In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Pakistan: The love of hanging

Pakistan chose to vote against the recent resolution in the United Nations General Assembly that had called for a global moratorium on the death penalty and was adopted by a majority of member-states.

The gist of this resolution has been adopted by the UN General Assembly every 2 years since 2007. The resolution adopted on Dec 19, 2016 was backed by 117 states, while 40 voted against it and 31 abstained. As against the voting pattern in 2014, the new supporters of the moratorium call were Guinea, Malawi, Solomon Islands, Sri Lanka and Swaziland.

South Asia maintained its fondness for the death penalty as Pakistan joined Afghanistan, Bangladesh, India and Maldives in rejecting a universal moratorium, while Bhutan, Nepal and Sri Lanka voted in favour.

Those who defend the death penalty as a principle enjoined by Islam may look at the division among the Muslim states (the category includes all members of the OIC).

Those voting in favour of a moratorium included: Albania, Algeria, Azerbaijan, Benin, Bosnia Herzegovina, Burkina Faso, Chad, Cote d'Ivoire, Eritrea, Gabon, Guinea, Guinea Bissau, Kazakhstan, Kyrgyzstan, Mali, Mozambique, Sierra Leone, Somalia, Suriname, Togo, Tajikistan, Tunisia, Turkmenistan and Uzbekistan.

Those who abstained included: Bahrain, Cameroon, Comoros, Djibouti, Indonesia, Jordan, Lebanon, Mauritania, Morocco, Niger, Nigeria, Uganda and the UAE.

The Muslim states that voted against were: Afghanistan, Bangladesh, Brunei, Egypt, Guyana, Iran, Iraq, Kuwait, Libya, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, Sudan, Syria and Yemen.

We find that 24 of the OIC's 57 member states voted in favour of the moratorium, while 13 abstained and only 18 voted against. In other words, Pakistan is in the minority group of 18 OIC member-countries that opposes the moratorium.

It is for Pakistan's government and its Islamic scholars to ponder as to why a majority of the OIC members do not find any faith-based bar to the acceptance of a moratorium on capital punishment. They may also consider the possibility that, as in the case of some international treaties, reservations expressed in the name of religion are in fact dictated by the culture or custom of the countries concerned.

What is more distressing for human rights activists, abolitionist groups and promoters of humanitarian laws in Pakistan is the authorities' aversion to any scrutiny of the rationale for their love of the death penalty regime.

What one hears of references to the death penalty during the Universal Periodic Review or at talks with the European Union on the GSP+ status is not the result of any serious deliberation. Indeed, one doubts if any discussion on the subject has ever taken place in Pakistan. That there is an urgent need for such a discussion can easily be established.

The recent cases in which the Supreme Court acquitted two individuals who had already been executed, or ordered the release of persons who had spent long years on death row, have strengthened the call for abolition of the death penalty on the ground of high risk of miscarriage of justice. A number of other issues that have surfaced over the past many years also need to be addressed. These are:

-- The view that the death sentence is not a deterrent to crime has not been challenged nor has the view that hangings brutalise society.

-- The Qisas law has prevented the president from pardoning death convicts or commuting their sentence although his power to do so under Article 45 of the Constitution remains intact. How does one explain the fact that the army chief can pardon a person awarded the death sentence by a military court while the president cannot do so?

-- The scholars agree that Islam prescribes the death penalty in only 2 instances. How does the state defend the fact that capital punishment is prescribed for 27 offences in the name of religion?

-- The judiciary has pointed out the problems it faces in cases in which capital punishment is mandatory if the evidence on record warrants a lesser penalty.

-- The possibility of a minor or a mentally challenged person being executed keeps cropping up every now and then.

One ventures to suggest a look at the Indian response to the issue of the death penalty in view of the shared legal tradition.

The Law Commission of India recommended in August 2015, vide its Report No. 262, that "the death penalty be abolished for all crimes other than terrorism-related offences and waging war". The commission agreed to retain capital punishment for certain offences in view of the parliamentarians' plea that "abolition of death penalty for terrorism-related offences and waging war will affect national security", although in the commission's view "there is no valid penological justification for treating terrorism differently from other crimes."

The commission noted the significant steps taken during India's decades-long efforts to restrict the use of the death penalty: removal of the requirement of giving special reasons for awarding life imprisonment instead of death (1955); introduction of the requirement of imposing the death penalty (1973); and the Supreme Court's decision that the death penalty should be restricted to the rarest of rare cases (1980). The conclusion reached by the commission was:

"Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the commission feels that time has come for India to move towards abolition of the death penalty."

During the latest debate in the UN General Assembly, however, India again voted against the resolution calling for a moratorium although it could have shown some respect for the Law Commission's recommendation by abstaining. Which only goes to show that, in developing countries, state policies are often determined by authorities that are too timid to disturb the status quo or too proud of their conservatism to heed the counsel of experts who are conscious of the call of the age.

Source: dawn.com, January 6, 2017

Pakistan: Reviewing the death penalty

Peshawar Central Prison
The first thing you notice about the death penalty is how much preparation is involved. In two years, Pakistan has carried out 419 executions. 419 death row prisoners wore a hood as six warders accompanied them to the scaffold each time. 419 bodies remained suspended for 30 minutes after being hanged. Some of these bodies likely ended up in prison graveyards, unable to break free from jails even in death.

