tag:theconversation.com,2011:/fr/topics/death-penalty-6980/articlesDeath penalty – The Conversation2024-02-19T21:08:32Ztag:theconversation.com,2011:article/2238412024-02-19T21:08:32Z2024-02-19T21:08:32ZWho was Robert Badinter, the most important Frenchman of whom you never heard?<p>At the end of a class on the fundamental principles of law that I was teaching to first-year law students, a group of students approached me and asked: “But who is this Robert Badinter you speak of so often?”</p>
<p>Every time I bring up Badinter, I know I am about to teach them about values such as the right to life, respect for individuals, human dignity, equality, and individual freedom. As a legal historian, such moments are a chance for me to introduce the younger generation of the early 21st century to a rare man who, throughout his life, fought against injustice. On 9 February, he died in Paris, aged 95.</p>
<h2>A national homage</h2>
<p>To say that Badinter’s death marked the end of an era for France is not an overstatement. The next day, not a single national daily failed to dedicate its front page to Badinter. <em>Le Monde</em> printed a black and white picture of him, striding confidently out of the council of ministers in 1981, his head seemingly crowned with a chandelier. <em>Libération</em> opted for a portrait in his later years, titled “Peine absolue” – a pun on a French phrase that means at once “capital punishment”, but also “Absolute sadness”. Others hailed “Un homme juste” (“A man of justice”). Even the conservative <em>Le Figaro</em>, a staunch opponent for most of his life, bowed to his “passion for justice”.</p>
<p>On Wednesday 14 February, the government held a ceremony of national homage Place Vendôme, Paris, where the Justice Ministry is located. His widow, the French feminist and Enlightenment historian Elisabeth Badinter, sat at the front row close to their three children. Hundreds of people stood under the drizzle to watch the coffin draped with the French flag, as French president Emmanuel Macron <a href="https://www.elysee.fr/emmanuel-macron/2024/02/14/hommage-national-a-robert-badinter">announced</a> his entry to the Pantheon, in which the remains of distinguished French citizens lay.</p>
<h2>A very French upbringing</h2>
<p>The son of Russian Jewish immigrants, Badinter was born on 30 March 1928 in Paris. In 1989, <a href="https://www.radiofrance.fr/franceinter/podcasts/radioscopie-par-jacques-chancel/robert-badinter-du-15-06-89-4783850">he described his father</a>, who died following deportation during the Second World War, as:</p>
<blockquote>
<p>“one of those young intellectual Russian students of before 1914, who loved France with an intensity that we find difficult to conceive. When I was a boy, he would tell me how poor students in Moscow, each possessed by the revolutionary ideal, would head to the French embassy, which was the only place where one could protest because it was an ally country. There, they would sing the <em>Marseillaise</em> [the French national hymn] and cry out ‘Long live France, long live the Republic’. Around the embassy there were Cossacks, whip in hand.”</p>
</blockquote>
<p>Badinter would grow up in a household steeped in the ideals of the French Republic, in which it was forbidden to speak any other language than French. Reading of 19th-century French writers such as Emile Zola or Stendhal was mandatory. Such ideals would also form the backbone of his relationship to his wife, Elisabeth. Fiercely reserved about their relationship and reluctant to appear in the media as a couple, they would go on to write one book together on French revolutionary philosopher, <a href="https://www.britannica.com/biography/Marie-Jean-Antoine-Nicolas-de-Caritat-marquis-de-Condorcet">Nicolas de Condorcet</a>.</p>
<p>Following a doctorate in law in 1952, Badinter worked first as an attorney, then a professor, and finally in politics.</p>
<h2>Consigning the guillotine to museums</h2>
<p>In France and abroad, Badinter is first and foremost known as the man who abolished the death penalty in 1981.</p>
<p>There had been talk of abolishing the capital punishment <a href="https://enseignants.lumni.fr/fiche-media/00000005058/une-revolution-dans-la-justice-partie-2-la-peine-capitale-depuis-la-revolution-francaise.html">since the French Revolution</a>. Already in 1791, deputies had debated on whether to include it in the country’s first criminal code. Politician and jurist Louis-Michel le Peletier, Marquis of Saint-Fargeau (1760-1793), believed its gruesome spectacles perverted society, accustoming it to the sight of violence and blood, while French lawyer and revolutionary Maximilien Robespierre (1758-1794) sought to refute the very principle of the death penalty.</p>
<p>In the following century, French novelist Victor Hugo would take up the baton, devoting two novels to the subject, <em>The Last Day of a Condemned Man</em> (1829) and <em>Claude Gueux</em> (1834). Badinter, who called him the “great” Hugo, would go on to adapt the second <a href="https://www.opera-lyon.com/fr/programmation/2012-2013/opera/claude">as an opera, <em>Claude</em></a>.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/1UxrY2iA5sA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Robert Badinter filmed at his home in October, 2021.</span></figcaption>
</figure>
<p>True to that intellectual heritage, Badinter always stood against the death penalty. Despite this, in 1972 he was unable to save a client, Roger Bontems. While Bontems did not have any blood on his hands, he was found guilty for complicity in the murder of a nurse and porter, and went to the guillotine. As Dominique Missika and Maurice Szafran recount in their biography, Bontems’ death transformed Badinter from a “partisan against the death penalty” into an “activist”.</p>
<p>In 1977, his defence of Patrick Henry, who is convicted for the kidnapping and murder of 7-year-old Philippe Bertrand, is seen as a turning point in the history of the abolition of the death penalty. Haunted by Bontems’ death, for 90 minutes Badinter weighed in with all his might on the conscience of the juries. “You are alone, and there will not be any presidential pardon,” <a href="https://www.lemonde.fr/archives/article/2024/02/09/la-plaidoirie-de-robert-badinter-au-proces-de-patrick-henry-en-1977-moi-je-vous-dis-si-vous-le-coupez-en-deux-cela-ne-dissuadera-personne_6215669_1819218.html">he said</a>, appealing to every one of them “You, you, and you”. </p>
<p>On 14 February, Emmanual Macron <a href="https://www.elysee.fr/emmanuel-macron/2024/02/14/hommage-national-a-robert-badinter">described him as</a> “a soul crying out, a force wrenching life from the clutch of death.” Badinter saved Henry’s life, and would go on to save five more until becoming Justice Minister under President François Mittérand in 1981.</p>
<p>The abolition would represent one of his first tasks in government. On 18 September of that year, the French parliament ended capital punishment, with 363 votes against 117. It took Badinter courage to advocate for such a cause: during the 1981 presidential campaign, <a href="https://www.liberation.fr/societe/police-justice/robert-badinter-lepris-de-justice-20240209_7L4W23X6PBCMBFISMYCPEWKTFU/">a survey</a> revealed 63% of French people opposed its abolition.</p>
<h2>Making prison conditions more humane</h2>
<p>It was also Badinter who decriminalised homosexuality in August 1982. He would go on to repeal a set of other repressive legislations, including the “Anti-troublemakers” law (December 23, 1981), which held protest organisers responsible for any damage caused and was widely perceived as targeting trade unions. Also dismantled was the “Security and Freedom” law (June 10, 1983), which extended police powers to demand IDs and restricted the scope of convicts’ defence.</p>
<p>To Badinter, prison was not meant to replace the death penalty. Every individual, regardless of his or her actions, was redeemable, and hope for release should never be taken away. As minister of justice, Badinter introduced several reforms to humanise inmates’ living conditions, such as TVs in cells and the end of screens in visitation booths. To combat delinquency, relieve overcrowded prisons, provide alternatives to imprisonment for minor offences, he proposed non-custodial sentences such as <a href="https://en.wikipedia.org/wiki/Day-fine">day fines</a> or community service.</p>
<p>One of his other great accomplishments was improving citizens’ access to justice. He expanded the right for associations to become civil parties in cases of crimes against humanity, war crimes (June 10, 1983), and racially motivated crimes. He paved the way for greater recognition of victims, long neglected by the justice system, by creating the first victim-support service within his ministry, providing them with a more prominent role during trials. He also worked toward France’s recognising the right for any litigant to appeal to the European Commission and Court of Human Rights.</p>
<h2>The duty of remembrance</h2>
<p>As the son of Holocaust victims, Badnter cared intensely about history. As minister of justice, he once requested the file of notorious criminal <a href="https://www.histoire-et-civilisations.com/thematiques/epoque-contemporaine/landru-lassassin-aux-petites-annonces-90418.php">Henri Désiré Landru</a>, who was sentenced to death in 1921 for the murder of 10 women, only to find that the file had not been archived. In a ministry that showed little concern for its memory and heritage, he established the French Association for the History of Justice. The two were thus linked, and with this objective in mind, in 1985 he authorised the audiovisual recording of certain trials.</p>
<p>In 1983, Bolivia extradited to France the head of the Lyon Gestapo, Klaus Barbie, who in 1943 arrested and tortured French resistant Jean Moulin. The preamble of the law indicates that trials with “eventful, political, or sociological dimensions deserving preservation for history” should be recorded. Preserving filmed records of major trials for history has filled in, through images, what procedural archives do not reveal. These images enrich written accounts and provide new dimensions for research, capturing not only pleadings but also what only images can convey: gazes, gestures, silences, emotions.</p>
<p>Human dignity knows no borders or limits. It is one of the most important fundamental rights, which continues uninterrupted even after the death of individuals. Robert Badinter knew that humanity’s march toward human rights would never be complete. This is what he leaves to future generations because he never ceased to believe in the universality and indivisibility of human rights. This is his accomplished work of justice; it is up to us to ensure its continuation.</p><img src="https://counter.theconversation.com/content/223841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sylvie Humbert ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>The death in February of the man who abolished the death penalty inspired a national homage in France. Yet, Robert Badinter remains little known outside of the country.Sylvie Humbert, Historian of justice and law , Institut catholique de Lille (ICL)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2220232024-01-26T13:28:38Z2024-01-26T13:28:38ZWhy the death penalty is incompatible with democracy<p>In the Athens of 399BC, a public assembly <a href="https://www.mcgill.ca/classics/files/classics/2006-7-03.pdf">voted</a> to put one of the city’s outstanding citizens to death: Socrates, one of the fathers of western philosophy. They convicted Socrates on trumped-up political charges, yet he accepted this sentence because it was democratically adopted by a majority of his fellow citizens.</p>
<p>Today’s democracies were designed precisely to avoid such miscarriages. Although many of them still imposed the death penalty until relatively recently, modern constitutions included special judicial protections for these criminal defendants. The aim was to avoid an Athenian-style death by majority rule, and in the third decade of the 21st century, the argument of the abolition of the death penalty has <a href="https://www.bbc.co.uk/news/world-45835584">widely triumphed</a>.</p>
<p>Yet one of the horrors with which we begin the year 2024 is the <a href="https://www.reuters.com/legal/alabama-prepares-carry-out-first-execution-by-nitrogen-asphyxiation-2024-01-25/">death of Kenneth Eugene Smith</a>. Smith was executed on the evening of January 25, more than three decades after he was convicted for murder, by the US state of Alabama at the William C Holman Correctional Facility, using the untested method of nitrogen asphyxiation.</p>
<p>Smith’s case has spurred renewed interest, because many experts have complained that this method of execution, which even US veterinarians <a href="https://www.cbc.ca/news/world/alabama-nitrogen-hypoxia-execution-1.7091845">are discouraged</a> from administering to pets as euthanasia, would result in a <a href="https://edition.cnn.com/2024/01/25/us/nitrogen-gas-execution/index.html">“painful and humiliating death”</a>. Even worse, this was the <a href="https://www.theguardian.com/us-news/2024/jan/21/kenneth-smith-alabama-execution-nitrogen-gas">second time</a> Smith had entered a death chamber, after an attempt to execute him by lethal injection, lasting several hours, failed in November 2022.</p>
<p>Of course, Smith was no Socrates. He was a hired gun for a sordid Alabama preacher who wanted to get rid of his wife and paid Smith US$1,000 (£787) to do the job. But the reason Socrates’ death sentence was intolerable was not because it was inflicted on a philosopher. It was wrong because democratic Athens inflicted capital punishment on a fellow citizen.</p>
<h2>Majority rules</h2>
<p>Of the countless arguments long rehearsed for and against the death penalty, one of the most common in the US is that the majority rules. Right or wrong, if the majority of citizens in a given state agree with the capital punishment then so must it be. To be fair, about half of US states <a href="https://www.thetimes.co.uk/article/death-penalty-ban-usa-alabama-mg9rdktkz#">have abolished capital punishment</a>, and most of the remaining ones have refrained from executions for a long time. Moreover, majorities favouring capital punishment in the US <a href="https://news.gallup.com/poll/513806/new-low-say-death-penalty-fairly-applied.aspx">have slimmed</a>. </p>
<p>Yet I am talking about principles, not about numbers. It was precisely the fate of people like Socrates which motivated the framers of modern democratic constitutions to remove certain laws and procedures from the democratic process when there was a risk of majorities oppressing lone individuals. Yet what distinguishes modern democracies is the view that rights – not only majorities but also minorities, sometimes even a minority of one – must be respected. </p>
<p>The reasons are not always made as clear as they ought to be. In the case of the death penalty, it is often thought that most democracies abolished it on purely humanitarian grounds: “<a href="https://www.pewresearch.org/religion/2002/01/25/session-three-religion-politics-and-the-death-penalty/">bleeding-heart liberalism</a>”, as advocates of capital punishment often like to call it. </p>
<p>Advocates of the death penalty, including the Enlightenment philosopher <a href="https://open.library.okstate.edu/introphilosophy/chapter/how-can-punishment-be-justified-on-kants-retributivism/#:%7E:text=Kant%20argues%20that%20even%20the,even%20the%20worst%20imaginable%20wrongdoers.">Immanuel Kant</a>, insist that we forfeit our right to life when we wrongly take someone else’s. Though Kant added that the punishment must be carried out free from “any mistreatment that could make the humanity in the person suffering it into something abominable”. Opponents respond that human institutions are fallible even where evidence of guilt seems incontrovertible. The state must never have the right to play God.</p>
<p>Notice that these types of general ethical debates could apply to any number of societies where they still apply the death penalty, including Russia, Iran, or Saudi Arabia. But do democracies require more than these types of general ethical arguments?</p>
<h2>Democratic rights</h2>
<p>Citizenship is not merely a product of democracy, taking the form of birth certificates and passports. Citizenship is a precondition for democracy. </p>
<p>A democracy must involve a self-governing citizenry. So its laws have no validity unless all citizens have had the opportunity to participate in the formation of public opinion. This should hold regardless of whether people avail themselves of that opportunity via the ballot box or referendums.</p>
<p>Therefore in a proper democracy, no citizens can have the right wholly to deprive any other citizen of those opportunities, not even by majority decision. And when we put a fellow citizen to death – however hideous this person may otherwise be – we commit this violation. There are many things a democracy can legitimately do by majority vote, but not disenfranchise another citizen – which the death penalty obviously does.</p>
<p>My concern is not merely that capital punishment violates a given person but that it violates democracy itself. So this is the crucial point: I’m not arguing for the value of benevolence, or the values of civilisation, or the values of compassion. I fully concede that some people may merit little benevolence, may have little place in civilisation and deserve little compassion. In a word, my appeal here is not about charity or woolly sentiment.</p>
<p>Even the weakest and most undeserving voice, murmuring from a prison cell in Alabama – and even if that voice has no interesting contribution to make – is still the voice of a citizen in a democracy. This is why deprivations of freedom remain a legitimate punishment, but not deprivations of life. </p>
<p>Once we accept that we live in a democracy, what we must never accept are norms or practices that would undermine the very conditions by which it exists as a democracy.</p><img src="https://counter.theconversation.com/content/222023/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Heinze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A democracy must respect the right to life of all its citizens.Eric Heinze, Professor of Law, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2130852023-09-24T12:02:25Z2023-09-24T12:02:25ZYoung people with sexual or gender diversity are at higher risk of stopping their HIV treatment because of stigma and harsh laws<p>Ending the AIDS pandemic – particularly in eastern and southern Africa – cannot be achieved unless more resources are channelled to meet the needs of key vulnerable populations.</p>
<p>This is one of the themes that emerged during an <a href="https://www.samrc.ac.za/event/11th-sa-aids-conference-2023-20-23-june-2023-durban">AIDS conference in June</a> in South Africa. Prejudice against particular groups – such as men who have sex with men (MSM) and transgender communities – interferes with treatment regimes and people’s adherence to treatment. These groups are also at higher risk from HIV due to increased levels of stigma, discrimination, violence and criminalisation. </p>
<p>Our research is part of a three-year <a href="https://www.heard.org.za/wp-content/uploads/2023/06/SADC-Symposium-Report_final.pdf">project</a> on HIV-related stigma linked to young people with sexual or gender diversity. The research, conducted in Malawi, Zimbabwe and Zambia, involved 156 participants.</p>
<p>The research identified three main findings:</p>
<ul>
<li><p>Criminal laws and strongly negative socio-cultural and religious beliefs produced deeply rooted intolerance around sexual or gender diversity. </p></li>
<li><p>Participants spoke about repeated experiences of verbal harassment, being gossiped about and physical violence.</p></li>
<li><p>Other population groups with HIV said their lives had become more tolerable as social awareness and acceptance of HIV had increased over time. However HIV-related stigma regained its potency when linked to sexual or gender diversity, with adverse effects for adherence to antiretroviral treatment. </p></li>
</ul>
<p>Our research provided novel evidence on the deeply rooted fears and anxieties around multiple forms of stigma among young MSM and transgender women in southern Africa. </p>
<h2>Criminalising sex</h2>
<p>Across 13 countries in east and southern Africa, laws and policies criminalise same-sex sexual relations and facilitate the process of stigmatising gay and transgender individuals.</p>
<p>Recently, Uganda passed the Anti-Homosexuality Act of 2023, which punishes same-sex conduct with life imprisonment. Several acts considered as “aggravated homosexuality” are liable to the death penalty. </p>
<p>Our study also noted that young people had developed various strategies to manage their lives. For example choosing when to disclose or identify as a person living with HIV or as a member of the sexual minority community in others, but rarely being both at once. </p>
<p>The constant worry and stress of living with HIV, and the fear of being stigmatised, could have a significant impact on health and wellbeing. </p>
<p>The burden of concealing their identities resulted in a range of mental, emotional and physical vulnerabilities. Signs of depression as well as frequent alcohol use were evident.</p>
<p>Overall 42% of participants had contemplated suicide at least once. According to one participant, an 18-year-old:</p>
<blockquote>
<p>I feel like I am nothing, I am useless. In the community, looking at HIV, I am a gay, people they isolate me. So, I don’t feel comfortable, even failing to go to work and finding some money, whatever. And, sometimes, I decide if I can die today, I can rest. So, a lot of things come into my mind when I am disturbed … Sometimes my parents try to comfort me but, internally, I am really disturbed.</p>
</blockquote>
<p>As well as signs of depression, frequent alcohol use was evident. </p>
<p>There were few services available to assist in coping with these multiple stigmas, with those that came closest being provided by “sexual minority friendly” organisations or led by sexual minority peers themselves.</p>
<h2>Fear of being found out</h2>
<p>Being seen taking antiretroviral therapy or having it found in one’s possession signalled that one was living with HIV. Some individuals preferred to miss doses, occasionally or over more prolonged periods, rather than endure actual or feared stigma linked to being “found out” as someone living with HIV.</p>
<p>A 24-year-old told us:</p>
