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Book Review: Against the Death Penalty (Yorke ed.)

Con­tin­u­ing our ongo­ing series of book reviews, Alexan­da McCown assess­es Against the Death Penal­ty: Inter­na­tion­al Ini­tia­tives and Impli­ca­tions, edit­ed by Jon Yorke The book focus­es on what empir­i­cal­ly have been suc­cess­ful chal­lenges to the death penal­ty and explores the rela­tion­ship between pub­lic opin­ion and death penal­ty pol­i­cy. How­ev­er, giv­en that the book dis­cuss­es how life with­out parole might be an alter­na­tive to the death penal­ty that still vio­lates human rights, this review­er laments the book’s omis­sion of oth­er viable alter­na­tive sen­tences to the death penal­ty.

By Alexan­dra McCown

In Novem­ber 2003, a jury deliv­ered the death sen­tence to John Allen Muham­mad, one of the two men behind the Wash­ing­ton, D.C.-area sniper attacks in 2002. The exe­cu­tion took place in 2009, almost six years to the day after his sen­tenc­ing. If Muham­mad had car­ried out the same crimes in Europe, he would not have been sub­ject to cap­i­tal pun­ish­ment. In still oth­er parts of the world, like the Caribbean, he may have received the death penal­ty, but ulti­mate­ly his sen­tence would have been com­mut­ed since he remained on death row longer than five years. What accounts for region­al dif­fer­ences in issu­ing (or not issu­ing) cap­i­tal sanc­tions for heinous crimes such as the sniper attacks? Fur­ther, if Muham­mad had received a sen­tence of life in prison with­out the pos­si­bil­i­ty of parole (LWOP) in the Unit­ed States or any oth­er coun­try, would that real­ly have been prefer­able to a death sen­tence? Can short­er sen­tences effec­tive­ly pun­ish the per­pe­tra­tor and pro­tect soci­ety from future crime while simul­ta­ne­ous­ly respect­ing crim­i­nals’ human rights?

These ques­tions and oth­ers are addressed in Against theDeath Penal­ty: Inter­na­tion­al Ini­tia­tives and Impli­ca­tions, edit­ed by Jon Yorke. As the title sug­gests, the book advo­cates the abo­li­tion of the death penal­ty world­wide. It pro­vides dis­cus­sion of the cur­rent state of abo­li­tion­ist efforts at the inter­na­tion­al and region­al lev­els. The twelve chap­ters of the book explore two recur­ring themes: first, the dif­fer­ing grounds for suc­cess­ful chal­lenges to the death penal­ty and, sec­ond, the com­pli­cat­ed rela­tion­ship between pub­lic opin­ion and the con­tin­ued use of the death penal­ty.

The anthol­o­gy ben­e­fits from clear orga­ni­za­tion. The first chap­ter unequiv­o­cal­ly states that the goal of the book is to con­tribute to the abo­li­tion of cap­i­tal pun­ish­ment world­wide. The fol­low­ing chap­ter nice­ly frames the inter­na­tion­al abo­li­tion­ist move­ment for read­ers who are new to the sub­ject. The sub­se­quent eight chap­ters present case stud­ies high­light­ing both the suc­cess­es of and chal­lenges to abol­ish­ing the death penal­ty in six indi­vid­ual nations or region­al blocs. The final two chap­ters focus on the var­i­ous strate­gies abo­li­tion­ists use world­wide and eval­u­ate famil­iar alter­na­tives to the death penal­ty, such as LWOP. These chap­ters chal­lenge a reader’s like­ly assump­tion that LWOP is a desir­able alter­na­tive to the death penal­ty by exam­in­ing how LWOP is not nec­es­sar­i­ly con­sis­tent with human rights prin­ci­ples.

