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Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
Overview of Death Penalty
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Overview of Death Penalty

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  • 1. 0 Art. 21 & Capital Punishment in India: An In-depth Perspective Submitted to Dr (Mrs) Asha Verma Submitted by Enrol. No. A3256113116 Amity Law School AUUP Mar 17, 2014
  • 2. 1 Table of Contents An Overview .......................................................................................................... 2 Capital Punishment in History ............................................................................... 5 Methods of Inflicting Capital Punishment ............................................................. 9 Philosophy of Capital Punishment: Retributive School....................................... 12 Philosophy of Capital Punishment: Abolitionist School...................................... 14 Religious Underpinnings of Capital Punishment................................................. 16 Christianity ....................................................................................................... 16 Judaism............................................................................................................. 18 Islam ................................................................................................................. 19 Buddhism.......................................................................................................... 20 Hinduism .......................................................................................................... 21 Controversies around Capital Punishment ........................................................... 22 Capital Punishment Global Practices ................................................................... 30 United States (Americas).................................................................................. 30 Russian Federation (Europe) ............................................................................ 34 People’s Republic of China (Asia) ................................................................... 35 Egypt (Africa)................................................................................................... 37 United Arab Emirates (Middle East)................................................................ 38 India (Asia)....................................................................................................... 40 Global Implementation of Capital Punishment.................................................... 43 USA (Americas)............................................................................................ 43 Russian Federation (Europe)......................................................................... 46 People’s Republic of China (Asia) ................................................................... 48 Egypt (Africa)................................................................................................... 49 United Arab Emirates (Middle East)................................................................ 51 India (Asia)....................................................................................................... 52 Summation ........................................................................................................... 60 The Researcher’s Position.................................................................................... 62 Bibliography......................................................................................................... 64
  • 3. 2 An Overview In the introductory chapter, after defining the terms capital punishment and death sentence, the researcher trace the Latin origin of these terms. Thereafter the researcher would offer a brief overview of global current practices. Finally, the researcher would introduce the international global framework including abolitionist conventions. The Merriam-Webster online dictionary defines capital punishment as being “for murder, treason, arson, and rape (that) were widely employed in ancient Greece and the Romans also used it for a wide range of offenses. It also has been sanctioned at one time or another by most of the world's major religions.”i Encyclopedia Britannicaii offered the following definition: Execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term capital punishment is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment. The Catholic Encyclopediaiii defines capital punishment as “The infliction by due legal process of the penalty of death as a punishment for crime.”The British Broadcasting Corporation says: Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. It can only be used by a state, so when non-state organizations speak of having 'executed' a person they have actually committed a murder. It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimesiv .
  • 4. 3 The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal' punishment, such as flogging, takes its name from the Latin word for the body. The Latins use the word capitalis (from caput, head) to describe that which related to life, that by which life is endangered. They used the neuter form of this adjective, i.e., capitale, substantively to denominate death, actual or civil, and banishment imposed by public authority in consequence of crime. The idea of capital punishment is of great antiquity and formed a part of the primal concepts of the human race. Despite the large number of capital offenses in some countries, in most years only about 30 countries carry out executions. In the United States, where roughly three-fourths of the states and the federal government have retained the capital punishment, about two-thirds of all executions since 1976 (when new capital punishment laws were affirmed by the Supreme Court) have occurred in just six states—Texas, Virginia, Florida, Missouri, Louisiana, and Oklahoma. China was believed to have executed about 1,000 people annually until the first decade of the 21st century, when estimates of the number of deaths dropped sharply. Although the number of executions worldwide varies from year to year, some countries—including Belarus, Congo (Kinshasa), Iran, Jordan, Nigeria, Saudi Arabia, Singapore, Taiwan, Vietnam, and Yemen—execute criminals regularly. Japan and India also have retained the capital punishment and carry out executions from time to time.v In the USA, the only country in the Americas to carry out executions, at least 110 death sentences were imposed during 2010 but this represents only about a third of the number handed down in the mid-1990s. Available information from five other countries in the region confirmed at least 82 executions were carried out in Asia. Amnesty International stated that at least 21 countries were known to have carried out executions in 2012, down from 28 in 2003. At least 682 executions were known to have been carried out worldwide, two more than in 2011. However, these figures do not include the thousands of people who were believed to have been executed in China. Amnesty reported the following executions in 2012:Afghanistan (14), Bangladesh (1), Belarus (3+), Botswana (2), China (+), Gambia (9), India (1), Iran (314+), Iraq (129+), Japan (7), North
  • 5. 4 Korea (6+), Pakistan (1), Palestinian Authority (6), Saudi Arabia (79+), Somalia (6+; 5+ by the Transitional Federal Government, and 1 in Puntland), South Sudan (5+), Sudan (19+), Taiwan (6), United Arab Emirates (UAE) (1), USA (43), Yemen (28+). Amnesty International has also received credible reports of a large number of unconfirmed executions in Iran, which would surpass the number of officially acknowledged executions by almost three quarters. At least 1,722 people were known to have been sentenced to death in 58 countries in 2012, down from 1923 in 63 countries in 2011. Mandatory death sentences continued to be imposed in Barbados, India, Iran, Malaysia, Maldives, Pakistan, Singapore, Thailand, and Trinidad and Tobago. Mandatory death sentences are inconsistent with human rights protections because they do not allow any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offencevi . People continued to be sentenced to death or executed for crimes that did not involve intentional killing, thereby not meeting the threshold of “most serious crimes” as prescribed by Article 6 of the ICCPR. The capital punishment was known to have been used for drug-related offences in a number of countries, including China, India, Indonesia, Iran, Malaysia, Pakistan, Saudi Arabia, Singapore, Thailand, UAE and Yemen. Other crimes punishable by death were “adultery” and “sodomy” (Iran), religious offences such as “apostasy” (Iran) and “blasphemy” (Pakistan), “sorcery” (Saudi Arabia), economic crimes (China), rape (Saudi Arabia) and forms of “aggravated” robbery (Saudi Arabia, Kenya, Zambia). Finally, different forms of “treason”, “acts against national security” and other “crimes against the state” (such as “moharebeh” – enmity against God – in Iran), whether or not they led to a loss of life, were punished with death sentences in Gambia, Kuwait, Lebanon, North Korea, Palestinian Authority and Somalia. In North Korea death sentences are often imposed even though the alleged crime is not subject to a death sentence under domestic law. Five countries – Botswana, Gambia, India, Japan and Pakistan – resumed executions in 2012. The scope of the capital punishment was known to have been expanded, in contravention of international human rights standards, in Bangladesh and Kenya.
  • 6. 5 The community of nations has adopted four international treatiesvii providing for the abolition of the capital punishment. One is of worldwide scope; the other three are regional. The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the capital punishment, adopted by the UN General Assembly in 1989, is of worldwide scope. It provides for the total abolition of the capital punishment but allows states parties to retain the capital punishment in time of war if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Any state which is a party to the International Covenant on Civil and Political Rights can become a party to the Protocol. The Protocol to the American Convention on Human Rights to Abolish the Capital Punishment, adopted by the General Assembly of the Organization of American States in 1990, provides for the total abolition of the capital punishment but allows states parties to retain the capital punishment in wartime if they make a reservation to that effect at the time of ratifying or acceding to the Protocol. Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ["European Convention on Human Rights"] Concerning the Abolition of the Capital Punishment, adopted by the Council of Europe in 1982, provides for the abolition of the capital punishment in peacetime; states parties may retain the capital punishment for crimes "in time of war or of imminent threat of war". Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] Concerning the Abolition of the Capital Punishment in all Circumstances, adopted by the Council of Europe in 2002, provides for the abolition of the capital punishment in all circumstances, including time of war or of imminent threat of war. Any state party to these conventions can become a party to the Protocol. Capital Punishment in History The prevalence of capital punishment in ancient times is difficult to ascertain precisely, but it seems likely that it was often avoided, sometimes by the alternative of banishment and sometimes by payment of compensation. The earliest and most famous example is Code of Hammurabi which set the different
  • 7. 6 punishment and compensation according to the different class/group of victims and perpetrators. The Torah (Jewish Law), also known as the Pentateuch (the first five books of the Christian Old Testament)viii , lays down the capital punishment for murder, kidnapping, magic, violation of the Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare. It was customary during Japan’s peaceful Heian period (794–1185) for the emperor to commute every death sentence and replace it with deportation to a remote area, though executions were reinstated once civil war broke out in the mid-11th century. Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece under the laws of Draco (fl. 7th century bce), though Plato argued that it should be used only for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were exempted for a short time during the republic. It also has been sanctioned at one time or another by most of the world’s major religions. From ancient times until well into the 19th century, many societies administered exceptionally cruel forms of capital punishment. In Rome the condemned were hurled from the Tarpeian Rock; for parricide they were drowned in a sealed bag with a dog, cock, ape, and viperix ; and still others were executed by forced gladiatorial combat or by crucifixion. Executions in ancient China were carried out by many painful methods, such as sawing the condemned in half, flaying him while still alive, and boiling. Cruel forms of execution in Europe included “breaking” on the wheel, boiling in oil, burning at the stake, decapitation by the guillotine or an axe, hanging, drawing and quartering, and drowning. The most notorious death execution in BC was about 399 BC when the Greek philosopher Socrates was required to drink poison for heresy and corruption of youthx . In medieval and early modern Europe, before the development of modern prison systems, the capital punishment was also used as a generalized form of punishment. During the reign of Henry VIII, as many as 72,000 people are estimated to have been executed. During early modern Europe, a massive moral panic regarding witchcraft swept across Europe and later the European colonies in North America. During this period, there were widespread claims that
  • 8. 7 malevolent Satanic witches were operating as an organized threat to Christendom. As a result, tens of thousands of women were prosecuted and executed through the witch trials of the early modern period (between the 15th and 18th centuries).The capital punishment also targeted sexual offenses such as sodomy. In England, the Buggery Act 1533 stipulated hanging as punishment for "buggery". James Pratt and John Smith were the last two Englishmen to be executed for sodomy in 1835xi . Death was formerly the penalty for a large number of offenses in England during the 17th and 18th centuries, but it was never applied as widely as the law provided. As in other countries, many offenders who committed capital crimes escaped the capital punishment, either because juries or courts would not convict them or because they were pardoned, usually on condition that they agreed to banishment; some were sentenced to the lesser punishment of transportation to the then American colonies and later to Australia. Beginning in the Middle Ages, it was possible for offenders guilty of capital offenses to receive benefit of clergy, by which those who could prove that they were ordained priests (clerks in Holy Orders) as well as secular clerks who assisted in divine service (or, from 1547, a peer of the realm) were allowed to go free, though it remained within the judge’s power to sentence them to prison for up to a year, or from 1717 onward to transportation for seven years. Because during medieval times the only proof of ordination was literacy, it became customary between the 15th and 18th centuries to allow anyone convicted of a felony to escape the death sentence by proving that he (the privilege was extended to women in 1629) could read. Until 1705, all he had to do was read (or recite) the first verse from Psalm 51 of the Bible— “Have mercy on me, O God, according to your steadfast love; according to your abundant mercy blot out my transgressions”—which came to be known as the “neck verse” (for its power to save one’s neck). An offender could escape death only once through benefit of clergy for which he was branded on the brawn of the thumb (M for murder or T for theft). Branding was abolished in 1779, and benefit of clergy ceased in 1827. The first recorded execution in the English American colonies was in 1608 when officials executed George Kendall of Virginia for supposedly plotting
  • 9. 8 to betray the British to the Spanish. In 1612, Virginia's governor, Sir Thomas Dale, implemented the Divine, Moral, and Martial Laws that made death the penalty for even minor offenses such as stealing grapes, killing chickens, killing dogs or horses without permission, or trading with Indians. Seven years later these laws were softened because Virginia feared that no one would settle there.xii In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the crime of theftxiii . Some colonies were very strict in their use of the capital punishment, while others were less so. In Massachusetts Bay Colony the first execution was in 1630, but the earliest capital statutes do not occur until later. Under the Capital Laws of New-England that went into effect between 1636-1647 the capital punishment was meted out for pre-meditated murder, sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape, man stealing, perjury in a capital trial, rebellion, manslaughter, poisoning and bestiality. Early laws were accompanied by a scripture from the Old Testament. By 1780, the Commonwealth of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and treason. The New York colony instituted the so-called Duke's Laws of 1665. This directed the capital punishment for denial of the true God, pre-meditated murder, killing someone who had no weapon of defense, killing by lying in wait or by poisoning, sodomy, buggery, kidnapping, perjury in a capital trial, traitorous denial of the king's rights or raising arms to resist his authority, conspiracy to invade towns or forts in the colony and striking one's mother or father (upon complaint of both). The two colonies that were more lenient concerning capital punishment were South Jersey and Pennsylvania. In South Jersey there was no capital punishment for any crime and there were only two crimes, murder and treason, punishable by death.xiv However under the direction of the Crown, harsher penal codes were execution there until 1691. In Pennsylvania, William Penn's Great Act (1682) was passed in the colonies. By 1776, most of the colonies had roughly comparable death statutes which covered arson, piracy, treason, murder, sodomy,
  • 10. 9 burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting. Hanging was the usual sentence. Rhode Island was probably the only colony which decreased the number of capital crimes in the late 1700'sxv . Some states were more severe. For example, by 1837, North Carolina required death for the crimes of murder, rape, statutory rape, slave-stealing, stealing bank notes, highway robbery, burglary, arson, castration, buggery, sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel, circulating seditious literature among slaves, accessory to murder, robbery, burglary, arson, or mayhem and others. However, North Carolina did not have a state penitentiary and, many said, no suitable alternative to capital punishmentxvi . In 1794 the U.S. state of Pennsylvania became the first jurisdiction to restrict the capital punishment to first-degree murder, and in 1846 Michigan abolished capital punishment for all murders and other common crimes. In 1863 Venezuela became the first country to abolish capital punishment for all crimes. Portugal was the first European country to abolish the capital punishment (1867). By the mid-1960s some 25 countries had abolished the capital punishment for murder. During the last third of the 20th century, the number of abolitionist countries increased more than threefold. Despite the movement toward abolition, many countries have retained capital punishment, and some have extended its scope. In the U.S., the federal government and roughly three-fourths of the states retain the capital punishment, and death sentences are regularly carried out in China, Saudi Arabia, Singapore, and Iran. Supporters of the capital punishment claim that life imprisonment is not an effective deterrent to criminal behavior. Opponents maintain that the capital punishment has never been an effective deterrent, which errors sometimes lead to the execution of innocent persons, and that capital punishment is imposed inequitably, mostly on the poor and on racial minorities.xvii Methods of Inflicting Capital Punishment Barbarism reigned supreme in ancient and medieval timesxviii . Hanged, drawn and quartered meant was used mainly in England. As the name implies it
  • 11. 10 came in three parts. In the first the victim was tied to a wooden frame and dragged to the location of their execution (drawn). They were then hung until nearly dead (hanged). Immediately after being taken down their abdomen was opened and their entrails were removed. As the victim watched they were then burned before his or her eyes. He was then also emasculated and eventually beheaded. After all of this his body was divided into four parts (quartered) and placed in various locations around England as a public crime deterrent. This punishment was only used on men for any convicted woman would generally be burnt at the stake as a matter of decency. In crucifixion, usually after a prolonged period of beating or torture, the victim was forced to carry his own cross to the location of his death. Afterwards they were either nailed or tied to the cross where they would hang sometimes for several weeks. Death, when it did come, usually came by suffocation as the victim could no longer hold themselves up to breathe. Not only inhumane, the bull was deliberately created for the enjoyment of the executioner and onlookers. The tyrant of Akgragas in Sicily slaughtered a bull and fitted the body of the victim inside the disemboweled belly of the bull. After a fire was lit below, the person would slowly burn to death. The head of the bull, however, was designed to acoustically convert their screams into “bull sounds” and the smoke from their burning body would be expelled through its nose. Practiced by Samurai, Seppuku was a form of ritualistic suicide that allowed the warrior to die honorably. The warrior would disembowel himself and in an ideal situation there would be a close friend standing by ready to behead him as soon as his guts began to spill. Ling chi also known as the “lingering death”, involved pieces of the victims body being slowly and methodically removed while the executioner tried to keep him or her alive for as long as possible. Premature burial has been used by governments throughout history to execute condemned prisoners. One of the latest documented cases was during the Nanking Massacre in 1937 when Japanese troops buried Chinese civilians alive. In an extremely slow and painful punishment used in Asia, the victim was tied down over several bamboo shoots. Since bamboo grows so fast (up to 1 foot per day) it would penetrate directly through the victim’s body, slowly impaling then.