<blockquote>
<p>What made me to delay taking medication is when my partner wants me to visit his home because he stays in Zomba, and I haven’t disclosed my HIV status to my partner yet, and I can’t take the ARVs with me there. As a result, I go there without the ARVs.</p>
</blockquote>
<p>A 19-year-old said:</p>
<blockquote>
<p>It affects me sometimes because, if people reject you, you feel like stopping to take the medication. ‘Maybe am just wasting my time, let me just die.’ It affects me a lot.</p>
</blockquote>
<p>Other findings we made were that:</p>
<ul>
<li><p>Many participants had had their status disclosed by LGBTIQ+ peers without their consent. HIV-related stigma is still highly prevalent within the LGBTIQ+ community and has many negative impacts. </p></li>
<li><p>Participants continued to experience or fear stigma related to their sexual orientation at health facilities, which also affected their access to healthcare and retention in care.</p></li>
<li><p>Tailored HIV services for key populations, including young MSM and transgender women, were not reaching everyone; rural areas were the least included.</p></li>
<li><p>Through their experiences, gay young men and transgender women were familiar with the harmful consequences of stigma and yet they were often ostracised from planning and decision-making roles. </p></li>
</ul>
<h2>The way forward</h2>
<p>Key populations in our study faced inequalities in three main areas: access to HIV services; justice and human rights; and investments in programmes geared towards them.</p>
<p>There were few services available to assist in coping with these multiple stigmas. Those that came closest were provided by “sexual minority friendly” organisations or led by sexual minority peers themselves.</p>
<p>There need to be more community-based organisations that are run by members of these key populations. In Cameroon, for example, the <a href="https://www.usaid.gov/cameroon/health/hiv-aids">CHAMP</a> programme supports grassroots advocacy to mitigate stigma and violence and trains peers to offer counselling, </p>
<p>We can only achieve progress if we treat everyone as equal partners in fighting this pandemic.</p><img src="https://counter.theconversation.com/content/213085/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kaymarlin Govender receives funding from the National Research Foundation and Sida</span></em></p><p class="fine-print"><em><span>Patrick Nyamaruze receives funding from HIV/AIDS Special Fund Round III initiative of the Southern African Development Community. </span></em></p>Stigmatised people living with HIV often suffer from fear, depression and abuse. It’s sometimes easier to stop a treatment regime than risk being ostracised or assaulted by the community.Kaymarlin Govender, Research Director at The Health Economics and HIV and AIDS Research Division (HEARD), University of KwaZulu-NatalPatrick Nyamaruze, Post-doctoral research fellow, University of KwaZulu-NatalLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2097402023-07-17T14:08:21Z2023-07-17T14:08:21ZIt’s time for Ghana to enshrine its respect for the right to life – by abolishing the death penalty<figure><img src="https://images.theconversation.com/files/537450/original/file-20230714-17-ymm8xc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The death penalty has not been enforced in Ghana for over three decades</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Thirty years have now gone by since Ghana used its gallows, a fact that indicates the country’s respect for human life. It also means that Ghana is one of <a href="https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries">about 42 nations</a> – many of which are in Africa – that the United Nations calls <a href="https://www.law.ox.ac.uk/sites/default/files/migrated/field/field_document/56_hood_roger_libro_homenaje.pdf">abolitionist de facto</a> because they have not executed anyone for at least a decade. </p>
<p>However, there is a paradox. Not only does Ghana retain the death penalty as a sentence for three crimes (murder, treason and genocide), death is the mandatory punishment for them. The law gives the judges no choice in sentencing for these crimes. Last year, the courts sentenced seven people to death. At the end of 2022, there were <a href="https://ghanaprisons.gov.gh/about-us/statistics.cits">176 inmates</a> on death row, and the list grows every year. </p>
<p>It could be argued that by continuing to hand down mandatory death sentences, Ghana’s courts are unusually harsh, for, <a href="https://www.amnesty.org/en/documents/act50/6548/2023/en/#page=4">according</a> to Amnesty International, only ten countries did so last year. </p>
<p>But Ghanaian policymakers and civil society are making a renewed effort to resolve the contradictions on the death penalty. These efforts have led to <a href="http://ir.parliament.gh/bitstream/handle/123456789/2385/Criminal%20Offence%20%28Amendment%29Bill%2c2022.pdf?sequence=1&isAllowed=y">two new bills</a> due to be debated by parliament. They would enable Ghana to abolish capital punishment in law, as well as in practice. </p>
<p>As academic and legal experts on capital punishment for more than 30 years, we have been assisting Ghanaian policymakers and civil society groups. The latest initiative to end the use of the death penalty is firmly rooted in human rights principles and evidence based research. </p>
<p>A broad engagement in Ghana over a sustained period with a diverse range of stakeholders has enabled members of parliament to consider key aspects of capital punishment objectively. Previous attempts to abolish the death penalty in Ghana have involved complex constitutional amendments. The current moves require only amendments to criminal statutes: a majority of MPs need to vote for abolition. </p>
<h2>A chance for change</h2>
<p>The two new bills before parliament create a golden opportunity to bring the contradictions to an end. One covers the military, the other the civilian courts. </p>
<p>This opportunity follows a recent wave of abolition across sub-Saharan Africa. In the last ten years, Benin, Burkina Faso, Central African Republic, Chad, Equatorial Guinea, Guinea, Madagascar, Republic of Congo, Sierra Leone and Zambia have all abolished the death penalty. Despite their vastly different histories and legal contexts, through political will and leadership these countries all reached a recognition of the cruelty, inhumanity and injustice inherent in capital punishment. In doing so, they joined over 100 other countries worldwide which have now fully abolished. </p>
<p>Ghana’s <a href="https://www.parliament.gh/committees?com=15">Committee on Constitutional, Legal and Parliamentary Affairs</a>, assisted by senior justice officials, has been scrutinising the new bills carefully. We also had the privilege of being able to offer the committee advice. Its reports are now in, recommending that the House should pass the bills and replace the sentence of death with life imprisonment.</p>
<p>The committee’s reports note a further contradiction in Ghana’s current stance: it has ratified international human rights treaties and conventions, including the <a href="https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf">African Charter on Human Rights</a> and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a>. These, the committee says, “oblige the country to guarantee its citizens the right to life, and to live free from torture or cruelty.” </p>
<p>The reports deploy further, persuasive arguments. </p>
<p>One is that no criminal process can ever achieve certainty or perfection, so that retaining the death penalty will always carry the risk that an innocent person could be executed. </p>
<p>Another examines the claim that capital punishment is a deterrent to offending. The committee says there is no empirical evidence for this. In the United States, the murder rate is <a href="https://deathpenaltyinfo.org/stories/states-with-no-death-penalty-share-lower-homicide-rates">consistently higher</a> in states that use capital punishment than in those that don’t. The seven <a href="https://www.visionofhumanity.org/maps/#/">least violent</a> countries in the world have all abolished it. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-has-kenya-not-abolished-the-death-penalty-habit-and-inertia-189955">Why has Kenya not abolished the death penalty? Habit and inertia</a>
</strong>
</em>
</p>
<hr>
<p>It is now up to parliament. Abolishing the death penalty in law would place Ghana squarely within a worldwide trend, which is especially noticeable in Africa at the moment. <a href="https://www.amnesty.org/en/wp-content/uploads/2021/05/ACT5011622019ENGLISH.pdf#page=9">Movements</a> to do the same are gathering pace in other jurisdictions on the continent. </p>
<h2>A willing public</h2>
<p>The latest effort at abolishing the death penalty is not the first. In 2012, Ghana came close to abolishing the death penalty altogether, following a <a href="https://rodra.co.za/images/countries/ghana/research/WHITE%20PAPER%20%20ON%20THE%20REPORT%20OF%20THE%20CONSTITUTION%20REVIEW%20COMMISSION%20PRESENTED%20TO%20THE%20PRESIDENT%20.pdf#page=42">recommendation</a> by the Constitution Review Commission that was accepted by the then-government. Unfortunately, the path it tried to adopt, amending the constitution, is complex and challenging and in the end it failed.</p>
<p>Although its courts are still sentencing people to death, Ghana supported a UN General Assembly <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/764/50/PDF/N2276450.pdf?OpenElement">resolution</a> last December calling for an indefinite, worldwide moratorium on the death penalty “with a view to abolition”. Similar resolutions have been carried repeatedly with steadily increasing majorities since 2007. In 2022, almost two-thirds of the world’s nations voted in favour. For the first time, Ghana was among them, having abstained previously.</p>
<p>Meanwhile, although politicians sometimes <a href="https://www.graphic.com.gh/news/politics/death-penalty-appeals-more-to-victims-families-than-life-imprisonment-cletus-avoka.html#:%7E:text=In%20a%20radio%20interview%20monitored,family%20than%20the%20life%20imprisonment.%22">express</a> the fear that abolishing the death penalty would be unpopular, there is good evidence that in Ghana the opposite is true. </p>
<p>According to a <a href="https://arro.anglia.ac.uk/id/eprint/702009/1/Public-Opinion-on-the-Death-Penalty-in-Ghana-Final.pdf">study</a> published in 2015, there are clear majorities against the death penalty for all three of the crimes to which it is applicable. Just 8.6% of those surveyed said they were “strongly in favour” of it. In all, 71% were against. Based on interviews with more than 2,000 people who reflected Ghana’s socio-economic and ethnic composition, this survey was described by the late Professor Roger Hood of the University of Oxford in his <a href="https://arro.anglia.ac.uk/id/eprint/702009/1/Public-Opinion-on-the-Death-Penalty-in-Ghana-Final.pdf">foreword</a> to the report as</p>
<blockquote>
<p>the first methodologically sound study of public opinion on the death penalty in an African state.</p>
</blockquote>
<p>Some might argue that since Ghana is an abolitionist de facto nation, there is no pressing need for legal abolition. In practice, what difference would it make? To this argument, we would say: look at Myanmar, which having been abolitionist de facto since the 1980s, resumed executions last year. No state can ever be entirely immune from the political upheaval that caused this shift. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kenyan-prisoners-on-death-row-werent-deterred-by-the-threat-of-the-death-penalty-new-research-findings-197701">Kenyan prisoners on death row weren’t deterred by the threat of the death penalty: new research findings</a>
</strong>
</em>
</p>
<hr>
<p>Back in 1992, Ghana’s <a href="https://constitutionnet.org/vl/item/political-developmental-constitution-report-constitutional-review-commission-ghana-2011">Constitutional Review Commission</a> observed that </p>
<blockquote>
<p>the sanctity of life is a value so much engrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties. </p>
</blockquote>
<p>The best way to protect that value now is for parliament to accept the committee’s reports, and vote for abolition.</p><img src="https://counter.theconversation.com/content/209740/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana is a signatory to several international conventions that oblige it to guarantee the right to life.Saul Lehrfreund, Visiting Professor, School of Law, University of ReadingCarolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2047082023-05-02T12:12:11Z2023-05-02T12:12:11ZRejected Oklahoma plea for death penalty commutation highlights clemency’s changing role in US death penalty system<figure><img src="https://images.theconversation.com/files/523625/original/file-20230501-22-61xeda.jpg?ixlib=rb-1.1.0&rect=0%2C35%2C3000%2C1953&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters demonstrate against the conviction and death sentence of Richard Glossip.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/anti-death-penalty-activists-including-members-of-moveon-news-photo/490575204">Larry French/Getty Images for MoveOn.org</a></span></figcaption></figure><p>When the Oklahoma Pardon and Parole Board <a href="https://theintercept.com/2023/04/27/richard-glossip-execution-parole-board/">decided not to recommend clemency</a> for death row inmate Richard Glossip, the case highlighted the role clemency plays in the death penalty system.</p>
<p>Glossip had asked the board to commute the sentence he had been given for his role in an alleged murder-for-hire plot. He was convicted of paying his co-defendant, Justin Sneed, to kill Barry Van Treese in 1997. Van Treese owned the motel where Glossip was the manager. </p>
<p>The board, which met April 26, 2023, was split 2-2 over recommending that Glossip’s sentence be changed to life in prison. The fifth member of the board recused himself because his <a href="https://kfor.com/news/local/why-was-glossips-clemency-denied-if-the-pardon-and-parole-board-voted-2-2/">spouse was involved</a> in Glossip’s prosecution. A majority vote of three is required for a favorable clemency recommendation.</p>
<p>Because Oklahoma law <a href="https://www.ok.gov/ppb/Pardons_and_Commutations/index.html">does not permit clemency</a> without a positive recommendation from the board, its decision sets the stage for Glossip’s <a href="https://tulsaworld.com/news/local/oklahoma-court-wont-overturn-richard-glossips-conviction-execution-date-set/article_526d14a0-df80-11ed-b3a2-2f2253d04e6c.html">execution on May 18</a>.</p>
<p>From the start, Glossip, who had never before been arrested for any crime, <a href="https://www.rollingstone.com/culture/culture-features/richard-glossip-death-row-oklahoma-1213122/">maintained his innocence</a>. His case has attracted wide attention, <a href="https://www.kgou.org/criminal-justice/2023-03-01/deeply-tainted-oklahoma-conservatives-call-for-moratorium-abolition-of-the-death-penalty">including from some of Oklahoma’s most conservative Republican legislators</a>, who contend that if the state puts him to death it will be <a href="https://saverichardglossip.com">executing an innocent man</a>.</p>
<p>Oklahoma’s case against Glossip <a href="https://saverichardglossip.com/facts/">rested on the testimony</a> of Sneed, who was induced to be a witness with a promise of a reduced sentence. In addition, the <a href="https://okcfox.com/archive/fox-25-investigation-state-destroyed-evidence-in-glossip-case-before-any-appeal-was-decided">prosecution destroyed evidence</a> that would have supported Glossip’s claim of innocence, and new witnesses have come forward who further undermine confidence in the verdict. </p>
<p>An independent investigation by a law firm engaged by state legislators concluded that “<a href="https://www.reedsmith.com/en/news/2022/06/reed-smith-investigation-into-glossip-death-row-case-raises-grave-concerns">no reasonable juror</a> hearing the complete record would have convicted Richard Glossip of first-degree murder” and that his trial <a href="https://www.propublica.org/article/richard-glossip-oklahoma-execution">could not</a> “provide a basis for the government to take … [his] life.”</p>
<p>Even the state’s Republican attorney general, Gentner Drummond, <a href="https://www.nytimes.com/2023/04/26/us/oklahoma-clemency-richard-glossip.html">has said</a> Glossip is probably innocent and that “it would be a grave injustice to allow the execution of a man whose trial was plagued by many errors.” </p>
<p>Drummond asked the Oklahoma Court of Criminal Appeals to <a href="https://apnews.com/article/oklahoma-execution-richard-glossip-82b2c417dcd9dd63bfb46aafff458729">vacate Glossip’s conviction</a> and grant him a new trial. The court refused on April 20, 2023, which led to the parole board hearing the following week.</p>
<p>As someone who <a href="https://press.princeton.edu/books/paperback/9780691133997/mercy-on-trial">has studied the history of clemency in capital cases</a>, I see three elements that make this case noteworthy: Attorney General Drummond’s actions, the attempt to use clemency to prevent a miscarriage of justice, and the fact that grants of clemency in death cases are today quite rare.</p>
<h2>The role of the attorney general</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit and tie." src="https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523626/original/file-20230501-26-6t8wjw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Oklahoma Attorney General Gentner Drummond.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/OklahomaExecutionGlossip/f40b6cc876da4fa0aef9a0d80f1b9feb/photo">AP Photo/Sue Ogrocki</a></span>
</figcaption>
</figure>
<p>Clemency hearings like Glossip’s <a href="https://www.ok.gov/ppb/documents/Chapter%2010%20Clemency%20Administrative%20Rules.pdf">are proceedings</a> in which opposing sides – representing the condemned and the government prosecutors – <a href="https://doi.org/10.1111/j.1540-5893.2008.00338.x">present evidence and arguments</a>. In Oklahoma, family members of the victim are also given time to make their views known.</p>
<p>In 1998, the U.S. Supreme Court gave its approval to that kind of procedure when it held that <a href="https://supreme.justia.com/cases/federal/us/523/272/">clemency hearings must afford due process</a> to the participants. The court said the condemned person must be given an opportunity to convince a clemency board that the government should not put them to death – just as the government gets to defend its decision to do so.</p>
<p>And, as my research indicates, <a href="https://press.princeton.edu/books/paperback/9780691133997/mercy-on-trial">that is what the government has almost always done</a> when its representatives participate in such a process.</p>
<p>But not in the Glossip case. Drummond, his state’s top prosecutor, took the unprecedented step of siding with the petitioner – even against other state officials.</p>
<p>“I want to acknowledge how unusual it is for the state to support a clemency application of a death row inmate,” <a href="https://www.cnn.com/2023/04/26/us/richard-glossip-oklahoma-execution-parole-board/index.html">Drummond told</a> the Pardon and Parole Board. “I’m not aware of any time in our history that an attorney general has appeared before this board and argued for clemency. I’m also not aware of any time in the history of Oklahoma when justice would require it.”</p>
<h2>Clemency as grace – or justice</h2>
<p>I believe Drummond’s reference to justice would have surprised many of this country’s founders. </p>
<p>For them, doing justice was a <a href="https://constitutioncenter.org/the-constitution/historic-document-library/detail/alexander-hamilton-federalist-no-78-1788">matter for the courts</a>. Clemency was about something else.</p>
<p>In United States v. Wilson, a decision from 1833 and the first case about clemency to be decided by the United States Supreme Court, Chief Justice John Marshall <a href="https://supreme.justia.com/cases/federal/us/32/150/">made that distinction clear</a>. Instead of equating clemency and justice, he called clemency an “act of grace, proceeding from the power entrusted with the execution of the laws.”</p>
<p>Clemency, Marshall continued, “<a href="https://supreme.justia.com/cases/federal/us/32/150/">exempts the individual</a> on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is … delivered to the individual for whose benefit it is intended, and not communicated officially to the court.”</p>
<p>A little more than 20 years after Marshall wrote that, another Supreme Court justice, James Wayne, reinforced this separation of clemency and justice. He <a href="https://supreme.justia.com/cases/federal/us/59/307/">noted</a> that clemency was about “forgiveness, release and remission.” Wayne said it was a “work of mercy … [that] forgiveth any crime, offense, punishment, execution, right, title, debt or duty, temporal or ecclesiastical.”</p>
<p>But over the course of American history, both public and judicial understandings of the purpose of clemency have changed, with grace, forgiveness and mercy <a href="https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3175&context=cklawreview">being replaced</a> by justice.</p>
<p>Clemency, especially in capital cases, has come to be associated almost exclusively with correcting errors made in trials and other legal proceedings. Clemency hearings are now generally just another arena to which inmates like Richard Glossip can appeal for justice.</p>
<p>This view reached its height in the 1989 Supreme Court decision Herrera v. Collins, in which the court said that “A proper remedy for the claim of actual innocence … <a href="https://supreme.justia.com/cases/federal/us/506/390/">would be executive clemency</a>” – a commutation or a pardon granted by a governor or the president.</p>
<p>Clemency, the court continued – using language that neither Marshall nor Wayne would have recognized – “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” </p>
<p>One example of this use of clemency occurred in 1998, when Gov. George W. Bush <a href="https://www.cbsnews.com/news/bush-commutes-death-sentence/">commuted the death sentence of Henry Lee Lewis</a> after what Bush said were “serious concerns … about his guilt in this case.”</p>
<h2>Clemency is rare in capital cases</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a T-shirt" src="https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523627/original/file-20230501-14-xizo1o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Richard Glossip.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/OklahomaExecutionGlossip/8880cc0cb1f149c7bdc578072be450de/photo">Oklahoma Department of Corrections via AP</a></span>
