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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Australia: 'Why we need to talk about the death penalty... again'

It's almost two years to the day since the Federal Police Commissioner stood before us all and gave us fair warning: there is no guarantee that a Bali Nine scenario won't happen again.

We need to talk about the death penalty. Again. Indeed, as we mark the two-year anniversary of the executions of Myuran Sukumaran​ and Andrew Chan in Indonesia – as the Philippines prepares to reintroduce capital punishment for drug offences and our closest ally dispatches four Arkansas men by lethal injection in the space of eight days with all the procedural fairness of a round of Russian roulette – what better time to take stock?

The irony of Australia's stance on capital punishment – or one of the many ironies – is that for all our lofty aspirations about leading death penalty abolition worldwide we are no closer to a truly principled position. Or even a coherent one.

In fact, despite a 10-month inquiry by the Joint Standing Committee on Foreign Affairs, Defence and Trade – launched three short months after Chan and Sukumaran's deaths in 2015 – and despite a landslide of submissions, nine public hearings and wide-ranging recommendations with bipartisan support, not much has changed. Not much at all.

Back in April 2015, in the days leading up to the executions, Australians were galvanised by the grim theatrics of Indonesia's death penalty preparations – the Kafkaesque pronouncements, the chest beating and political manoeuvering. We were no less horrified, though, by the complicity of our federal police in the whole affair because, let's face it, whatever their motives in relation to the apprehension of the so-called Bali Nine, it's not often that the decision making of our federal law enforcement authorities is disclosed in such egregious detail, or that the grim consequences of a particular course of action are so eminently foreseeable.

o it's particularly disappointing to discover that our appetite for sharing information with death penalty states has not abated since the Bali Nine executions, or even since the Joint Standing Committee released its recommendations, which included severe restrictions around AFP information sharing with foreign law enforcement agencies in death penalty cases. Figures recently released under freedom-of-information laws reveal that the rate at which the AFP approves requests for information in death penalty cases – which hovered at around 92 per cent between 2010 and 2014 – was 92 per cent in 2015 and 96 per cent last year.

I say disappointing, but it's hardly surprising. And the reason it should come as no surprise is that the Australian government – yes, the same government that's making a pitch for a seat on the UN Human Rights Council and has vowed to lead the global charge for death penalty abolition – has rejected almost all of the recommended safeguards on information sharing put forward by the committee.


Source: The Age, Comment, Sarah Gil, May 3, 2017. Sarah Gill is a Fairfax Media columnist.

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