  • 12. 11 A historically popular method of capital punishment, if the victim were lucky he or she would be executed along with several others. This would ensure that the flame is much bigger and lead to death by carbon monoxide poisoning rather than actual burning. In the Catherine Wheel, the victim would be tied to a wheel and then spun while the executioner delivered bone shattering blows to the victim’s body. Sometimes the victim’s appendages would then be woven through the spokes of the wheel and they would be placed on display for all to see. Crushing was typically used in Europe or America in order to extract a plea from a victim. Every time the victim refused, more weight was added to their chest until fatal suffocation would occur. Spoken of in Nordic sagas, the Blood Eagle involved cutting the ribs of the victim by the spine, breaking them so they resembled wings, and then pulling the victim’s lungs out through the opening. Salt would then be sprinkled on the wound. Flaying was the act of removing a person’s skin from their body, this form of execution was often used in order to stir up fear, as the skin would typically be nailed in a public place for all to see. Bestiarii is a reference to those who would combat beasts in the days of Ancient Rome. Although sometimes the act was voluntary and performed for money or recognition, many times the bestearii were political prisoners sent into the arena naked and unable to defend themselves. Mazatello, named after the implement used in the execution, was popular in the Papal States during the 18th century. The condemned would be led to a scaffold in a public square with nothing more than the executioner and a coffin. The executioner would then raise the mallet and bring it down on the head of the victim stunning him followed by slitting of the throat. Conceived in the late 1700′s the guillotine was one of the first methods of execution created under the assumption that capital punishment was intended to end life rather than inflict pain. Although it was specifically invented as a human form of execution it has been outlawed in France and the last one was in 1977. Although by the end of the 20th century many jurisdictions (e.g., nearly every U.S. state that employs the capital punishment, Guatemala, the Philippines, Taiwan, and some Chinese provinces) had adopted lethal injection, offenders continued to be beheaded in Saudi Arabia and occasionally stoned to death (for
  • 13. 12 adultery) in Iran and Sudan. Other methods of execution were electrocution, gassing, and the firing squad. Historically, executions were public events, attended by large crowds, and the mutilated bodies were often displayed until they rotted. Public executions were banned in England in 1868, though they continued to take place in parts of the United States until the 1930s. In the last half of the 20th entury, there was considerable debate regarding whether executions should be broadcast on television, as has occurred in Guatemala. Since the mid-1990s public executions have taken place in some 20 countries, including Iran, Saudi Arabia, and Nigeria, though the practice has been condemned by the United Nations Human Rights Committee as “incompatible with human dignity.” In many countries death sentences are not carried out immediately after they are imposed; there is often a long period of uncertainty for the convicted while their cases is appealed. Inmates awaiting execution live on what has been called “death row”; in the United States and Japan, some prisoners have been executed more than 15 years after their convictions. The European Union regards this phenomenon as so inhumane that, on the basis of a binding ruling by the European Court of Human Rights (1989), EU countries may extradite an offender accused of a capital crime to a country that practices capital punishment only if a guarantee is given that the capital punishment will not be sought. Philosophy of Capital Punishment: Retributive School Supporters of the capital punishment believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. The German philosopher Hegel supported this view labeling “Punishment is the right of the criminal. It is an act of his own will. The violation of right has been proclaimed by the criminal as his own right. His crime is the negation of right. Punishment is the negation of this negation, and consequently an affirmation of right, solicited and forced upon the criminal by himself.” For Thomas Hobbes, an individual transfers his rights to a sovereign
  • 14. 13 (government). According to Hobbes these rights should not contradict to the laws of the Nature, “….man can transferre his Right to save himselfe from Death, Wounds, and Imprisonment.”xix Kant’s theory of the ius talionis provisionally attaches execution to murder and rebellion. The gravity of these crimes triggers the need to punish them in accordance with the strict version of the ius talionis (punishment corresponds in kind and degree to the injury)xx . Immanuel Kant’s proportional retribution is often quoted in their support by retributionists. However, Kant supported capital punishment only in case of murder and rebellion. John Locke was of the view that any element that threatened the state of nature was punishable by death, “In transgressing the law of nature, the offender ……… becomes dangerous to mankind….. and upon this ground, every man has a right to punish the offender and be executioner of the law of nature (emphasis Locke)xxi . Sociologist Emile Durkheim argued that violent and public punishment of the worst possible criminals was advantageous to society because it bred a type of fruitful social cohesion. Those who share almost no common bonds “come together” in their revulsion against the worst criminalsxxii . Rousseau supports the capital punishment, arguing that the sovereign has the right to determine whether its subjects should live or die. His strongest reason for this position is the claim that wrongdoers, in violating the laws of the state, are essentially violating the social contract. As enemies of the social contract, they were enemies of the state, and must either be exiled or put to death. It was possible to pardon criminals, but both pardons and punishments wedre signs of weakness: a healthy state had few criminalsxxiii . Mill believed that it is appropriate to inflict the capital punishment on murderers because, in the same way as a thief should be fined or an attacker flogged, he who took human life should forfeit their own because capital punishment was “The least cruel mode in which it is possible adequately to deter from the crime……..... an impression on the imagination so entirely out of proportion to its real severity.” Mill also opined that the only other punishment that could be considered befitting for a murderer was imprisonment with hard labor for life. In fact, Hannah Arendt gave vent to Mill’s opinion when she offered her own judgment upon Adolf Eichmann in 1961 when she said:
  • 15. 14 Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations - as though you and your superiors had any right to determine who should and who should not inhabit the world - we find that no one, that is, no member of the human race, can be expected to share the world with you. This is the reason, and the only reason, you must hang.”xxiv John Rawls said that justice should be described as “a fair system of arrangements; one that the parties can agree to without knowing how it will benefit them personally.” Rawls supports the idea of an original position from which society chooses principles based on a veil of ignorance, its ideal judicial system developed not from personal tastes and interests, but from a socially moral position. From this perspective, the capital punishment creates a balance between the offender and the victim, his life forfeited to insinuate the balance between his crime and his punishment. Philosophy of Capital Punishment: Abolitionist School Under the influence of the European Enlightenment, in the latter part of the 18th century there began a movement to limit the scope of capital punishment. Until that time a very wide range of offenses, including even common theft, were punishable by death—though the punishment was not always enforced, in part because juries tended to acquit defendants against the evidence in minor cases. Opponents of capital punishment, following the writings of Cesare Beccaria, argued that, by legitimizing the very behavior that the law sought to repress— killing—capital punishment is counterproductive in the moral message it conveys. Beccaria openly condemned the capital punishment on two grounds, viz. the state does not possess the right to take lives and capital punishment is neither a useful nor a necessary form of punishment. He developed in his treatise a number of innovative and influential principles. Punishment had a preventive (deterrent), not a retributive, function and therefore, should be proportionate to the crime committed. The probability of punishment, not its severity, would achieve the preventive effect. Procedures of criminal convictions should be
  • 16. 15 public and in order to be effective, punishment should be prompt. Beccaria stated, “The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves?”xxv Beccaria believed that when the accused has enough power and influence to be able to endanger the security of an entire nation, i.e. the ability to incite a revolt and overturn the government, then this person may be put to death. Beccaria pointed out that this would only ever be the case when a nation was already in a state of anarchy or very near to disorder. Jeremy Bentham argued that perpetual imprisonment, with suitable aggravations of labor and solitary confinement, can be made to have a more terrifying impact on prospective criminals than it currently does and more than does the threat of death. Bentham’s utilitarian argument did not spare rebellions either where he shrewdly counsels caution on the ground that executing terrorist rebels is more likely to turn them into martyrs who inspire rather than discourage their followers. In 1775, the four characteristics of punishment that Bentham invoked against the capital punishment relative to imprisonment were that it was "not convertible to profit," it lacked "frugality," as well as "equability”, and was "not remissiblexxvi . Moreover, they urge, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading. Although death was prescribed for crimes in many sacred religious documents and historically was practiced widely with the support of religious hierarchies, today there is no agreement among religious faiths, or among denominations or sects within them, on the morality of capital punishment. Beginning in the last half of the 20th century, increasing numbers of religious leaders—particularly within Judaism and Roman
  • 17. 16 Catholicism—campaigned against it. Capital punishment was abolished by the state of Israel for all offenses except treason and crimes against humanity, and Pope John Paul II condemned it as “cruel and unnecessary.” Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint. Opponents, however, point to research that generally has demonstrated that the capital punishment is not a more effective deterrent than the alternative sanction of life or long-term imprisonment. There also are disputes about whether capital punishment can be administered in a manner consistent with justice. Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed.xxvii Opponents also maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that racial prejudice motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers, and that, because errors are inevitable even in a well-run criminal justice system, some people will be executed for crimes they did not commit. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate. Religious Underpinnings of Capital Punishment Christianity The capital punishment is consistent with Old Testament Biblical teaching, and suggests that God created the capital punishment. Genesis 9:6 states that, “Whoever sheds the blood of man, by man shall his blood be shed.”In total, the Old Testament specifies 36 capital offences including crimes such as idolatry, magic and blasphemy, as well as murder. The New Testament embodies what
  • 18. 17 must be the most famous execution in history, that of Jesus on the cross. Although the tone of the whole of the New Testament is one of forgiveness, paradoxically, it seems to take the right of the state to execute offenders for granted. Matthew 7:2 states that "Whatever measure you deal out to others will be dealt back to you", though this is unspecific as to whether it is God who is doing the dealing, or the state. In Matthew 15:4 Jesus says "He who speaks evil of father or mother, let him surely die". Despite the fact that Jesus himself refrains from using violence, he at no point, denies the state's authority to exact capital punishment. At the moment that Pilate has to decide whether or not to crucify Jesus, Jesus tells him that the power to make this decision has been given to him by God. (John 19:11). Paul has an apparent reference to the capital punishment, when he writes that the magistrate who holds authority "does not bear the sword in vain; for he is the servant of God to execute His wrath on the wrongdoer" (Romans 13:4). Capital punishment affirms the commandment that 'thou shalt not kill' by affirming the seriousness of the crime of murder. This argument is based on interpreting the commandment as meaning "thou shalt not murder", but some Christians argue that the 'Thou shalt not kill' commandment is an absolute prohibition on killing. However, Martin Luther argued: "God has delegated His authority of punishing evildoers to civil magistrates", and that Christians therefore had a right to "serve as princes of judges, render decisions and pass sentences ……punish evildoers with the sword."xxviii Christians who support the capital punishment often do so on the ground that the state acts not on its own authority but as the agent of God, who does have legal power over life and death. This argument is well expressed by St Augustine, who wrote: The same divine law which forbids the killing of a human being allows certain exceptions, as when God authorizes killing by a general law or when He gives an explicit commission to an individual for a limited time. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment, 'Thou shalt not kill' to wage war at God's bidding or for the representatives of the State's
  • 19. 18 authority to put criminals to death, according to law or the rule of rational justice. Some even view capital punishment as being akin to suicide. Pope Pius XII asserted this view: Even when there is question of the execution of a condemned man, the State does not dispose of the individual's right to life. In this case it is reserved to the public power to deprive the condemned person of the enjoyment of life in expiation of his crime when, by his crime, he has already dispossessed himself of his right to life.xxix On the other hand, many Christians believe that God commanded "Thou shalt not kill" (Exodus 21:13), and that this is a clear instruction with no exceptions. The Bible speaks in favor of the capital punishment for murder. But it also prescribes it for 35 other crimes that we no longer regard as deserving the capital punishment. In order to be consistent, humanity should remove the capital punishment for murder. Secondly, modern society has alternative punishments available which were not used in Biblical times, and these make the capital punishment unnecessary. Capital punishment is also incompatible with a teaching that emphasizes forgiveness and compassion. Some Christians argue that in many countries the imposition of the capital punishment is biased against the poor. Since Christian teaching is to support the poor, Christians should not support the capital punishment. Capital punishment is inconsistent with the general Christian stand that life should always be supported. This stand is most often taught in issues such as abortion and euthanasia, but consistency requires Christians to apply it across the board. Judaism Although the Old Testament may have approved capital punishment, Judaic rabbis, in practice, in the Talmud and the Torah, have toned down such suggestions by interpreting texts in the context of Judaism's general respect for the sanctity of human life. They have emphasized anti-death texts such as the commandment 'Thou shalt not kill'. They have interpreted texts to make them
  • 20. 19 very narrow in their application and refused to accept any but the most explicit Torah texts proposing the capital punishment. Rabbis have found alternative punishments or schemes of compensation for victims' families and imposed procedural and evidential barriers that made the capital punishment practically unenforceable. In 1954, Israel abolished capital punishment except for those who committed Nazi war crimes. In the 56 years that Israel has existed as an independent state, only one person has been executed. This person was Adolf Eichman, a Nazi war criminal with particular responsibility for the Holocaustxxx . Islam Islam on the whole accepts capital punishment. Qur'an 6:151 states, “...Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.” Muslims believe that capital punishment is a most severe sentence but one that may be commanded by a court for crimes of suitable severity. While there may be more profound punishment at the hands of God, there is also room for an earthly punishment. In Islamic law, the capital punishment is appropriate for two groups of crime: Intentional murder: In these cases the victim's family is given the option as to whether or not to insist on a punishment of this severity. Fasad fil-ardh ('spreading mischief in the land'): Islam permits the capital punishment for anyone who threatens to undermine authority or destabilise the state, e.g. treason/apostasy (when one leaves the faith and turns against it), terrorism, piracy of any kind, rape, adultery and homosexual activity. Although the Qurʾān prescribes the capital punishment for several ḥadd (fixed) crimes—including robbery, adultery, and apostasy of Islam—murder is not among them. Instead, murder is treated as a civil crime and is covered by the law of qiṣās (retaliation), whereby the relatives of the victim decide whether the offender is punished with death by the authorities or made to pay diyah (wergild) as compensation.xxxi
  • 21. 20 Whilst Islam remains firmly retentionist, there is a small but growing abolitionist Islamic view. The Ulemas do not always agree on the interpretation or authenticity of the sacred texts. Neither do they agree on the social context in which these texts should be applied. Sharia law is often used by repressive powers that attack women and the poor. There are incidences of these states summarily executing those who are accused whilst denying them access to a lawyer. These acts are totally contradictory to the concept of Islamic justice. However, they remain a minorityxxxii . Buddhism Since Buddhism exists in many forms, under many organizations, there is no unified Buddhist policy on capital punishment. In terms of doctrine, capital punishment is clearly inconsistent with Buddhist teachings. Buddhists place great emphasis on non-violence and compassion for all life. The First Precept requires individuals to abstain from injuring or killing any living creature, “An action, even if it brings benefit to oneself, cannot be considered a good action if it causes physical and mental pain to another being.” The Buddha did not explicitly speak about capital punishment, but his teachings show no sympathy for physical punishment, no matter how bad the crime, “If a person foolishly does me wrong, I will return to him the protection of my boundless love. The more evil that comes from him, the more good will go from me.” Buddhism believes fundamentally in the cycle of birth and re-birth (Samsara) and teaches that if capital punishment is administered it will have compromising effects on the souls of both offender and the punisher in future incarnations. Buddhism believes that inhumane treatment of an offender does not solve their misdeeds or those of humanity in general - the best approach to an offender is reformatory rather than punitive. Punishment should only be to the extent to which the offender needs to make amends, and his rehabilitation into society should be of paramount importance. Punishing an offender with excessive cruelty will injure not just the offender's mind, but also the mind of the person doing the punishing. It is impossible to administer severe punishment with composure and compassion. If the crime is particularly serious, the person may be banished from the community
  • 22. 21 or country. Yet most Buddhist countries retain capital punishment in the belief by politicians that capital punishment is necessary for retribution, cultural customs, or for deterrence value, a long tradition of capital punishment in a particular country, maintaining order in society and in reaction to long periods of political unrest or economic instabilityxxxiii . Hinduism The religious, civil and criminal law of Hindus is encoded in the Dharmaśāstras and the Arthasastra. The Dharmasastras describe many crimes and their punishments and calls for the death penalty in several instances, including murder, the mixture of castes, and righteous warfare. However the Mahabharata contains passages arguing against the use of the death penalty in all cases. An example is a dialogue between King Dyumatsena and his son Prince Satyavan (section 257 of the Santiparva) where a number of men are brought out for execution at the King's command. In the Bhagavad Gita, righteous destruction of the wicked is commended as meritorious and fulfillment of caste duty. A. C. Bhaktivedanta Swami Prabhupada says that in Manu Smriti, the law book for mankind, it is supported that a murderer should be condemned to death so that in his next life he will not have to suffer for the great sin he has committed. Therefore, the king’s punishment of hanging a murderer is actually beneficial. Similarly, when Krishna orders fighting, it must be concluded that violence is for supreme justice, and thus Arjuna should follow the instruction, knowing well that such violence, committed in the act of fighting for Krishna, is not violence at all because, at any rate, the man, or rather the soul, cannot be killed; so for the administration of justice, so-called violence is permitted."xxxiv The Hindu notion of punishment is not based on revenge. Rather, punishment in the Hindu scheme of things should be aimed at restoring the proper social order, restoring the dharma and protecting the innocent. The punishment has to be administered in accordance with other important Hindu values. It must not be a punishment that would itself be a further offence or unjust.xxxv However, there is no official Hindu line on capital punishment as a national debate continues on capital punishment.