</figcaption>
</figure>
<p>Glossip, joined by Attorney General Drummond, sought clemency in the hope of preventing a miscarriage of justice like the one Bush cited as a reason to save Lewis’ life. Given the facts of Glossip’s case, what the Pardon and Parole Board did <a href="https://theintercept.com/2023/04/27/richard-glossip-execution-parole-board/">shocked many observers</a>. But, from the perspective of clemency’s recent record in capital cases, the result should not have been surprising.</p>
<p>As my research <a href="https://press.princeton.edu/books/paperback/9780691133997/mercy-on-trial">has shown</a>, a century ago clemency was granted in about 25% of capital cases. But in more recent years, <a href="https://deathpenaltyinfo.org/facts-and-research/clemency">according to the nonprofit Death Penalty Information Center</a>, clemencies in capital cases have been “rare.” The center notes, “Aside from the occasional blanket grants of clemency by governors concerned about the overall fairness of the death penalty, less than two have been granted on average per year since 1976. In the same period, more than 1,500 cases have proceeded to execution.” </p>
<p>While the center does not indicate how often clemency was sought in those cases, requesting clemency <a href="https://doi.org/10.1111/j.1540-5893.2008.00338.x">is often a standard part of the efforts death penalty defense lawyers make</a> to try to save their clients. </p>
<p>It is hard to get clemency in capital cases because, as the center explains, “Governors are subject to political influence, and even granting a single clemency can result in harsh attacks.” As a result, “clemencies in death penalty cases have been unpredictable and immune from review.”</p>
<p>And what is true nationwide is also true in Oklahoma where during the past half-century there <a href="https://deathpenaltyinfo.org/facts-and-research/clemency">have been only five grants of clemency in capital cases</a>.</p>
<p>Following the denial of clemency, Glossip’s lawyers <a href="https://www.nytimes.com/2023/04/26/us/oklahoma-clemency-richard-glossip.html">have promised</a> to keeping fighting and are asking both state and federal courts to stay his execution. Meanwhile Gov. Kevin Stitt <a href="https://tulsaworld.com/video/news/gov-kevin-stitt-indicates-he-wont-intervene-ahead-of-richard-glossips-execution/video_233a949b-f13f-55b0-8b44-84f101dec7a0.html">has said</a> he will do nothing to delay Glossip’s date with death.</p><img src="https://counter.theconversation.com/content/204708/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Despite support for clemency from Oklahoma’s top prosecutor, a death row inmate appears set to die on May 18.Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2015092023-03-10T16:08:28Z2023-03-10T16:08:28ZThe UK now ranks as one of the most socially liberal countries in Europe – new research<figure><img src="https://images.theconversation.com/files/514505/original/file-20230309-24-nvd0pa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/rochester-uk-may-16-2015-high-329211002">IR Stone/Shutterstock</a></span></figcaption></figure><p>It’s easy to lose sight of just how accepting the UK now is as a nation. What were once pressing moral concerns have become simple facts of life for much of the public. The UK, in fact, now ranks as one of the most accepting countries internationally, as shown by new data from the <a href="https://www.uk-values.org/news-comment/uk-now-among-most-socially-liberal-of-countries-1018742/pub01-116">World Values Survey</a>.</p>
<p>This is one of the largest and most widely used social surveys in the world. It has run since 1981, capturing the views of almost 400,000 respondents in over 110 countries.</p>
<p>Major surveys on social trends help us to look back and remind us how far we’ve come in our attitudes across so many spheres of life – from homosexuality to casual sex and divorce. </p>
<p><strong>The British public have become much more socially liberal over the last 41 years</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A graphic." src="https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514717/original/file-20230310-22-jz2vc5.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Base: minimum of 1,000 people aged 18+ surveyed in the UK per year.</span>
<span class="attribution"><span class="source">Policy Institute, King's College London, World Values Survey.</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Attitudes towards sex</h2>
<p>It’s incredible to think that in 1981 just 12% of the British public thought that homosexuality was “justifiable”. It is perhaps even more shocking that it had only risen to 33% in 2009. But by 2022 that level of acceptance had doubled again, to 66%. </p>
<p>Of around 20 nations included in <a href="https://www.kcl.ac.uk/policy-institute/assets/social-attitudes-in-the-uk-and-beyond-pub01-116.pdf">a report</a> by the Policy Institute at King’s College London that analyses the data, only three –- Sweden, Norway and Germany –- are more accepting of homosexuality than the UK. </p>
<p>In terms of sex more broadly, in 1999, just one in 10 Britons thought having <a href="https://theconversation.com/five-ways-women-at-a-us-university-approached-hook-up-culture-new-research-111288">casual sex</a> was justifiable – but more than four times as many held this view in 2022, with a considerable rise from as recently as 2018. This shift means the UK is now the fourth most accepting of casual sex, ahead of countries including France and Norway, and not far off Australia, which is the most accepting. </p>
<p>And between 1981 and 2022, the proportion of Britons who said divorce is justifiable rose from just 18% to 64%. Only Sweden and Norway are more accepting of people dissolving their marriages, while the UK is far above some other Western nations such as the US (just 38%) and Italy (40%). </p>
<p><strong>The UK is also among the most accepting of divorce, abortion, euthanasia and casual sex</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A graphic." src="https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=287&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=287&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=287&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=360&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=360&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514718/original/file-20230310-104-48vocx.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=360&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">UK base: 3,056 people in the UK aged 18+, surveyed 1 Mar–9 Sept 2022. Other countries all surveyed in wave 7 of WVS at various points between 2017 and 2022.</span>
<span class="attribution"><span class="source">Policy Institute, King's College London, World Values Survey.</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>This social transformation isn’t just a result of younger generations replacing older cohorts. <a href="https://theconversation.com/getting-older-doesnt-make-you-more-conservative-21729">All generations</a> have changed their views significantly, although the oldest pre-1945 cohort now often stand out as quite different –- and on some issues, like casual sex, there is a clearer generational hierarchy. Two-thirds of those born between the mid-1990s and early 2010s think casual sex is acceptable, but only one third of baby boomers (born between the mid-1940s and mid-1960s) agree. </p>
<h2>Attitudes towards death</h2>
<p>The one key issue for which we rank as comparatively less liberal than other countries is the <a href="https://theconversation.com/death-penalty-is-capital-punishment-morally-justified-42970">death penalty</a>. One in five in the UK think capital punishment is justifiable and a further 35% think it is potentially justifiable. Taken together, this means a majority think it may be acceptable in certain circumstances, which is much higher than Italy, Germany, Sweden and Norway, for example, but lower than Australia, France and the US. </p>
<p><strong>The UK is much more mid-table in our attitudes to the death penalty</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A graphic." src="https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514719/original/file-20230310-17-t7m84x.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">UK base: 3,056 people in the UK aged 18+, surveyed 1 Mar–9 Sept 2022. Other countries all surveyed in wave 7 of WVS at various points between 2017 and 2022.</span>
<span class="attribution"><span class="source">Policy Institute, King's College London, World Values Survey.</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Support for the death penalty also relates much more to political identities than other issues, with Conservative voters much more likely to be in favour of capital punishment than Labour voters. This helps explain why it continues to be brought up in political discussions. </p>
<p>Other trends in attitudes also highlight likely future directions on some key topics that remain sensitive. For example, support for euthanasia has increased significantly, from 20% in 1981 to 47% now, no doubt partly due to greater awareness of the issue. </p>
<p><a href="https://theconversation.com/assisted-dying-laws-are-progressing-in-some-places-the-uk-isnt-one-of-them-73181">Assisted dying</a> is, of course, still illegal in the UK. It is, however, now seen as much more acceptable by the UK public than other illegal behaviours asked about in the study, such as dodging taxes. </p>
<p>One other trend raises some thorny questions. Suicide is still seen as justifiable by a relatively small minority of the population. But that minority has grown substantially, from 6% to 19% between 1981 and 2022. The UK now ranks among the most likely to say suicide is justifiable, along with France, Germany and Spain. </p>
<p>This increase is to a large degree driven by much higher proportions of gen Z saying suicide is justifiable, at 30%. The prevalence of suicide among young people can be overblown – for example, gen Z is often <a href="https://unherd.com/2019/02/do-we-really-have-a-suicidal-generation/">wrongly characterised</a> as a “suicidal generation”. Suicide is one of the top killers among the young, but the this is mostly because young people don’t die very often.</p>
<p><strong>Gen Z also stand out as being particularly likely to think suicide is justifiable</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two graphics." src="https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=214&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=214&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=214&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=269&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=269&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514720/original/file-20230310-26-qnwvv4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=269&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bases: minimum of 130 people surveyed per generation per year (left); 3,056 people in the UK aged 18+, surveyed 1 Mar–9 Sept 2022 (right).</span>
<span class="attribution"><span class="source">Policy Institute, King's College London, World Values Survey.</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>There has, however, been a slight increase in <a href="https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/17/report.html#heading-7">suicide rates</a> among <a href="https://theconversation.com/suicides-at-record-level-among-uk-students-95341">young people</a>, particularly young girls, in recent years, as well as increases in suicide attempts and self-harming behaviours. The greater acceptability of suicide among young people today could simply be a sign of a cohort of young that better understands and engages on mental health issues. </p>
<p>Thankfully, we’re in a much better place in terms of people feeling more able to talk about suicidal thoughts. Any sense we may be “<a href="https://pubmed.ncbi.nlm.nih.gov/36330742/">normalising</a>” suicide is clearly something to understand and consider carefully. But it’s also important not to overplay this as yet and to remember that the overall long-term trend is towards <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/suicidesintheunitedkingdom/2021registrations#:%7E:text=From%201981%2C%20there%20has%20been,6.7%20deaths%20per%20100%2C000%20females">signficantly lower rates of suicide</a>.</p>
<p>Surveys of this kind, on social attitudinal shifts, aren’t just about reflecting on the past. They are vital in looking forward. For every social issue that is largely settled, there will always be new, emergent challenges, and these trends provide signals of what could come next.</p><img src="https://counter.theconversation.com/content/201509/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bobby Duffy receives funding from the ESRC, Cabinet Office, Barrow Cadbury Trust, Unbound Philanthropy, Joseph Rowntree Charitable Trust.</span></em></p>This major survey on social trends shows how far the UK has come in terms of attitudes towards homosexuality, casual sex and divorce. Views on the death penalty remain conservative, however.Bobby Duffy, Professor of Public Policy and Director of the Policy Institute, King's College LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977012023-01-23T11:05:35Z2023-01-23T11:05:35ZKenyan prisoners on death row weren’t deterred by the threat of the death penalty: new research findings<figure><img src="https://images.theconversation.com/files/504876/original/file-20230117-18-n09lor.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya last executed a prisoner in 1987 but continues to hand down the death sentence.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/african-american-in-prison-royalty-free-image/88461052?phrase=prison%20black%20man&adppopup=true">Getty Images</a></span></figcaption></figure><p>Kenya’s <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">last execution</a> of a prisoner was in 1987. But the country still hosts a death row population of nearly 600. Almost all were sentenced to death for murder or robbery with violence. New sentences are handed down every year.</p>
<p>Kenya is an “abolitionist de facto” state: the death penalty is still present in law and people are sentenced to death, but they aren’t executed. Currently, 17 of the African Union’s 54 member states are abolitionist de facto – they haven’t carried out an execution of a prisoner for at least 10 years. Just 11 are fully retentionist, meaning that they sentence people to death and have carried out executions.</p>
<p>Advocates for the death penalty will often argue that it <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">deters potential offenders</a> from committing serious crime – even when a country has not executed anyone for years. </p>
<p>But our <a href="https://deathpenaltyproject.org/wp-content/uploads/2022/12/Living-with-a-Death-Sentence-in-Kenya-Prisoners-Experiences-of-Crime-Punishment-and-Death-Row.pdf">recent research</a>, Living with a Death Sentence in Kenya: Prisoners’ Experiences of Crime, Punishment and Death Row, suggests this isn’t true. </p>
<p>We spoke to 671 inmates who had been sentenced to death in Kenya. Just over a quarter had had their sentences commuted to life. Most said they had no idea that their crimes might attract a death sentence. </p>
<p>Our findings support research done in other countries: that the threat of being sentenced to death appears to have little bearing on how people behave. They also support the argument that abolishing the death penalty wouldn’t lead to a spike in violent crime in Kenya.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-has-kenya-not-abolished-the-death-penalty-habit-and-inertia-189955">Why has Kenya not abolished the death penalty? Habit and inertia</a>
</strong>
</em>
</p>
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<p><a href="https://deathpenaltyproject.org/knowledge/deterrence-policy-position-paper/">According to deterrence theorists</a>, potential offenders will be deterred by the death penalty because they make rational choices about whether to offend. They use knowledge about the relevant laws and punishments, and then weigh up the costs and benefits of offending. They will be deterred if they think it’s likely they will be caught and convicted, and that the possible punishment outweighs the rewards.</p>
<p>Our study found that in most cases, these preconditions for being deterred from committing capital crimes were not met.</p>
<h2>The research</h2>
<p>We studied the experiences of prisoners serving death sentences in Kenya. The work was done through the Death Penalty Project, working with Oxford University’s <a href="https://www.law.ox.ac.uk/death-penalty-research-unit">Death Penalty Research Unit</a>. Our colleagues at the <a href="https://www.knchr.org/">Kenya National Commission on Human Rights</a> carried out interviews with 671 prisoners (33 were women) sentenced to death for murder (44% of the total) and robbery with violence (56%). </p>
<p>Most of the prisoners were poorly educated. Participants mainly used local languages. They might not have been able to understand information distributed in Kenya’s national languages: English and Swahili. This may explain why most didn’t know that the death penalty was the likely punishment for their offence. Our study found that just 1% of our sample said they knew the death penalty was a punishment available for their offence in law. </p>
<p>In addition, only 4% of those convicted of robbery and 8% of those convicted of murder said they had thought about the possibility of being sentenced to death. However, 48% of murderers and 69% of robbers said they had contemplated being sent to prison before committing the crime.</p>
<p>The study also challenged the claim that offenders make rational choices about whether to offend, at least in cases of homicide. For example, the most common reasons given by participants for committing murder were anger (27%), provocation (23%), self-defence (17%) and extreme emotional situations (13%). </p>
<p>Less than a third of participants said knowledge of the law and possible punishments had affected their behaviour at all. Overall, few prisoners who committed crimes that resulted in a sentence of death had, at the time of the offence, considered this potential outcome.</p>
<h2>Shifts across Africa</h2>
<p>In 2022, three sub-Saharan countries abolished the death penalty: the <a href="https://worldcoalition.org/2022/06/26/central-african-republic-abolishes-the-death-penalty/">Central African Republic</a> in June, <a href="https://www.theguardian.com/world/2022/sep/19/equatorial-guinea-abolishes-death-penalty-state-television-reports">Equatorial Guinea</a> in September and <a href="https://www.lusakatimes.com/2022/12/24/hh-announces-the-abolition-of-the-death-penalty-and-defamation-of-the-president-crime/">Zambia</a> in December. </p>
<p>In Zambia in 2016, Cornelius Mweetwa – a former lawyer and police officer who is now minister for the country’s Southern Province – <a href="https://www.parliament.gov.zm/node/5137">argued that deterrence did not “work”</a>. </p>
<p>He noted three assumptions that deterrence theorists use: that people know the penalties for crimes; that they can control their actions; and that people make decisions to commit a crime based on logic not passion.</p>
<blockquote>
<p>However, the three assumptions usually are not true. Therefore … people still commit these crimes. </p>
</blockquote>
<p>Mweetwa made another argument that also came through in our research. That the harsh, socially deprived death row regime, coupled with condemned prisoners’ “<a href="https://www.parliament.gov.zm/node/5137">constant awareness of their impending execution</a>” meant they were being subjected to cruel and inhuman punishment as defined by the <a href="https://legal.un.org/avl/ha/catcidtp/catcidtp.html">UN Convention Against Torture</a>.</p>
<p>While there may be some differences between Zambia and Kenya, most countries in the region will have similar levels of relative deprivation, both material and educational. Therefore, the rationales applied in Zambia leading to abolition would equally apply to Kenya.</p>
<h2>Next steps</h2>
<p>Kenya has been equivocal on its position on the death penalty. While various attempts have been made to move towards abolition, and mass commutations have taken hundreds of prisoners off death row, the country continues to sentence people to death. </p>
<p><a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">Our report</a> reflects on the histories, decision-making and prison experiences of those subject to the death penalty in Kenya. It provides an opportunity to better understand the lives fractured by this system. </p>
<p>And our findings are clear: abolition of the death penalty in Kenya won’t lead to a rise in violent crime. The country should, therefore, take the <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">obvious step forward</a> and abolish the death penalty in law.</p><img src="https://counter.theconversation.com/content/197701/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolyn Hoyle receives funding from the UK Economic and Social Research Council. </span></em></p><p class="fine-print"><em><span>Parvais Jabbar receives funding from the European Union and the UK Foreign, Commonwealth and Development Office.</span></em></p>Research finds that the threat of being sentenced to death has no bearing on how people contemplate violent crime.Carolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of OxfordParvais Jabbar, Co-Founder and Co-Executive Director of the Death Penalty Project, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1975232023-01-20T13:38:15Z2023-01-20T13:38:15ZSouth Carolina’s execution by firing squad: The last reenactment of the Civil War?<figure><img src="https://images.theconversation.com/files/505229/original/file-20230118-16-f5hkve.jpeg?ixlib=rb-1.1.0&rect=9%2C9%2C6311%2C4482&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An illustration of a deserter being executed by a firing squad at the Federal Camp in Alexandria during the American civil war. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/illustration-of-a-deserter-being-executed-by-a-firing-squad-news-photo/106416800?phrase=firing%20squad&adppopup=true">Kean Collection/Getty Images</a></span></figcaption></figure><p>Americans have an appetite for reenacting the past, <a href="https://www.smithsonianmag.com/smart-news/civil-war-reenactments-were-thing-even-during-civil-war-180967405/">especially the battles of the U.S. Civil War</a>, which took place from 1861 to 1865. Every year, in an effort to relive something of the nation’s bloodiest war, thousands don blue and gray uniforms and gather on fields where the distant echoes of war have since faded.</p>