The first theme of the book, suc­cess­ful chal­lenges to the death penal­ty, comes up in all of the case stud­ies. Lil­ian Chenwi’s con­tri­bu­tion on Africa explores devel­op­ments that may, at some point, cul­mi­nate in the elim­i­na­tion of cap­i­tal pun­ish­ment on the Con­ti­nent. Among these devel­op­ments, Chen­wi ana­lyzes cas­es chal­leng­ing death penal­ty sen­tences brought before the African Com­mis­sion, the mon­i­tor­ing and enforce­ment mech­a­nism for the African Char­ter. The African Char­ter does not address the death penal­ty, but it does state that no human being can be arbi­trar­i­ly deprived of the right to respect for his life and the integri­ty of his per­son. The Commission’s jurispru­dence on death penal­ty cas­es demon­strates that due process chal­lenges have proven high­ly suc­cess­ful, yet the Com­mis­sion has yet to hold that the death penal­ty is a per se vio­la­tion of the right to life. A 1999 Com­mis­sion res­o­lu­tion encour­aged all African states to con­sid­er estab­lish­ing a mora­to­ri­um on and ulti­mate­ly abol­ish the death penal­ty, but after ten years the Com­mis­sion con­tin­ues to rely nar­row­ly on due process grounds to over­turn death penal­ty sen­tences imposed by mem­ber states. The chap­ter on the Caribbean demon­strates par­al­lels to Africa. Suc­cess­ful chal­lenges to the death penal­ty in the Caribbean have been based on nar­row due process grounds and not on grounds that the pun­ish­ment vio­lates human rights prin­ci­ples. Chi­na has tak­en an approach sim­i­lar to Africa, the Caribbean, and the Unit­ed States by plac­ing increased restric­tions on the use of cap­i­tal pun­ish­ment and strength­en­ing due process safe­guards. How­ev­er, the pun­ish­ment remains preva­lent in the coun­try and reforms are moti­vat­ed more by a desire to strength­en the rule of law gen­er­al­ly than an express wish to abol­ish the death penal­ty.

In the three chap­ters dis­cussing the Unit­ed States, the first theme—of chal­lenges to the death penalty—takes cen­ter stage in Julian Killingley’s dis­cus­sion of fur­ther­ing the abo­li­tion­ist agen­da. He advo­cates mak­ing Eighth Amend­ment chal­lenges on behalf of cer­tain class­es of indi­vid­u­als such as old­er or infirm indi­vid­u­als. Killing­ley rec­og­nizes the unfor­tu­nate real­i­ty that the death penal­ty will like­ly remain a valid con­sti­tu­tion­al sanc­tion in the Unit­ed States in the long term; mak­ing it nec­es­sary to con­struct inno­v­a­tive con­sti­tu­tion­al argu­ments to more strict­ly con­fine its use. Killing­ley sug­gests that if cas­es involv­ing vul­ner­a­ble groups of peo­ple are lit­i­gat­ed it may help change pub­lic per­cep­tion on the death penal­ty, which is one of the fac­tors the Supreme Court relies upon in deter­min­ing the “evolv­ing stan­dards of decen­cy” that influ­ence whether a pun­ish­ment is cru­el and unusu­al under the Eighth Amend­ment.