  • 23. 22 Controversies around Capital Punishment Death penalty or capital punishment has been debated over since ages and still remains a reality in a number of states across the world. US, India, China and many other countries grant capital punishment for the most heinous crimes, even as the human rights activists continue to take the bull by its horns every time a death penalty is issued. Executions are considered to be the ultimate punishment provided the crime committed also exemplifies ruthlessness in its extreme. Retributionists argue that capital punishment, irrespective of cost, is an example setter for future crime and matches maximum crime by maximum punishment. However, the cost of imprisoning a criminal, serving a life term or otherwise long term, is very expensive when compared with the costs involved in execution of the same person. A new study in California revealed that the cost of the death penalty in the state has been over $4 billion since 1978. A study considered pre-trial and trial costs, costs of automatic appeals and state habeas corpus petitions, costs of federal habeas corpus appeals, and costs of incarceration on death row. In Maryland, an average death penalty case resulting in a death sentence costs approximately $3 million. The eventual costs to Maryland taxpayers for cases pursued 1978-1999 will be $186 million. Five executions have resulted. In Kansas, the costs of capital cases are 70% more expensive than comparable non-capital cases, including the costs of incarceration. Enforcing the death penalty costs Florida $51 million a year above what it would cost to punish all first-degree murderers with life in prison without parole. Based on the 44 executions Florida had carried out since 1976 that amounts to a cost of $24 million for each execution. The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution over the costs of sentencing murderers to life imprisonment. The majority of those costs occur at the trial level. In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 yearsxxxvi . A study concluded that the cost of the death penalty in California has totaled over $4 billion since 1978, viz. $1.94 billion: Pre-Trial and Trial Costs, $925
  • 24. 23 million: Automatic Appeals and State Habeas Corpus Petitions, $775 million: Federal Habeas Corpus Appeals, $1 billion--Costs of Incarceration. The authors calculated that, if the Governor commuted the sentences of those remaining on death row to life without parole, it would result in an immediate savings of $170 million per year, with a savings of $5 billion over the next 20 years.xxxvii Yet there are many who offer the logic that the more severe the crime, the harsher should be the punishment. Death penalty is seen as the most extreme form of punishment, which is generally reserved for the most heinous of crimes. The penalty should fit the crime and in extreme cases, extreme measures should determine the course of justice. Therefore limitations have been built into many judicial systems such as in the US and India (discussed elsewhere in this paper). Retributionists argue that capital punishment sets a chilling example for potential criminals and serves as an effective deterrent. It will dissuade criminals- in-the-making by instilling fear in their minds. Over the last few years, a number of highly technical papers have purported to show that the death penalty is indeed a deterrent. Cass Sunsteinxxxviii initially argued, based on studies like these, that “capital punishment is morally required” given the “significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one.” Posnerxxxix claims that “the recent evidence concerning the deterrent effect of capital punishment provides strong support for resisting the abolition movement.” Becker adds, “I support the use of capital punishment for persons convicted of murder because, and only because, I believe it deters murders.” Donohue and Wolfersxl however, state that the empirical research relied on by both Becker and Posner, is a skewed sample of available evidence: early research by Isaac Ehrlich, and more recent research by Hashem Dezhbakhshxli . Isaac Ehrlichxlii analyzed US time series data on homicides and execution from 1933-1969, finding that each execution yielded 8 fewer homicides. This result was somewhat puzzling in light of the fact that an 80 percent drop in the execution rate from the late 1930s until 1960 had been accompanied by falling murder rates. A subsequent re-analysis by Peter Passell and John Taylorxliii showed that Ehrlich’s estimates were entirely driven by attributing a sharp jump in murders from 1963-69 to the post-1962 drop in
  • 25. 24 executions. But the mid-1960s decline in homicide occurred across all states— including those that had never had the death penalty. Moreover, Donohue and Wolfers state that Ehrlich’s own model showed no correlation between executions and murder if one simply omitted the last seven years of his data. Evidently, the idea of capital punishment is more surmise and perception than based on fact and clean data. For, as Albert Camusxliv says, “For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists. Why? Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium.” Retributionists also contend that imprisonment keeps the possibility of a hardened criminal coming out on parole and becoming a threat to civil society, a possibility which is put to rest by execution. There have been many instances of prisoners, out on parole, indulging in criminal behavior taking advantage of their conditional release. However, the American Civil Liberties Union of Texas, US, statesxlv that “The conditions of confinement for those on death row are cruel and unusual. Inmates convicted to death are held in solitary confinement or “Administrative Segregation” regardless whether they pose any threat to the rest of the prison population. An average of 23 hours daily solitary confinement causes such severe mental health problems that some inmates lose the ability even to understand the punishment imposed on them.” They spend 23 hours a day alone in a concrete, featureless cell measuring six feet by 10 feet with a small, sealed window and a solid steel door, where food is delivered through a slot. They are allowed out to exercise alone in a cage for one hour and may have books, writing material and a radio. Years of solitary confinement and sensory deprivation literally drive inmates mad and make them more likely to wound the guards, riot or attempt escapexlvi . Evidently, death penalty does not ensure the safety of rest of the prison inmates as statistics establish that most of the capitally punished criminals are violent and prone to be unpredictable. Instead in a volatile situation, they may endanger the safety of other prisoners. Abolitionists argue that capital punishment is barbaric, cruel and blatantly inhuman, no matter how heinous the crime is. Iranian courts still order public
  • 26. 25 stonings, and those sentenced are often severely whipped before they are stoned. Women are buried up to their necks before a stoning. If convicted of adultery, Iranian law requires the stones not be too big or too small so that the probable death is not merciful or prolonged. If a woman miraculously survives a stoning, she must then serve a jail sentence. For men, the stoning procedure is a bit different. Men are buried up to their waists before a stoning. If they confess and manage to escape, they are free. In most of the world, execution by hanging is used. Iran recently cut back on the number of its judicial hangings, but in Afghanistan, Bangladesh, Botswana, Iraq, Japan, Pakistan, Singapore, St. Kitts & Nevis and Sudan hanging is extremely common. In 2008, approximately 339 men and four women were hanged in these countries. In some countries, the method of choice is suspension hanging, which utilizes a crane or other heavy equipment to lift the prisoner off the ground by the noose. The manner of death is the same as the short drop, which makes it slow and agonizing. After short drop or suspension hangings, the deceased's face is generally engorged and blue with blood marks evident on the face and eyes, and the tongue may protrude. Standard drop hanging was adopted as the normal method of hanging in the U.S. in the late 19th and early 20th century. Prisoners drop four to six feet, which often rips the skin, breaks the neck and in some cases causes decapitation. In Saudi Arabia, public beheading is the punishment for murder, rape, drug trafficking, sodomy, armed robbery, apostasy and other offenses. Men and women receive sentences of death by beheading and are usually given sedatives beforehand. The condemned are taken by the police to a public place and their eyes are covered. A sheet of plastic is spread out on the ground and the prisoner is forced to kneel facing Mecca. The prisoner's name and crime is read out loud and the executioner is given a traditional Arab scimitar. The executioner generally takes a few practice swings in the air before poking the prisoner in the back of the neck with the tip of the sword. This causes the prisoner to lift their head so that it can be removed with a single stroke. The head often flies two to three feet away from the body and is picked up and given to a doctor who sews it back on. The deceased's body is wrapped in the plastic sheet and taken away for burial in an unmarked grave at the prison.xlvii State-sanctioned executions tend to justify the murder of the
  • 27. 26 criminal and defeat the whole logic of death penalty being a fitting punishment for extreme crimes, such as murder itself. Some human rights propagators regard death penalties as a flagrant violation of a person’s right to live. The right to live is a natural right, while the right to live with dignity is a state-granted right. How can a state trample over the natural right of a person to live? Two politicians face capital punishment over a cartoon deemed offensive to Islamxlviii . Recently, Maldives announced plans to revive capital punishment. What worries Amnesty International is that the Maldivian the Home Minister’s order condones people being sentenced to death and executed for crimes committed when they were below 18 years of age. The imposition of the death penalty against juvenile offenders violates international law and Maldives’ own international obligationsxlix . Amnesty also reported that Iraqi authorities carried out 12 secret executions, bringing the number of prisoners put to death in a week to 38l . Bangladesh hanged Islamist leader Abdul Qader Mollah in 2013 for alleged war crimesli . In stark contrast, India’s Supreme Court, in January, 2014, commuted the death sentences of 15 prisoners on the grounds of delay in the disposal of their mercy petitions by the President ranging between five and 12 years and set out guidelines to safeguard the rights of prisoners on death row and their families. According to the guidelines, prisoners on death row should receive legal aid, be informed about the rejection of their mercy petitions and in writing, have their mental and physical conditions regularly checked and be allowed to meet their family members before execution, which should not happen before two weeks from the communication of the rejection of the mercy petition. The Court also commuted the death sentences of two convicts on the ground that they suffer from mental illnesslii . Abolitionists argue that states unfairly use capital punishment against their political opponents, that evidence can be tampered while presenting to courts, juries may be influenced by emotion than by fact and law, trials are often unfair, convicts do not have the means to defend themselves, verdicts are often handed out on the basis of caste, religion and sex, causes financial ruin to the families of suspected convicts, etc. Capital punishment does not give a criminal the opportunity to be remorseful of his deeds. Neither does it treat those, who feel
  • 28. 27 guilty for their crimes, a fair opportunity to improve their behavior. Above all, capital punishment violates The Universal Declaration of Human Rights -- adopted by the United Nations (UN) General Assembly in December 1948 in response to the staggering extent of state brutality and terror witnessed during World War II - recognizes each person's right to life (Art. 3) and categorically states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Art. 5). Abolitionists have also raised fundamental questions about the constitutionality of capital punishment. Even courts have differed in their opinions. Apprehensions have been expressed that capital punishment cases militate against subaltern sections of society that are unable to defend themselves. For instance, there were 63 women on death row as of April 1, 2013 in the US that constituted 2% of the total death row population. In 2005, the US Supreme Court in Roper v. Simmons struck down the death penalty for juveniles. 22 defendants had been executed for crimes committed as juveniles since 1976liii . Over 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims generally are white. In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. A study in California found that those who killed whites where over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos. A comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were white. In 96% of states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. 98% of the chief district attorneys in death penalty states were white; only 1% were blackliv . Accordingly, courts in some nations have prescribed limits. In the US, the US Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Owing to the Fourteenth
  • 29. 28 Amendment's Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government. Eighth Amendment also requires that courts consider the evolving standards of decency to determine if a particular punishment constitutes a cruel or unusual punishment. When considering evolving standards of decency, courts both look for objective factors to show a change in community standards and also make independent evaluations about whether the statute in question is reasonablelv . Abolitionists have also argued that there are numerous cases in which prisoners have been released from death row when new evidence or re-trial proved their innocence. This would not have been possible if convicts were executed. Some critics blame hurried capital sentences on law makers resorting to populist expansion of crimes for capital punishment. In the US system, for instance, prosecutors, with virtually unbridled discretion to seek the death penalty, may pursue a death sentence even when the evidence is weak, and they may be reluctant to change course when contradictory evidence later arises. Public and media pressure on police forces to punish a criminal and unrelaiable testimony of witnesses often creates a situation in which the truth is obfuscated by prosecutorslvi . It has also been suggested that regional variations in death sentences is proof of arbitrariness in application of laws. A just system ought not to have death sentences concentrated in only one region. However, whether a person receives the death penalty depends heavily on where the crime was committed. A just system ought not to have death sentences concentrated in only one region. However, whether a person receives the death penalty depends heavily on where the crime was committed. For instance, about a quarter of Ohio’s death row inmates come from Hamilton County (Cincinnati), but only 9% of the state’s murders occur there. From 1995-2000, 42% of the federal cases submitted to the Attorney General for review came from just 5 of the 94 federal districts. Including the 21 districts that have never submitted a case for review by the Attorney General, from 1995-2000, 40 of the 94 federal districts never recommended seeking the death penalty for any defendant. Further, studies consistently show that those who kill white victims are much more likely to
  • 30. 29 receive the death penalty than those who kill black victims. Racial disparities in sentencing and executions suggest that race plays a role in the application of the death penalty. In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination or bothlvii . Trials that ended in capital punishment being awarded have sometimes been marked by inadequate legal defense. In Washington State, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (This was when overall, the state’s disbarment rate for attorneys was less than 1%). In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conductlviii . Even after capital sentences were pronounced, empowered constitutional provincial heads commuted such sentences upon apprehension of excessive punishment. On January 11, 2003, Illinois Governor George Ryan commuted the sentences of the 167 death row inmates, citing the flawed process that led to these sentences. Three inmates' sentences were commuted to 40 years in prison with the possibility of parole. The other prisoners' sentences were commuted to life in prison without parole. Some of the commutations were of prisoners who were waiting sentencing or resentencinglix . Last, but not the least, are controversial capital punishment awards for the mentally challenged. The US is one of few exceptions where courts have taken cognizance of this practice. Even in the US there was initially no public consensus initially. In 1989, the US Supreme Court had upheld (5-4) the constitutionality of executing those with intellectual disability in Penry v. Lynaugh (492 U.S. 302). The Court said "mental retardation" should be a mitigating factor to be considered by the jury during sentencing. Writing for the majority, Sandra Day O'Connor, J. said that a "national consensus" had not developed against executing those with "mental retardation." However, on June 20, 2002, the Supreme Court issued a landmark ruling ending the execution of those with intellectual disability. In Atkins v. Virginia, the Court held that it is a violation of the Eighth Amendment ban on cruel unusual punishment to execute
  • 31. 30 death row inmates with "mental retardation". The decision reflects the national consensus which has formed on this issuelx . Capital Punishment Global Practices United States (Americas) Congress or any state legislature may prescribe the death penalty, also known as capital punishment, for murder and other capital crimes. The US Supreme Court has ruled that the death penalty is not a per se violation of the Eighth Amendment's ban on cruel and unusual punishment, but the Eighth Amendment does shape certain procedural aspects regarding when a jury may use the death penalty and how it must be carried out. Because of the Fourteenth Amendment's Due Process Clause, the Eighth Amendment applies against the states, as well as the federal government. In the landmark case of Coker v. Georgialxi , the Supreme Court ruled that a state cannot apply the death penalty or the crime of raping an adult woman because it violates the proportionality requirement. The Court came to this conclusion by considering objective indicia of the nation's attitude toward the death penalty in rape cases. At the time only a few states allowed for executions of convicted rapists. Twenty-one years later, in Kennedy v. Louisianalxii , the Supreme Court extended its ruling in Coker, holding that the penalty is categorically unavailable for cases of child rape in which the victim lives. Because only six states in the country permitted execution as a penalty for child rape, the Supreme Court found the national consensus to hold its use in these cases as disproportionate. The US Supreme Court has also ruled the principle of Individualized Sentencing. To impose a death sentence, the jury must be guided by the particular circumstances of the criminal, and the court must have conducted an individualized sentencing process. In the 2002 Ring v. Arizonalxiii decision, the Supreme Court ruled that a jury, rather than a judge, must find an aggravating factor to exist for cases in which those factors underlie a judge's choice to impose the death penalty rather than a lesser punishment. An aggravating factor is any fact or circumstance that increases the culpability for a criminal act.
