A Critique of Litigation and Abolition Strategies: A Glass Half Empty

Chapter 1
A Critique of Litigation and Abolition Strategies: A Glass Half Empty

Kerry Ann Akers and Peter Hodgkinson

Introduction

In this chapter, we challenge the received wisdom of abolition strategies from the standpoint of two experienced and uncompromising foes of capital punishment who are struggling to reconcile claims of ‘success’ made by abolitionists and the experience of the countries in which we have worked in the aftermath of abolition. Many of the issues we discuss have thus far escaped the scrutiny of career academics. Strategies which conventionally target discreet aspects of capital punishment’s implementation fail as a consequence to appreciate or address the macro-context of capital punishment. In our view, the claims of abolitionists are somewhat exaggerated and the achievements [reducing its scope and repealing executions] are diminished if not accompanied by root and branch reform of the fundamental flaws that characterize its implementation. Regrettably, the view of too many in the abolitionist movement is that by the single measure of outlawing executions, abolition of capital punishment is accomplished – this is both short-sighted and obscures the implementation of essential infrastructure improvements. Questions need too to be asked about the profligate costs expended on the abolitionist industry, especially when the actions they stage, such as national and international conferences, are of questionable value. These are resources we believe could be more effectively spent developing and supporting the infrastructure changes essential to the transition to lasting abolition marked by fundamental improvements to the socio-legal and socio-political landscape.

Abolitionists seem too ready to accept the inevitable, if unintended, negative consequences of their ‘victories’, exemplified in particular by litigation strategies and the issue of alternatives to the death sentence. Repeal of execution statutes in and of itself does not bring about the wholesale civilizing of and access to justice claimed by most abolitionists. Our experience is that very little, if any, attention is given to countries in the aftermath of abolition. For a host of reasons, from funding pressure to convenience to self-aggrandizement to vanity, many abolitionists are reducing abolition to its most rudimentary terms, ignoring country-specific nuances, disregarding negative repercussions and often entrenching bad law for the sake of expedience.

The American experience has been the staple diet of capital punishment research and activism and continues to shape the debate even when it is frequently not appropriate to the analysis globally. Difficult though it might be to unearth country- and topic-specific research, we have, where possible, drawn on non-US experiences to inform our analysis. This chapter will analyse abolition in the light of its repercussions and the generic approaches employed by civil society, lawyers and states illustrated by accounts of regional developments and country-specific examples. We want to explore whether lessons have been learnt from flawed strategies. The analysis provided throughout this chapter posits that isolationism and competition within the abolition sector proves an obstacle to comprehensive development of penal policy.

The actions of many ‘abolitionists’ focus on saving the life of an individual, a friend, a family member, and subscribe to anti-capital punishment beliefs to provide structure and support for their journey when in fact they only want to abolish the death penalty for their friend. The annals of activism are replete with examples of the fight for individual personalities,1 in the course of which all concerned become ‘famous’ or attract notoriety. Clearly, not all ‘personality’ activities fall under this heading as there are examples – too many – that exploit individuals to justify and give life to abolitionism. Campaigning is central to the strategy of abolition, but not all campaigns are motivated by abolition.

Before embarking on the principal targets of this analysis – litigation strategies and alternatives to the death sentence and the links between them – we will review the variety of actions, actors and issues that characterize the confusion that is the abolition industry. Crucial, too, to this analysis is to identify the particulars of what it is we want to abolish and to what extent there are universally accepted criteria. On the one hand, there are those who oppose capital punishment based on the offence, and others based on the characteristics of the defendant or on the death penalty process itself. Some individuals and countries restrict their support for capital punishment to murder, others for crimes including rape, child sexual abuse, drug trafficking, kidnapping, bribery, corruption, adultery, apostasy and arson. There is neither clarity nor agreement nor consistency worldwide about which crimes ‘deserve’ the death sentence, or what elements of a particular crime distinguish it as deserving of death. ‘Heinous’ as a descriptor is part of the lexicon of justification. ‘Abolitionists’ influenced by this approach usually remain so only until the ‘unacceptable’ crimes have been removed from the purview of capital punishment. Further opposition to capital punishment is based on specific characteristics of the defendant: for example, they oppose sentencing to death those under the age of 18 at the time of the offence, those with mental impairment or mental illness, women, pregnant women, or those over a certain age. Some oppose its mandatory imposition, the possibility of wrongful convictions, the mode of execution, or policies with their roots in religious beliefs (Hodgkinson, Kandelia and Gyllensten, 2008).