<p>There are dozens of Civil War reenactments <a href="https://www.milsurpia.com/reenactment-groups/civil-war-reenactors">in the U.S. every year</a>. Participants take them very seriously. Food, uniforms, even the smells of war – all are <a href="https://www.civilwaracademy.com/civil-war-food">recreated to lend authenticity to the events</a>. Only the bullets and shells are not “real.”</p>
<p>Now, the U.S. reenactment community has a potential new member: the state of South Carolina. </p>
<p>That’s courtesy of the <a href="https://nypost.com/2021/05/17/south-carolina-becomes-fourth-state-to-approve-firing-squads/">state’s decision in 2021</a> to allow its inmates on death row the option of execution by firing squad. With that move, South Carolina has elected to deploy a form of capital punishment not used in the state since the Civil War.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two chairs in a room, one shrouded in a cover and the other with straps on it." src="https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=371&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=371&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=371&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=466&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=466&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505230/original/file-20230118-24-yrr906.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=466&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This photo provided by the South Carolina Department of Corrections shows the state’s death chamber in Columbia, S.C., including the electric chair, right, and a firing squad chair, left.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DeathPenaltySouthCarolina/347e08524001475dbde099d25b3bc068/photo?Query=South%20Carolina%20firing%20squad&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=18&currentItemNo=2">South Carolina Department of Corrections via AP, File</a></span>
</figcaption>
</figure>
<h2>A target placed over his heart</h2>
<p>The reason South Carolina adopted the firing squad is straightforward: The state apparently has <a href="https://www.wgbh.org/news/national-news/2021/05/19/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squads">trouble securing enough lethal injection drugs</a> to execute prisoners. That leaves the electric chair as an option. And now the firing squad.</p>
<p>The firing squad method has yet to be used and is currently under <a href="https://www.wbtw.com/news/state-regional-news/south-carolina-supreme-court-to-take-up-legality-of-using-electric-chair-firing-squad-in-state/">appeal at the state Supreme Court</a>. I am an expert witness in this case and <a href="https://global.oup.com/academic/product/the-smell-of-battle-the-taste-of-siege-9780190658526?lang=en&cc=us">a historian</a> <a href="https://sc.edu/study/colleges_schools/artsandsciences/history/our_people/directory/smith_m_mark.php">of the Civil War</a>. </p>
<p>South Carolina’s Department of Corrections <a href="https://www.live5news.com/2022/03/18/firing-squad-now-execution-option-south-carolina/">has drafted</a> <a href="https://time.com/6170814/south-carolina-firing-squad-richard-moore-death-penalty/">firing squad protocols</a>. The firing squad will be made up of three members drawn from prison staff. They will be behind a wall, all three of their rifles loaded with live ammunition and aimed at the inmate through an opening in the wall. </p>
<p>After entering the chamber, the inmate will be strapped into a chair, a hood placed over his head, and a target placed over his heart. </p>
<p>At this point, the warden will read the execution order aloud. Members of the squad will then fire their rifles. After the inmate is declared dead, witnesses leave.</p>
<h2>Exclusively military punishment</h2>
<p>Firing squad executions are extremely rare in U.S. history. </p>
<p>Only four states currently have it on the books: <a href="https://www.reuters.com/legal/litigation/south-carolina-institutes-firing-squad-executions-2022-03-18/">South Carolina, Mississippi, Oklahoma and Utah</a>. Only Utah has used it as an actual execution method. Since 1976, just three executions have been <a href="https://deathpenaltyinfo.org/executions/methods-of-execution">carried out by firing squad</a> in Utah.</p>
<p>Execution by firing squad has, in fact, never been common in U.S. history. While the term “firing squad” can be found in U.S. newspapers before the Civil War, the phrase was usually used to describe a different custom, akin to a salute, when guns were fired into the air to <a href="https://www.newspapers.com/image/624044450/?terms=%22firing%20squad%22&match=1">honor an individual of note after death</a>.</p>
<p>The use of the firing squad was also rare during the Civil War. It was used principally to punish soldiers who deserted from either the Union or Confederate Army.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large firing squad executing five men sitting at the foot of their coffins." src="https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=223&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=223&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=223&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=280&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=280&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505236/original/file-20230118-15-hq1zlv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=280&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Execution of five V Corps deserters, Army of the Potomac, Virginia, Aug. 29, 1863.</span>
<span class="attribution"><a class="source" href="https://hd.housedivided.dickinson.edu/node/41094">House Divided: The Civil War Research Engine at Dickinson College</a></span>
</figcaption>
</figure>
<p>According to Thomas P. Lowry and Lewis Laska’s 2009 study “<a href="https://www.worldcat.org/title/303495225?oclcNum=303495225">Confederate Death Sentences: A Reference Guide</a>,” of the 26,015 Union soldiers tried for desertion, approximately 1,243 of them, or 4.8%, were sentenced to die by firing squad; 12.4% of Confederate soldiers tried for desertion in the Army of Northern Virginia were sentenced to death by this method. </p>
<p>Besides the executions in Utah, there are no instances of the firing squad being used in the U.S. following the Civil War. It was an exclusively military form of punishment. </p>
<p>Because the firing squad was designed to deter deserters during the war, it was often carried out in a ritualized manner. It was almost always done publicly, and it was done with the explicit intention of instilling terror.</p>
<h2>Striking similarities then and now</h2>
<p>The <a href="https://www.newspapers.com/image/604357565/?terms=%22firing%20squad%22&match=1">similarities between</a> <a href="https://encyclopediavirginia.org/entries/military-executions-during-the-civil-war/">Civil War firing squads</a> and those proposed by the state of South Carolina are striking.</p>
<p>Like the guards drawn from the prison, the Civil War firing squad was selected from the ranks of soldiers. They typically carried out the punishment at the command of an assistant provost marshal or provost marshal, who is an army officer in charge of the military police. </p>
<p>The firing squad usually stood several feet from the condemned soldier and aimed at a target placed over his heart. In most cases, a blindfold was placed over the condemned soldier’s eyes and his hands were tied.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A chair into which someone can be strapped, with sandbags piled on either side of it." src="https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505234/original/file-20230118-8082-nvypug.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">This June 18, 2010, photo shows the firing squad execution chamber at the Utah State Prison in Draper, Utah.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DeathPenalty/c6960e67c8a04f899f463f6883a96fa7/photo?Query=Utah%20firing%20squad&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=285&currentItemNo=15">Trent Nelson/Salt Lake Tribune via AP, Pool, File</a></span>
</figcaption>
</figure>
<h2>‘The awful ceremony’</h2>
<p>There were, of course, differences between then and now. Not all firing squad soldiers during the Civil War had live ammunition. <a href="https://www.newspapers.com/image/511702577/?terms=%22firing%20squad%22&match=1">One rifle could be blank</a>, sparing even these war-hardened soldiers the knowledge of having killed an unarmed man. </p>
<p>In general, the firing squad took place in a public location, like a road, a town square or a battlefield. Plainly, this is not the case in the proposed South Carolina blueprint, although reporters were at the scene of Civil War executions and a member of the press will be allowed to witness firing squad executions in South Carolina.</p>
<p>Some comparisons remain elusive. Will the South Carolina firing squad offer an immediate, painless death? We know that Civil War firing squads <a href="http://www.sonofthesouth.net/leefoundation/civil-war/1861/december/execution-deserter.htm">were not always immediately effective</a>. For example, according to an 1864 report of a firing squad execution published in the <a href="https://www.newspapers.com/image/223488798/?terms=%22firing%20squad%22&match=1">Vicksburg Herald</a>, one soldier from the 49th Regiment Colored Infantry “had to be dispatched by pistol, immediate death not resulting from the wounds by the muskets.”</p>
<p>Will the inmate suffer psychologically and emotionally when executed in South Carolina? Again, the Civil War provides clues. <a href="http://www.sonofthesouth.net/leefoundation/civil-war/1863/september/execution-deserters.htm">Harper’s Weekly</a> said of an 1863 mass firing squad execution: “They all suffered terribly mentally, and as they marched to their own funeral they staggered with mortal agony like a drunken man.”</p>
<p>Witnesses could also find the spectacle difficult to watch. According to the
<a href="https://www.newspapers.com/image/591871968/?terms=%22firing%20squad%22&match=1">Louisville Daily Journal</a> in 1863, “The scene was now becoming painful to the spectators, and many turned away, not wishing to witness more of the awful ceremony.” Sometimes soldiers charged with firing the deadly rounds <a href="http://www.sonofthesouth.net/leefoundation/civil-war/1861/december/execution-deserter.htm">deliberately missed their target</a>, the burden of killing in this fashion proving too much.</p>
<p>Civil War reenactors know the limits of what they do. They do not attempt to recreate the <a href="https://www.history.com/news/confederate-submarine-hunley-sinking-mystery-civil-war">fatal 1864 sinking of the Confederate H.L. Hunley submarine</a> in Charleston Harbor; neither do they attempt to recreate deadly monthlong sieges, such as the one at <a href="https://www.nps.gov/vick/learn/historyculture/vicksburgsiege.htm">Vicksburg in 1863</a>. Nor do they reenact firing squad executions.</p>
<p>Yet the state of South Carolina is willing to quite literally reenact a practice from some of the country’s bloodiest history – a practice that some soldiers, even in the middle of the greatest carnage this nation has experienced, found themselves unable to engage in.</p><img src="https://counter.theconversation.com/content/197523/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark M. Smith is affiliated with Justice 360. I served as an expert witness for the organization and submitted an affidavit in a case heard by the SC Supreme Court.</span></em></p>South Carolina has had trouble securing enough lethal injection drugs for executions. So it has turned to an old form of killing: the firing squad, last used in the Civil War.Mark M. Smith, Carolina Distinguished Professor of History, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1975342023-01-13T03:28:36Z2023-01-13T03:28:36ZIran executions: the role of the ‘revolutionary courts’ in breaching human rights<p>The Iranian government has attempted to brutally suppress the widespread protests sparked by the death of 22-year-old Mahsa Amini in police custody in September 2022. </p>
<p>Central to Iran’s response have been the country’s “revolutionary courts”. They have conducted heavily-criticised trials resulting in <a href="https://www.bbc.com/news/world-middle-east-64209452">at least four executions</a>, while over 100 protesters are in considerable danger of imminent execution. </p>
<p>Criminal trials in these courts often occur behind closed doors presided over by clerics, with none of the standard guarantees of criminal procedure such as allowing time and access to lawyers to prepare a defence.</p>
<p>Submissions to the United Nations <a href="https://upr-info.org/en/review/iran-islamic-republic">from Iranian civil society organisations</a> report that lawyers are routinely denied access to clients, and that coerced confessions, often obtained by torture, are used as evidence.</p>
<p>Tara Sepehri Far, senior Iran researcher at Human Rights Watch, <a href="https://www.hrw.org/news/2022/12/13/iran-death-sentences-against-protesters">describes the trials</a> as “a total travesty of justice”.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/iran-executes-first-protester-as-human-rights-abuses-come-under-international-scrutiny-195699">Iran executes first protester as human rights abuses come under international scrutiny</a>
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<h2>Unfair trials</h2>
<p>Criminal trials that are <a href="https://theglobepost.com/2018/02/22/iran-revolutionary-courts/">unfair by international standards</a> have been a feature of the Iranian legal system since the 1979 <a href="https://www.aljazeera.com/features/2014/2/11/iran-1979-the-islamic-revolution-that-shook-the-world">Islamic revolution</a>.</p>
<p>The courts <a href="https://www.bbc.com/news/magazine-34550377">were established</a> to try opponents of the regime who face ill-defined national security charges that carry the death penalty. Such <a href="https://www.hrw.org/news/2022/12/13/iran-death-sentences-against-protesters">vague charges</a> include waging war against God (“Moharebeh”), corruption on Earth (“Ifsad fel Arz”), and armed rebellion (“baghi”).</p>
<p>The courts are integral to the consolidation of Islamist power which began within a few months of the revolution. As is apparent from the <a href="https://www.cfr.org/article/islamic-republics-power-centers">structure of the Iranian government</a>, the courts complement the role of para-state organs such as <a href="https://www.abc.net.au/news/2022-10-13/what-we-know-about-the-basij-in-iran/101534184">the Basij</a>.</p>
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<p>The Basij is a paramilitary organisation formed very soon after the revolution. It supports the <a href="https://www.thenationalnews.com/mena/iran/2022/12/05/who-are-irans-morality-police-and-what-do-they-enforce/">guidance patrol</a>, known colloquially as the morality police.</p>
<p>The Basij is essential to the Iranian authoritarian state. It sits under the command of Iran’s Revolutionary Guard Corps, and is fiercely loyal to Supreme Leader Ayatollah Ali Khamenei.</p>
<p>The United States Treasury has imposed sanctions on senior members of the Basij, and on a <a href="https://home.treasury.gov/news/press-releases/sm524">network of businesses</a> it believes is financing the organisation. </p>
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<h2>Human rights obligations</h2>
<p>The revolutionary courts’ secret trials, vague charges, denial of lawyers, and evidence obtained by coercion and torture have focused attention on Iran’s flagrant and persistent breaches of its international human rights obligations.</p>
<p>In 1975, Iran ratified the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a>, which guarantees the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. The United Nations Human Rights Committee <a href="https://www.ohchr.org/en/topic/death-penalty">has stated</a> the death penalty is not consistent with these guarantees, putting Iran in breach of its international human rights obligations. </p>
<p>The guarantee of a right not to be tortured is repeated in the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-against-torture-and-other-cruel-inhuman-or-degrading">Convention Against Torture</a>, which Iran has not ratified. It’s the only country in the Middle East to not have done so, and <a href="https://indicators.ohchr.org/">one of only 20 in the world</a>.</p>
<p>In a periodic review of Iran’s human rights compliance, the UN <a href="https://www.ohchr.org/en/hr-bodies/upr/ir-index">recommended in 2020</a> that Iran ratify the treaty, end the use of torture, and credibly investigate and prosecute all allegations of torture. <a href="https://www.hrw.org/news/2020/03/12/iran-universal-periodic-review-outcome-statement">Iran rejected</a> these recommendations.</p>
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<p>The <a href="https://iranhumanrights.org/2022/12/lynching-in-iran-majidreza-rahnavard-23-publicly-hanged-in-state-sponsored-murder/">Center for Human Rights in Iran warns</a> the executions are “a prelude to more state-sponsored murders of young people in the absence of a strong and coordinated international response”.</p>
<p>Hangings such as these have been characterised by <a href="https://www.ncr-iran.org/en/ncri-statements/statement-human-rights/iran-desperate-to-save-his-regime-in-its-final-phase-khamenei-resorts-to-more-executions/">opposition parties in exile</a> as desperate efforts to forestall the inevitable overthrow of the regime, and by the US Department of State <a href="https://www.state.gov/briefings/department-press-briefing-december-12-2022/">as</a> efforts to intimidate Iranians and suppress dissent. </p>
<h2>Will sanctions help?</h2>
<p>Australia’s response to two executions late last year was to <a href="https://www.skynews.com.au/world-news/foreign-minister-penny-wong-criticises-iran-over-execution-of-mohsen-shekari-as-regime-cracks-down-on-protesters/news-story/d36b051ee6e6cf1d3d8832fc2b6ab9e9">condemn the executions</a>, issue a <a href="https://www.foreignminister.gov.au/minister/penny-wong/media-release/joint-statement-foreign-ministers-australia-canada-and-new-zealand-execution-protesters-iran">joint statement</a> with Canada and New Zealand, and <a href="https://www.theguardian.com/australia-news/2022/dec/10/australia-imposes-sanctions-on-irans-morality-police-and-13-russians-and-iranians?amp">subject</a> Iran’s morality police and the Basij to international sanctions.</p>
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<p>Despite widespread <a href="https://www.ohchr.org/en/press-releases/2022/12/iran-un-experts-condemn-execution-protestor-raise-alarm-about-detained">international condemnation</a>, Iran is <a href="https://www.econotimes.com/Iran-Ebrahim-Raisi-pledges-to-continue-crackdown-on-protests-1647032">following through on its pledge</a> to continue to crackdown on the protests. </p>
<p>We can condemn the country’s conduct and enact sanctions, but sadly, Iran is free to persist despite sanctions if it wants.</p>
<p>At the very least, what international sanctions and global outrage may do is give heart and hope to the protesters, and help signal to them that the world is watching and standing with them. </p>
<hr>
<p><em>Simon would like to acknowledge an Iranian-born colleague who requested anonymity for their contributions to this article.</em></p><img src="https://counter.theconversation.com/content/197534/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon would like to thank an Iranian-born colleague who requested anonymity for their contributions to this article.</span></em></p>Criminal trials in these courts often occur behind closed doors presided over by clerics, and there’s often no evidence beyond a confession extracted by means of torture.Simon Rice, Professor of Law; Kim Santow Chair of Law and Social Justice, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956992022-12-09T14:43:50Z2022-12-09T14:43:50ZIran executes first protester as human rights abuses come under international scrutiny<p>Iran’s execution of protester Mohsen Shekari is the first after a huge <a href="https://www.euronews.com/2022/11/25/iran-protests-what-caused-them-who-is-generation-z-will-the-unrest-lead-to-revolution">wave of unrest</a> swept around the country in the autumn of 2022. </p>
<p>Shekari was found guilty by a Iranian Revolutionary Court of “<em>moharebeh</em>” (enmity against God), <a href="https://www.bbc.co.uk/news/world-middle-east-63900099">news sources reported</a>. Human rights groups say Shekari and other protesters who have been arrested are not being given access to lawyers and have faced sham trials. </p>
<p>At least <a href="https://www.amnesty.org/en/documents/mde13/6271/2022/en/">28 people</a>, including three children, could face execution in connection with nationwide protests. Six others have already been sentenced to death on charges related to the protests. And 15 more face imminent trials on similar charges to Shekari. </p>
<p>Iran regularly carries out executions. In 2020 it carried out the world’s second highest <a href="https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world">number of executions</a> after China.</p>
<p>Iran was <a href="https://theconversation.com/hijab-law-in-iran-over-the-decades-the-continuing-battle-for-reform-192037">hit by protests</a> over enforced wearing of the hijab after 22-year-old Mahsa Amini died following detention by the country’s “morality police” for being dressed “incorrectly”. A wave of protests then swept across the country, including in high schools, as calls escalated for the obligatory hijab to be scrapped. </p>
<p>At least <a href="https://www.npr.org/2022/12/08/1141509858/iran-execution-protests-shekari">475 people</a> are believed to have been killed in security crackdowns around the demonstrations. Around <a href="https://www.ungeneva.org/en/news-media/meeting-summary/2022/11/selon-une-estimation-prudente-le-nombre-de-morts-seleve-ce-jour">14,000 people</a>, including children, have been arrested connected to the protests.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/ItAVwh6x2ns?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Iranian government has signalled it will abolish its so-called morality police.</span></figcaption>