  • 32. 31 The Supreme Court further refined the requirement of "a finding of aggravating factors" in Brown v. Sanderslxiv . For cases in which an appellate court rules a sentencing factor invalid, the Court ruled that the sentence imposed becomes unconstitutional unless the jury found some other aggravating factor that encompasses the same facts and circumstances as the invalid factor. Another 2006 case, Kansas v. Marsh, offered yet another clarification to the principle of individualized sentencing jurisprudence. After Marsh, states may impose the death penalty for situations in which the jury finds the aggravating and mitigating factors to equally balance, without violating the principle of individualized sentencing. A legislature may prescribe the manner of execution, but the manner may not inflict unnecessary or wanton pain upon the criminal. Courts apply an "objectively intolerable" test when determining if the method of execution violates the Eighth Amendment's ban on cruel and unusual punishments. State courts and lower federal courts have refused to strike down hanging and electrocution as impermissble methods of execution; however, the U.S. Supreme Court did not take up a method of execution case for 117 years until Baze v. Reeslxv in 2008. In Baze the Supreme Court held that lethal injection did not constitute a cruel and unusual punishment. This case resolved a controversial issue in light of recent evidence that a lethal injection's three-drug combination fails to alleviate pain and prevents the criminal from signaling such pain because of paralysis inducement. More recently, in Atkins v. Virginialxvi , the Supreme Court determined that executing mentally retarded criminals violates the ban on "cruel and unusual punishments" because their mental handicap lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe. However, in Bobby v. Bieslxvii , the Court held that states may conduct hearings to reconsider the mental capacity of death row inmates who were labeled mentally retarded before the Court decided Atkins, because before Atkins, states had little incentive to aggressively investigate retardation claims. In Roper v. Simmonslxviii , the Supreme Court invalidated the death penalty for all juvenile offenders. The majority opinion pointed to teenagers' lack of maturity and responsibility, greater
  • 33. 32 vulnerability to negative influences, and incomplete character development. The Court concluded that juvenile offenders assume diminished culpability for their crimeslxix . US law permits death penalty for the following broad categories of offenses. Under federal law, first degree murder, which is defined as unlawful killing with malice aforethought where the murder is accomplished by poisoning, laying in wait, “or any other kind of willful, deliberate, malicious or premeditated killing;” or in enumerated instances where the murder is committed in perpetration of another serious and dangerous offense against property, the person or the state, can be punished by death, e.g. murder of an officer or employee of the US or its agencies, or of state personnel assisting federal personnel, retaliatory killing of the family members of federal officials or employees, or by such a federal prisoner after an escape; the murder of a foreign official, guest, or internationally protected person; the murder of a federal juror, court officer or magistrate judge during or related to the discharge of his duties, murder of a federal witness, victim or informant (to prevent testimony or evidence, or in retaliation), murder with a firearm in a federal facility, use of armor-piercing ammunition to commit a murder, murder of the President, Vice President, or individual next in the line of succession to the Presidency, or murder of members of Congress (or elect), head (or nominee) of an executive department or a Justice (or nominee). Other aggravated murder offenses under federal law include: murder for hire (in interstate commerce or when paid by an enterprise engaged in racketeering), carjacking with intent to cause serious harm or death, resulting in death, murder committed by a federal prisoner under a term of life imprisonment, murder in relation to interstate or foreign sex trafficking, child pornography, sexual exploitation of minors, coercion or enticement to prostitution, human trafficking, transmission of information about a minor for sexual purposes, torture (in another country) resulting in death (if the victim was a US national or the offender is present in the US), transporting or receiving explosives with the intent that they be used to kill, injure, intimidate, or destroy a building, vehicle or real property, if death results proximately from transporting or receiving, or use
  • 34. 33 of the explosives, resulting in death, kidnapping or hostage-taking resulting in the death of any person, killing during a bank robbery, in attempt to escape after a bank robbery, etc. The federal death penalty applies for murder committed in furtherance of drug trafficking or when the offender fires a weapon into a group of two or more persons to escape detection of a major drug offense, or, when in relation to a crime of violence or a drug trafficking crime the offender uses armor piercing ammunition to commit a killing that qualifies as murder. A few states have similar statutory provisions. Killing while engaging in or working in furtherance of a continuing criminal enterprise (for drug trafficking) is punishable by death. Aggravated murder is also punishable by death by states that provide for the death penalty. A variety of offenses resulting in death need not qualify under 18 U.S.C. 1111 as first degree murder in order to be death-eligible under federal law. These offenses include second degree murder by a federal prisoner under sentence of life imprisonment; mailing any prohibited substance or item resulting in death; offenses against maritime navigation or maritime fixed platforms resulting in death; and conspiracy against civil rights, violation of civil rights under color of law, violations of federally protected rights, or destruction of religious real property or obstruction of a person’s free exercise of religion resulting in death. Some states permit execution for felony murder—a doctrine under which any participant in a potentially life-threatening crime can, if death results, be prosecuted for capital murder. There is a military death penalty for felony murder. The Supreme Court’s jurisprudence limits the application of the death penalty for felony murder to instances where an offender’s contribution to events leading up to a killing are “substantial” and exhibit a “reckless disregard for human life.” A few states permit the death penalty for perjury resulting in the execution of an innocent person, although it is uncertain that this could survive a constitutional challenge in light of the Supreme Court’s opinion in Kennedy v. Louisianalxx . Under 8 USC 1342, the death penalty might apply for some murders or killings related to smuggling aliens. US laws also prescribe capital punishment for a host of other crimes, viz. terrorism, drug-related, treason, espionage and military offences not resulting in death.
  • 35. 34 US laws also exempt juveniles below age 18, pregnant women, the mentally retarded and mentally ill. In Ford v. Wainwrightlxxi , the U.S. Supreme Court confirmed the long-held principle that a convicted prisoner cannot be executed while insane, even if he was sane at the time of his offense. The Court further held that prisoners must be afforded at least an informal adversarial process in which their advocates are able to contest the State’s determination that a prisoner is sane and may be executed. The inquiry addresses whether the defendant’s mental state prevents him from understanding the reality of his execution and why he is being executed. The Court cited a number of principles at common law, including that: (1) individuals may not be criminally liable for offenses committed while insane; (2) an individual who is not sane is not capable of participating in his own defense or appeal; (3) the practice of executing the insane “has consistently been branded ‘savage and inhuman,’” purposeless and immoral. In Panetti v. Quatermanlxxii , the Court reinforced the requirement that an offender must be able to respond to state or court mental health experts by offering his own experts. More importantly, the Court developed the standard for determining competency for execution—it is not enough that an offender understands that he will be executed and can state the crime for which he will die. The offender may be lucid from time to time, or usually lucid enough to give a realistic description of his situation. However, courts must also consider that an offender’s delusions might distort his view of reality. For instance, in Panetti, the offender believed that the true reason for his execution was related to spiritual warfare and that the state wished to stop him from preaching. Even though the offender was able to explain that he would be executed for murdering his wife’s parents, and understood that he would in fact die, this awareness was insufficient. According to the judgment, courts should consider whether expert testimony shows that the offender has a truly rational understanding of his situationlxxiii . Russian Federation (Europe) Intentional murder for profit, in the furtherance of another crime, committed as part of a group, of officials or their relatives to oppose their duties,
  • 36. 35 committed as a hate crime or with cruelty, maliciousness or baseness is punishable by death. Attempt on life to subvert the democratically ordered State, an attempt on the life of any professional or employee engaged in the criminal justice system (including law enforcement), for the purpose of revenge or to interfere with law enforcement or an investigation or the administration of justice, is punishable by death. Genocide, including killing, inflicting grave injuries to health, preventing childbirth, forcible transfer of children, resettlement, or using any other means to accomplish genocide is punishable by death. The new Criminal Code of 1996, which came into force just after Russia became a Member State of Council of Europe, considerably reduced the number of crimes punishable with death. While Article 66 of the Criminal Code prohibits capital punishment for an attempted crime, Article 59 allows the death penalty for especially grave crimes of “attempt on the life”. Several articles apply the death penalty for specific instances of “attempt on the life or similar crimes, but also provide for a range of lesser penalties. These “attempts on the life” may be a category of attempt in which the commission of certain criminal acts with the ultimate intent of harming the person or life of certain individuals is in itself a death-eligible offense. We do not know whether courts interpret Article 66 to limit the death penalty for encroachment to cases in which a life is taken. There is no mandatory capital punishment. All death-eligible crimes in the Russian Federation are discretionary; furthermore, the Criminal Code provides for universal mitigation. The Russian Federation adopted a moratorium on the death penalty in 1996; this moratorium has been followed by all republics in the federation since 1999. Individuals below age 18 at time of crime, women, the mentally retarded and ill and persons older than 65 years of age are exempted from capital punishment. People’s Republic of China (Asia) The death penalty in China is applicable to murder generally, rather than only to aggravated murder. Some crimes that pose a threat to public safety are punishable by death when they result in death (or serious injury or property damage) regardless of whether the offender set out to cause a serious risk of
  • 37. 36 death e.g. robbery and organizing certain assemblies, kidnapping for extortion, etc. A law passed in February 2011 specifies that the death penalty can be applied for forced organ removal from a juvenile resulting in death. China’s anti- terrorism laws treat those participating in lethal terrorist activities under the laws for murder, kidnapping, and other crimes affecting public safety e.g. sabotage of transportation, utilities, or certain construction equipment, setting fire, breaching dikes, causing explosions, spreading poison, or employing other dangerous means that lead to serious injuries or property loss such as airplane hijacking (resulting in death) or the illegal trade, manufacture or transport of nuclear materials or other weapons, ammunition or explosives (resulting in death). Rape is punishable by death when it is gang/aggravated/multiple/public rape and/or during abduction, rape for the purposes of forcing a woman into prostitution, or when the rape causes serious injury. Sexual relations with a girl under the age of 14 (by a person over the age of 18) are potentially death-eligible statutory rape. Rape of a girl under 14 is to be punished harshly, which implies that rape of a child is more likely to be a death-eligible offense than is rape of an adult. Aggravated robbery, involving serious injury, intrusion onto public transportation, use of lethal weapons, posing in uniform, taking military resources or resources for disaster response, robbing financial institutions or large sums of money, stealing cultural items, or multiple robberies, arson, kidnapping and burglary not resulting in death, drug trafficking and graft are punishable by death. Producing or selling fake medicine or tainted food, causing serious injury, aggravated smuggling of armaments, counterfeit money or cultural relics, providing armed escort to smugglers, aggravated counterfeiting; certain economic fraud to the extreme detriment of the state, forgery, fraudulent issue, or improper sale of tax items or papers. Like the US, China awards capital punishment for treason, espionage, surrender followed by cooperation with the enemy, obstructing commanders or military personnel with violence or intimidation, causing serious consequences, particularly during wartime, fabrication of rumors in collusion with the enemy, under especially serious circumstances and illegal sale or transfer of military weaponry, under especially serious circumstances. Aggravated abduction of women, children or infants for human trafficking is a
  • 38. 37 death-eligible offense, as is purchasing trafficked women or children, torture by judicial workers, producing or selling tainted food or medicine that causes death. However, there is no mandatory death penalty; discretion by courts is permissible, although for a limited number of cases discretion is reserved to the Supreme People's Courtlxxiv . Egypt (Africa) Premeditated killing, especially by poisoning, gang intimidation or robbery, or a terrorist purpose, intentional arson of a building, resulting in the deaths of persons who were present in the building at the outbreak of the fire, is punishable by death are punishable by death. Murder for terrorism is punishable by death. Causing death by terrorism in an attempt to force people to join or maintain membership in anti-state or terrorist organizations is punishable by death. Causing death in conjunction with a hijacking of any form of transportation or destruction of a government facility, utility or place for public use is punishable by death. Causing death by bombing is punishable by death. Causing the death of enforcement personnel in conjunction with a terrorist act is punishable by death. A wide and vaguely-defined range of terrorism-related offenses not necessarily resulting in death are punishable by death; such offenses include: founding an organization that opposes the state through use of violence aimed at causing harm, terror, ecological disaster or other social disruption; cooperation with a foreign country or organization in carrying out or attempting a terrorist act; gang attacks on the people, armed resistance to authorities or seizure of government or public facilities, or leadership of a gang that would perform such activities; usurping military authority or leading armed gangs for criminal purposes (such as plundering); or other violent actions. Under Article 83(A) of the Penal Code, a wide range of violent, non-violent and inchoate actions — which plausibly include propagating “extremist thought” or sectarian divisions— aimed at undermining Egypt’s independence, unity or territorial integrity or aimed at assisting an enemy in time of war can be construed as terrorism punishable by death. Under Article 26 of the Arms and Ammunition Law No.