Nonetheless, one cannot fault it for having been the catalyst for the exponential rise of a variety of multinationals, many of which are dedicated solely to abolition of the death penalty, and others like Human Rights Watch (HRW)2 and Penal Reform International (PRI)³ for which capital punishment is part of a broader focus on human rights violations.

Others derive their origins from government initiatives on abolition largely within Europe, Italy taking an early lead with a near-zealous pursuit of abolition domestically and internationally with its roots in the Italian Radical Party and spawning two major non-governmental organizations (NGOs) – Hands Off Cain (founded in 1993),⁴ which combines information collection and distribution with extensive political activism whose principal target is the periodic UN General Assembly and the moratoria resolutions, whereas the Comunità di Sant’Egidio (founded in 1968) delivers its abolition message symbolically, characterized by the lighting up of the Coliseum and capital cities to mark abolition events. Both are driven by an emotional commitment to abolition. France, too, has a prominent position in pursuit of abolition, supporting a number of initiatives including Ensemble Contre la Peine de Mort (ECPM, founded in 2000) and the World Coalition against the Death Penalty (founded in 2002). The Fédération Internationale des Ligues des Droits de L’homme (FIDH, founded in 1901) has compiled several important country reviews which provide an important source of evidence-led information about the status of capital punishment globally. The Spanish government recently established two initiatives: the International Commission against the Death Penalty (ICDP, founded in 2010)⁵ and the International Academic Network Against the Death Penalty (founded in 2010).⁶ Whilst it is still early days, they too, have resorted to staging seminars, and elites’ meetings, which to date have addressed the usual tired and dated topics. Disappointing given the innovation and freshness shown at the founding meeting in Madrid.

Space doesn’t allow us to reproduce individual statements of aims, though we would learn little that distinguishes one from the other. Whatever the claims of their mission statements, they all collect and disseminate information; even though the information they collect and the means of dissemination may differ, this is the common denominator. Also, given that they all stage seminars, publish data, lobby governments and compete for scarce resources, there is inevitably duplication and therefore waste. Another characteristic they all share is the ‘expertise’ promulgated by a core of the usual suspects to be found at capital punishment events worldwide, the substance of whose presentations is entirely predictable and rarely progress the debate. In our opinion, there are a number of weaknesses common to all such abolition activities, in particular (1) an absence of any systematic evaluation of the effectiveness of their strategies, and (2) a decision – and it must be a deliberate decision – to exclude supporters of capital punishment from their guest lists. Whose opinions are they trying to influence at such huge expense?

It may not make headlines or court publicity characteristic of its European Union ‘competitors’, but the British government, too, is committed to global abolition of capital punishment. This commitment has its formal beginnings in 1997, when the then Foreign Secretary, the Rt Hon. Robin Cook MP, established the Human Rights Policy Department (HRPD), one branch of which was the Death Penalty Panel. Hodgkinson is a founding member of this group, the role of which is to advise the Foreign and Commonwealth Office (FCO) on a range of issues relating to capital punishment. In contrast to its neighbours, which focus on staging high-profile information and awareness-raising events, the thrust of the UK’s strategy is to fund scoping visits to retentionist states judged to be priorities, to fund the legal representation of British citizens facing capital charges abroad, to fund litigation strategies to repeal the mandatory death penalty, to reduce the scope of capital crimes, and to support a variety of abolition activities in ‘soft’ targets, namely states judged to be susceptible to abolition. Over the years, Hodgkinson has represented the FCO on numerous such country missions, frequently questioning their purpose, but not their commitment. Abolition of capital punishment is awash with opinions, so the British Government and Panel members also have their own ‘beliefs’ about what works and what the priorities should be. A paradox in their strategy is that whilst bounty hunting the repeal of the mandatory death penalty worldwide, it continues to impose legislation in England and Wales which increases the range of mandatory sentencing, building on the mandatory sentence of life imprisonment as the alternative to the death sentence in 1965.7

