has not carried out any executions since 1990 but the death sentence remains mandatory for murder. The Ghanaian government offered various assurances that the death penalty would not be carried out, but in light of the mandatory nature of the death penalty, was unable to offer assurances that Mr. Gambrah would not be sentenced to death. It was also unable to explain when, how or by whom Mr. Gambrah’s sentence would be officially commuted. Mr. Gambrah was suffering from post-traumatic stress disorder, and the Court agreed that there were serious doubts as to the ability of the Ghanaian prison system to provide adequate mental health treatment for Mr. Gambrah.

The key question for the Court, therefore, was whether the circumstances of Mr. Gambrah’s imprisonment in Ghana would constitute inhuman and degrading treatment contrary to article 3, given that, if convicted, he would be sentenced to death, even with the assurances he had that he would not be executed and the de facto moratorium in Ghana.

Ultimately the Court found that it would be inhuman and degrading to expose someone with Mr. Gambrah’s mental health problems to the legal limbo of being sentenced to death without knowing when, whether or how his sentence would ever be commuted.

Lord Justice Moses went on to express grave doubts as to whether an extradition should go ahead in any case where the nature of a person’s sentence is so uncertain, as to do so would also amount to inhuman and degrading treatment. In his view, sentencing a person to death without taking into account the particular facts of the offence or his own personal circumstances and leaving him to rely only on the mercy of the president, was also in breach of the right to a fair trial, and should itself present a further barrier to extradition.

In addition, under section 91 of the Extradition Act 2003 the Court considered it to be unjust and oppressive to extradite Mr. Gambrah in light of his poor mental health and the lack of adequate psychiatric treatment in Ghanaian prisons.

The requesting state need only prove a prima facie case against an individual according to UK extradition laws, an extremely easy standard to satisfy and requiring little analysis of the case against the accused. However, there is compelling evidence that Mr. Gambrah was innocent of the murder, with alibi witnesses coming forward and the key prosecution witnesses since admitting under oath that they had been tortured and coerced into providing false statements to the police. Mr. Gambrah himself was beaten around the head so badly that his eardrum burst and he has suffered lasting hearing damage. Under such circumstances, it is hard to imagine that Mr. Gambrah would ever have been given a fair trial had he been extradited to Ghana, and it is surprising that his extradition could ever have been contemplated.

Under English law, the Secretary of State may approve the extradition of a suspect to face the death penalty on the most superficial evidence if he receives assurances that he will not actually be executed. It is to the credit of the Courts that such a potential miscarriage of justice which would have led to inhuman suffering of a mentally ill man has been averted in this case. But extradition laws in the UK still fall short of offering the level of protection against the death penalty that one would expect from a state claiming to promote worldwide abolition of the death penalty.

There are over 130 prisoners under sentence of death in Ghana, a number of whom have been there for ten years or more. There is a virtually world-wide consensus against the use of the mandatory death penalty, even in countries where the death penalty is in use, yet Ghana stands as one of a tiny number of countries to have retained the mandatory death penalty for murder. It is essential that abolitionist states do not unintentionally legitimise the death penalty by allowing extradition to retentionist states under any circumstances.

    -- Zoe Bedford

 For further information, see Death Penalty Worldwide’s report  on capital punishment in Ghana here


Uganda Conducts Resentencing Hearings in the Wake of the Kigula Decision

Our guest blogger, Tanya Murshed, is the Uganda Project Director for the Centre of Capital Punishment Studies and is a practicing barrister at 1 Mitre Court Buildings in London. 

In April 2013, I left my practice in London for eight months to volunteer for the Centre for Capital Punishment Studies’ (CCPS) Capital Mitigation Project in Kampala. CCPS is based at the University of Westminster in London and undertakes numerous pioneering activities within the field of the death penalty and penal research.

The CCPS Uganda Capital Mitigation Project was started in 2011, in the aftermath of the landmark Supreme Court Judgment of Attorney General v Susan Kigula and 417 others, which abolished the mandatory death penalty. The Supreme Court decided two main points of law. Firstly, for all those who had been sentenced under the mandatory death sentence regime, their death sentences were to be commuted to life imprisonment without remission if they had waited three years or more for the executive to process their petition of mercy, following confirmation of their conviction by the Supreme Court. Secondly, those individuals who were still in the process of appealing their capital conviction would have their cases remitted back to the High Court for re-sentencing. The individuals affected by this aspect of the ruling are known as the “Kigula beneficiaries.” Accordingly, sentencing judges were given the discretion to impose the death penalty or some other form of punishment on the basis of mitigation put forward by, or on behalf of the defendant.  

When I arrived in Uganda, approximately 60 individuals had gone back for mitigation since the judgment in 2009, in a somewhat haphazard way. The re-sentencing process had proved more difficult than anticipated, as many of the files were in different courts around the country and some of the judges who presided over the original trials had since retired or died. The Project was able to assist in a number of those initial cases, leading to the release of some inmates, and fixed term sentences for others. However, some of the sentences passed attracted much criticism for leniency and inconsistency. A Kigula Task force, formed in 2012, decided to adopt a more systematic approach to the re-sentencing process for the remaining beneficiaries by introducing special mitigation sessions where judges would apply formal Sentencing Guidelines. 

It was clear from visits to Luzira Prison in Kampala, where all of the Kigula beneficiaries were located, that we were the only project trying to assist the remaining beneficiaries who had been held in the condemned section without a sentence for many years.   

