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.