Here, too, we have evidence of a failure to evaluate and to commit to initiatives thus increasing the risk of leaving half-finished or abandoned projects. In a paper written at the invitation of the FCO’s Strategic Project Fund, Hodgkinson comments:

A fresh approach to improving the delivery and quality of its effectiveness is overdue and could be achieved by focussing on improving the support offered by British Embassies and High Commissions for country actions and developing stronger collaborations with the EC, the EU, the UN and the London Missions of target countries and sympathetic countries.

Significant savings can be made by strictly limiting overseas missions, which in my experience have led to only modest and fleeting benefits rarely meeting capacity building or sustainability targets. The potential for both soon dissipates due to embassy commitments and other demanding portfolios overtaking the capital punishment agenda. Furthermore, I wonder whether a permanent and accessible record of the actions and the actors exists– the last of my 4 visits to S. Korea revisited many important issues and raised even more questions, which despite the genuine resolve of all involved to continue working on the issues activity soon evaporated – much better had we been able to build on the previous visits. Embassy staff should be given more support to ensure sustainability. Four visits over as many years addressing the same issues from the same starting point is not an efficient use of resources.8

‘Communities of nations’ – such as the United Nations (UN), the Council of Europe (CoE), the Organization for Security and Co-operation in Europe (OSCE) and the European Union (EU) – all oppose capital punishment, and because they collectively represent the views of all nations, the strategies they adopt are important, some would say crucial. All claim a mandate to abolish capital punishment, though none can claim to reflect or represent the citizens of their member states; none the less, they all adopt robust anti-death penalty positions. Other ‘communities of nations’, including the Arab League, the African Union, Caricom, the Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation (SAARC) are important too given that they represent the majority of retentionist states.

In essence, the UN’s principal involvement with capital punishment is its quinquennial survey of the status of capital punishment amongst its member states, its Second Optional Protocol to the International Covenant on Political and Civil Rights (IPPCR),⁹ its periodic global seminars, its publications,¹⁰ and at the General Assembly, tabling a draft resolution about capital punishment calling for member states to move towards a global moratorium on executions leading to full abolition (Bantekas and Hodgkinson, 2000).11 The most recent of which was on 20 December 2012, when the resolution was adopted by 111 votes in favour, with only 41 votes against and 34 abstentions.

It would be churlish to deny that this was a positive outcome but wouldn’t it be even more telling if it could be demonstrated that changes in voting were accompanied by improvements in the behaviour of signatory nations? The evidence, though, is that many states voting in favour of the resolution continue to have records of appalling human rights abuses, calling into question the motivation of these states.

The Council of Europe, being the architect of European human rights activism since the Second World War, is by far the most proactive in this group, having lead the European assault on capital punishment with an impressive record, all but one of its 47 member states (the Russian Federation) ratifying the 6th Protocol of the European Convention of Human Rights (ECHR)¹² and 43 having ratified the 13th Protocol of the ECHR,¹³ which abolishes the death penalty in all circumstances. Unique among ‘communities of nations’, the CoE does go some way to adopting a holistic approach to ensuring human rights compliant outcomes by staging Training and Training of Trainers across the piste of legal and criminal justice agencies. However, Hodgkinson, who has been CoE expert on the death penalty since the mid-1990s, believes that there would have been better outcomes if the actions had fully addressed, supported and required the implementation of essential interim and transition measures – measures including alternative sanctions to the death sentence, victim services, prison management and public reassurance.