  • 39. 38 394 of 1954, as amended by Law No. 165 of 1981, possessing or acquiring arms, ammunition or explosives for the inchoate purpose of disrupting the government, public security or peace, national unity, constitutional principles or the law is punishable by death. Kidnapping of a female aggravated/not aggravated by rape (including statutory rape), drug trafficking/possession, treason, espionage are punishable by death. However, capital punishment is not mandated, instead applied under Art. 17 of the Penal Code, further limited by the requirement of a unanimous verdict in the event of a death sentence under Art. 381 of the Criminal Procedure Code. Juveniles below 18 years of age, pregnant women and the mentally ill are exempted from capital punishment. United Arab Emirates (Middle East) Intentional murder is punishable by death in the case of “deliberate design or premeditated purpose, if it is accompanied by another crime..., if the victim is an descendant of the offender, a public officer or any person to whom a public service is assigned…, or…with the use of any poisonous substances or explosives.” This statutory law governs punishment, except that it does not prejudice the right to blood money compensation under the Shari’a. Under Book 1, Article 1 of the Penal Code, retributive penalties can apply under Shari’a law. UAE courts follow the Maliki school of Sunni Islam (but may also use authority and interpretations from other schools). In practice, courts pronounce death sentences for murder. “Islamic law presumes that any sane person who intentionally kills a person with a weapon, is a sinner deserving perdition according to the Qur’an and that the murderer is subject to retaliation.” Murder is punishable by death as qisas (retaliation) or diya (compensation), but there is some disagreement over which circumstances allow qisas. According to the Maliki school of Sunni Islam, a person is “guilty of deliberate homicide if he causes the death of another by any intentional act or omission directed against a human being, which is either hostile or intrinsically likely to kill,” and is subject to death as qisas. For the Hanafi, Shafi’i and Hanbali schools of Sunni Islam, the offender is subject to death as qisas if “the killer intended to kill and employed some means likely to have that result.” One source that generalizes on qisas
  • 40. 39 offenses indicate that “deliberate killing is forbidden” but that only killing “with a set purpose” is subject to death as qisas, while another explains that intentional killing or intentional infliction of serious and permanent bodily harm allows application of the talion principle and therefore the death penalty if the offense results in death. There may thus be some conflict over whether the offender is subject to death as qisas only upon a showing of actual as opposed to constructive malice, and we do not know the rule applied by UAE courts. Perjury, calumny resulting in condemnation, successfully inciting the suicide of a person “afflicted with total lack of free will or reason”, use of drugs or an existing drug-induced state to incite a person to commit an offense that results in death is punishable by death. Arson of, or illegal use of explosives on, a variety of buildings used for industry or inhabited or in inhabited areas, or of means of transportation, or of forests or crops, when resulting in death, is punishable by death. Kidnapping resulting in death, sodomy and drug trafficking are punishable by death or life imprisonment. Acts of indecent assault (whether statutory or due to coercion) resulting in death are punishable by death. A variety of terrorism-related offenses resulting in death are punishable by death, such as: coercion to conscript individuals into a terrorist organization; infringement of diplomatic or consular premises in committing a terrorist act; use of nuclear, chemical or biological weapons; hijacking; hostage-taking; assaulting security forces; attacking a head of state or his family or a representative or officer of a state; murder. A variety of terrorism-related offenses not resulting in death are punishable by death, such as: forming or leading an organization with the intent to commit terrorist acts; working with a foreign state or foreign or international terror group to commit terrorism, if the act is committed; threatening to use nuclear, chemical or biological weapons; using explosives or nuclear, chemical or biological weapons in a hijacking or assault upon security forces. Under Book 1, Article 1 of the UAE Penal Code, the provisions of Islamic Sharia shall apply to crimes liable to hadd punishments, and individuals have been sentenced to the religiously stipulated penalty death by stoning for adultery, although it this penalty has not been carried out in recent years. A married person who commits adultery is eligible for the death penalty as hadd (while the
  • 41. 40 unmarried person is eligible for severe lashing as hadd). Crimes against the external and internal security of the state such as high treason in support of an enemy, or undermining the defense or morale or loyalty of the armed forces, or surrendering or revealing defense secrets, or failing to perform defense-related contracts adequately in time of war, are punishable by death, espionage and for persons who “import or bring nuclear substances or wastes or bury, dump, store or dispose of such wastes in any form in the environment of the State” are punishable by death or life imprisonment. Under Article 98 of the Penal Code, a judge has discretion based on the circumstances of the offense or offender to award a sentence lesser than death. Under the terrorism laws, the application of Article 98 of the Penal Code is restricted to reducing death sentences to life imprisonment, but discretionary sentencing is still permitted. The drug laws do not contain any provision prohibiting the application of Article 98 of the Penal Code. Aggravated murder may carry a discretionary statutory death penalty when the provisions of Shari’a do not apply, but for any murder where Shari’a law applies, only the family of a victim, not a court, may allow a sentence lesser than death. While the government negotiates on behalf of the offender and the family often grants pardon, this death penalty is considered arbitrary and mandatory because the court is not required or permitted to exercise discretion in all appropriate cases. India (Asia) Murder is punishable by death under Article 302 of the Penal Codelxxv . In Bachan Singh v. State of Punjablxxvi , India's Supreme Court held that the death penalty was constitutional only when applied as an exceptional penalty in ”the rarest of the rare” cases. According to the Penal Code, if any member of a group commits murder in the course of committing an armed robbery, all members of the group can be sentenced to death. Kidnapping for ransom in which the victim is killed is punishable by the death penaltylxxvii . Being a member of an association or promoting an association while committing any act using unlicensed firearms or explosives that results in death, is punishable by deathlxxviii . Engaging in organized crime, if it results in death, is punishable by
  • 42. 41 death. Committing, or assisting another person in committing sati – the burning or burying alive of widows or women – is also punishable by the death penaltylxxix . Under the Prevention of Atrocities Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the death penaltylxxx . Assisting individuals who are under the age of 18, mentally ill, mentally disabled, or intoxicated in committing suicide is punishable by the death penaltylxxxi . However, whether (or when) these offenses are death-eligible must be considered in the light of the Indian Supreme Court’s decision in Bachan Singhlxxxii . Courts may interpret Bachan Singh as overriding other law when sentencing for offenses resulting in death. For instance, using, carrying, manufacturing, selling, transferring, or testinglxxxiii prohibited arms or ammunition previously carried a mandatory death sentence if it resulted in the death of any other person under the Indian Arms Act, 1959lxxxiv . However, a recent Supreme Court ruling in February 2012 ruled this provision unconstitutional in light of the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjablxxxv . This suggests that offenses resulting in death are punishable by death only when they meet the “rarest of rare” standard laid out in Bachan Singh. All terrorism-related offenses resulting in death attract capital punishmentlxxxvi . Using any special category explosive to cause an explosion likely to endanger life or cause serious damage to property is punishable by the death penaltylxxxvii . Under the Criminal Law (Amendment) Act, 2013, a person who in the course of a sexual assault inflicts injury that causes the victim to die or to be left in a “persistent vegetative state” is punishable by death. Repeat offenders of gang rape are also punishable by deathlxxxviii . Kidnapping or detaining an individual is punishable by death if the kidnapper threatens to kill or harm the victim, if the kidnapper’s conduct makes the death or harm of the victim a possibility, or if the victim is actually harmedlxxxix . If an individual who has been convicted of the commission of, attempt to commit, abetment of, or criminal conspiracy to commit any one of a range of
  • 43. 42 offenses related to drug trafficking (e.g. trafficking of cannabis and opium) commits another offense related to the production, manufacture, trafficking, or financing of certain types and quantities of narcotic and psychotropic substances, he or she can be sentenced to deathxc . Waging or attempting to wage war against the governmentxci and assisting officers, soldiers, or members of the Navy, Army, or Air Forces in committing mutiny are punishable by the death penaltyxcii . The following offenses, if committed by a member of the Army, Navy, or Air Forces, are punishable by death: committing, inciting, conspiring to commit, or failing to suppress mutinyxciii ; desertion or aiding desertionxciv ; cowardice; treacherous acts; committing or inciting dereliction of duty; aiding the enemy; inducing individuals subject to military law not to act against the enemy; imperiling Indian or allied military, air, or naval forces in any wayxcv . Being a party to a criminal conspiracy to commit a capital offence is punishable by deathxcvi . Attempts to murder by those sentenced to life imprisonment are punishable by death if the attempt results in harm to the victimxcvii . Providing false evidence with intent or knowledge of the likelihood that another individual, or a member of a Scheduled Caste or Tribe, would be convicted of a capital offense due to such evidencexcviii carries the death penalty if it results in the conviction and execution of an innocent personxcix . There is no mandatory capital punishment in India. In Mithu v. State of Punjab, the Supreme Court ruled that the mandatory death penalty is unconstitutionalc . While subsequent legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the penalty as unconstitutional, Indian courts have not applied the mandatory death penalty for these crimesci . Additionally, a line of cases since the 1980 case of Bachan Singh v. State of Punjabcii , in which the Court held that the death penalty should only be applied for the most heinous offenses (“the rarest of the rare”), illustrate that application of the death penalty is, while not always predictable, still highly restrictedciii . There are no offenses that carry mandatory death sentence either. In Mithu v. State of Punjab, the Supreme Court ruled that the mandatory death penalty is unconstitutionalciv . While subsequent legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the
  • 44. 43 Supreme Court has not expressly struck down the mandatory language as unconstitutional, Indian courts seem not to apply the mandatory death penalty for these crimescv . According to the Juvenile Justice (Care and Protection of Children) Act 2000, individuals who were under the age of 18 at the time of the crime cannot be executedcvi . According to a 2009 amendment, a pregnant woman sentenced to death must be granted clemency. According to the Indian Penal Code, individuals who were mentally ill at the time of the crime and who did not understand the nature of the act or know that the act was wrong or against the law cannot be held criminally liablecvii . This could be interpreted to exclude mentally retarded persons from the death penalty. Similarly, individuals who were mentally ill at the time of the crime and who did not understand the nature of the act or know that the act was wrong or against the law cannot be held criminally liablecviii . Under Bachan Singh v. State of Punjab, advanced age may be a mitigating factor in sentencing, although it does not have the same exclusionary effect as youth doescix . Global Implementation of Capital Punishment While the capital punishment is a theoretical construct, only a death sentence enforces the capital punishment. Even in nations where the capital punishment is prescribed, courts are often reticent to award the maximum punishment; instead they limit to imprisonment for life. USA (Americas) On the federal level, the Fifth Amendment to the Constitution provides for jury trials for capital or infamous crimes, and prohibits the deprivation of life without due process of lawcx . After the Civil War, the Fourteenth Amendment was enacted, using similar language to the Fifth Amendment in prohibiting the deprivation of life without due process of law by statescxi . The Supreme Court usually considers the Eighth Amendment, prohibiting cruel and unusual punishment, as well as the Fourteenth Amendment, in determining the outcome of constitutional appeals against the death penaltycxii . The constitutionality of the
  • 45. 44 death penalty in any given state may also be affected by that state’s own constitution. Recent years have seen diminished numbers of executions and death sentences, with outright abolition in some states. Also, there has been some reduction in the scope of the death penalty. After the death penalty was reinstated in 1976cxiii , executions rose steadily until 1999, when they hit the high water mark with 98 executions in a single yearcxiv . Since 1999, the rate of executions has fallen steadilycxv . In 2009, 52 individuals were executedcxvi . In 2010, 46 individuals were executed. In 2011, 43 individuals were executed. In 2012, 43 individuals were executed. In 2013, 39 individuals were executed. As of February 2013, 8 individuals had been executed during 2014, with 21 more executions scheduled for the rest of the year. The imposition of death sentences by courts and juries followed a similar pattern over the first decade in the new millennium, peaking at 224 in 2000 and receding to 109 in 2010. In 2011, 80 death sentences were handed down. In 2012, 77 death sentences were handed downcxvii . In Furman v. Georgiacxviii , the Court addressed the issue of standards- based sentencing. A plurality of the court determined that the then-existing death penalty statutes violated the Eighth and Fourteenth Amendmentscxix , since the statutory sentencing schemes failed to provide adequate guidance regarding the basis on which death sentences could be imposed. They reasoned that, without adequate standards, the application of the death penalty was unconstitutionally arbitrary. In Gregg v. Georgiacxx , the Court returned to the topic of standardized sentencing. The Court determined that the death penalty could be constitutionally applied using standards-based sentencing, where the state outlined statutory aggravating factors and required the judge to instruct the jury on the application of mitigating and aggravating factors. This, the Court reasoned, was a solution to the “arbitrary and capricious” application of the death penalty the Court had addressed in Furman v. Georgiacxxi . The Court decided Woodson v. North Carolina on the same day as Gregg v. Georgia. North Carolina had implemented a mandatory death penalty rather than a statute that provided for standards-based discretionary sentencing. The
  • 46. 45 Court found the mandatory death penalty approach unconstitutional, reasoning that imposing an unworkably rigid sentencing regime that does not recognize the vastly different degrees of gravity of offenses and culpability of offenders leads to arbitrary, harsh treatmentcxxii . Together, Woodson and Gregg illustrate that both discretion and standards are requisite parts of capital sentencing. The Court struck down the last remnant of the mandatory death penalty in Sumner v. Shuman, confirming that no class of offense may constitutionally serve as the basis for a mandatory sentencecxxiii . In 1977, the Court determined in Coker v. Georgia that the rape of an adult could not constitutionally be punished by deathcxxiv . The Court questioned whether an offense not resulting in death could merit the death penalty, when only aggravated killings are punishable by death— although the Court did not exclude the possibility that an aggravated rape could be punished by death. The Court revisited this issue and determined that child rape cannot be punished by death under civilian lawcxxv . In Kennedy v. Louisiana, the Court barred any expansion of the death penalty for ordinary offenses not resulting in loss of human life, reasoning that expansion of the death penalty to such crimes inherently exposes defendants to arbitrary treatment. The Court explained that “imprecision” in the punishment of aggravated murder offenses has been tolerated, but that “[i]t should not be introduced into our justice system, though, where death has not occurred.” The court carved out an exception for offenses against the state, but that exception is dicta and the same arguments might very well apply for offenses against the statecxxvi . The Court has also held that the Eighth Amendment prohibits the execution of certain offenders—namely the insanecxxvii , the mentally retardedcxxviii , and juvenilescxxix . The Court has found that the death penalty against such offenders is arbitrary for a number of reasons—such offenders are less likely than others to respond to deterrence, are less morally culpable (undermining the value of retribution), and are less able than others to assist in their own defense or presentation of mitigating factors at sentencing. This makes it likely that the death penalty is “purposeless” and that procedural safeguards cannot adequately serve these offenders. Throughout this line of cases, the Court has been guided by its remark in Trop v. Dulles that “[t]he [Eighth] Amendment