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<p>The <a href="https://www.reuters.com/world/middle-east/iran-executes-protester-injuring-security-guard-with-knife-tasnim-2022-12-08/">execution</a> of Shekari took place days after the UN human rights council (UNHRC), a UN body with 47 member states, announced plans to launch an independent <a href="https://www.ohchr.org/en/news/2022/11/human-rights-council-establishes-fact-finding-mission-investigate-alleged-human-rights">fact-finding mission</a> to investigate Iran’s handling of demonstrations and human rights abuses over the past few months.</p>
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Read more:
<a href="https://theconversation.com/who-are-irans-morality-police-a-scholar-of-the-middle-east-explains-their-history-196023">Who are Iran's morality police? A scholar of the Middle East explains their history</a>
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<p>The resolution was put forward by Germany and Iceland supported by 25 countries, and opposed by China, Pakistan, Cuba, Eritrea, Venezuela and Armenia, while 16 countries abstained.</p>
<p>A UN statement announcing the mission said: “The Human Rights Council strongly deplored the violent crackdown of peaceful protests resulting in the death of hundreds of people, including dozens of children, and a disproportionate number of persons belonging to minorities, and the arrest of thousands in connection with the nation-wide protests following the death in custody of Jina Mahsa Amini on 16 September 2022.”</p>
<p>The UN called on the Iranian government to “cooperate fully with the independent international fact-finding mission, to grant unhindered access to the country without any delay, and to provide the members of the fact-finding mission with all information necessary to allow for the proper fulfilment of their mandate”.</p>
<h2>UN visit likely to be prevented</h2>
<p>But there are signs that the Iranian government is likely to stop the UN committee entering the country. Iranian spokesman for the Ministry of Foreign Affairs <a href="https://iranpress.com/content/70090/iran-will-not-cooperate-with-politically-motivated-committee-human-rights">Nasser Kanani </a> said: “Iran will not have any cooperation with this politically motivated committee. He added: "The Islamic Republic voluntarily fulfils its responsibility by forming <a href="https://en.mehrnews.com/news/194195/Iran-not-to-cooperate-with-UN-fact-finding-mission">a national committee</a> with the presence of experts, lawyers, and governmental and public representatives.” </p>
<p>This committee has representatives from different groups and the bar associations, the Iranian government claimed. Government figures said that the report of the Iranian government committee will be presented to the public.</p>
<p>To be effective the UN fact-finding mission needs to work with the Iranian government. The fact-finding mission needs to conduct negotiations with the government to gain access to victims, witnesses and sites. </p>
<p>However, this cooperation might be quite difficult to get the government and opposition to agree to. One possibility is to encourage the Iranian government to appoint independent members of civil society, bar associations and members of the media to its national fact-finding committee and get them to work with and to negotiate with the UN mission.</p>
<h2>First special council held</h2>
<p>The UN has signalled its concerns about the behaviour of the Iranian government by holding its first ever special human rights council session on Iran on November 25. This session was on the deteriorating <a href="https://www.ohchr.org/en/hr-bodies/hrc/special-sessions/session35/35-special-session">human rights situation in Iran</a> and called for Iran to stop using violence and harassment against peaceful protesters. </p>
<p>Many question why there was no attempt to request a special session after the protests in Iran in November 2019. Those protests began over an unexpected fuel price increase and lasted for a week, and an estimated <a href="https://www.hrw.org/news/2020/11/17/iran-no-justice-bloody-2019-crackdown">304 people were killed</a>. </p>
<p>At least 304 people were believed to be killed then. One reason for this shift in the UN human rights council’s approach might be because of the deepening alliance between Russia and Iran and its impact on the Ukraine war. Another factor could be because the United States was elected to a three-year term on the UNHRC in 2021. </p>
<p>One sign that the Iranian government might be willing to make some concessions to the protesters was <a href="https://www.youtube.com/watch?v=ItAVwh6x2ns">the recent announcement</a> that the “morality police”, who walk the streets enforcing hijab law, <a href="https://theconversation.com/what-are-irans-morality-police-a-scholar-of-the-middle-east-explains-their-history-196023">may be disbanded</a>. Some are sceptical this will definitely go ahead, but if it did it would be a significant move, signalling that the protesters have had more impact than previous movements. However, the fear of more executions as a tool of control is unabated.</p><img src="https://counter.theconversation.com/content/195699/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sahar Maranlou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Iran may refuse entry to UN human rights inspectors following alleged abuses connected to the recent wave of protests.Sahar Maranlou, Lecturer, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1954032022-11-30T15:57:58Z2022-11-30T15:57:58ZJanusz Walus and parole for prisoners serving life sentences in South Africa: the weaknesses of the court’s decision<figure><img src="https://images.theconversation.com/files/497963/original/file-20221129-14-aex9ak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters demonstrate outside the high court in Cape Town against parole for Janusz Walus.</span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p><em>The murder of <a href="https://www.sahistory.org.za/people/chris-hani">Chris Hani</a>, a South African liberation struggle hero, by Janusz Walus <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv03370/05lv03422.htm">on 10 April 1993</a> almost derailed the country’s transition from apartheid to democracy. Now, almost 30 years later, the constitutional court has ruled that Walus (69) must be released on parole. The move has been met with anger by many in the country, including some in the governing African National Congress alliance. Law professor Jamil Mujuzi explains the country’s parole system for prisoners on life sentence, and what he considers to be the weaknesses and strengths of the court’s decision.</em></p>
<h2>Parole in South Africa</h2>
<p>South Africa has one of the highest prison populations <a href="https://www.prisonstudies.org/highest-to-lowest/prison-population-total/trackback?field_region_taxonomy_tid=All">in the world</a>. As at 1 April 2022, there were 143,223 inmates in the country’s correctional centres, of whom <a href="https://www.gov.za/sites/default/files/gcis_document/202210/2022-09-22-dcs-ar-202122.pdf">96,079 had been sentenced</a>. </p>
<p>Section 73(1) of the <a href="http://www.dcs.gov.za/wp-content/uploads/2018/05/CORRECTIONAL-SERVICES-ACT-111-of-1998.pdf">Correctional Services Act (the Act)</a> (1998) provides that</p>
<blockquote>
<p>(a) a sentenced offender remains in a correctional centre for the full period of sentence; and (b) an offender sentenced to life incarceration remains in a correctional centre for the rest of his or her life.</p>
</blockquote>
<p>However, the Act also provides for circumstances in which offenders may be placed on parole. This explains why there are also <a href="https://www.gov.za/sites/default/files/gcis_document/202210/2022-09-22-dcs-ar-202122.pdf">thousands of parolees</a> in South Africa. </p>
<p>In some countries, such as the US, an offender sentenced to life imprisonment (lifer) spends the <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674980662">rest of his or her life in prison</a>. In South Africa, section 73(6)(b)(iv) of the Correctional Services Act provides that a lifer</p>
<blockquote>
<p>may not be placed on day parole or parole until he or she has served at least 25 years of the sentence.</p>
</blockquote>
<p>In terms of section 73(5)(a)(ii) of the Act, it’s the minister responsible for correctional services who has the power to determine the date on which a lifer is to be placed on parole. Thus, section 78 of the Act provides for the “powers of the minister in respect of offenders serving life sentences”. These powers include refusing or granting parole to a lifer. </p>
<p>However, when the minister refuses an application for parole, he or she is empowered to make</p>
<blockquote>
<p>recommendations in respect of treatment, care, development and support of the sentenced offender which may contribute to improving the likelihood of future placement on parole or day parole.</p>
</blockquote>
<h2>The case of Janusz Walus</h2>
<p>There were lifers in South Africa before the commencement of the Correctional Services Act in 1998, and their placement on parole is <a href="https://journals.co.za/doi/10.10520/EJC52960">governed by section 136 of the Act</a>.</p>
<p>Under sections 78 and 136 of the Act, it is only the minister who has the power to grant parole to a lifer. However, in the case of <a href="http://www.saflii.org/za/cases/ZACC/2022/39.html">Walus v Minister of Justice and Correctional Services</a>, the constitutional court has ordered the minister</p>
<blockquote>
<p>to place the applicant (a lifer) on parole on such terms and conditions as he may deem appropriate and to take all such steps as may need to be taken to ensure that the applicant is released on parole within ten calendar days from the date of this order.</p>
</blockquote>
<p>The court made that order after finding that the minister’s decision to reject Walus’ parole application was irrational. This was so because, among other things, the applicant had served the minimum period he had to serve – 13 years and four months before being considered for parole. His 1993 death sentence was commuted to life in prison <a href="https://www.concourt.org.za/index.php/judgement/492-janusz-jakub-walus-v-minister-of-justice-and-correctional-services-cct221-21">in 2000</a>.</p>
<p>The court also observed that Walus could do nothing to change the two grounds on which his parole application was rejected – the comments made by the sentencing court and the seriousness of the offence. </p>
<p>In justifying its order, the constitutional court referred to, among others, sections 78 and 136 of the Correctional Services Act (CSA) and held that it</p>
<blockquote>
<p>is quite clear that under the CSA a court has the power to grant parole to prisoners who are sentenced to life imprisonment. </p>
</blockquote>
<p>The court reached that conclusion because it relied on the 2004 version of section 78. Between October 2004 and September 2009, section 78 of the Act empowered a court to grant parole to lifers. </p>
<figure class="align-left ">
<img alt="A man wearing a shirt, tie and jackets displays a serious look." src="https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1005&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1005&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1005&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1264&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1264&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498220/original/file-20221130-14-8w1kao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1264&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A younger Janusz Walus.</span>
<span class="attribution"><span class="source">Raymond Preston/Sunday Times</span></span>
</figcaption>
</figure>
<p>In my view, however, the court erred in holding that the Act gives it power to grant parole to lifers. With the commencement of the Correctional Services Act 25 of 2008 on 1 October 2009, it is only the minister who has the power to grant parole to lifers. It can only make an order if it finds that the minister’s decision was irrational – as it did – but only under the <a href="https://www.gov.za/documents/promotion-administrative-justice-act">Promotion of Administrative Justice Act, 2000</a>.</p>
<p>The court held that Walus’ sentence is governed by the 1959 Correctional Services Act. But, both in the 1959 Act and in the 1998 Act, the court does not have the power to release a lifer on parole. </p>
<p>Since Walus was not sentenced between 2004 and 2008, the court does not have power to grant him parole under section 78 of the 1998 Act. His death sentence was commuted to life in 2000, and not 2004 when section 78 came into force. </p>
<p>Section 136 is a transition provision. It does not change the law that governs the release of Walus on parole (and that is what the court recognises). </p>
<p>The second weakness of the judgement is that it equates a non-parole order to a remark at sentencing. A non-parole period is an order which the Department of Correctional Services must comply with. It is not a mere remark. It is part of the sentence. That is why in the 2016 case <a href="http://www.saflii.org/za/cases/ZACC/2016/27.html">Jimmale and Another v S</a>, the constitutional court held that a non-parole order must be made in exceptional circumstances “because the imposition of that kind of an order has a drastic impact on the sentence to be served”.</p>
<h2>Rehabilitation</h2>
<p>The court also held that the minister (and by implication the parole board) should not make parole decisions based on the remarks of a sentencing court, and the seriousness of the offence. This is because these are conditions over which the offender has no control. Any future parole decisions should be made based on conditions over which an offender has control.</p>
<p>The decision also shows that the offender’s rehabilitation is the most important factor that should be considered in deciding whether or not he or she should be granted parole. Therefore, any offender who is not rehabilitated is likely to have his or her parole application rejected. This then imposes a duty on the Department of Correctional Services to ensure that effective rehabilitation programmes are available in every correctional facility.</p>
<h2>Looking forward</h2>
<p>This decision is likely to be relied on by courts to order the Department of Correctional Services to grant offenders parole. However, an inmate has to remember he or she does not have a right to parole. As the supreme court has <a href="https://lawlibrary.org.za/akn/za/judgment/zasca/2022/159/eng@2022-11-21">reiterated</a>, inmates have </p>
<blockquote>
<p>the privilege to be released on parole if they so qualify.</p>
</blockquote>
<p>If an inmate breaches the parole conditions, his or her parole will be cancelled. It has to be emphasised that a sentence of life imprisonment means that an offender has to be in prison for life. </p>
<p>Granting him parole means that he or she serves part of the sentence outside the correctional facility. This means that an offender sentenced to life imprisonment has to be on parole for the rest of his life unless he or she is pardoned, or the sentence is commuted by the president under section 84 of the <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">constitution</a>. </p>
<p>In the case of foreign offenders, there may be a need for South Africa to enact prisoner transfer legislation, or to ratify prisoner transfer treaties such as the <a href="https://rm.coe.int/1680079529">Convention on the Transfer of Sentenced Persons</a> (1983), or the Southern African Development Community Protocol on the Inter-State Transfer of Sentenced Offenders (2019) so that these offenders are transferred to serve their sentence in their countries of nationality.</p><img src="https://counter.theconversation.com/content/195403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamil Mujuzi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The decision is likely to be relied on by courts to order the Department of Correctional Services to grant offenders parole.Jamil Mujuzi, Professor of Law, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952512022-11-29T13:35:15Z2022-11-29T13:35:15ZAlabama’s execution problems are part of a long history of botched lethal injections<figure><img src="https://images.theconversation.com/files/497724/original/file-20221128-5230-q7icct.jpg?ixlib=rb-1.1.0&rect=5%2C5%2C3457%2C2175&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In some cases, death row inmates have been strapped to the gurney for hours.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DeathPenaltyProblemsExplainer/86ba64530aa64b6ba241c943b619f14a/photo?Query=alabama%20execution&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=68&currentItemNo=2">AP Photo/Sue Ogrock</a></span></figcaption></figure><p>Alabama Gov. Kay Ivey has <a href="https://www.npr.org/2022/11/21/1138357929/alabama-executions-pause-lethal-injection">announced</a> a pause in her state’s use of capital punishment. It follows a run of botched lethal injection executions in the state, including two where the procedure <a href="https://eji.org/news/kenny-smith-alabama-execution/">had to be abandoned before the inmates succumbed to the cocktail of death drugs</a>.</p>
<p>The last straw appears to have been the <a href="https://www.nytimes.com/2022/11/17/us/alabama-execution-kenneth-smith.html">failed attempt to put Kenneth Smith to death</a> on Nov. 17, 2022. The state had to call off the procedure after difficulty in securing an IV line.</p>
<p>But that was just the latest execution not to go as planned. In September, Alabama had to stop <a href="https://www.theatlantic.com/ideas/archive/2022/10/alabama-inmate-execution-alan-miller/671620/">the execution of Alan Eugene Miller</a> after prison officials poked him with needles for more than an hour because they could not find a usable vein in which to secure an IV.</p>
<p>Even when the execution was carried out resulting in death, the manner has been problematic. When the state executed <a href="https://www.cbsnews.com/news/joe-nathan-james-jr-alabama-apparently-botched-recent-execution-anti-death-penalty-group-asserts/">Joe Nathan James</a> on July 28, 2022, the process – which is normally supposed to be over in a matter of minutes – <a href="https://www.theatlantic.com/ideas/archive/2022/08/joe-nathan-james-execution-alabama/671127/">took more than three hours</a>. During that time, officials tried repeatedly to insert the IV lines necessary to carry the deadly drugs and jabbed James with needles. </p>
<p>In a statement on Nov. 21, Ivey <a href="https://www.cnn.com/2022/11/21/politics/alabama-executions-pause-review-ivey">ordered</a> the state Department of Corrections to do a thorough review of the procedures used in executions and asked the state’s attorney general, Steve Marshall, to stop the process for two upcoming executions.</p>
<p>Alabama officials <a href="https://www.nytimes.com/2022/11/21/us/alabama-executions-lethal-injection.html">have blamed</a> their problems on what they have described as frivolous, last-minute legal maneuvers by death penalty defense lawyers. In the cases of Miller and Smith, state officials claimed that they ran out of time before the death warrant was due to expire.</p>
<p>But whatever the cause, Alabama’s execution difficulties are not unique to that state. </p>
<p>My <a href="https://www.sup.org/books/title/?id=23979">research shows</a> that since 1900, in states across the country, lethal injections have been more frequently botched than any of the other type of execution methods used throughout that period. This includes hanging, electrocution, the gas chamber and the firing squad – even though these approaches are not without their problems.</p>
<h2>The early history of lethal injection</h2>
<p>Lethal injection <a href="https://www.popularmechanics.com/technology/a25689/gerry-commission-report-methods-of-execution/">was first considered by the state of New York</a> in the late 1880s when it convened a blue ribbon commission to study alternatives to hanging. During its deliberations, Dr. Julius Mount Bleyer <a href="https://books.google.com/books?id=E7S3C4_IYmYC&pg=PA73&lpg=PA73&dq=that+%E2%80%9Cthe+condemned+could+be+executed+on+his+bed+in+his+cell+with+a+6-gram+injection+of+sulfate+of+morphine.%E2%80%9D&source=bl&ots=DX7rmZpYKi&sig=ACfU3U2t-1PK08QmFL3jwZ63iRWRO6URAw&hl=en&sa=X&ved=2ahUKEwiOpYe52Zv4AhWBZjABHbQKD00Q6AF6BAgCEAM#v=onepage&q=that%20%E2%80%9Cthe%20condemned%20could%20be%20executed%20on%20his%20bed%20in%20his%20cell%20with%20a%206-gram%20injection%20of%20sulfate%20of%20morphine.%E2%80%9D&f=false">invited the commission to envision</a> a future in which a person condemned to death “could be executed on his bed in his cell with a 6-gram injection of sulfate of morphine.”</p>
<p>Bleyer and his allies <a href="https://heinonline.org/HOL/Page?handle=hein.journals/medlejo5&div=43&g_sent=1&casa_token=">argued</a> that the procedure would be painless. They said that unlike hanging, the method could not be messed up. It also would be cheap, they claimed – all that was needed was a needle and a small amount of morphine.</p>
<p>Lethal injection’s critics told the commission that the method would actually be easily botched, especially if doctors did not conduct the procedure. And even when done right, those in favor of the death penalty as the ultimate sentence further argued that it would be too humane. It would take the dread out of death and dampen capital punishment’s deterrent effect.</p>
<p>Ultimately, lethal injection’s opponents prevailed, <a href="https://www.amazon.com/Executioners-Current-Westinghouse-Invention-Electric/dp/037572446X">aided by the medical community’s unwavering stance against it</a>. Doctors “did not want the syringe, which was associated with the alleviation of human suffering, to become an instrument of death.”</p>
<p>For nearly 100 years after New York’s decision, no jurisdiction in the United States authorized execution by lethal injection. But the early debate over lethal injection foreshadowed arguments that were heard in 1977 during Oklahoma’s consideration of this execution method.</p>
<p>Proponents echoed Bleyer and <a href="https://www.motherjones.com/politics/2005/09/guilty-man/">declared</a> that executions using this method could be accomplished with “no struggle, no stench, no pain.”</p>