On December 17, 2014, Pakistan lifted the moratorium on the death penalty in the wake of the tragic terrorist attack on the Army Public School in Peshawar. Originally lifted for terrorism related offences in March 2015, the moratorium was lifted for all capital offences. In the face of international opposition, the government has consistently maintained that the death penalty is the only effective means of fighting terrorism.

However, an analysis of the 419 executions that have occurred in less than 2 years by Justice Project Pakistan (JPP), a rights group, reveals significant flaws in this narrative. In Pakistan, criminal culpability is at best, widely misunderstood and at worst, casually measured with irreversible consequences. The numbers that confirm this are frightening.

27 offences are liable for a black warrant in this country, explaining the macabre achievement of having one of the world’s most populated death rows.

The 100th prisoner to be hanged after executions resumed was mentally ill, unaware until his death as to why he was being punished. Undiagnosed until 2014, Muneer Hussain was mentally unwell since childhood and later, killed two family members.

There have been at least six juveniles executed since the moratorium was lifted in December 2014. Between then and March 2016, at least 444 mercy petitions were sent to the President of Pakistan, including one for schizophrenic prisoner, Imdad Ali and Abdul Basit who is a paraplegic prisoner. So far, the known number of presidential pardons granted stands at zero.

In Pakistan, the judicial system that enables the carrying out of death sentences warrants close examination. The legal infrastructure is faulty, mired in red tape, beholden to power, creating a permissive environment for the routine miscarriage of justice.

In November this year, the Supreme Court exercised its suo moto right to reassess a case of kidnapping in Bahawalpur in Punjab, for which two brothers had been sentenced to death. Unsurprisingly, the prosecution’s case was riddled with contradictions, with insufficient evidence and incongruous eyewitness testimonies, and the SC acquitted the condemned prisoners. Only Ghulam Qadir and Ghulam Sarwar were no longer prisoners, having been executed last year.

Given the Bahawalpur case, it is critical to overhaul a system that hangs the living, and exonerates the dead. The dearth of resources for law-enforcement incentivises corruption and other abuses of authority. Police lack forensic capabilities and other reliable means of investigation. As a result, there is over-reliance on confessions, easily obtained through torture.

1,424 cases of torture have been uncovered in just one district of Faisalabad from 2006 to 2012, according to Justice Project Pakistan

444 mercy petitions have been sent to the president between Dec 2014 and March 2016; none have been granted so far

JPP uncovered 1,424 cases of torture in just one district of Faisalabad from 2006 to 2012. At 17, Abd-ur-Rehman was subject to such brutal torture following his detention that he admitted to every accusation levied at him, including being told that his name was Azam. Today, no one in Karachi Central Jail, where he remains imprisoned, knows him by the name he was born with. His involvement in an attempted burglary has kept him on death row for the last 18 years — well over half his life.

Every defendant is entitled to effective legal counsel at all stages of proceedings under the provisions of the International Covenant on Civil and Political Rights, to which Pakistan is a signatory. Though Pakistan provides needy capital defendants with counsel at state expense, the quality of representation is poor. In fact, it is generally not perceived as acceptable for lawyers to be seen in a jail.

Such scant contact between lawyers and their clients in criminal cases actively enables the miscarriage of justice, given the former essentially forgoes the chances of uncovering potentially exculpatory evidence. But with a fee below the minimum wage (a minimum of Rs2,000, with a daily fee of Rs200), there is little motivation for a state-appointed attorney to pursue a case.

International law dictates that capital punishment be reserved only for the most serious crimes, subject to fair and legitimate processes that protect a defendant’s basic rights and provide avenues for post-conviction relief. Pakistan has not lived up to its obligations. At each stage of a defendant’s encounter with this system, severe violations emerge.

Calling for anything short of a complete moratorium on executions means the continued killing of individuals whose rights have repeatedly been violated from the time of their arrest to their conviction and beyond. Sending even one innocent person – and the government sent two in the Bahawalpur case – to the gallows should prompt this step.

Given these systemic failings, legal reforms, while an important first step, are inadequately implemented at the local level. An executive mechanism to examine mercy petitions must be assembled which refers credible mercy petitions to the presidency.

Because of the lack of transparency, it is recommended that independent actors such as the National Human Rights Commission, a statutory body constituted under the National Human Rights Commission Act 2012, conduct investigations into cases.

Wrongful and unjust death sentences must be commuted. Because the death sentence warrants a high standard of proof, the state should also commute cases for individuals whose convictions were based primarily on confessions, in recognition of the high prevalence of custodial torture and inadequate safeguards in place.

Passing the Anti-Torture Bill, which has been pending since 2012, would be a good place to start. In short, Pakistan’s criminal justice system needs to undertake a detailed review of the death penalty.

Source: Dawn, Rimmel Mohydin, Zainab Malik, December 22, 2016. Rimmel Mohydin and Zainab Malik work on public and policy advocacy at Justice Project Pakistan.

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