The Death Penalty Unit 21

Concerns: Can a system, based on the rule of law, run the risk of killing an innocent person? Can a system, based on the rule of law, run the risk of killing an innocent person? Is it acceptable to apply the death penalty when there is an alternative? Is it acceptable to apply the death penalty when there is an alternative? Is it humane to keep a person on death row for years, not knowing if the next day will be his/her last? Is it humane to keep a person on death row for years, not knowing if the next day will be his/her last? Is it acceptable to execute a person with a mental disorder? Is it acceptable to execute a person with a mental disorder? Can this punishment be applied to a person who was a minor at the time of the crime? Can this punishment be applied to a person who was a minor at the time of the crime? Does the death penalty serve a real purpose? Does the death penalty serve a real purpose?

Early Death Penalty Laws The first established death penalty laws date as far back as the 18 th Century BC in the Code of King Hammurabi of Babylon The first established death penalty laws date as far back as the 18 th Century BC in the Code of King Hammurabi of Babylon It codified the death penalty for 25 different crimes It codified the death penalty for 25 different crimes

The Code of Hamurabi “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death” “If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death. If it kills the son of the owner, then the son of that builder shall be put to death”

Types of retributive punishment Lex talionis = retribution; punishment in kind (“an eye for an eye”) Lex talionis = retribution; punishment in kind (“an eye for an eye”) Lex salica = punishment through compensation (the principle of substitution) Lex salica = punishment through compensation (the principle of substitution)

The Torah Murder Murder Kidnapping Kidnapping Magic Magic Violation of the Sabbath Violation of the Sabbath Blasphemy Blasphemy Sexual offences Sexual offences

Qur’an “If anyone kills a person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people” “If anyone kills a person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people”

Moses Maimonides, 12th c. “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death” “It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death”

Death penalty in English history At Common Law capital punishment was imposed for a few very serious offences such as treason, murder, rape and burning a dwelling-house. At Common Law capital punishment was imposed for a few very serious offences such as treason, murder, rape and burning a dwelling-house. As late as 1688 about 50 offences carried the death penalty As late as 1688 about 50 offences carried the death penalty By 1800 English law had some 200 capital offences (including cutting down a tree or stealing an animal) By 1800 English law had some 200 capital offences (including cutting down a tree or stealing an animal)

John Locke ( ) A person forfeits his rights (including his right to life) when committing a crime A person forfeits his rights (including his right to life) when committing a crime Once rights are forfeited, punishment is justified for two reasons: Once rights are forfeited, punishment is justified for two reasons: 1) criminals deserve punishment 1) criminals deserve punishment 2) punishment is needed to protect our society by deterring crime through example 2) punishment is needed to protect our society by deterring crime through example

Cesare Beccaria ( ) On Crimes and Punishment (1764): the right to life is not forfeitable On Crimes and Punishment (1764): the right to life is not forfeitable People do not sacrifice their rights to life when entering into the social contract People do not sacrifice their rights to life when entering into the social contract

Death penalty today Progressive restriction of capital offencces Progressive restriction of capital offencces The International Covenant on Civil and Political Rights (1966): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes” The International Covenant on Civil and Political Rights (1966): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes”

Restriction of applicable offenders The exclusion of child offenders, i.e. those under 18 years of age at the time of the offence The exclusion of child offenders, i.e. those under 18 years of age at the time of the offence The exclusion of pregnant women, new mothers and people over 70 years of age The exclusion of pregnant women, new mothers and people over 70 years of age The exclusion of “persons who have become insane” and “persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution” The exclusion of “persons who have become insane” and “persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution”

Procedural safeguards The right of appeal to a higher court The right of appeal to a higher court The right to petition for clemency The right to petition for clemency

Death Penalty Today In April 1999, the UN Human Rights Commission passed the Resolution Supporting Worldwide Moratorium on Executions In April 1999, the UN Human Rights Commission passed the Resolution Supporting Worldwide Moratorium on Executions Over 90 countries still retain the death penalty, including China, Iran and the US Over 90 countries still retain the death penalty, including China, Iran and the US Today over 60 % of Americans support the death penalty Today over 60 % of Americans support the death penalty

Atkins v Virginia (2002) The Supreme Court held that it was a violation of the American Constitution to impose the death penalty on a mentally retarded person; The Supreme Court held that it was a violation of the American Constitution to impose the death penalty on a mentally retarded person; Also: a challenge to the constitutionality of executing persons who had committed a capital offence when under the age of 18 – not successful Also: a challenge to the constitutionality of executing persons who had committed a capital offence when under the age of 18 – not successful

Capital crimes today Premeditated murder Premeditated murder Espionage Espionage Treason Treason Part of military justice Part of military justice