  • 47. 46 must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”cxxx Thus, the Court has considered the gradual narrowing of the scope of the death penalty in law and application among the states, and the Court has accordingly restricted the constitutional scope of the death penalty over time. On January 8, 2013, the Supreme Court unanimously decided in Ryan v. Gonzales and Tibbals v. Carter that federal habeas corpus proceedings should not automatically be suspended in cases where a death row inmate is too mentally incompetent to assist his or her attorneycxxxi . Ernest Valencia Gonzales and Sean Carter had both been convicted of murder and considered mentally incompetent. Although the appeals courts decided that their challenges to the convictions should be stayed until their return to mental competence, Thomas, J. of the Supreme Court ruled that an indefinite stay is inappropriate “where there is no reasonable hope for competence.”cxxxii Thomas, J. added that lawyers could effectively represent a mentally incompetent habeas petitioner facing the death penalty as post-conviction challenges are typically based on court record. Suspensions of habeas corpus proceedings may still be warranted in some cases, but they cannot be indefinite. In May 2013, the Supreme Court ruled in Trevino v. Thaler that its decision in Martinez v. Ryan, which gave defendants in Arizona the right to raise a claim of ineffective assistance of trial counsel after the first state collateral review proceeding if there was good “cause” for not raising the claim at the right timecxxxiii , applied to Texascxxxiv . The lawyer for Texas death row inmate Carlos Trevino, convicted of rape and murder of a 15-year-old, argued that Trevino’s first habeas attorney did “no investigation” outside of the record that already existed and then became sick and “did not want to proceed.”cxxxv Russian Federation (Europe) Article 20 of the Constitution provides that “[everyone] shall have the right to life;” furthermore, “[capital] punishment may, until its abolition, be instituted by federal law as exceptional punishment for especially grave crimes against life, with the accused having the right to have his case considered in a law
  • 48. 47 court by jury.”cxxxvi There has been a judicial moratorium on the death penalty in place since 1999; in November 2009, the Constitutional Court extended this moratorium due to questions about the Russian Federation’s obligations under treaty and customary law and due to its constitutional mandate to progress towards abolitioncxxxvii . Russia has not acceded to Protocol No. 6 of the European Convention on Human Rights or the Second Optional Protocol to the ICCPR, which both concern the abolition of the death penalty. While it voted in favor of the U.N. General Assembly’s proposal to institute a universal moratorium on executions, it also stated to the U.N. Human Rights Council that abolition “would depend on the prevailing view in Russian society on abolition.”cxxxviii In 2008, the Legislation Committee of the Duma (Russian Parliament) presented a bill regarding “the abolition of the death penalty in the Russian Federation”, but it has not been enactedcxxxix . Following the terrorist attacks of March 2010 and January 2011 in Moscow, politicians have showed lack of will to abolish the death penalty in law; and the Duma’s spokesman was reported to have said that the ratification of the Protocol is unlikely to take place against public opinion (surveys show that the majority of Russians support the death penalty)cxl . In 1996, the year it became a member of the Council of Europe, the Russian Federation adopted a moratorium on executions, imposed by then- President Boris Yeltsin in order to comply with Russia’s international commitments, namely the ratification of Protocol No. 6 to the European Convention on Human Rights Concerning the Abolition of the Death Penalty, within three years of joining the Council of Europecxli . In 1999, the Constitutional Court determined that the Federation had not yet ensured that safeguards regarding the application of the death penalty were in place, and instituted a judicial moratorium on the death penalty. In 2009, after reform of the judicial system (primarily access to jury trials) was completed and ready to start operating in all regions by January 1, 2010, the Constitutional Court revisited the issue and determined that the application of capital punishment could not be reinstated because the moratorium is related to international commitments of the Federation. In fact, abolition of the death penalty had been one of the conditions of the country’s accession to the Council of Europe and Russia was still in the
  • 49. 48 ratification process of Protocol No. 6. Additionally, the court held (or implied) that the Federation’s move towards abolition was “irreversible.” Some justices on the Court were reported to be influenced by the Federation’s international obligations (as required by the Constitution)cxlii or voluntary acknowledgement of the customs of Europe. People’s Republic of China (Asia) While the Chinese Constitution does make reference to defense pactscxliii and asylumcxliv , the main references in the Chinese Constitution to the influence of non-Chinese law or custom is to provide against the protections or influence of non-Chinese laws or organizationscxlv . The Chinese Constitution references international Chinese families, indicating that the rights of Chinese abroad or returning will be respected if those rights are “legitimate.”cxlvi Until recently, the Supreme People's Court did not review death sentences, having been stripped of the power as part of a 1983 crackdown on crimecxlvii . On January 1st, 2007, the SPC reclaimed the right to review death sentences passed by lower courts and has since reviewed every death sentence. This was considered a major legal reform in China, and was part of a concerted effort by China throughout the 2000s to reduce the volume of executionscxlviii . The so-called “kill fewer, kill cautiously” policycxlix targets crimes with “grave social consequences” - generally economic and national security-related offenses - and applies “extreme caution” in applying the death penalty to ordinary violent crimescl . In 2007, the SPC issued guidelines for sentencing and prosecutioncli , and official and unofficial estimates show a 30% reduction in executions since these reformsclii . Other recent reforms have increased the openness of the appeals system. Since July 2006, all death sentence appeals are held with the defendants and their lawyers presentcliii , and since late 2008, the discovery of new relevant evidence to a death penalty case can trigger suspension of the execution and further review of the casecliv . In Feb. 2010, the SPC again promulgated new guidelines of “justice tempered with mercy” stressing that death penalty use be limitedclv . Another major change in the application of the death penalty in China is the switch-over from shooting to lethal injectionclvi . There are questions
  • 50. 49 concerning whether the switch-over will create an economic motive for executions that fuel China’s profitable organs-for-transplant industryclvii . Johnson and Zimring indicate that another reform—clemency in exchange for compensation to victims’ families—is a contentious issue in China because many Chinese view the practice as fundamentally unfair to the poor. In response, some courts are setting limits on compensation that may be paid or demandedclviii . In February 2011, the National People's Congress passed a law eliminating the death penalty for a number of non-violent economic crimes, including "smuggling cultural relics, gold, silver, and other precious metals and rare animals and their products out of the country; carrying out fraudulent activities with financial bills; carrying out fraudulent activities with letters of credit; the false issuance of exclusive value-added tax invoices to defraud export tax refunds or to offset taxes; the forging or selling of forged exclusive value- added tax invoices; the teaching of crime-committing methods; and robbing ancient cultural ruins." The law also excludes individuals older than 75 at the time of sentencing from execution, except for murders committed with "exceptional cruelty." Finally, the law specifies that individuals who forcibly remove organs from juveniles, causing death, may be punished by death--but it may be likely that such actions were already punishable by death under other, more general lawsclix . Egypt (Africa) Egypt’s Constitution references neither capital punishment nor the right to lifeclx . Egypt’s Constitution provides that the principles of Shari’a law are the “principal source of legislation,”clxi so principles that permit or limit application of the death penalty under Shari’a law may be influential in determining whether a particular application of the death penalty in Egypt violates fundamental rights. It is possible that under Article 151 of the Constitution, treaties ratified by Egypt have concurrent influence with domestic law on human rights protectionsclxii . During the past few years, executions in Egypt have been few, although not rareclxiii . These numbers do not reflect the threat to human rights posed by the potentially disproportionate use of death sentences in Egypt.
  • 51. 50 The Human Rights Committee’s 2002 Concluding Observationsclxiv , the report to the Human Rights Council by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorismclxv and the 2010 Report of the Working Group on the Universal Periodic Reviewclxvi indicate that Egypt has resisted legal restriction of the death penalty to the most serious crimes and, while claiming to support such restriction, somewhat broadened the application of the death penalty for vaguely-defined terrorist offenses not resulting in death. The Special Rapporteur noted that Egypt has improved the appeals process afforded to those tried for terror crimes by its military courts, but also that the Emergency State Security Courts (where any crime can be tried) remained courts of first and only instance. As noted in submissions to the Human Rights Council for its 2009 UPR, under Article 179 of Egypt’s Constitution the President can thus simply assign those accused of terrorism (or any crime) to the emergency courts, rendering improvements in the guarantee of a fair trial a nullityclxvii . While Egypt has been in a state of “emergency” since 1981 and a State Security Court has adjudicated for even longerclxviii , both the vague language in Egypt’s recently promulgated terrorism laws and the President’s new ability to assign capital trials to an unreviewable court heightens the threat to protections against arbitrariness, unfair trials and inhuman treatment or punishment. Death sentences pronounced by courts increased from 40 in 2007, to 87 in 2008 and 269 in 2009clxix . Statistics on death sentences from 1990-2000 indicate that only 530 death sentences were pronounced during that decadeclxx , suggesting that 2009 marked an upsurge in death sentences. The Arab Penal Reform Organization submitted statistics for the 2009 UPR that suggest this was due to an increase in the number of death sentences pronounced by courts of ordinary jurisdiction rather than to an increase in transparency or sentences pronounced by courts of arbitrary jurisdictionclxxi . Egyptian commentators have remarked that “[incidents] of violent crime have increased markedly in recent months and years,” attributed in part to an economic crisis and a corresponding “widespread sense of hopelessness and despair.” Some have rejected courts’ “heavy-handed” attempts at deterrence as “its own kind of mass murder.” Noting government
  • 52. 51 failures to provide “justice and security for all,” not merely for political and economic elites, one commentator opines: “By issuing harsh verdicts such as the death penalty, judicial authorities have begun to practice their own kind of violence against society.”clxxii There is no moratorium on capital punishment in Egyptclxxiii . However, the website of the Supreme Constitutional Court, which may be intended to eventually post the decisions of that and other courts, is still under development at: http://hccourt.gov.eg/. United Arab Emirates (Middle East) Part Three of the UAE Constitution prohibits “torture or degrading treatment” with respect to personal liberty, prohibits punishment under ex post facto laws and provides for due process and a fair trial, but makes no provision specifically limiting capital punishment. Under Article 7, Shari’a is “a main source of legislation,” suggesting that the scope of the death penalty under the UAE’s interpretation of the Shari’a is relevant to its constitutional scope. Traditional Shari’a law provides a number of guarantees for those facing capital charges. Articles 107-108 provide that federal death penalties cannot be carried out without the President’s approval and that the President must obtain the approval of a Council of Ministers to commute a death sentenceclxxiv . Foreigners have the constitutional right to the protections of charters, treaties or agreements to which the UAE is partyclxxv . This provision is important; more than 80 percent of the UAE’s population consists of foreign laborclxxvi . In recent years, death sentences and executions have not been frequent in the UAE. In 2010, Amnesty International identified an “upsurge” in death sentences, with 25 death sentences pronounced by the end of Aprilclxxvii . By December 2010, at least 48 death sentences had been pronounced during that year, and 1 sentence of life imprisonment was enhanced to the death penaltyclxxviii . The upward trend might be tracked to problems in enforcing drug and alcohol laws among the UAE’s predominantly foreign populationclxxix . In 2010, 17 death sentences were imposed for a single murder in a bootlegging dispute, and 12 death sentences were imposed for drug traffickingclxxx . On December 7th, the trial of 13 more men accused of a double murder in a bootlegging dispute began; they will be
  • 53. 52 sentenced on January 3, 2011clxxxi . Bootlegging-related gang violence is a serious problem and can lead to large numbers of capital convictionsclxxxii . According to Amnesty International, prosecutors may not engage in adequate investigation in these cases, allegedly using videotaped forced “re-enactments” by the accused as evidence in court and essentially accepting the evidence presented by the police without even interviewing the accusedclxxxiii . Journalists describe an ongoing bootlegging turf war that has led to the detention of 60 individuals for killings, with 22 sentenced to death over the past 3 years and many of the remainder awaiting final adjudicationclxxxiv . The upsurge of death sentences could also be linked to prosecutorial misconductclxxxv and incompetent defense workclxxxvi , as has been decried by Amnesty International, commentators, UAE judges and the Judicial Department, the last of which recently emphasized the need for reforms in providing legal aid. There is no evidence to suggest that the legal scope of the death penalty has expanded. Application of the death penalty for at least some nonviolent offenses under some interpretations of Shari’a law may be recedingclxxxvii . Executions are not frequent in the United Arab Emirates, but there are no reports of an official moratorium, and in 2008 an individual was executed for murderclxxxviii . In 2011, another individual was executed for child rape and murderclxxxix . The UAE does not publish judicial capital sentence orders. India (Asia) The Constitution states that no person can be deprived of his life except through a lawful procedure under Art. 21cxc . The Constitution also gives the President and the Governor of a State the right to suspend, pardon, or commute death sentences under Art. 72cxci . Moreover, the Constitution provides that if the High Court has reversed an order of acquittal of the accused on appeal and sentenced him to death, or if it withdrew for trial any case from a lower court in which it sentenced the accused to death, then these cases will be appealed to the Supreme Court under Art. 134(1)cxcii . Thus, the law explicitly states that capital punishment may be constitutional. The Constitution provides that India should strive to respect international law and treaty obligations under Art. 51(c)cxciii .
