On 18 December 2007 Russia joined with 103 other nations in voting for a resolution at that United Nations General Assembly calling for a moratorium on the use of the death penalty with a view to its abolition. Alongside Russia all the former member states of the Soviet Union, with the exception of Belarus, also voted for the resolution. Even Belarus, the only state in Europe which still executes offenders, although now apparently in exceptional circumstances, abstained. Russia and Tajikistan are now the only other countries in the region that retain the death penalty in law, although neither has enforced it: Russia since 1996 and Tajikistan since 2004.
Twenty years ago, at the end of 1988 there were 101 actively retentionist nations (meaning that they had executed someone within the previous 10 years), now there are only 48. Even fewer countries now regularly carry out executions. Lat year only 24 countries executed anybody compared with 41 which did so as recently as 1995. With very few exceptions once capital punishment has been abolished it has not been reintroduced. Only four countries, plus two states of the USA, that have done so since 1961 and only one of them (Philippines which reinstated capital punishment for many offences in 1994) resumed executions - seven between 1999 and 2000 - before once again abolishing the death penalty completely in June 2006 by overwhelming majorities of both the Senate and Congress.
Why have the majority of nations in the world abandoned the use of the death penalty in recent years? Foremost among the factors that have promoted this new wave of abolition has been the political movement to transform 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 life but the right to be free of excessive, repressive and tortuous punishments - including the risk that an innocent or undeserving person may be executed. This movement gained force as more and more countries emerged from totalitarian and colonial repression to embrace values which seek, in the name of democracy and freedom, to protect citizens from the power of the state and the tyranny of public opinion. This new dynamic has embraced the view that capital punishment should be regarded neither as a weapon of national criminal justice policy, to be enforced according to a government's assessment of its value as a crime control measure, nor as an issue to be judged in terms of local cultural or socio-political values. The human rights approach to abolition rejects the most persistent of the justifications for capital punishment, namely retribution and the necessity to denounce and expiate crimes that shock the sensibilities of citizens by their brutality. It also rejects the utilitarian justification that nothing less severe can act as a sufficient general deterrent to those who contemplate committing capital crimes. This is not only because the social science evidence does not provide support for the claim that capital punishment is necessary in order to deter murder but that even if it did have some marginal deterrent effect, this could only be achieved by high rates of execution, mandatorily and speedily enforced. This, abolitionists assert, would inevitably lead to the probability of a higher proportion of innocent or wrongfully convicted persons being executed as well as to the unjust execution of people who, because of the mitigating circumstances in which their crimes were committed, do not deserve to die. Attempts to define a small class of the ‘worst of the worst' murders in legislation as ‘death worthy' have not avoided charges of arbitrariness and discrimination when put into practice. Furthermore, it is precisely when there are strong reactions to serious crimes that the use of the death penalty as an instrument of crime control is most dangerous. Pressure on the police and prosecutors to bring offenders to justice, especially those suspected of committing outrages, may lead to short cuts, breaches of procedural protections, and simple myopia in investigation once a suspect is identified, making it more likely that there will be miscarriages of justice. These problems appear to be endemic to the systematic use of the death penalty and not simply a reflection of human error or faults in the administration of criminal justice in a particular country. For many abolitionists even the smallest possibility that an innocent person could be executed is unacceptable breach of the right to life. It is sobering that the Commission set up by Governor Ryan of Illinois to investigate why there had been so many wrongful convictions in that State concluded that ‘no system given human nature and frailties, could ever be developed or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death.'
But, although the possibility of error is an important lever in the argument of the
human rights case against capital punishment, those committed to the cause contend that even if the system could be made ‘foolproof' it would still be indefensible. In particular, abolitionists who have embraced the view that all citizens have a ‘right to life' argue that the issue cannot be left to public opinion, not only because such opinion may not be fully informed as to the consequences of employing capital punishment, but because the appeal to human rights centres on the protection of all citizens, including those in captivity, from cruel and inhumane punishment by the state, whatever crimes they may have committed. Furthermore, most abolitionists also contend that the means could never justify the ends: for them the control of serious crime is more appropriately and better achieved through tackling the factors that contribute to it, rather than relying on the inhumane punishment of putting people to death. There remains a large gap between believing that some persons ‘deserve to die' for the crimes they commit, and believing that a state system for the administration of capital punishment can be devised which meets the high ideals of equal, effective, procedurally correct, and humane justice that civilized societies seek to implement.
It is necessary, therefore, to approach the question of capital punishment from both normative (moral) and utilitarian points of view, and always in relation to how it is applied in practice. In essence, therefore, the case for retaining the death penalty-and thus resisting the movement to make its abolition an international norm-cannot rest solely on moral, cultural, or religious arguments. It would also have to be shown that it is useful and that it can be applied fairly, without mistakes, and without a degree of arbitrariness, discrimination or cruelty unacceptable to contemporary social and legal values. There is abundant evidence to indict capital punishment for failing the test of humanity on all these grounds.
For all these reasons Russia should back its vote at the UN by ending the moratorium, which keeps the issue of capital punishment alive, and move swiftly to complete abolition of the death penalty. Experience shows that once abolition becomes permanent support for capital punishment among politicians and the public begins to subside. In the generations thereafter it comes to be regarded as one of the unacceptable uncivilized cruelties practiced in the past.
Roger Hood is Professor Emeritus of Criminology, University of Oxford and an Emeritus Fellow of All Souls College Oxford. He has on several occasions been a consultant to the United Nations on Capital Punishment. He is the author, with Carolyn Hoyle, of The Death Penalty. A Worldwide Perspective (4th edition 2008), Oxford University Press
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