<p>This time they won.</p>
<p>The specific drugs to be used in lethal injection – the anesthetic <a href="https://www.acs.org/content/acs/en/molecule-of-the-week/archive/s/sodium-thiopental.html">sodium thiopental</a> and <a href="https://pubmed.ncbi.nlm.nih.gov/339801/">pancuronium bromide</a>, a muscle relaxant – would not be chosen until four years later. Although the original law only called for those two drugs, a third drug was soon added: <a href="https://www.hrw.org/reports/2006/us0406/4.htm#:%7E:text=Potassium%20chloride%20is%20the%20drug,within%20a%20minute%20of%20injection.">potassium chloride</a>, which causes cardiac arrest. </p>
<p>Together, these three drugs would <a href="https://www.latimes.com/opinion/op-ed/la-oe-alper-3-drug-cocktail-20170420-story.html">make up what became the “standard” three-drug, lethal injection protocol</a>. And what started in Oklahoma spread quickly. Lethal injection soon became the execution method of choice across the United States in every state that had the death penalty. </p>
<h2>Lethal injection’s troubles</h2>
<p>But right from the start, administering lethal injections proved to be a complex procedure that was difficult to get right. In fact, the <a href="https://www.texasmonthly.com/news-politics/charlie-brooks-last-words/">first use of lethal injection by Texas in 1982</a> gave a foretaste of some of the problems that would later come to characterize the method of execution.</p>
<figure class="align-center ">
<img alt="A black and white photo shows a white gurney with straps in a bricked room." src="https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497726/original/file-20221128-13-taimz1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lethal injection chambers have remained relatively unchanged since being introduced in Texas in 1982.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TexasDeptofCorrectionsExecutionRoom1982/00ea6690975145cca2dfd711504ce77e/photo?Query=lethal%20injection%201982&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=14&currentItemNo=13">AP Photo/Ed Kolenovsky</a></span>
</figcaption>
</figure>
<p>The Texas team charged with executing a prisoner named <a href="https://www.history.com/this-day-in-history/first-execution-by-lethal-injection#:%7E:text=The%20first%20execution%20by%20lethal,when%20administered%20in%20lesser%20doses.">Charles Brooks</a> repeatedly <a href="https://www.thecrimson.com/article/1982/12/16/painful-questions-pbtbhe-execution-of-charles/">failed in their efforts to insert an IV</a> into a vein in his arm, splattering blood onto the sheet covering his body. And after the IV was secured and the drugs began to flow, Brooks seemed to experience considerable pain.</p>
<p>The difficulties in Brooks’ execution and in subsequent lethal injections result from the fact that medical ethics <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4294&context=flr">do not allow</a> doctors to take part in choosing the drugs or administering them. In the place of doctors, prison officials are responsible for the lethal injection procedure. In addition, dosages of the drugs used are <a href="https://people.howstuffworks.com/lethal-injection5.htm">standardized</a> rather than tailored to the needs of particular inmates as they would be in a medical procedure. As a result, sometimes the lethal injection drugs don’t work correctly. </p>
<p>Despite the effort to medicalize executions, the history of lethal injection has been anything but smooth, sterile and predictable. In fact, my research reveals that of the 1,054 executions carried out from 1982 to 2010 using the standard three-drug lethal injection protocol, more than 7% were botched.</p>
<p>Since then, owing in part to <a href="https://www.themarshallproject.org/2016/04/12/how-the-drug-shortage-has-slowed-the-death-penalty-treadmill">difficulties death penalty states have had in acquiring drugs</a> for the standard three-drug protocol, <a href="https://www.sup.org/books/title/?id=35871">things appear to have gotten worse</a>. States have turned to questionable drug suppliers, including compounding pharmacies that are <a href="https://www.fda.gov/drugs/human-drug-compounding/compounding-and-fda-questions-and-answers#:%7E:text=Are%20compounded%20drugs%20approved%20by,safety%2C%20effectiveness%2C%20and%20quality.">not subject to extensive regulation by the Food and Drug Administration</a>.</p>
<p>In the last decade, states have used no less than 10 different drug combinations in lethal injections. Some of them were used multiple times, while others were used just once.</p>
<p>As states have experimented in the hope of finding a reliable drug protocol, <a href="https://www.sup.org/books/title/?id=35871">my research shows</a> that botched executions have occurred as much as 20% of the time, depending on which of the newer drug protocols is employed. </p>
<p>During some of those executions, inmates have cried out in pain and repeatedly gasped for breath long after they were supposed to have been rendered unconscious.</p>
<p>In September 2020, <a href="https://www.npr.org/2020/09/21/793177589/gasping-for-air-autopsies-reveal-troubling-effects-of-lethal-injection#:%7E:text=Most%20states%20use%20three%20drugs,as%20cruel%3F%22%20says%20Zivot.">an NPR investigation</a> helped explain the high rate of bungled executions. It found signs of pulmonary edema fluid filling the lungs in many of the post-lethal injection autopsies it reviewed. Those autopsies reveal that inmates’ lungs failed while they continued to try to breathe, causing them to feel as if they were drowning and suffocating.</p>
<h2>Responding to lethal injection’s problems</h2>
<p>Alabama now joins <a href="https://sanquentinnews.com/gov-mike-dewine-halts-executions-in-ohio/">Ohio</a> and <a href="https://www.tennessean.com/story/news/politics/2022/05/02/tennessee-governor-pauses-2022-executions-lethal-injection-review/9612950002/">Tennessee</a> as states that have paused executions and launched investigations after lethal injection failures. Other states <a href="https://account.thestate.com/paywall/subscriber-only?resume=251151894&intcid=ab_archive">have resurrected</a> previously discredited methods of execution – like electrocution or the firing squad – and added them to their menu of execution options on the books. </p>
<p>Lethal injection’s problems also have contributed to <a href="https://deathpenaltyinfo.org/state-and-federal-info/state-by-state">the decision of 11 states to abolish the death penalty since 2007</a>.</p>
<p>Reviewing the history of the different execution methods used in this country, Supreme Court Justice Sonya Sotomayor <a href="https://www.supremecourt.gov/opinions/16pdf/16-602_n758.pdf">wrote in 2017</a>: “States develop a method of execution, which is generally accepted for a time. Science then reveals that … the states’ chosen method of execution causes unconstitutional levels of suffering.”</p>
<p>And, referring specifically to lethal injection and its problems, she observed, “What cruel irony that the method [of execution] that appears most humane may turn out to be our most cruel experiment yet.”</p><img src="https://counter.theconversation.com/content/195251/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Alabama has paused the carrying out of death sentences after a series of cases in which the state struggled with the procedure.Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1899552022-09-20T13:09:22Z2022-09-20T13:09:22ZWhy has Kenya not abolished the death penalty? Habit and inertia<figure><img src="https://images.theconversation.com/files/483503/original/file-20220908-13-xgdchs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">GettyImages</span></span></figcaption></figure><p>In recent months two African states have announced their intentions to abolish the death penalty – <a href="https://www.africanews.com/2022/05/25/zambian-president-announces-big-decision-to-abolish-death-penalty/">Zambia</a> and the <a href="https://www.aljazeera.com/news/2022/6/1/un-rights-chief-hails-c-africa-decision-to-end-capital-punishment">Central African Republic</a>.</p>
<p>In all, 22 member countries of the African Union (AU) have abolished the death penalty for all crimes, and one for ordinary crimes. In 2021, only <a href="https://www.amnesty.org/en/documents/act50/5418/2022/en/">four countries</a> in the AU carried out executions: Botswana, Egypt, Somalia and South Sudan.</p>
<p>Seventeen African countries are considered “de facto abolitionist” states, meaning that they have not carried out an execution in 10 years. These include Kenya, which retains the death penalty by hanging – a British colonial relic. This sentence can be handed down for the crimes of murder, other offences resulting in death, robbery not resulting in death and treason. Kenya hasn’t carried out an execution since 1987, when Hezekiah Ochuka and Pancras Oteyo Okumu were executed for their role in the <a href="https://nation.africa/kenya/nation-prime/how-ochuka-coup-attempt-changed-kenya-1910656">failed attempt</a> to overthrow President Daniel arap Moi in 1982. </p>
<p>After 35 years of no executions, why hasn’t the law been abolished? Based on our research and legal expertise, we believe that Kenya retains the death penalty out of habit, convenience and simple inertia rather than any evidence-based consideration of its effectiveness or popularity. </p>
<p>Our recent study found that <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">Kenyans’ knowledge</a> of the death penalty is relatively limited. Just 66% of the public are aware that the country retains the death penalty. Only 21% know that no executions have taken place in 35 years. Most years, more than 100 people are sentenced to death, mostly for murder or robbery with violence.</p>
<p>Another factor that may contribute to the government’s inertia is that the death row population is managed by regular mass commutations. Death sentences of <a href="https://worldcoalition.org/2009/08/06/4000-death-sentences-commuted-in-kenya/">4,000 prisoners were commuted in 2009 under President Mwai Kibaki</a>. And in 2016 another <a href="https://www.reuters.com/article/us-kenya-president-idUSKCN12O1PN">2,747 under President Uhuru Kenyatta</a>. </p>
<p>But executions could resume as long as the law remains on the books. It is therefore our expert view that it is important to press for abolition. This would provide psychological relief for those <a href="https://www.knchr.org/Portals/0/Penal%20Reforms/KNCHR%20Death%20penalty%20survey%20report%20%20(Phase%202).pdf?ver=2018-06-08-154200-080">living in the shadow of death</a>. Indeed, international jurisprudence suggests that that long periods on death row – referred to as “death row phenomenon” – <a href="https://reprieve.org/uk/2016/10/11/death-row-phenomenon-psychological-impact-shadow-execution/">constitute</a> cruel, inhuman or degrading punishment. </p>
<p>Latest <a href="https://deathpenaltyproject.org/new-research-examines-kenyan-attitudes-towards-the-death-penalty/">research</a> conducted by The Death Penalty Project, the University of Oxford and the Kenya National Commission on Human Rights suggests that Kenyan opinion shapers are in favour of abolition, and public opinion is no impediment. So alongside legal or legislative reform, there should be civil society engagement and action from the community at a local level, bringing the public on the journey.</p>
<h2>The Kenyan death penalty explained</h2>
<p>Efforts have been made to restrict the scope and application of capital punishment. In 2017, Kenya’s Supreme Court declared the mandatory death penalty for murder <a href="https://icj-kenya.org/news/the-case-of-francis-murutatetu-versus-the-republic-of-kenya/">unconstitutional</a>. This introduced judicial discretion as to whether the death sentence should be imposed. Execution was set as the maximum penalty, but not the only one.</p>
<p>The courts do still hand down death sentences. By the end of <a href="https://www.amnesty.org/en/documents/act50/5418/2022/en">2021</a> there were 601 people on death row and 14 death sentences had been passed that year. </p>
<p>Governments that continue to apply the death penalty commonly argue that their citizens are in favour of it. Kenya’s leaders are no exception. In <a href="http://www.handsoffcain.info/notizia/kenya-death-penalty-here-to-stay-mp-s-decide-9323757">2007</a> and <a href="https://www.amnesty.org/en/documents/act50/3487/2016/en/">2015</a> the Kenyan parliament voted against abolition of the death penalty (when bills were initiated by individual lawmakers, but rejected by parliament). The justification cited was public support for retention. Kenyan delegates told a UN committee in 2013 that abolition <a href="https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13337&LangID=E">was “not supported by the will of the Kenyan people”</a>. </p>
<p>Our rigorous research suggests that this is not the case.</p>
<h2>Public opinion is no barrier to abolition</h2>
<p>Our <a href="https://deathpenaltyproject.org/knowledge/kenya-part-one-a-public-ready-to-accept-abolition/">public opinion study</a> surveyed a representative sample of 1,672 Kenyans. We found that a small majority (51%) supported retention of the death penalty. Just under a third were strongly in favour of retention. </p>
<p>This is a lower level of support than other African abolitionist de facto countries. In Zimbabwe, for example, <a href="https://deathpenaltyproject.org/knowledge/the-death-penalty-in-zimbabwe-what-does-the-public-think/">our study</a> found 61% of the public was in favour of retention. </p>
<p>Our research also showed that in Kenya support for the death penalty in specific (realistic) scenario cases was lower than support in the abstract. For example, it dropped to 32% for robbery resulting in death and 27% for murder. </p>
<p>We also interviewed 42 <a href="https://deathpenaltyproject.org/knowledge/kenya-part-two/">opinion formers</a>, including people who have jurisdiction over the criminal justice system or can be considered to influence public opinion, and found very high levels of support for abolition (90%), with the vast majority strongly in favour. </p>
<p>This represents the highest level of support for abolition across <a href="https://deathpenaltyproject.org/knowledge-resource/reports-and-studies/">all studies of opinion formers conducted by The Death Penalty Project</a>. In Kenya, opinion formers cited concerns about wrongful convictions as a reason for favouring abolition but also believed that the death penalty was an abuse of human rights.</p>
<h2>Routes to abolition</h2>
<p>The majority of those in the public who were initially in favour of retention stated they would accept abolition if it were to become Kenyan government policy. Likewise, almost all the opinion formers said they would actively support an act of parliament to abolish the death penalty.</p>
<p>Historically, there have been different routes to abolition in Africa. In Rwanda the death penalty was <a href="https://link.springer.com/article/10.1007/s12142-008-0097-8">removed</a> following the end of a repressive regime. In Sierra Leone, the president led a campaign which resulted in a <a href="https://www.amnesty.org/en/latest/press-release/2021/07/sierra-leone-abolition-of-death-penalty-a-major-victory/">vote</a> in parliament. In South Africa, the country’s post-apartheid constitution paved the way for the court to outlaw the death penalty. It recognised the <a href="http://www.saflii.org/za/cases/ZACC/1995/3.html">right</a> not to be “subject to cruel, inhuman or degrading treatment or punishment”. </p>
<p>The preferred strategy for Kenyan opinion formers was through an amendment of the criminal law. But it was also suggested that it would be necessary to apply several strategies simultaneously. The local approach would include actions from the courts, the churches and the president. Another path would involve lobbying Kenya to sign the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/second-optional-protocol-international-covenant-civil-and">international protocol</a> on abolition of the death penalty.</p>
<p>Regardless of the route Kenya takes, our research suggests that opinion formers will actively encourage and even help facilitate abolition. And the public will not stand in the way of abolishing a punishment that has clearly died out in practice.</p><img src="https://counter.theconversation.com/content/189955/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolyn Hoyle receives funding from the UK’s Economic and Social Research Council for work on the death penalty in Asia.</span></em></p><p class="fine-print"><em><span>Lucy Harry receives funding from the UK's Economic and Social Research Council for work on the death penalty in Asia.</span></em></p><p class="fine-print"><em><span>Parvais Jabbar is co-executive director of the death penalty project, an international legal NGO working on death penalty issues. He receives funding from the European Union and UK FCDO to support his work in Kenya. </span></em></p>Kenya has not carried out the death penalty since 1987, but executions could resume while the law remains on the books.Carolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of OxfordLucy Harry, Post-Doctoral Researcher, Death Penalty Research Unit (DPRU), University of OxfordParvais Jabbar, Co-Founder and Co-Executive Director of the Death Penalty Project, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1893652022-09-01T12:25:12Z2022-09-01T12:25:12Z50 years after landmark death penalty case, Supreme Court’s ruling continues to guide execution debate<figure><img src="https://images.theconversation.com/files/482104/original/file-20220831-4904-nyopg3.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3462%2C2184&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The execution chamber inside Oklahoma State Penitentiary</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DeathPenaltyOklahoma/cbf64b4cb0af4222a53b90da28d68f08/photo?Query=death%20penalty%20Oklahoma&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=220&currentItemNo=29">AP Photo/Sue Ogrocki</a></span></figcaption></figure><p>The state of Oklahoma <a href="https://apnews.com/article/executions-oklahoma-mcalester-albert-hale-207f11efd600ce46c00315c9c077c321?taid=630797576450cd0001573de5&utm_campaign=TrueAnthem&utm_medium=AP&utm_source=Twitter">put James Coddington to death</a> on Aug. 25, 2022, for the 1997 murder of a 73-year-old friend who refused to give him money to buy drugs.</p>
<p>It marks the beginning of a busy period at the Oklahoma State Penitentiary’s execution chamber. Last month, the <a href="https://www.nytimes.com/2022/07/01/us/oklahoma-executions-scheduled.html">state announced plans</a> to carry out the death sentence of 25 people over the next couple of years. </p>
<p>As a scholar who has long <a href="https://press.princeton.edu/books/paperback/9780691102610/when-the-state-kills">followed the capital punishment debate</a> in the U.S., I know that Oklahoma’s plan runs against the grain of the death penalty’s recent history. Over the past several years both the number of death sentences imposed and executions carried out across the U.S. <a href="https://www.vox.com/2020/12/30/22187578/death-penalty-united-states-executions-decline-gregg-georgia-bucklew-precythe">has declined sharply</a>. </p>
<p>Since 2007 more states have <a href="https://deathpenaltyinfo.org/state-and-federal-info/state-by-state">abolished the death penalty</a> than in any comparable 15-year period in American history. And in November 2020 America elected its <a href="https://slate.com/news-and-politics/2021/01/biden-death-penalty-agenda.html">first president ever to openly oppose capital punishment</a>.</p>
<p>Today, fewer jurisdictions are using the death penalty, but some – like Oklahoma – seem to be doubling down. America’s death penalty is now defined, as the nonprofit Death Penalty Information Center <a href="https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-2021-year-end-report">noted</a> in a 2021 report, “by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.”</p>
<figure class="align-right ">
<img alt="A video screen shows death row inmate James Coddington dressed in prison clothes." src="https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482118/original/file-20220831-8166-wmmp7y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The execution of James Coddington was the first of 25 planned executions to be carried out over a 28-month period in Oklahoma.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/OklahomaExecutionCoddingtonClemency/064e4bdeae794b5db0f0a067f719164b/photo?Query=death%20penalty%20Oklahoma&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=220&currentItemNo=13">AP Photo/Sue Ogrocki</a></span>
</figcaption>
</figure>
<p>That “extreme conduct” includes imposing death sentences arbitrarily and sometimes <a href="https://www.nationalgeographic.com/history/article/sentenced-to-death-but-innocent-these-are-stories-of-justice-gone-wrong">sentencing innocent people to death</a>. Moreover, it includes <a href="https://harvardcrcl.org/wp-content/uploads/sites/10/2020/07/07.30.2020-Phillips-Marceau-For-Website.pdf">carrying out executions</a> in a racially discriminatory way. </p>
<p>Looked at as a whole, capital punishment in the United States, as Amnesty International <a href="https://www.amnesty.org/en/what-we-do/death-penalty/the-death-penalty-your-questions-answered/">puts it</a>, is used “against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities.”</p>
<p>Indeed, <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7616&context=jclc">framing the argument against the death penalty</a> in ways that appeal to American’s sense of procedural fairness and equal treatment has been a tactic of death penalty abolitionists for decades – and may help explain the <a href="https://news.gallup.com/poll/1606/death-penalty.aspx">gradual decline in popular support for executions</a> since the early 1990s.</p>
<p>Yet the U.S. appears to be at something of a <a href="https://scholarship.law.wm.edu/wmlr/vol62/iss1/2/">stalemate</a> when it comes to the death penalty – the country is seemingly unable to either achieve fairness in capital sentencing or to abolish the death penalty once and for all.</p>
