Despite progress in abolishing the death penalty, thousands remain on death row

The number of countries executing prisoners is declining but even so thousands remain on death row, often in appalling conditions and without access to legal services.

In his most recent report to the United Nations General Assembly, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns confirms the trend away from the death penalty. Only 50 of the 193 UN Member States are considered to be retentionist. The remainder have either abolished or introduced a moratorium on the death penalty.

Despite the advances, it is however estimated that more than 18,000people globally are on death row and the figure may be much higher. In his report, Heyns raises the lack of access to statistics on the number of executions as a critical concern. “The public availability of information is an underappreciated, yet crucial, aspect of the right to life under international law,” he says.

“The coherence and integrity of the international supervisory system is challenged when there are black holes in respect of which no information is available on the taking of lives, whether through judicial or extrajudicial killings,” Heyns says.

The Special Rapporteur also singles out military tribunals and other special jurisdictions saying they “should not have the power to impose sentences of death on anyone”. Describing the imposition of the death penalty by these tribunals as “a worrying trend”, Heyns says they frequently fail to offer fair trial guarantees “including not allowing individuals adequate preparation of their defence.”

In his recommendations, Heyns says that the death penalty should never be mandatory and may only be imposed for the “most serious crimes”.

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez, in his latest report to the UN General Assembly, has also focused on the death penalty and is calling on all States to “give serious reconsideration of whether the actual practice of the death penalty amounts to cruel, inhuman and degrading treatment or even torture.”

Méndez describes the “combination of circumstances” that produces severe mental trauma and physical deterioration known as the “death row phenomenon”. These include isolation because solitary confinement is common for prisoners awaiting execution; poor conditions, often worse than those for other prisoners; and the constant “unimaginable anxiety [they face] over their own imminent death.”

Méndez says scrutiny by the highest courts and United Nations experts demonstrates conclusively that “it cannot be empirically supported that in every case [these] methods of execution comply with the prohibition of torture and cruel, inhuman or degrading treatment. States cannot guarantee that there is a pain-free method of execution.”

As part of its drive to support the UN in its advocacy for abolition of the death penalty, the UN Human Rights Office is organising a series of global discussions on the subject. The first of the events, held mid-year, is now the subject of a special publication, “Moving Away from the Death Penalty - Lessons from national experiences”.

In its introduction, the UN High Commissioner for Human Rights, Navi Pillay urges politicians, religious and other leaders in civil society and the media “to keep the light shining on the fact that the application of the death penalty is unjust and incompatible with fundamental human rights values.”

“It is an affront to the right to life and the right to dignity”, she says.

The publication reports on progress since 2007 when the UN General Assembly adopted a resolution on a moratorium on the death penalty. It identifies the central elements and themes in the debate including the argument that capital punishment acts as a deterrent.

There is no proof that the death penalty is an effective deterrent, according to Pillay: “Research consistently shows that the best deterrent to serious crimes lies in ensuring that criminals face a high chance of capture and punishment within a reasonable time. The certainty of punishment, rather than its severity, deters criminals.”

The High Commissioner is urging increased cooperation between States, and civil society, to “foster the emerging abolitionist global consensus.”

“Even though the vast majority of states do not apply the death penalty, this majority does not speak with a sufficiently strong and united voice,” Pillay says.

In his report, Special Rapporteur Heyns also raises the “problem of error”. In the United States, in the past three decades, 140 people have escaped death row because of sophisticated evidence-gathering techniques and with the advent of DNA testing in 1993, 17 people in the US have been exonerated as the result of that technique alone.

Very few countries that resort to the death penalty on a large scale have access to the technology, Heyns says, raising the question of how many innocent people have been wrongly executed and how many of the thousands currently on death row should not be there.

31 October 2012