  • 54. 53 While this implies India should comply with its obligations under human rights treaties, the Constitution makes no explicit reference to international human rights obligations. A great arena of judicial activism was begun by the Indian Supreme Court when it interpreted the word `life’ in Article 21 to mean not mere survival but a life of dignity as a human being. Thus the Supreme Court in Francis Coralie vs. Union Territory of Delhicxciv held that the right to live is not restricted to mere animal existence. It means something more than just physical survival. The Court held that: “… the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and comingling with fellow human beings.” From 1995-2004, India did not execute any death convict. In August, 2004, Dhananjoy Chatterjee was hanged in Kolkata after spending 13 years in solitary confinement and going through numerous appealscxcv . After eight years without executions, India carried out two executions in close succession in November 2012 and February 2013. Both prisoners had been convicted of taking part in terrorist attackscxcvi . The executions were carried out after President Pranab Mukherjee swiftly rejected mercy petitions, in contrast to the slow pace of his predecessorscxcvii . After mercy petitions are rejected by the President, the prisoner and the petitioners are supposed to be informed of the decision. Once an execution date has been set, the prisoner and his relatives are to be notified. Such policies ensure that the prisoner and relatives are able to utilize judicial remedies to further stay or commute a pending execution. According to reports, Qasab, who was executed in November 2012, only learned of the date of his upcoming execution the day before it took place. Reportedly, the Union Home Minister and Maharashtra Chief Minister said that the government’s actions concerning Qasab’s execution were kept secret because they wanted to prevent further efforts
  • 55. 54 by human rights activists to prevent his executioncxcviii . There is even more controversy surrounding the February 2013 hanging of Afzal Guru, whose family was notified of his death by letter two days after the execution had taken placecxcix . The recent executions broke with a trend of gradual abandonment of the death penalty. According to statistics, India had approximately 140 executions per year between 1954 and 1963. Between 1996 and 2000, this rate was roughly 1 execution per year; between 1998 and 2007, there was only one executioncc . Over the last 20 years, India has continued to reduce the number of executions it has carried outcci . In recent years, very few people have been executed. However, the scope of the death penalty according to the law has actually expanded over time. For instance, new anti-terrorist legislation since the 1990s has included the death penaltyccii . While India’s law prohibits the sentencing to death of juvenilescciii , this law has not always been followed in practice because of the difficulty of determining the precise age of individuals who were not registered at birth and thus lack birth certificates. Only about 50 per cent of India’s population has been registered at birth. Additionally, incompetence and inexperience among defense attorneys leads to failures to bring offenders’ ages to the attention of courtscciv . In cases where the offender’s precise age could not be determined and where there was evidence that the offender was under 18 at the time of the crime, the Supreme Court has upheld death sentences. One individual, Amrutlal Someshwar Joshi, was executed on July 12, 1995 (Amrutlal Someshwar Joshi v. State of Maharashtra II) despite the possibility that he was under age 18 at the time of the crime. Ramdeo Chauhan (alias Raj Nath Chauhan) was convicted and sentenced in March 1998 for the 1992 murder of four members of a family for whom he worked as a domestic servant. According to Amnesty International, there was strong evidence that Chauhan was 15 years old at the time of the crime, and as such, his conviction and sentencing were “unsound.” The Juvenile Justice Act requires that children under 16 years of age be tried by a Juvenile Court, which
  • 56. 55 Chauhan was notccv . In January 2002, the Governor of Assam commuted Chauhan’s sentence to life imprisonment in clemency proceedings. However, the Supreme Court struck down his decision in May 2009. The Court reasoned that the Governor’s decision was not reasoned and that it came after the National Human Rights Commission intervened to assist in Chauhan’s defense. In November 2010, the Supreme Court reversed its 2009 ruling, thus reinstating the Governor’s previous decision to award life imprisonment to Chauhanccvi . The Gauhati High Court ruled in August 2011 that Chauhan was indeed a juvenile at 15 to 16 years of age at the time of the offenseccvii . Medical tests to determine his age were conducted in 2003, five years after his initial imprisonmentccviii . Owing to his age at the time of the crime, the case would thus fall under the Juvenile Justice Act, 1986 and 2000. The maximum sentence for a juvenile under the Act is three years in an observation home, not in prison. After spending almost two decades behind bars, Chauhan is now a 34-year-old free manccix . According to a 2012 media report, the Supreme Court stated that trying Chauhan as an adult was a “travesty of justice.”ccx Another recent case also speaks of the possibility that juveniles often are imprisoned as adults despite safeguards in the Juvenile Justice Act. Ankush Maruti Shinde, who was under a death sentence confirmed by the Supreme Court in 2009, was recently determined to be a juvenile at the time of his offense. His sentence was commuted on July 7, 2012 after the Nasik Sessions Court ruled on his age. According to an Advocate of the Bombay High Court, “There are many more death-row prisoners like Ankush who are juveniles under law and entitled to its protection, but their cases have not been investigated.” In early 2013, the death penalty was expanded to certain instances of rape. Following the brutal gang rape and murder of a 23-year old woman in December 2012, a wave of protests erupted throughout the country calling for harsher and swifter punishments for rape, which had previously been punished with 7 to 10 years’ imprisonmentccxi . The Verma Committee, formed by the government to study legislative reforms and headed by JS Verma, ex-CJI recommended enhancing the maximum sentence for rape to “the remainder of natural life,” but rejected the death penalty
  • 57. 56 as a possible punishmentccxii . Nevertheless, on February 3, 2013, President Pranab Mukherjee approved an ordinance under which rape is punishable by death if it led to death or if it left the victim in a “persistent vegetative state”ccxiii . Repeat perpetrators of aggravated rape also face capital punishment under this ordinanceccxiv . The ordinance was strongly criticized by human rights groups for its introduction of capital punishment, its inclusion of vague and discriminatory provisions, and its grant of effective legal immunity to state security forces accused of sexual violenceccxv . Despite this, the ordinance was passed into law in April 2013 as the Criminal Law (Amendment) Act, 2013ccxvi . A parliamentary panel’s recommendations that persons convicted for rape and murder be denied access to clemency proceedings – in contravention of India’s obligations under the ICCPR – was not included in the final lawccxvii . Also in response to the December 2012 Delhi rape, several state governments proposed to lower the age for juveniles’ eligibility for punishment if convicted to as low as 16 years of age. One of the six accused in the Delhi rape is a juvenile and will escape harsher criminal punishment because of the current laws that place the bar of adult status at 18 years of ageccxviii . The government confirmed that it would not reduce the age of juvenile offenders before trying himccxix . If the age of juveniles is legally changed, the heinousness of crimes rather than the age of the convicted could determine punishments rendered. Thus, those persons under 18 could face the death penalty rather than the maximum of three years in a reformatory center as stipulated by the Juvenile Justice Actccxx . However, the Delhi High Court has pronounced capital punishment upon the four perpetrators above age 18ccxxi , although the Supreme Court has stayed two of these in appeal. The government has been called on to review the death penalty provision under Clause 3 of the proposed 2012 Piracy Billccxxii . The Parliamentary Standing Committee is concerned that a death penalty provision would deter foreign governments from cooperating in order to extradite accused piratesccxxiii . There is increasing concern about the incorrect application of capital punishment law. In August 2012, several former judges called on the President to commute the sentences of 13 death row inmates who they say were wrongly
  • 58. 57 sentenced per incuriam, or “out of error or ignorance”ccxxiv . In January and February 2014, the Supreme Court - P. Sathasivam, CJI, R. Gogoi, J. and Shiva Kirti Singh, Jccxxv - emphasized the importance of the clemency process for capital inmates and commuted a total of 22 death sentencesccxxvi . The Supreme Court commuted the death sentences of Suresh, Ramji, Bilavendran, Simon, Gnanprakasham, Meesekar Madaiah, Praveen Kumar, Gurmeet Singh, Sonia Chaudhury, Sanjeev Chaudhury, Jafar Ali, Shivu and Jadeswamyccxxvii , on the grounds of delay in the disposal of their mercy petitions by the President ranging between five and 12 years. The Court commuted the death sentences of Sundar Singh and Magan Lal Barelaccxxviii on the ground that they suffer from mental illness. The Supreme Court reasoned that undue, inordinate, and unreasonable delay in considering mercy petitions constituted tortureccxxix . The Court stated that pursuant to Article 32 of the Constitution, the Supreme Court has the power to commute death sentences into life imprisonment upon undue delay in disposal of mercy petitionsccxxx . In its judgment, the Supreme Court ruled that “undue, inordinate and unreasonable delay in execution of death sentence [amounts to] torture” and was a ground for commutation of sentence. Importantly, the Court ruled to be bad law a previous decision in the case of Devender Pal Singh Bhullar, which stated that prisoners convicted of terrorism-related offences could not appeal for commutation on grounds of inordinate delay. Quoting extensively from international treaties and standards, the court statedccxxxi that the execution of people suffering from mental illness would be unconstitutional. It ruled that “insanity” or mental illness would be a factor that warranted commutation of a death sentence. The Court also reiterated that solitary confinement of a prisoner on death row was unconstitutional. The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinementccxxxii . In addition, the court determined that the government must carry out post- mortem examinations of executed prisoners to provide the courts with data on the cause of death, which will allow for consideration of whether hanging constitutes cruel and inhuman punishmentccxxxiii . In late February 2014, the Supreme Court
  • 59. 58 commuted the death sentences of four inmates because the Court determined that they were not beyond reformationccxxxiv . The decisions came at an especially important time, shortly after India carried out its first execution in 8 years. Upon appeal by the Indian government, the Supreme Court stood its ground. However, there is no official moratorium upon capital punishmentccxxxv . The Supreme Court also laid down guidelines on the treatment of people under sentence of death, in a move that could end the trend towards secrecy in executions in 2012 and 2013. According to the guidelines, prisoners on death row should receive legal aid, be informed about the rejection of their mercy petitions and in writing, have their mental and physical conditions regularly checked and allowed to meet their family members before execution, which should not happen before two weeks from the communication of the rejection of the mercy petition. The Court’s ruling is likely to affect the cases of at least six other prisoners on death row – Murugan, Santhan, Arivu (aka Perarivalan), Devender Pal Singh Bhullar, Saibanna Natikar and B A Umesh, who are also seeking commutation on the grounds of delay in the disposal of their mercy petitions. In Bachan Singh v. State of Punjabccxxxvi , the Supreme Court of India upheld the constitutionality of the death penalty. However, the Supreme Court stated in its decision that the death penalty should only be used in the “rarest of rare” casesccxxxvii . This case has significantly influenced subsequent jurisprudence, resulting in somewhat restricted application of the death penalty.ccxxxviii Subsequently, in Mithu v. State of Punjab, the Court determined that the mandatory death penalty is unconstitutional in Indiaccxxxix . While later legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the language in such legislation as unconstitutional, Indian courts do not seem to apply the mandatory death penalty for these crimesccxl . In Smt. Triveniben v. State of Gujaratccxli , the Court diminished condemned prisoners’ constitutional protections against cruel and unusual punishment due to extended stays on death row. The Court ruled that undue delay in execution of a sentence of death could be grounds for judicial commutation of the condemned’s sentence; however, delay would only be a single factor, and courts would only consider delays to which the condemned did
  • 60. 59 not contribute (by filing an appeal or a petition)ccxlii . This ruling has seriously limited the extent to which courts in India protect the rights of death sentenced prisoners to be protected from lengthy death row stays under severe or inhuman conditionsccxliii , although death-sentenced prisoners may technically have a right to contest their sentences if they are not executed within 5 years of sentencing. In a landmark decision, the Bombay High Court ruled in the case of India Harm Reduction Network v. Union of India that the mandatory death penalty for drug offences was “unconstitutional.” While the Court did not strike down Section 31-A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985, it did state that the courts were no longer obligated to hand down the death penalty for repeat drug offenders under the Actccxliv . The Supreme Court ruled in Bhagwan Das v. State that the death penalty should be rendered as punishment in cases of “honor killings.”ccxlv The Court reasoned that doing so would send a clear and deterring message to those committing such crimes. “All persons who are planning to perpetuate honor killings should know that the gallows await them,” the Court saidccxlvi . The Law Commission of India, however, disagreed with the recent uptick of death sentences handed down in honor killing cases throughout the country following the Supreme Court’s ruling. The Commission said that the death penalty should be used to punish the convicted “only in very exceptional and rare cases.” The Commission also gave recommendations of its own on how to better handle them in an August 2012 report, including a proposal of a new law that would prohibit caste assemblies that often condemn marriages that lead to honor killingsccxlvii . In February 2012, the Supreme Court ruled in State Of Punjab v. Dalbir Singhccxlviii that the mandatory death penalty as punishment for crimes stipulated under article 27(3) of the Indian Arms Act of 1959 was unconstitutional in light of judicial review under the Constitution and the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjab. Because the Court ruled against the law, that particular article under the Arms Act is null and void. The courts can now impose a lesser sentence. A bill to further amend the Arms Act article in
  • 61. 60 question was introduced prior to the ruling in December 2011ccxlix . The bill is currently pending. In Shatrughan Chauhan & Another vs. Union of India & Others, the Supreme Court of India emphasized the importance of the clemency process for capital inmatesccl . The court criticized the executive for its unreasonable delay in considering mercy petitions of capital inmates on death row. The court observed that “undue, inordinate, and unreasonable delay” in carrying out death sentences causes psychological tortureccli . The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinementcclii . In total, the Supreme Court commuted 15 death sentencesccliii . Just a month later, the Court reaffirmed the Shatrughan decision in V. Sriharan Murugan v. Union of India & Othersccliv . There, the Court commuted the death sentences of three inmates because of the unreasonable delay in considering their mercy petitions, a delay of more than 11 years. It also rebuffed the argument that death row inmates had to prove actual harm occasioned by the delay in order to have their sentences commutedcclv . The Court also stayed the execution of Devinder Pal Singh Bhullar on the same grounds in delay over Presidential pardon to him and called for a reportcclvi . Summation For past US President Thomas Jefferson “The care of human life and happiness, and not their destruction, is the first and only object of good government.” From the researcher’s above analysis, the preservation of life, rather than its premature end is fast assuming centre stage. Lex talionis or reciprocity of treatment for a crime remained the pivot for punishment for most types of violent crime worldwide for nearly 2000 years. While many nations, notably in the European Union, have either abolished capital punishment altogether, many others no longer actively follow this practice. It is also not as if capital punishment is associated with a lower level of human development. Many US states retain and even implement capital punishment although the practice is gradually diminishing. The major areas of concern are non-democratic States, marked by absence of information in the public domain and established judicial
  • 62. 61 systems and accountability of their rulers, like the United Arab Emirates, the Russian Federation and People’s Republic of China. While the right to life is sanctioned by most religious scriptures, the twin elements of reciprocity and proportionality have often become the subject matter of politics causing many innocent people to have been executed. Following numerous reports wrongfully imposed death sentences, one former Supreme Court judge and 13 former High Court judges from across the country in August 2012, appealed to the newly- elected President Pranab Mukherjee to commute the death sentencescclvii . The judges admitted that 13 people were erroneously sentenced to death, eight of whom remained on death row. “The judgments, according to the Supreme Court’s own admission, rendered per incuriam [ignorance] constituted the gravest known miscarriages of justice in the history of crime and punishment in India”cclviii . The former judges also informed the President of the wrongful executions of Ravji Rao and Surja Ram in 1996 and 1997cclix . Former CJ of the Delhi High Court, AP Shah, explained that “the Supreme Court’s admission of error came too late for them”cclx . Shah, ex-CJ further stated that “Bachan Singh's case gave sufficient weight to the mitigating circumstances of the crime and the criminal. In the case of Ravji, decided by two judges, the Supreme Court explicitly held that it is the gravity of the crime but not the criminal which is relevant to decide appropriate punishment. Thus, Ravji's case is in direct conflict with the Bachan Singh ruling. The court in Bariyar's case noticed the conflict and held that seven of its judgments awarding the death sentence were rendered per incuriam…... The Supreme Court could have reopened those cases in exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners. The absence of such measures forced the retired judges to send the appeal to the president.”cclxi Polemics over cases in which courts have awarded capital punishment have often established beyond doubt, as AP Shah, ex-CJ stated that “…..there is enough reason to believe that the legal safeguards aimed at avoiding a miscarriage of capital punishment have failed to deliver. Public opinion in India can no longer ignore the global movement in favor of abolition of the death
  • 63. 62 penalty”cclxii . Subjectivity of investigation, witness testimony, debatable qualifications of jurors (where applicable) and a host of other factors that unfairly distinguish between criminals on grounds of caste, religion, gender and economic status, shroud capital punishment. Thus capital punishment relies on the subjective opinion of a judge at the apex of the judicial delivery system to shoulder the blame for any miscarriage of justice that may occur. Once such miscarriage occurs and the court’s order is implemented by execution, there is no possibility of rolling back. Social costs thus come to the forefront by way of scars on several generations of a family that reduce their ability to earn their livelihood and cause them to become victims of social ostracism. Such compelling circumstances therefore may give rise to more crimes, including violent ones, many of which, again, qualify for capital punishment putting paid to any saving on economic costs of incarceration put forth by retributionists. Yet crime rates continue to soar worldwide, particularly during economic recession, ensuring that debate over capital punishment remains wide open. The Researcher’s Position Capital punishment is specific to a national context – economic, social and political - as the National Crime Records Bureau of the Govt. of India’s report titled Crime in India, 2012cclxiii amply proves. India remains one of the most violent nations to live in, with the total incidence of violent crimes having increased by 65 percent in 2012 over the previous year. Overall at the country level, incidence of rape has risen by 2.96 per cent in 2012 over the previous year with 3425 cases reported in Madhya Pradesh in 2012. A 7.5 percent rise in cases of kidnapping &abduction of girls and women has been reported in 2012. Crime against children has increased by 15.33 percent in 2012 over the previous year. The incidence of murder and rape committed against children increased by 13 per cent and 55 per cent respectively in 2012 over the previous year. The cognizable crime rate for 2012 shows a 2.6 per cent increase in comparison to 2011. The gap between sanctioned and actual strength of civil police including district armed police have increased from 3,79,636 in 2011 to 4,03,346 in 2012. At the same time, conviction rates vary from 11 per cent for crimes against scheduled castes
  • 64. 63 to 41 per cent under the Suppression of Immoral Traffic Act and 61 per cent under the NDPS and Arms Acts and 80 per cent of criminal cases pending in various courts for over three years with trials over three years accounting for 40 per cent of the total cases pending. Women remain the most vulnerable section of our society with states like Assam, Haryana, Jammu & Kashmir, Odisha, Rajasthan, Rajasthan, Tripura, Kerala and West Bengal clocking over 50 per cent rates of cognizable offences against women with major cities like Ahmedabad, Jaipur and Delhi reporting greater than 70 per cent of all cognizable crimes against women. While there were 25,293 cases of rape, there were 38,262 cases of kidnapping and abduction and 45,351 cases of assault on women with intent to outrage her modesty (Sec.354 IPC) in India in 2012. Along with other categories of crimes, police registered 2.44 lakh cases for crime against women in 2012. The statistics are not far different for crimes involving subaltern sections of society. It must be remembered that India is an amalgam of more than six officially recognized religions, over 15 recognized languages, weaker sections spread over half million villages and urban centers, an adverse male to female ratio and low urbanization that invites migration and resultant animosities. Imbalanced development has also caused almost a third of the nation to pass on to fissiparous Maoist and similar outfits apart from generating violent passions such as over state boundaries, e.g. Telengana. At the same time, the circumstances of India’s birth in 1947 have not been entirely forgotten within and adjacent to our borders. The researcher therefore favors retaining capital punishment at least for few decades more till development advances society, animosities decline and threats to the nation’s integrity are minimal. For, as the renowned US attorney, Clarence Darrow said, “I am pleading for life, understanding, charity, kindness, and the infinite mercy that considers all. I am pleading that we overcome cruelty with kindness and hatred with love. ….I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men. When we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.”cclxiv Till then India must live with capital punishment.