Killingley’s argu­ment thus also high­lights the sec­ond theme of the book: the com­pli­cat­ed rela­tion­ship between pub­lic opin­ion and the death penal­ty. Europe offers the only exam­ple where pub­lic opin­ion was essen­tial to the abol­ish­ment of cap­i­tal pun­ish­ment. Jon Yorke con­vinc­ing­ly argues that gen­er­al pub­lic accep­tance of the death penalty’s fail­ure to offer any deter­rent effect or extra soci­etal pro­tec­tion was essen­tial to abo­li­tion in the region and con­tributed to the belief that the death penal­ty was inher­ent­ly immoral. His analy­sis acknowl­edges that there was not one read­i­ly iden­ti­fi­able rea­son for this change in pub­lic opin­ion, but he lays out sev­er­al con­tribut­ing fac­tors. Yorke cau­tions, how­ev­er, that the suc­cess­es of Euro­pean abo­li­tion should not be tak­en for grant­ed because the winds of pub­lic opin­ion could eas­i­ly change in light of the war on ter­ror. There are many places, how­ev­er, where the winds of pub­lic opin­ion have not blown away the sov­er­eign right to impose the death penal­ty in favor of find­ing the sanc­tion immoral and/or inef­fec­tive. The chap­ters on Asia and the Unit­ed States focus on the inter­play between pub­lic opin­ion sup­port­ing the death penal­ty and spe­cif­ic coun­tries’ poli­cies regard­ing cap­i­tal pun­ish­ment. The chap­ter on Chi­na ana­lyzes the nascent nation­al dia­logue on the use of the death penal­ty and sug­gests that Chi­na will even­tu­al­ly abol­ish cap­i­tal pun­ish­ment because of a com­mon­ly held belief that civ­i­lized nations do not use cap­i­tal pun­ish­ment. How­ev­er, the sanc­tion still enjoys wide sup­port among the pub­lic. There is not even wide­spread sup­port among lawyers and aca­d­e­mics for abo­li­tion, and some schol­ars sug­gest it may take more than a cen­tu­ry for cap­i­tal pun­ish­ment to be abol­ished. A dif­fer­ent pic­ture emerges in South Korea and Tai­wan, whose pres­i­dents’ strong pub­lic sup­port for abo­li­tion have sig­nif­i­cant­ly strength­ened abo­li­tion­ist move­ments. Unlike Africa, Chi­na, the Caribbean, and the Unit­ed States, both coun­tries exem­pli­fy how strong lead­er­ship and grass­roots move­ments can pre­vent exe­cu­tions due to con­cerns about the human rights impli­ca­tions of the pun­ish­ment, despite strong pub­lic sup­port for the sanc­tion. The chap­ter notes that nei­ther coun­try has abol­ished the death penal­ty de jure, but it con­veys opti­mism that these two coun­tries will be the first to do so in the East Asia region.

The Caribbean offers insight into the unin­tend­ed impact of the Unit­ed Kingdom’s colo­nial lega­cy on cap­i­tal pun­ish­ment. The Caribbean’s death penal­ty jurispru­dence is, in large part, deter­mined by the Privy Coun­cil, a court that sits not in the Caribbean but in the Unit­ed King­dom. Analy­sis of the sem­i­nal case Pratt & Mor­gan v. AG Jamaica—which held that undue delay in car­ry­ing out an exe­cu­tion, if longer than five years, is tan­ta­mount to cru­el and unusu­al pun­ish­ment— demon­strates the Court’s reluc­tance to declare cap­i­tal pun­ish­ment to be out­right uncon­sti­tu­tion­al, rely­ing instead on pro­ce­dur­al restric­tions. The case led to the com­mu­ta­tion of sev­er­al hun­dred people’s sen­tences. Caribbean gov­ern­ments, how­ev­er, have viewed these restric­tions with sus­pi­cion because they emanate from the author­i­ty of a for­mer­ly colo­nial court. The death penal­ty remains in the statu­to­ry codes of many Caribbean states, and there is ample evi­dence that the Caribbean pub­lic and gov­ern­ments sup­port the pun­ish­ment. Iron­i­cal­ly, the ves­tiges of colo­nial­ism have pre­vent­ed the Court from address­ing con­sti­tu­tion­al chal­lenges to cap­i­tal punishment—savings claus­es, insert­ed into many Caribbean nations’ con­sti­tu­tions upon inde­pen­dence, pre­vent chal­lenges to laws in effect pri­or to independence—and opin­ions like Pratt are seen as neo-colo­nial­ist encroach­ments upon local con­sti­tu­tions despite the fact that cap­i­tal pun­ish­ment itself is a colo­nial-era mea­sure.

Pub­lic opin­ion also fig­ures promi­nent­ly in the U.S. cas­es­tudy. In her chap­ter, Jane Mar­riott argues that the “time served” argu­ment advanced in the Pratt deci­sion and oth­er for­eign opin­ions should not be the basis of a U.S. con­sti­tu­tion­al ban on the death penal­ty. She sug­gests that such a deci­sion would lack legit­i­ma­cy in the Unit­ed States because it would be seen as based on for­eign and not domes­tic norms, which is the same rea­son why the Pratt deci­sion has not been received warm­ly in the Caribbean. Mar­riott fails to acknowl­edge, how­ev­er, that unlike in the Caribbean, the Unit­ed States’ colo­nial past is not real­ly a con­sid­er­a­tion in cur­rent Amer­i­can jurispru­dence. Giv­en the Supreme Court’s high degree of legit­i­ma­cy in the Unit­ed States, Mar­riott does not offer com­pelling rea­sons why an opin­ion that relied on for­eign author­i­ty would not be afford­ed the same amount of respect as any oth­er Supreme Court deci­sion.