Abolition of capital punishment in western Europe Portugal 1843 Portugal 1843 Followed by the Netherlands, Romania, Italy, and Norway Followed by the Netherlands, Romania, Italy, and Norway After the first world war: Sweden, Denmark, Switzerland After the first world war: Sweden, Denmark, Switzerland In 1962: executions were carried out in western Europe in the UK, France, Greece, the Irish Republic, Spain In 1962: executions were carried out in western Europe in the UK, France, Greece, the Irish Republic, Spain

Abolition of capital punishment in Eastern Europe Croatia: 1987 Croatia: 1987 Hungary 1988 Hungary 1988 Poland 1988 Poland 1988 Bulgaria 1989 Bulgaria 1989 Moldova 1989 Moldova 1989 Estonia 1991 Estonia 1991 Armenia 1991 Armenia 1991 Lithuania 1995 Lithuania 1995 Ukraine 1997 Ukraine 1997 The Russian Federation: moratorium on all executions since 1996 The Russian Federation: moratorium on all executions since 1996

European Convention on Human Rights Protocol No 6 (1983): abolition of capital punishment in time of peace Protocol No 6 (1983): abolition of capital punishment in time of peace Resolution 1044 (1994) links membership in the Council of Europe to abolition of death penalty (the Russian Federation – the only member that has not abolishedcapital punishment) Resolution 1044 (1994) links membership in the Council of Europe to abolition of death penalty (the Russian Federation – the only member that has not abolishedcapital punishment) Protocol No 13(2002): abolition of capital punishment in all circumstances Protocol No 13(2002): abolition of capital punishment in all circumstances

Human rights violation The right to life and the right not to be subjected to cruel,inhuman and degrading treatment or punishment The right to life and the right not to be subjected to cruel,inhuman and degrading treatment or punishment the right to a fair trial the right to a fair trial

Abolition of the death penalty in the UK 1969 (except for treason) 1969 (except for treason) in 1998 the home secretary signed the 6th Protocol of the European Convention of Human Rights which formally abolished the death penalty in the U.K. in 1998 the home secretary signed the 6th Protocol of the European Convention of Human Rights which formally abolished the death penalty in the U.K.

Abolitionists Abolitionists – people who are against the death penalty Abolitionists – people who are against the death penalty Death penalty does not deter criminals, violates human rights, leads to executions of wrongfully convicted people, discriminates against the minorities and the poor Death penalty does not deter criminals, violates human rights, leads to executions of wrongfully convicted people, discriminates against the minorities and the poor

Retentionists People who support the death penalty People who support the death penalty Main arguments: prevent (from repeating the crime), deter and avenge (“an eye for an eye”) Main arguments: prevent (from repeating the crime), deter and avenge (“an eye for an eye”)

Lord Kennet’s speech on November 9, 1961 outlined main arguments against the death penalty in five verbs: outlined main arguments against the death penalty in five verbs: prevent, prevent, reform, reform, research, research, deter, deter, avenge avenge

Prevent To prevent the same man from doing it again To prevent the same man from doing it again

Reform Rehabilitation; a man should be helped with his social function by a rehabilitatory treatment Rehabilitation; a man should be helped with his social function by a rehabilitatory treatment

Research We should find out about the motives, characters and personality structures of criminals, thus finding things that would enable taking measures to reduce the crime rate We should find out about the motives, characters and personality structures of criminals, thus finding things that would enable taking measures to reduce the crime rate

Deter The evidence proves that the death penalty is not an effective deterrent against violent crime The evidence proves that the death penalty is not an effective deterrent against violent crime

Avenge Vengeance is not a proper motive for the State in dealing with convicted criminals Vengeance is not a proper motive for the State in dealing with convicted criminals

The 14 th Dalai Lama on the Death Penalty The death penalty fulfils a preventive function, but it is also very clearly a form of revenge... I am optimistic that it remains possible to deter criminal activity, and prevent such harmful consequences of such acts in society, without having to resort to the death penalty. The death penalty fulfils a preventive function, but it is also very clearly a form of revenge... I am optimistic that it remains possible to deter criminal activity, and prevent such harmful consequences of such acts in society, without having to resort to the death penalty.

Legal terms Death penalty Death penalty Capital punishment Capital punishment Smrtna kazna Smrtna kazna Poena capitalis Poena capitalis

Legal terms To commit a crime To commit a crime Počiniti kazneno djelo Počiniti kazneno djelo To try To try Voditi sudski postupak, suditi Voditi sudski postupak, suditi To convict To convict Proglasiti krivim Proglasiti krivim To sentence To sentence Osuditi, izreći kaznu Osuditi, izreći kaznu