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  • 68. 67 ci Amnesty Intl., The Death Penalty in India: A lethal lottery: A study of Supreme Court judgments in death penalty cases 1950-2006 (Summary Report), p. 137-144, ASA 20/006/2008, May 2, 2008. cii Bachan Singh v. State of Punjab, 1983(1) SCR 145(a) para. 224, Supreme Court of India, 1980. ciii Amnesty Intl., The Death Penalty in India: A lethal lottery: A study of Supreme Court judgments in death penalty cases 1950-2006 (Summary Report), p. 72-90, ASA 20/006/2008, May 2, 2008. civ Mithu v. State of Punjab, 1983 SCR(2) 690 at 703-704, 713-714, Supreme Court of India, 1983. cv Amnesty Intl., The Death Penalty in India: A lethal lottery: A study of Supreme Court judgments in death penalty cases 1950-2006 (Summary Report), p. 137-144, ASA 20/006/2008, May 2, 2008. cvi Juvenile Justice (Care and Protection of Children Act), art. 16, Act no. 56 of 2000, 2000. cvii Indian Penal Code, ch. IV, art. 84, Act no. 45 of 1860, Oct. 6, 1860. cviii Indian Penal Code, ch. IV, art. 84, Act no. 45 of 1860, Oct. 6, 1860. cix Bachan Singh v. State of Punjab, 1983(1) SCR 145(a) paras. 221-223, Supreme Court of India, 1980. cx The Constitution of the United States of America, 1787; Bill of Rights, ratified Dec. 15, 1791; 5th Amendment. cxi The Constitution of the United States of America, 1787; Bill of Rights, ratified Dec. 15, 1791; 14th Amendment, ratified Jul. 9, 1868. cxii See, for example, Woodson v. North Carolina, No. 75-5491, U.S. Supreme Court, Jul. 2, 1976. Kennedy v. Louisiana, No. 07-343, U.S. Supreme Court, Oct. 1, 2008. cxiii Gregg v. Georgia, No. 74-6257, U.S. Supreme Court, Jul. 2, 1976. cxiv Death Penalty Information Center, Executions by Year, available at http://www.deathpenaltyinfo.org/executions-year on Mar. 15, 2014. cxv Death Penalty Information Center, Executions by Year, available at http://www.deathpenaltyinfo.org/executions-year, Mar. 15, 2014. cxvi Death Penalty Information Center, Executions by Year, available at http://www.deathpenaltyinfo.org/executions-year, Mar. 15, 2014. cxvii Death Penalty Information Center, Death Sentences By Year: 1976-2012, http://www.deathpenaltyinfo.org/death-sentences-year-1977-2009 on Mar 15, 2014 cxviii 408 U.S. 238 (1972) cxix Furman v. Georgia, No. 69-5003, U.S. Supreme Court, Jun. 29, 1972. cxx 428 U.S. 153 (1976) cxxi Gregg v. Georgia, No. 74-6257, U.S. Supreme Court, Jul. 2, 1976. cxxii Woodson v. North Carolina, No. 75-5491, U.S. Supreme Court, Jul. 2, 1976. cxxiii Sumner v. Shuman, No. 86-246, U.S. Supreme Court, Jun. 22, 1987. cxxiv Coker v. Georgia, No. 75-5444, U.S. Supreme Court, Jun. 29, 1977. cxxv Kennedy v. Louisiana slips opinion, No. 07-343, U.S. Supreme Court, Oct. 1, 2008. cxxvi Kennedy v. Louisiana, section IV(A) & slip opinion p. 27, No. 07-343, U.S. Supreme Court, Oct. 1, 2008. cxxvii Ford v. Wainwright, No. 85-5542, U.S. Supreme Court, Jun. 26, 1986. cxxviii Death Penalty Information Center, Intellectual Disability and the Death Penalty, http://www.deathpenaltyinfo.org/intellectual-disability-and-death-penalty, Mar. 15, 2014 cxxix Roper v. Simmons, slip opinion, No. 03-633, U.S. Supreme Court, Mar. 1, 2005. cxxx Trop v. Dulles, p. 101, No. 70, U.S. Supreme Court, Mar. 31, 1958. cxxxi Ryan v. Gonzales, No. 10-930, U.S. Supreme Court, Jan. 8, 2013. Tibbals v. Carter, No. 11- 218, U.S. Supreme Court, Jan. 8, 2013. Adam Liptak, Justices Rule on Staying Death Row Challenges, The New York Times, http://www.nytimes.com/2013/01/09/us/justices-rule-mental- incompetence-does-not-merit-automatic-stays-of-death-row-suits.html?_r=0, Jan. 8, 2013. cxxxii Ryan v. Gonzales, No. 10-930, U.S. Supreme Court, Jan. 8, 2013. Tibbals v. Carter, No. 11- 218, U.S. Supreme Court, Jan. 8, 2013. cxxxiii Martinez v. Ryan, No. 10-1001, U.S. Supreme Court, Mar. 20, 2012. cxxxiv Trevino v. Thaler, No. 11-10189, U.S. Supreme Court, May 28, 2013. cxxxv Trevino v. Thaler, No. 11-10189, U.S. Supreme Court, May 28, 2013.
  • 69. 68 cxxxvi Mark Warren, The Death Penalty Worldwide: Estimated Death Row Populations, http://users.xplornet.com/~mwarren/global.htm, Aug. 6, 2010; Caroline Sculier, Towards a Universal Moratorium on the Use of the Death Penalty. Strategies, Arguments and Perspectives, p. 12, World Coalition Against the Death Penalty, Feb. 2010. cxxxvii U.S. Dept. of State, 2010 Human Rights Report: Russia, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/j/drl/rls/hrrpt/2010/eur/154447.htm, Mar 16, 2014; Amnesty Intl., Annual Report 2011, Russian Federation, http://www.amnesty.org/en/region/russia/report-2011, on Mar. 16, 2014 cxxxviii U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Committee Against Torture, Consideration of Reports Submitted by State Parties under Article 19 of the Convention, Concluding Observations and Recommendations: Russian Federation, paras. 8, 17, 20-24, U.N. Doc. CAT/C/RUS/CO/4, Feb. 6, 2007. cxxxix U.S. Dept. of State, 2010 Human Rights Report: Russia, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, http://www.state.gov/j/drl/rls/hrrpt/2010/eur/154447.htm, on Mar 16, 2014 cxl U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Committee Against Torture, Fifth periodic reports of States parties due in 2010: Russian Federation, paras. 292-298, U.N. Doc. CAT/C/RUS/5, Dec. 28, 2010. cxli European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, States: Documents and Visits, Russian Federation, http://www.cpt.coe.int/en/states/rus.htm, on Mar. 17, 2014 cxlii Mark Warren, The Death Penalty Worldwide: Estimated Death Row Populations, http://users.xplornet.com/~mwarren/global.htm, Aug. 6, 2010; Caroline Sculier, Towards a Universal Moratorium on the Use of the Death Penalty. Strategies, Arguments and Perspectives, p. 12, World Coalition Against the Death Penalty, Feb. 2010. cxliii Constitution of the People's Republic of China, ch.3, art. 67(18), amended by the 10th NPC at its 2nd Session, Mar. 14, 2004. cxliv Constitution of the People's Republic of China, ch. 1, art.32, amended by the 10th NPC at its 2nd Session, Mar. 14, 2004. cxlv Constitution of the People's Republic of China, ch. 2, arts. 32, 36, amended by the 10th NPC at its 2nd Session, Mar. 14, 2004. cxlvi Constitution of the People's Republic of China, ch. 2, art. 50, amended by the 10th NPC at its 2nd Session, Mar. 14, 2004. cxlvii David Lague, China Acts to Reduce High Rate of Executions, The New York Times, http://www.nytimes.com/2006/11/01/world/asia/01china.html, Nov. 1, 2006. cxlviii Cristian Segura, China Injects 'Humanity' Into Death Sentence, Asia Times, http://www.atimes.com/atimes/China/KL16Ad01.html, Dec. 16, 2009. cxlix Antoaneta Bezlova, China to 'Kill Fewer, Kill Carefully', Asia Times, http://www.atimes.com/atimes/China/HC31Ad01.html, Mar. 31, 2006. cl Xie Chuanjiao, Fewer Executions Expected, Top Judge Says, China Daily, http://www.chinadaily.com.cn/china/2009-07/29/content_8484062.htm, Jul. 29, 2009. cli Johnson & Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia, pp. 274-275, Oxford University Press, 2009. clii Clive Stafford Smith, China Must Show Mercy, The Guardian, http://www.guardian.co.uk/commentisfree/libertycentral/2009/oct/24/china-death-penalty, Oct. 24, 2009. cliii Xie Chuanjiao, Fewer Executions Expected, Top Judge Says, China Daily, http://www.chinadaily.com.cn/china/2009-07/29/content_8484062.htm, Jul. 29, 2009. cliv David Lague, China Acts to Reduce High Rate of Executions, The New York Times, http://www.nytimes.com/2006/11/01/world/asia/01china.html, Nov. 1, 2006. clv Amnesty Intl., People’s Republic of China, The Olympics Countdown – Failing to Keep Human Rights Promises, pp. 5-6, ASA 17/046/2006, Sep. 20, 2006. clvi Xie Chuanjiao, New Rule Allows Stays of Execution, China Daily, http://www.chinadaily.com.cn/china/2008-12/27/content_7346373.htm, Dec. 27, 2008. clvii Wang Guanqun, China Issues Guidelines to Limit Death Penalty Use, Xinhua, http://news.xinhuanet.com/english2010/china/2010-02/09/c_13169980.htm, Feb. 9, 2010.
  • 70. 69 clviii Amnesty Intl., People’s Republic of China, The Olympics Countdown – Failing to Keep Human Rights Promises, p. 2, ASA 17/046/2006, Sep. 20, 2006. clix Amnesty Intl., People’s Republic of China, The Olympics Countdown – Failing to Keep Human Rights Promises, p. 2, ASA 17/046/2006, Sep. 20, 2006. clx Constitution of the Arab Republic of Egypt, Sep. 11, 1971, as amended through Mar. 26, 2007, translation: Arab Republic of Egypt, Shoura Assembly. clxi Constitution of the Arab Republic of Egypt, art. 2, Sep. 11, 1971, as amended through Mar. 26, 2007. clxii Constitution of the Arab Republic of Egypt, art 151, Sep. 11, 1971, as amended through Mar. 26, 2007. clxiii Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010; Amnesty Intl., Death Sentences and Executions in 2008, p. 8, ACT 50/003/2009, Mar. 24, 2009; Amnesty Intl., Death Sentences and Executions in 2007, p. 6, ACT 50/001/2008, Apr. 15, 2008. clxiv U.N. ICCPR, Human Rights Committee, Concluding Observations: Egypt, paras. 6, 12, 16, U.N. Doc. CCPR/CO/76/EGY, Nov. 28, 2002. clxv U.N.G.A., Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism: Mission to Egypt, paras. 11, 15, 33, 39, U.N. Doc. A/HRC/13/37/Add.2, Oct. 14, 2009. clxvi U.N.G.A., Human Rights Council, Report of the Working Group on the Universal Periodic Review: Egypt, paras. 95-96, U.N. Doc. A/HRC/14/17, Mar. 26, 2010. clxvii International Commission of Jurists, Submission to the Universal Periodic Review of Egypt, http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/EG/ICJ_UPR_EGY_S07_2010_Internat ionalCommissionofJurists.pdf, Aug. 2009. clxviii International Commission of Jurists, Submission to the Universal Periodic Review of Egypt, http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/EG/ICJ_UPR_EGY_S07_2010_Internat ionalCommissionofJurists.pdf, Aug. 2009. clxix Arab Penal Reform Organization, Submission to the Human Rights Council’s 2010 Universal Periodic Review of Egypt, http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/EG/APRO_UPR_EGY_S07_2010_Ara bPenalReformOrganization.pdf, 2009. clxx Amnesty Intl., Death Sentences and Executions in 2009, p. 6, ACT 50/001/2010, Mar. 30, 2010; Amnesty Intl., Death Sentences and Executions in 2008, p. 17, ACT 50/003/2009, Mar. 24, 2009; Amnesty Intl., Death Sentences and Executions in 2007, p. 7, ACT 50/001/2008, Apr. 15, 2008. clxxi Dr. Mohamed Al Ghamry, The Death Penalty In Egypt: Theoretical and Practical Study in the Light of Islamic Shariah and International Human Rights Law, p. 23-30, Arab Penal Reform Organization, http://www.aproarab.org/modules.php?name=Reports_Publications, 2008. clxxii Arab Penal Reform Organization, Submission to the Human Rights Council’s 2010 Universal Periodic Review of Egypt, http://lib.ohchr.org/HRBodies/UPR/Documents/Session7/EG/APRO_UPR_EGY_S07_2010_Ara bPenalReformOrganization.pdf, 2009. clxxiii Adam Morrow and Khaled Moussa Al-Omrani, Egypt: 230 Death Sentences in Six Months, IPS News, http://ipsnews.net/africa/nota.asp?idnews=47683, Mar 17, 2014 clxxiv UAE Constitution of 1971, arts. 7, 26-28, 107-108, as amended through 1996. clxxv UAE Constitution of 1971, art. 40, as amended through 1996. clxxvi U.S. Dept. of State, Background Note: United Arab Emirates, http://www.state.gov/r/pa/ei/bgn/5444.htm, Jul. 14, 2010. clxxvii Amnesty Intl., UAE Must Investigate Allegations of Torture of Indian Men on Death Row, http://www.amnesty.org/en/news-and-updates/uae-must-investigate-allegations-torture-indian- men-death-row-2010-04-23, Apr. 22, 2010. clxxviii Hands Off Cain, United Arab Emirates, http://www.handsoffcain.info/bancadati/schedastato.php?idstato=13000046&idcontinente=23, on Mar 17, 2014 clxxix U.S. Dept. of State, Background Note: United Arab Emirates, http://www.state.gov/r/pa/ei/bgn/5444.htm, Jul. 14, 2010.
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