The OSCE comprises 57 states from Europe, Central Asia and North America,14 providing a forum for political negotiations and decision-making in the fields of post-conflict rehabilitation of human rights, a part of which is dedicated to the issue of the death penalty globally and among member states. It is not as widely known as the other bodies, but makes authoritative contributions through its Office for Democratic Institutions and Human Rights (ODIHR) to informing the death penalty discourse through its periodic publications and seminars (ODIHR, 2012). Unlike the CoE and the EU, it has amongst its members several retentionist countries, including the USA and Belarus.

Finally, in this section, we turn to the European Union and its civil service, the European Commission – zealous foes of capital punishment that dedicate significant, some would say profligate, resources to abolition. By any measure, the sums of money dispersed by the European Instrument for Democracy and Human Rights (EIDHR), which came into force on 1 January 2007, are huge and their largesse diverse and extensive. The decisions about whom to fund and for what purpose attracts much criticism even amongst those sympathetic to abolition, especially funds dispersed to organizations in the USA or for abolition activities in the USA – some 3,643,951 euros (£2,962,532; US$4,760,640) in 2009 alone (Gardiner, 2011).15 We have never understood why a country so richly resourced and with more lawyers than bacteria continues to receive any external funding, which inevitably deprives poorly resourced projects worldwide. It is high time that the EU/EC stopped relying on the myth that the USA is the key to global abolition.

Abolition Activities: A Cost-benefit Analysis

We believe it to be crucial, in the interest of good governance and evaluating effectiveness, to assess value for money, especially when one considers the astronomical sums of money expended on a variety of initiatives – the EC has disbursed 23 million euros on 50 projects since 2000 (EIDHR, 2011). Should we be funding high-profile events such as the ECPM World Congresses staged in association with the World Coalition or the lighting up of the Coliseum and capital cities, the hallmark of Comunità di Sant’Egidio, or the World Days sponsored by the World Coalition to abolish the Death Penalty? What benefits flow from these activities that can be demonstrated to have contributed to the building of sustainable capacity sufficient to justify the costs? It is difficult to judge how such events progress abolition or how to estimate their lasting effects. Who are the target audiences for such occasions, and what proportion attend as believers and leave as abolitionists? We suspect very few.

In addition to the funds dispersed to US projects in 2009 referred to above, the EIDHR awarded grants to 15 other projects amounting to 8,573,504 euros (£6,970,258; US$11,200,854). Funds were dispersed to support projects in Guatemala, the Democratic Republic of Congo, Uganda, China, Palestine, Arab countries and Palestine.

The sums are so large and the purposes so diverse as to demand further scrutiny. What criteria were adopted when selecting these projects, and against what criteria was ‘success’ measured?¹⁶ Our reason for raising the issues of cost, participation and purpose is to establish whether more effective use could be made of the funds. Both authors have extensive experience of grassroots practical advocacy which builds sustainable capacity, including the work of the Centre for Capital Punishment Studies, the Uganda Law Society, the Uganda Christian Lawyers Fraternity, the Malawi Centre for Human Rights Education, Advice and Assistance (CHREAA), the Caribbean Centre for Human Rights and the Independent Jamaica Council for Human Rights – all projects with demonstrable benefits delivered at a fraction of the cost.

Examples of periods without executions followed by the resumption of hangings highlight the importance of special scrutiny on de facto abolition countries, as their status is entirely quixotic and vulnerable to swift changes in personnel. This observation highlights a shortcoming in the reliance on the moratorium as a tool for abolition And highlights that the important lesson to be learned is that the moratorium should never become a goal in itself, and that it should be continually presented, by abolitionists at any rate, as a step towards total and permanent replacement of capital punishment. Even more desirable would be to obtain a complete suspension of the death penalty process (no prosecutions, no sentences and no executions) whilst the raft of essential changes to legislation and infrastructure to prepare society for a life without capital punishment are put in place. The period of this suspension is one that should be agreed at the outset with a timetable for action.