<p>My research on capital punishment <a href="https://nyupress.org/9780814762189/the-road-to-abolition/">suggests</a> that both <a href="https://www.jstor.org/stable/1192427">the arguments of today’s abolitionists</a> and the current stalemate can be traced back half a century to the Supreme Court’s 1972 decision in a landmark death penalty case: <a href="https://www.oyez.org/cases/1971/69-5030">Furman v. Georgia</a>. For a time, that decision <a href="https://kansaspress.ku.edu/978-0-7006-1711-1.html">stopped the death penalty in its tracks</a> and offered a stinging critique of its unfairness. Yet it left the door open for states to implement or reform their own laws – and some chose to preserve capital punishment.</p>
<h2>The Furman framework</h2>
<p>The Furman litigation was the culmination of a campaign <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/cruel-and-unusual-supreme-court-and-capital-punishment">conducted</a> by a group of lawyers under the auspices of the <a href="https://www.naacpldf.org/">NAACP Legal Defense Fund</a>. They hoped the Supreme Court would strike down the death penalty because of its demonstrated racial discrimination and other inequities.</p>
<p>What they got instead was something less.</p>
<p>The court <a href="https://supreme.justia.com/cases/federal/us/408/238/">issued a cryptic and unusual “per curiam” decision</a> – one which is a <a href="https://www.law.cornell.edu/wex/per_curiam">given in the name of the court rather than any specific judges</a>.</p>
<p>It read: “The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” The ruling was narrow in scope. It set out that if a death sentence was handed out in a capricious or discriminatory nature, then it would be unconstitutional.</p>
<p>But the NAACP lawyers <a href="https://wwnorton.com/books/A-Wild-Justice/">were unable</a> to get a majority of the court to agree on a set of reasons for this judgment. In fact, five justices each wrote separate opinions concurring in the judgment of the court. The other four justices each wrote separate dissenting opinions.</p>
<p><a href="https://www.oyez.org/justices/william_o_douglas">Justice William Douglas</a>, who <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/justice-douglas-and-death-penalty-demanding-view-due-process">did not think the death penalty was always unconstitutional</a>, used his opinion to condemn the arbitrary and discriminatory way in which death sentences were imposed under laws that gave complete discretion to the sentencing judge or jury.</p>
<p>Because judges or juries rarely handed down death sentences, <a href="https://www.oyez.org/justices/potter_stewart">Justice Potter Stewart</a> wrote that any particular capital defendant would have to be very unlucky to get one. It was, Stewart said, like “being struck by lightning.” <a href="https://www.oyez.org/justices/byron_r_white">Justice Byron White</a> agreed and concluded that, because they were rarely imposed, they could serve no legitimate punitive purpose.</p>
<p>Justices <a href="https://www.oyez.org/justices/william_j_brennan_jr">William Brennan</a> and <a href="https://www.oyez.org/justices/thurgood_marshall">Thurgood Marshall</a> both <a href="https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1432&context=ndjlepp">announced that the death penalty was, in their view, always unconstitutional</a>.</p>
<p>The dissenters were similarly split in their views, though they generally agreed that the question of whether the death penalty should be ended was a legislative and not a judicial question.</p>
<p>The Furman decision <a href="https://www.tandfonline.com/doi/abs/10.1080/0098261X.2008.10767891">was both</a> a remarkable achievement for the NAACP lawyers and a disappointment for those seeking to abolish capital punishment in this country. </p>
<p>It was remarkable because, for the first time in American history, the court <a href="https://wwnorton.com/books/A-Wild-Justice/">insisted</a> that if the U.S. were going to use death as a punishment, the government had to take extraordinary steps to ensure that it was administered fairly. It was a disappointment because the court did not say, once and for all, that capital punishment could not be squared with the Constitution.</p>
<h2>The return of capital punishment</h2>
<p>Reaction to the Furman decision <a href="https://www.nytimes.com/2013/09/01/books/review/a-wild-justice-by-evan-j-mandery.html">was swift</a>. Death penalty states <a href="https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1003&context=hastings_journal_crime_punishment">worked hard to discern</a> its meaning and to ascertain what they could do to restore capital punishment. </p>
<p>Some states, such as Louisiana and North Carolina, enacted mandatory death penalty statutes, eliminating discretion entirely from the death penalty system. Others – Georgia, Florida and Texas – chose a different path, retaining the punishment but guiding discretion by narrowing and specifying the class of death-eligible crimes. </p>
<p>Four years after Furman, the death penalty was back before the Supreme Court. The question was whether either of those approaches adequately addressed the concerns expressed by the justices who concurred with the Furman decision.</p>
<p>This time the court’s verdict was less equivocal, though no less divided. In a 5-4 decision, it <a href="https://supreme.justia.com/cases/federal/us/428/280/#tab-opinion-1951897">struck down</a> mandatory death sentencing statutes. In addition, a seven-justice majority <a href="https://supreme.justia.com/cases/federal/us/428/153/#tab-opinion-1951891">found</a> guided discretion statutes to be constitutional.</p>
<p>Despite compelling evidence that narrowing and specifying the class of death-eligible defendants did not cure the problems of unfairness identified in Furman, the Supreme Court <a href="https://supreme.justia.com/cases/federal/us/481/279/#tab-opinion-1957081">again upheld the death penalty</a> in 1987. In <a href="https://www.oyez.org/cases/1986/84-6811">McCleskey v. Kemp</a>, it ruled that statistical evidence could not be used to prove that racial discrimination persisted even after the implementation of the Furman-inspired reforms.</p>
<h2>Furman’s legacy</h2>
<p>Fifty years after Furman, arbitrariness and discrimination remain <a href="https://www.nytimes.com/2020/08/03/us/racial-gap-death-penalty.html">persistent features of America’s death penalty system</a>. Today Americans <a href="https://www.pewresearch.org/politics/2021/06/02/most-americans-favor-the-death-penalty-despite-concerns-about-its-administration/#:%7E:text=Yet%20%22%22">are still arguing about fairness in that system</a>. And the case against the death penalty continues to be made on the terms that Furman’s concurring opinions articulated.</p>
<p>But Furman also initiated a process that <a href="https://www.ncsc.org/__data/assets/pdf_file/0023/17474/give-him-a-fair-trial-then-hang-him.pdf">lent a veneer of legal respectability</a> to the death penalty system. It has allowed states such as Oklahoma to keep the machinery of death running by making procedural changes rather than addressing the injustices that continue to plague capital punishment in the United States. </p>
<p>Sociologist and law professor <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=19938">David Garland</a> <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674066106">rightly observed</a> that Furman and the court decisions that took up its mantle have served “to enhance the perceived lawfulness and legitimacy of capital punishment” and acted “as a force for its conservation.”</p><img src="https://counter.theconversation.com/content/189365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In 1972, justices handed down a decision that attacked discriminatory and capricious death sentences. But it left the door ajar for states to continue the practice.Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1853522022-07-27T11:59:25Z2022-07-27T11:59:25ZPushing ‘closure’ after trauma can be harmful to people grieving – here’s what you can do instead<figure><img src="https://images.theconversation.com/files/476141/original/file-20220726-37535-e3n2p2.jpg?ixlib=rb-1.1.0&rect=0%2C7%2C5139%2C2400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People need time and space to grieve at their own pace.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/rear-view-of-silhouette-woman-looking-through-royalty-free-image/1141652626?adppopup=true">John Encarnado/EyeEm/Getty Immages</a></span></figcaption></figure><p>From the breakup of a relationship to losing a loved one, people are often told to <a href="https://journals.sagepub.com/doi/10.1177/1536504211427869">find “closure</a>” after traumatic things happen.</p>
<p>But what is closure? And should it really be the goal for individuals seeking relief or healing, even in these traumatic times of <a href="https://theconversation.com/africa/topics/covid-19-82431">global pandemic</a>, <a href="https://theconversation.com/africa/topics/ukraine-invasion-2022-117045">war in Ukraine</a> and <a href="https://www.texastribune.org/series/uvalde-texas-school-shooting/">mass shootings</a> in the U.S.?</p>
<p>Closure is an elusive concept. There is no agreed-upon definition for what closure means or how one is supposed to find it. Although there are numerous interpretations of closure, it usually relates to some type of ending to a difficult experience. </p>
<p>As a grief expert and author of “<a href="https://tupress.temple.edu/book/0806">Closure: The Rush to End Grief and What It Costs Us</a>,” I have learned that the language of closure can often create confusion and false hope for those experiencing loss. Individuals who are grieving feel more supported when they are allowed time to learn to live with their loss and not pushed to find closure.</p>
<h2>Why did closure become popular?</h2>
<p>Closure is entrenched in popular culture not because it is a well-defined, understood concept that people need, but rather because the idea of closure can be used to sell products, services and even political agendas.</p>
<p><a href="https://doi.org/10.1093/acprof:oso/9780195183559.001.0001">The funeral industry</a> started using closure as an important selling point after it was <a href="https://www.penguinrandomhouse.com/books/115611/the-american-way-of-death-revisited-by-jessica-mitford/">criticized harshly in the 1960s</a> for charging too much for funerals. To justify their high prices, funeral homes began claiming that their services helped with grief too. Closure eventually became a neat package to explain those services.</p>
<p>In the 1990s, <a href="https://www.jstor.org/stable/40220137">death penalty advocates</a> used the concept of closure to reshape their political discourse. Arguing that the death penalty would bring closure for victims’ family members was an attempt to appeal to a broader audience. However, research continues to show that <a href="https://www.pbs.org/newshour/nation/death-penalty-bring-closure-victims-family">executions do not bring closure</a>. </p>
<p>Still today, journalists, politicians, businesses and other professionals use the rhetoric of closure to appeal to people’s emotions related to trauma and loss.</p>
<h2>So what is the problem with closure?</h2>
<p>It is not the mere presence of closure as a concept that is a problem. The concern comes when people believe closure must be found in order to move forward. </p>
<p>Closure represents a set of expectations for responding after bad things happen. If people believe they need closure in order to heal but cannot find it, they may feel something is wrong with them. Because so many others may tell those grieving they need closure, they often feel a pressure to either end grief or hide it. This pressure can lead to <a href="https://doi.org/10.1080/02682621.2014.902610">further isolation</a>.</p>
<p>Privately, many people may resent the idea of closure because they do not want to forget their loved ones or have their grief minimized. I hear this frustration from people I interview. </p>
<p>Closure frequently becomes a one-word description of what individuals are supposed to find at the end of the grieving process. The concept of closure taps into a desire to have things ordered and simple, but <a href="https://youtu.be/w0rCfXSdYPE">experiences with grief and loss</a> are often longer-term and complex. </p>
<h2>If not closure, then what?</h2>
<p>As a <a href="http://www.nancyberns.com">grief researcher and public speaker</a>, I engage with many different groups of people seeking help in their grief journeys or looking for ways to better support others. I’ve listened to hundreds of people who share their experiences with loss. And I learn time and again that people do not need closure to heal. </p>
<p>They can carry grief and joy together. They can carry grief as part of their love for many years. As part of my research, I interviewed a woman I will call Christina. </p>
<p>Just before her 16th birthday, Christina’s mom and four siblings were killed in a car accident. Over 30 years later, Christina said that people continue to expect her to just “be over it” and to find closure. But she does not want to forget her mother and siblings. She is not seeking closure to their deaths. She has a lot of joy in her life, including her children and grandchildren. But her mom and siblings who died are also part of who she is.</p>
<p>Both privately – and as a community – individuals can <a href="https://doi.org/10.1093/acprof:oso/9780195074567.001.0001">learn to live with loss</a>. The types of loss and trauma people experience vary greatly. There is not just one way to grieve, and there is no time schedule. Furthermore, the history of any community contains a range of experiences and emotions, which might include <a href="https://www.frontiersin.org/articles/10.3389/fpsyg.2018.01441/full">collective trauma</a> from events such as mass shootings, natural disasters or war. The complexity of loss reflects the complexity of relationships and experiences in life.</p>
<p>Rather than expecting yourself and others to find closure, I would suggest creating space to grieve and to remember trauma or loss as needed. Here are a few suggestions to get started:</p>
<p>• Know people can carry complicated emotions together. Embrace a full range of emotions. The goal does not need to be “being happy” all the time for you or others.</p>
<p>• Improve listening skills and know you can help others without trying to fix them. Be present and acknowledge loss through listening. </p>
<p>• Realize that people vary greatly in their <a href="https://doi.org/10.1080/02682621.2013.812828">experiences with loss</a> and the way they grieve. Don’t compare people’s grief and loss. </p>
<p>• Bear witness to pain and trauma of others in order to acknowledge their loss. </p>
<p>• Provide individual and community-level <a href="https://theconversation.com/why-remembering-matters-for-healing-94565">opportunities for remembering</a>. Give yourself and others freedom to carry memories.</p>
<p>Healing does not mean rushing to forget and silencing those who hurt. I believe that by providing space and time to grieve, communities and families can honor lives lost, acknowledge trauma and learn what pain people continue to carry.</p><img src="https://counter.theconversation.com/content/185352/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nancy Berns does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An expert on grief says give people space and time to come to terms with loss and don’t expect them to need – or want – ‘closure.’Nancy Berns, Professor of Sociology, Drake UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1860052022-07-19T12:25:31Z2022-07-19T12:25:31ZWhat really drives anti-abortion beliefs? Research suggests it’s a matter of sexual strategies<figure><img src="https://images.theconversation.com/files/474127/original/file-20220714-32255-1j48rf.jpg?ixlib=rb-1.1.0&rect=0%2C101%2C3640%2C2562&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's an interesting evolutionary benefit for some women if the consequences of casual sex are high.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-life-marchers-participate-in-the-march-for-life-tens-of-news-photo/506527136">Albin Lohr-Jones/Pacific Press/LightRocket via Getty Images</a></span></figcaption></figure><p>Many people have strong opinions about abortion – especially in the wake of the U.S. Supreme Court decision that overturned Roe v. Wade, revoking a constitutional right previously held by more than 165 million Americans.</p>
<p>But what really drives people’s abortion attitudes? </p>
<p>It’s common to hear religious, political and other ideologically driven explanations – for example, about the sanctity of life. If such beliefs were really driving anti-abortion attitudes, though, then people who oppose abortion might not support the death penalty (<a href="https://doi.org/10.1080/07418829800093771">many do</a>), and they would support social safety net measures that could save newborns’ lives (<a href="https://www.npr.org/2022/07/13/1111244809/many-states-have-anti-abortion-laws-will-they-provide-a-social-safety-net-for-mo">many don’t</a>).</p>
<p>Here, we suggest a different explanation for anti-abortion attitudes – one you probably haven’t considered before – from <a href="https://scholar.google.com/citations?user=UEJqvFoAAAAJ&hl=en&oi=ao">our field of evolutionary</a> <a href="https://scholar.google.com/citations?user=CpXzPwgAAAAJ&hl=en&oi=ao">social science</a>.</p>
<h2>Why do people care what strangers do?</h2>
<p>The evolutionary coin of the realm is fitness – getting more copies of your genes into the next generation. What faraway strangers do presumably has limited impact on your own fitness. So from this perspective, it is a mystery why people in Pensacola care so strongly about what goes on in the bedrooms of Philadelphia or the Planned Parenthoods of Los Angeles.</p>
<p>The solution to this puzzle – and one answer to what is driving anti-abortion attitudes – lies in a conflict of sexual strategies: <a href="https://doi.org/10.1177/0963721412453588">People vary in how opposed they are to casual sex</a>. More “sexually restricted” people tend to shun casual sex and instead invest heavily in long-term relationships and parenting children. In contrast, more “sexually unrestricted” people tend to pursue a series of different sexual partners and are often slower to settle down.</p>
<p>These sexual strategies conflict in ways that affect evolutionary fitness. </p>
<p>The crux of this argument is that, for sexually restricted people, other people’s sexual freedoms represent threats. Consider that sexually restricted women often get married young and have children early in life. These choices are just as valid as a decision to wait, but they can also be <a href="https://doi.org/10.1016/S0049-089X(03)00012-7">detrimental to women’s occupational attainment</a> and tend to leave women more <a href="https://doi.org/10.2307/354020">economically dependent on husbands</a>.</p>
<p>Other women’s sexual openness can destroy these women’s lives and livelihoods by breaking up the relationships they depend on. So sexually restricted women benefit from impeding other people’s sexual freedoms. Likewise, sexually restricted men tend to <a href="https://global.oup.com/academic/product/the-oxford-handbook-of-evolutionary-psychology-and-parenting-9780190674687">invest a lot in their children</a>, so they benefit from prohibiting people’s sexual freedoms to preclude the high fitness costs of being cuckolded.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="two parents snuggle with four young kids" src="https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=479&fit=crop&dpr=1 754w, https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=479&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/474128/original/file-20220714-33068-utuwgh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=479&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Sexually restricted adults may feel that when casual sex has more potential consequences, it protects their own family relationships.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/happy-young-family-with-four-children-sitting-royalty-free-image/1354860953">Halfpoint Images/Moment via Getty Images</a></span>
</figcaption>
</figure>
<h2>Benefiting from making sex more costly</h2>
<p><a href="https://press.princeton.edu/books/paperback/9780691154398/why-everyone-else-is-a-hypocrite">According to evolutionary social science</a>, restricted sexual strategists benefit by imposing their strategic preferences on society – by curtailing other people’s sexual freedoms. </p>
<p>How can restricted sexual strategists achieve this? By making casual sex more costly. </p>
<p>For example, banning women’s access to safe and legal abortion essentially forces them to endure the costs of bearing a child. Such hikes in the price of casual sex can deter people from having it. </p>
<p>This attitude is perhaps best illustrated by a statement from Mariano Azuela, a justice who opposed abortion when it came before Mexico’s Supreme Court in 2008: “I feel that a woman in some way <a href="https://www.nytimes.com/2008/08/28/world/americas/28mexico.html">has to live with the phenomenon of becoming pregnant</a>. When she does not want to keep the product of the pregnancy, she still has to suffer the effects during the whole period.” </p>
<p>Force people to “suffer the effects” of casual sex, and fewer people will pursue it.</p>
<p>Also note that abortion restrictions do not increase the costs of sex equally. Women bear the costs of gestation, face the <a href="https://doi.org/10.1089/jwh.2020.8863">life-threatening dangers of childbirth</a> and <a href="https://doi.org/10.1016/j.copsyc.2021.07.020">disproportionately bear responsibility for child care</a>. When women are denied abortions, they are also more likely to <a href="https://www.ansirh.org/research/ongoing/turnaway-study">end up in poverty and experience intimate partner violence</a>.</p>
<p>No one would argue this is a conscious phenomenon. Rather, people’s strategic interests shape their attitudes in nonconscious but self-benefiting ways – a common finding in <a href="https://www.worldcat.org/title/challenge-of-democracy-government-in-america/oclc/449201193&referer=brief_results">political science</a> and <a href="https://doi.org/10.1017/ehs.2021.29">evolutionary social science</a> alike.</p>
<h2>Resolving awkward contradictions in attitudes</h2>
<p>An evolutionary perspective suggests that common explanations are not the genuine drivers of people’s attitudes – on either side of the abortion debate. </p>
<p>In fact, people’s stated religious, political and ideological explanations are often rife with awkward contradictions. For example, many who oppose abortion also oppose <a href="https://doi.org/10.1179/2050854914Y.0000000035">preventing unwanted pregnancy through access to contraception</a>. </p>