The last two chap­ters of the book, which com­prise the final sec­tion of the book, exam­ine var­i­ous abo­li­tion­ist strate­gies and chal­lenge read­ers to reeval­u­ate their assump­tions about those strate­gies. The penul­ti­mate chap­ter argues that abo­li­tion­ists need to refo­cus their strat­e­gy, shift­ing from an empha­sis on emo­tions and morals to empir­i­cal data. The authors iden­ti­fy three main pol­i­cy rea­sons sup­port­ing the con­tin­ued exis­tence of the death penal­ty: deter­rence, ret­ri­bu­tion, and inca­pac­i­ta­tion. They then assess the strate­gies abo­li­tion­ists cur­rent­ly use to fur­ther their agen­da, includ­ing lit­i­ga­tion, mora­to­ri­ums, edu­cat­ing the pub­lic to dimin­ish pub­lic sup­port, and pro­pos­als for LWOP instead of exe­cu­tions. The authors con­vinc­ing­ly argue that although these strate­gies have achieved some suc­cess, they also bear asso­ci­at­ed costs. For exam­ple, a lit­i­ga­tion strat­e­gy may win a reprieve for an indi­vid­ual but make it hard­er for sub­se­quent defen­dants to avoid the death penal­ty as leg­is­la­tures pass laws in response to court-imposed restric­tions. Final­ly the chap­ter dis­cuss­es why LWOP, seen by so many as a solu­tion to the prob­lem of cap­i­tal pun­ish­ment, is not a moral­ly accept­able alter­na­tive. The final chap­ter of the book exam­ines the effects of life sen­tences on pris­on­ers. Although they acknowl­edge that some pris­on­ers may nev­er be able to be released due to the risk they pose to soci­ety, the authors main­tain that life in prison should be the excep­tion rather than the rule. The con­clu­sion echoes that of the pre­vi­ous chap­ter: gen­er­al­ly life impris­on­ment is not an accept­able alter­na­tive to cap­i­tal pun­ish­ment because LWOP also infringes upon pris­on­ers’ human rights.

Over­all the book suc­cess­ful­ly pro­vides the read­er with a sol­id under­stand­ing of the suc­cess­es won, and the chal­lenges remain­ing, in the cam­paign to elim­i­nate the use of the death penal­ty world­wide. How­ev­er, the read­er comes away with just as many ques­tions as answers. For exam­ple, if the death penal­ty had not been an option for the pun­ish­ment of John Allen Muham­mad, what would have been an accept­able pun­ish­ment for him? From a human rights per­spec­tive, LWOP is unlike­ly to be a sat­is­fac­to­ry solu­tion because of the impact of long-term impris­on­ment on pris­on­ers. What alter­na­tives are avail­able that would both respect Muhammad’s rights as a human being and also pro­tect soci­ety from future harm? Sev­er­al of the book’s chap­ters offer evi­dence that sug­gests that the death penal­ty does not serve as a deter­rent for future crime, and the final sec­tion of the book indi­cates that long-term sen­tences have sig­nif­i­cant dele­te­ri­ous effects on pris­on­ers. How­ev­er, the book does not pro­pose viable alter­na­tive solu­tions; instead it mere­ly offers the weak sug­ges­tion that each case should be reviewed indi­vid­u­al­ly to deter­mine if a pris­on­er is a threat to soci­ety, with LWOP con­sid­ered to be jus­ti­fi­able in those lim­it­ed cas­es where a pris­on­er is in fact a threat to soci­ety. Com­pound­ing the prob­lem, the book fails to pro­pose cri­te­ria that prison sys­tems can use to deter­mine if a pris­on­er still pos­es a threat to soci­ety. These are a few of the ques­tions read­ers may be left ask­ing. Per­haps they are ques­tions for a future book.

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