Having forged a new partnership with the Uganda Law Society and Justice Centres Uganda, we approached the Kigula Task Force to see how we could assist.  A special session was planned for all Kigula cases whose files had been sent back to the High Court. Ten judges, ten defense advocates and ten prosecutors were selected to participate in the mitigation and sentencing of 136 beneficiaries. Our project was heavily involved in this process and we were identified as a key stakeholder by the Kigula Task Force.

We provided assistance in a number of ways, including obtaining secretarial support from the Office of the High Commissioner for Human Rights (OHCHR) so that case files could be photocopied for all parties and acting as a liaison between the prisons and the courts.  We provided training to lawyers and judges in the principles of mitigation and international sentencing practice, and collected mitigating evidence through our student interns at Makerere Law School on behalf of the inmates.  

We also acted as amicus curiae by providing written representations on the legal issues affecting the sentencing of Kigula beneficiaries. The re-sentencing exercise was clearly a complicated one and a number of issues arose for consideration. One contentious matter was the relevance of post-conviction mitigation. Some of the prisoners had languished on death row for as long as 20 years and were inevitably different from the people they were on the day they were convicted, having undertaken several rehabilitative courses in prison.  We also assisted the judges with the definition of the ‘rarest of the rare’ case; the relevance of mental health problems (both pre and post-conviction); the sentencing of offenders who were minors at the time of the offense; whether the beneficiaries should be considered still on remand for the purposes of sentencing and the approach to sentencing victims of domestic violence who had murdered their spouses. These issues were novel to many judges and assistance was vital to ensuring the fairness of proceedings.

Notably, we piloted a scheme of Pre-sentence and Social Inquiry Reports and mental health assessments for every inmate appearing for re-sentencing.

Pre-sentence reports are used in other jurisdictions and indeed are mandatory in some countries for the most serious offenses. It was clear from observations at the Kampala High Court that judges were not being provided with sufficient background information about a defendant prior to sentencing Even after the launch of the first official Sentencing Guidelines in June 2013, which imposed a duty on the defense and prosecution to provide background information about an offender, detailed information was not being presented by either advocate. Importantly, any information put forward was of limited value to the court, as it was not sufficiently independent.

In conjunction with the Uganda Law Society, we obtained funding for social workers from the Democratic Governance Facility for the Ministry of Gender, Labour and Social development to complete these reports. There were two groups of workers: the first group conducted interviews with the inmate and produced a pre-sentence report. These interviews focussed on obtaining information from the offender regarding his/her background; his/her progress in prison and the reasons for his/her offending behavior.  They also consulted various official documents such as medical reports and prison reports in order to address medical issues, progress and behavior in prison. The social workers conducted an independent assessment of the offender’s thinking, behavior and capacity to reform which was contained in the report.

The second stage of the exercise involved district social workers, also from the Ministry of Gender, who made inquiries in the offenders’ home villages, in order to gain further information about their background and to ascertain whether the offenders could be re-integrated into the community or re-located if released. These social workers provided Social Inquiry Reports.  

With respect to the mental health reports, we felt that these were of considerable importance for various reasons. International law prohibits the imposition of the death penalty on anyone suffering from mental illness or learning disability at the time of conviction, sentence, or execution. Furthermore, a person cannot be deemed incapable of reform without a psychiatric report.  Most inmates had not been examined by a psychiatrist on entry to prison and any previous assessments were completely out of date. We were also concerned that many of the beneficiaries were suffering from death row syndrome, having been in the condemned sections for years. These assessments were carried out by a consultant psychiatrist whose reports addressed not only mental health issues and learning difficulties, but medical problems as well.

Out of the 136 people that went for re-sentencing, 15 individuals were released, nine were given death sentences; one was given a Minister’s Order due to minority status; four were referred to a Psychiatric facility, 22 were given life sentences and 85 were given fixed terms of imprisonment.  

The session was a success in many ways. Apart from the 9 individuals who had their death sentences confirmed (which have since been appealed), 127 individuals finally left the condemned section of Luzira prison and some were released unconditionally back into the outside world after many years. It was a joyous occasion for a considerable number of the beneficiaries. However, it was clear from the hearings and subsequent judgments that judges applied an inconsistent approach to sentencing and that there were a number of issues that still had not been resolved. Some judges took irrelevant matters into account; there was a failure by some to understand the relevance of mental health issues at the sentencing stage; there was an inconsistent approach to post-conviction mitigation, a lack of understanding of the ‘rarest of the rare’ standard and a number of age-related issues. The pre-sentence reports received a mixed reception, with one judge describing them as ‘very very useful’ and some disregarding them altogether. With respect to the lawyers we trained, most of them welcomed our guidance and support but there were one or two who outright rejected it to the dismay of the many of the inmates. 

The second special session involving 93 individuals is due to start today. In order to improve upon the last session and ensure greater consistency, we held a workshop with judges, lawyers and other stakeholders to discuss the issues that arose in the last session as well as the importance of pre-sentence reports and mental health assessments. Further training has been provided for the social workers to improve upon the quality of pre-sentence and social inquiry reports on this occasion, which we hope will become an integral part of capital sentencing practice.

We hope that we will be able to continue to make progress and assist the judiciary and advocates in Uganda into the future, building capacity.  Although it took many years to start the re-sentencing process for most of the Kigula beneficiaries, that process has now begun and different parts of the judicial system are working together in ways not previously seen.  This will be of benefit not only to the Kigula beneficiaries, but to the Ugandan justice system as a whole. We have certainly been in a privileged position, able to assist not only the inmates but also advocates and the judiciary who have welcomed our support.  Looking to the future, we are hopeful that we will be able to continue to build capacity and contribute further to issues surrounding access to justice and law reform. 


-- Tanya Murshed


For further background, Death Penalty Worldwide’s research on capital punishment in Uganda is available here.