Strategic Capital Litigation in Commonwealth Countries: Collateral Benefit or Collateral Damage?

Shortly after the case of Roodal v. The State (Trinidad & Tobago),17 a piece of strategic litigation which was overturned almost immediately in Matthew v. The State (Trinidad & Tobago),¹⁸ which reinstated the mandatory death penalty, local lawyers in association with British lawyers set about replicating the same strategic litigation challenge in Uganda. The litigation strategy in Kigula replicated those employed in the Caribbean, challenging the mandatory nature of the death penalty and delays in execution. With regard to the issue of delay, the decision differed from Caribbean jurisprudence and rendered the utility of the challenge effectively futile. The fallout from the decision was predictably damaging and reflected the lack of consideration for country-specific nuance. Similar to Pratt’s ripple effect cross the Caribbean, Kigula prompted a number of similar challenges across the region, with perhaps more to come.

In Malawi, the case of Kafantayeni (2007) MWHC I mimicked Kigula in terms of its challenge to the mandatory death penalty, but did not raise the issue of the death penalty’s constitutionality per se, nor did it raise the question of delay. Further to this, an even more fragmented challenge in Kenya followed. The case of Godfrey Ngotho Mutiso v. Republic (2010) eKLR was once again led locally in association with British lawyers in the same vein as the Kafantayeni challenge, neglecting issues of delay and the constitutionality of the death penalty per se. However, the challenge was further fragmented, only addressing the mandatory death penalty in cases of murder, leading to the mandatory death penalty for murder being abolished, but leaving intact the mandatory death penalty for armed robbery.

A common risk attached to strategic litigation is the risk of inadvertently validating the death penalty by way of invalidating an element of it – for example, in Uganda, in the case of Kigula, the death penalty itself was pronounced constitutional, but the mandatory nature of it was not. Such a challenge renders any future legal challenge to the death penalty per se increasingly unlikely to succeed, further cementing the constitutionality of the death penalty. Every legal challenge to an aspect of death penalty litigation presents a possibility of the reiteration of the death penalty in itself being constitutional, hence the importance of scrutinizing the possibility of any unintended consequences before embarking on a particular strategy.

In Jamaica, the death penalty itself was ruled constitutional in the case of Pratt and Morgan, but the delay in administering it was not. This argument stemmed from the dysfunctional administration of the judicial system, which failed to deal with cases expeditiously, leaving people to languish on death row. This inefficiency was capitalized upon by the Privy Council, which ruled that a delay of more than five years on death row invalidated the application of the death penalty. This meant that in the event that the judicial system corrected its administrative shortcomings, executions could resume, paradoxically putting the condemned more at risk of execution in a fairer system. This challenge had the effect of stifling progress in Jamaica’s justice system, eventually leading to a restriction of rights beyond that prior to Pratt and Morgan. The justice sector remained undeveloped, as rights proponents were unlikely to want to streamline the appeals system lest they jeopardize the condemned. The Jamaican government resisted the Privy Council decision at the first opportunity, not only voiding Pratt and Morgan, but actually prohibiting the courts from questioning the constitutionality of any pre-existing punishment and restricting the right to appeal (Jamaicans for Justice, 2010).

In pre-colonial Uganda there was no mandatory death sentence, compensation and reconciliation being favoured over execution, and the death penalty could only be applied if the suspect was caught in the act of committing a capital offence (Chenwi, 2007). Following independence in 1962 and in the aftermath of British colonial institutionalization of the death penalty and numerous suspensions and adaptations of constitutions, the current constitution was drafted in 1995 (Ssenyonjo, 2002). This constitution was drafted following public consultation, and in common with most of the world, Ugandans opted for retention of the death penalty – a position reiterated on numerous occasions since, as it was in 2001 when a committee tasked with assessing whether the death penalty should be abolished relied upon public opinion to make its decision (Fernandez, 2008). The reliance on public opinion to justify retention of the death penalty was also referred to in the Supreme Court’s decision in Kigula.