<p>From an evolutionary perspective, such contradictions are easily resolved. Sexually restricted people benefit from increasing the costs of sex. That cost increases when people cannot access legal abortions or prevent unwanted pregnancy.</p>
<p>An evolutionary perspective also makes unique – often counterintuitive – predictions about which attitudes travel together. This view predicts that if sexually restricted people associate something with sexual freedoms, they should oppose it. </p>
<p>Indeed, researchers have found that sexually restricted people oppose not only abortion and birth control, but also <a href="https://doi.org/10.1177/0956797615621719">marriage equality</a>, because they perceive homosexuality as associated with sexual promiscuity, and <a href="https://doi.org/10.1098/rspb.2010.0608">recreational drugs</a>, presumably because they associate drugs like marijuana and MDMA with casual sex. We suspect this list likely also includes transgender rights, <a href="https://doi.org/10.31234/osf.io/67vh9">public breastfeeding</a>, premarital sex, what books children read (and <a href="https://www.oif.ala.org/oif/drag-queen-storytime-continue-to-stir-up-controversy-as-well-as-excitement-among-library-patrons/">if drag queens can read to them</a>), equal pay for women, and many other concerns that have yet to be tested.</p>
<p>No other theories we are aware of predict these strange attitudinal bedfellows.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="hazy-focus view of back of bride and groom in church with people in pews" src="https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/474133/original/file-20220714-32258-kvrjag.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">More sexually restricted people may in turn become more religious.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/focus-shot-of-flower-wedding-decoration-royalty-free-image/163346894">maximkabb/iStock via Getty Images Plus</a></span>
</figcaption>
</figure>
<h2>Behind the link to religion and conservatism</h2>
<p>This evolutionary perspective can also explain why anti-abortion attitudes are so often associated with religion and social conservatism. </p>
<p>Rather than thinking that religiosity causes people to be sexually restricted, this perspective suggests that a restricted sexual strategy can <a href="https://doi.org/10.1037/0022-3514.89.1.78">motivate people to become religious</a>. Why? <a href="https://doi.org/10.1016/j.copsyc.2020.07.030">Several</a> <a href="https://doi.org/10.1016/j.evolhumbehav.2013.08.006">scholars</a> <a href="https://doi.org/10.1177/0963721419838242">have suggested</a> that people adhere to religion in part <a href="https://doi.org/10.1016/j.evolhumbehav.2008.03.004">because its teachings promote sexually restricted norms</a>. Supporting this idea, participants in one study reported being <a href="https://doi.org/10.1016/j.jesp.2009.10.017">more religious after researchers showed them photos of attractive people</a> of their own sex – that is, potential mating rivals.</p>
<p>Sexually restricted people also tend to invest highly in parenting, so they stand to benefit when other people adhere to norms that benefit parents. <a href="https://doi.org/10.1177/01461672221076919">Like religion</a>, <a href="https://doi.org/10.31234/osf.io/d3fg2">social conservatism prescribes parent-benefiting norms</a> like constricting sexual freedoms and ostensibly promoting family stability. In line with this, <a href="https://doi.org/10.1093/oxfordhb/9780190674687.013.27">some research</a> suggests that people don’t simply <a href="https://quoteinvestigator.com/2014/02/24/heart-head/">become more conservative with age</a>. Rather, people become <a href="https://doi.org/10.1016/j.paid.2018.05.045">more socially conservative during parenthood</a>.</p>
<h2>Restricting everyone to benefit yourself</h2>
<p>There are <a href="https://doi.org/10.1016/j.tree.2013.10.008">multiple answers to any “why” question</a> in scientific research. Ideological beliefs, personal histories and other factors certainly play a role in people’s abortion attitudes. </p>
<p>But so, too, do people’s sexual strategies.</p>
<p>This evolutionary social science research suggests that restricted sexual strategists benefit by making everyone else play by their rules. And just as <a href="https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256">Justice Thomas suggested when overturning Roe v. Wade</a>, this group may be taking aim at birth control and marriage equality next.</p><img src="https://counter.theconversation.com/content/186005/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some reasons people oppose abortion seem to be at odds with other positions they hold. Evolutionary social science points to a surprising motivation for anti-abortion attitudes.Jaimie Arona Krems, Assistant Professor of Psychology, Oklahoma State UniversityMartie Haselton, Professor of Psychology, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1864782022-07-11T14:32:27Z2022-07-11T14:32:27ZA referendum on electoral reform in South Africa might stir up trouble<figure><img src="https://images.theconversation.com/files/472956/original/file-20220707-16-psr2t9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Voters in Johannesburg queue to vote in South Africa's May 2019 national elections. </span> <span class="attribution"><span class="source">EFE-EPA/Kim Ludbrook</span></span></figcaption></figure><p>After 28 years of democracy, South Africa is having to reform its political party-based electoral system to make it fairer and in line with the constitution, by allowing independent candidates to <a href="https://perjournal.co.za/article/view/12746">contest national and provincial parliaments</a>. A <a href="https://www.parliament.gov.za/bill/2300397">bill</a> to amend the country’s electoral law accordingly is before parliament.</p>
<p>The present electoral system has underpinned the governing African National Congresses’ (<a href="https://www.anc1912.org.za/">ANC</a>’s) <a href="https://theconversation.com/south-african-voters-are-disillusioned-but-they-havent-found-an-alternative-to-the-anc-171239">dominance of the political system since 1994</a>, not least by making individual MPs accountable to party bosses rather than the voters. This lack of accountability has facilitated the <a href="https://www.thepresidency.gov.za/speeches/statement-president-cyril-ramaphosa-handover-final-part-state-capture-commission-report%2C-union-buildings%2C-pretoria">stunning level of corruption</a> in the country.</p>
<p>Now there are calls for a <a href="https://www.news24.com/citypress/voices/standing-up-to-defend-our-democracy-is-the-only-option-20220702">national referendum</a> on the electoral system to define the way forward, and liberate it from the clutches of party barons. The intention seems to be to give the decision to “the people” rather than to parliament, which is the ordinary way for legislative change to be enacted.</p>
<p>But, this proposal would need to be handled carefully. </p>
<p>Referendums can be easily abused. Politicians often resort to them to avoid responsibility for making a difficult political decision, or to secure backing for a controversial policy and thus beat an opponent.</p>
<p>Examples abound.</p>
<p>British Labour prime minister Harold Wilson’s <a href="https://www.historyextra.com/period/20th-century/britain-decides-the-first-european-referendum/">1975
referendum</a> on whether Britain should stay in the European common market was an example of the first. South African president FW de Klerk’s <a href="https://www.sahistory.org.za/article/1992-whites-only-referendum-or-against-negotiated-constitution">1992 referendum</a> among whites to secure backing for entering negotiations with the ANC to end apartheid – thereby scuppering the opposition <a href="https://www.britannica.com/topic/Conservative-Party-political-party-South-Africa">Conservative Party</a> – was an example of the second.</p>
<p>Both Wilson and De Klerk received the answer they wanted and
expected. But politicians can also miscalculate badly. The most obvious example is British Conservative <a href="https://www.britannica.com/biography/David-Cameron">prime minister David Cameron</a>’s decision to call a referendum <a href="https://theconversation.com/brexit-five-years-after-the-referendum-here-are-five-things-weve-learned-162974">in 2016</a> on whether the UK should stay in the European Union.</p>
<p>He fully expected to win, but in the face of a scurrilous campaign by populist politicians like <a href="https://www.reuters.com/breakingviews/boris-johnson-exit-is-beginning-end-brexit-2022-07-07/">Boris Johnson</a> and <a href="https://www.theguardian.com/commentisfree/2022/mar/13/nigel-farage-hard-right-faction-brexit-net-zero-tory">Nigel Farage</a>, he lost. Today Britain is having to live with the consequences of Brexit: increased costs of imports from Europe, lower exports to Europe, constant supply chain problems, labour shortages and huge difficulties around Northern Ireland.</p>
<h2>Lessons to be drawn</h2>
<p>Britain’s history with referendums is worth noting. South Africa does not want to go the same way. Lessons need to be drawn from these and other examples around the world. </p>
<p>Care and rules are needed for how any referendum, on any question,
would be conducted. </p>
<ul>
<li><p>Who would devise the question put to the electorate? Are they independent, or are they subordinated to the interests of particular politicians?</p></li>
<li><p>Are the questions posed neutrally phrased, or do they deliberately or otherwise point their respondents in a particular direction?</p></li>
<li><p>Would the government of the day be bound by the result of a referendum, or would it be advisory?</p></li>
<li><p>Would a government accept a result endorsed by a 50.1% majority,
or would it require a “special majority”, of say 55%, to pass?</p></li>
<li><p>What rules would have to be followed during a campaign, and how would the media be required to conduct themselves? </p></li>
<li><p>What sanctions would be imposed to limit the subversion of the campaign by lies by both sides of the electoral debate? </p></li>
<li><p>Would there be any rule outlawing a repeat of the referendum within any given period of time?</p></li>
</ul>
<p>Without careful regulation, a referendum can be predisposed to securing a particular answer. Yet it is ostensibly designed to deepen democracy, not to subvert it.</p>
<h2>Proportionality</h2>
<p>Electoral systems can be highly complex. The great virtue of South Africa’s proportional representation <a href="https://hsf.org.za/publications/hsf-briefs/the-south-african-electoral-system">electoral system</a> is that it is simple. The voter has two votes, one for national level, one for provincial level. These votes contribute to the proportionate vote of the chosen party.</p>
<p>It is rather more difficult to explain to voters how <a href="https://www.researchgate.net/publication/272466990_The_Case_of_Lesotho's_Mixed_Member_Proportional_System">mixed member systems</a> ensure proportionality of party representation. These systems combine <a href="https://www.telegraph.co.uk/politics/0/first-past-the-post-voting-explained/">first-past-the-post</a> constituency elections with proportional representation. </p>
<p>This poses the issue of how members of parliament who are elected by constituencies would be balanced by those elected by <a href="https://www.eisa.org/wep/sou3.htm">proportional representation</a> to ensure an election result which, as the <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> requires, is overall, proportional. In other words, what proportion of MPs would be elected by constituencies as against those elected by proportional representation?</p>
<p>These complexities and other considerations suggest a way forward if much-needed electoral reform, beyond that presently ordered by the Constitutional Court, is to be achieved in South Africa.</p>
<p>The first step must be for the ANC to be pushed well below 50% in the <a href="https://www.eisa.org/wep/southafrica.htm">2024 election</a>. Turkeys do not vote for Christmas. The ANC is unlikely to hold a referendum which might lead to far-reaching electoral reform.</p>
<p>It is unlikely that the ANC will vote for radical electoral reform unless it is hard pushed to do so. It is at present working hard to <a href="https://theconversation.com/south-africa-is-in-search-of-a-fairer-electoral-system-but-whats-been-tabled-is-flawed-184277">minimise the impact</a> of allowing independent candidates to stand in elections, as required by a ruling of the <a href="https://theconversation.com/constitutional-court-ruling-heralds-changes-to-south-africas-electoral-system-140668">Constitutional Court</a>.</p>
<p>Second, there needs to be a binding commitment by opposition parties to electoral reform and how to bring it about. Presuming that the ANC receives <a href="https://ewn.co.za/2022/05/20/jeff-radebe-warns-anc-could-get-below-50-of-votes-at-2024-national-elections">well below 50%</a> in the 2024 election, this commitment must be a condition of any coalition agreement formed between political parties forming a government.</p>
<p>Third, there should be a repeat of the 2003 <a href="https://static.pmg.org.za/docs/Van-Zyl-Slabbert-Commission-on-Electoral-Reform-Report-2003.pdf">Van Zyl Slabbert Commission</a> to consider electoral alternatives. Such a commission should be composed in such a way to earn the trust of both politicians and voters.</p>
<p>Its deliberations need not take much time, as the commission has already discussed the fundamental principles involved. It also ran a survey which – rather than asking respondents directly what electoral system they favoured – asked them what values they wanted an electoral system to express, values like fairness, equality and accountability.</p>
<p>Fourth, the recommendations of such a commission would need to be
accepted and implemented by parliament. This is where any coalition
agreement should kick in. Perhaps such a coalition agreement might
require that, in the event of a serious disagreement about electoral reform, the matter should be referred to the Constitutional Court.</p>
<h2>What issues should the people decide?</h2>
<p>This leaves open the issue of whether, following the approval or
defeat of a bill to implement electoral reform, the outcome should be
referred to the electorate in a referendum.</p>
<p>It needs to be clear as to why, if parliament has made a decision, the
matter should be referred to a referendum. Perhaps it should. Perhaps this would be a way of making South Africa’s democracy more direct, and its politicians more accountable.</p>
<p>But if the form of an electoral system can be referred to the electorate in a referendum, why not capital punishment? And why not abortion? Or LGBTIQ rights? </p>
<p>Care is needed. A referendum may well have a place in the country’s
democracy, but beware – it may release a host of problems.</p><img src="https://counter.theconversation.com/content/186478/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Referenda may well have a place in the country’s democracy, but if the form of an electoral system can be referred to a referendum, why not capital punishment, abortion or LGBT rights?Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1857882022-06-29T14:36:01Z2022-06-29T14:36:01ZThe right to die: unpacking an ethical dilemma in South Africa<figure><img src="https://images.theconversation.com/files/471410/original/file-20220628-20-uu3f6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Right to die activist Sean Davison (left) speaks to the press after three years of house arrest.</span> <span class="attribution"><span class="source">Brenton Geach/Gallo Images via Getty Images</span></span></figcaption></figure><p>Sean Davison, the euthanasia activist and co-founder of <a href="https://dignitysouthafrica.org/">DignitySA</a>, recently <a href="https://ewn.co.za/2022/06/23/i-didn-t-murder-them-i-helped-them-shares-euthanasia-activist-sean-davison">completed a sentence</a> of house arrest in South Africa for his role in the deaths of three people. He said he had not committed a crime or murder, but had helped these people because they were <a href="https://www.capetalk.co.za/articles/448020/i-didn-t-murder-them-i-helped-them-shares-euthanasia-activist-sean-davison">desperate</a> to die. Anrich Burger, Justin Varian and Richard Holland were suffering unbearably with no hope of recovery and unable to end their own lives. </p>
<p>The late South African emeritus Archbishop Desmond Tutu, in whose <a href="https://www.dailymaverick.co.za/article/2022-06-20-right-to-die-activist-sean-davison-vows-to-carry-on-fight-in-tutus-honour/">honour</a> Davison wants to fight to change the laws around assisted suicide, once <a href="https://theconversation.com/we-have-a-right-to-die-with-dignity-the-medical-profession-has-a-duty-to-assist-67574">wrote</a> that he would want the option of an assisted death. Tutu argued that dying people should have the right to decide how and when they wanted to leave this life.</p>
<p>Legislation in Canada, and a number of US states and European countries, for example, allows assisted suicide. But there are still billions of people around the world, as in South Africa, who do not have this right. </p>
<p>The question of whether this is a right is a debate that has been raging for years in medical ethics and within religious groups. </p>
<p>This article is not about the religious or strictly legal aspects of the debate. It grapples with the ethical tension between arguments against and for active forms of euthanasia – one of the most contested ethical subjects in the world. </p>
<h2>Arguments against active euthanasia</h2>
<p>There are broadly three arguments <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">against</a> active forms of euthanasia:</p>
<ul>
<li><p>only God has the authority to dispose over life and death</p></li>
<li><p>it is the role of medical doctors to preserve life and not to cause death</p></li>
<li><p>a doctor could abuse his or her position to take the lives of vulnerable patients, or patients might be killed against their wishes.</p></li>
</ul>
<p>Although these arguments must be considered, I prefer to put forward the arguments in support of the active forms of euthanasia.</p>
<p>But let’s first look for the sake of clarity at two forms of active euthanasia.</p>
<h2>Two kinds of active euthanasia</h2>
<p>One is known as voluntary active euthanasia. This is when death is intentionally brought about in the life of a patient who is competent to make such a decision, and where death is reasonably believed to be in the interest of and based on an informed request by the patient. The doctor’s act is the proximate cause of death. </p>
<p>The second form of active euthanasia is where a doctor assists a patient in suicide, called “physician-assisted suicide”. The doctor intentionally provides the means to a competent individual who then takes his or her own life. </p>
<p>In South Africa, both these forms of euthanasia are illegal. </p>
<h2>Constitutional and other supportive perspectives</h2>
<p>In a constitutional democracy, active euthanasia should not be dealt with primarily as a theological issue. Of course, people of faith may express their beliefs about it, but they should not expect to dictate the law. There are many citizens who do not share religious values.</p>
<p>Although legislation in South Africa prohibits active forms of euthanasia, I believe that it is not against the <a href="https://www.gov.za/documents/constitution/chapter-2-bill-rights">constitution</a>. The bill of rights includes three relevant rights:</p>
<ul>
<li><p>human dignity (article 10)</p></li>
<li><p>freedom and security of the person, including the right not to be treated or punished in a cruel, inhuman or degrading way (article 12(1))</p></li>
<li><p>bodily and psychological integrity, including the right to security in and control over one’s body (article 12(2)).</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-have-a-right-to-die-with-dignity-the-medical-profession-has-a-duty-to-assist-67574">We have a right to die with dignity. The medical profession has a duty to assist</a>
</strong>
</em>
</p>
<hr>
<p>There is another point in favour of active euthanasia. The development of medical science means that people have more control over death and life than ever before. Although life has high value, it is not absolute.</p>
<p>People make decisions throughout their lives about their health. But when they are terminally ill, often in unbearable pain and suffering – and sometimes even losing their dignity – they are not allowed to decide when they want to die.</p>
<p>If someone is terminally ill and suffers badly, can a strong moral case not be made that such a person – within <a href="https://www.justice.gov.za/salrc/reports/r_prj86_euthen_1998nov.pdf">prescribed medical-ethical parameters</a>, evaluating the patient’s suffering, prognosis, mental competence, informed decision-making and clear communication – be assisted with the dying process? </p>
<h2>In support of active euthanasia</h2>
<p>Three arguments have been put forward in <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">support</a> of active euthanasia.</p>
<p><strong>Personal autonomy should be respected.</strong> This implies that a competent person has a moral right to make his or her own choice.</p>
<p><strong>Unbearable suffering should be prevented.</strong> Nobody should be forced to endure suffering – often at high medical cost.</p>
<p>When life is no longer good, and death is no longer bad, and when death is therefore preferred to continuing life, the role of medicine could change from healing and preserving life to helping someone die in a way that is compassionate, kind, gentle and respectful.</p>
<p>I believe everyone should be allowed to choose his or her “moment”. For me, active forms of euthanasia are not so much the termination of life, but rather the shortening of suffering and the dying process.</p>
<p><strong>Moral equivalence.</strong> Physician assisted suicide is like other practices that are already morally acceptable – such as passive euthanasia. </p>
<p>To withhold treatment is viewed as an omission while physician assisted suicide and voluntary active euthanasia are regarded as acts. But people are morally and legally <a href="https://www.loot.co.za/product/k-moodley-medical-ethics-law-and-human-rights/kknf-4887-ga80?referrer=googlemerchant&gclid=EAIaIQobChMIuPLBqNbD-AIVTtPtCh2kTgIUEAQYASABEgKqrfD_BwE&gclsrc=aw.ds">responsible</a> for both acts and omissions.</p>
<p>South Africa is a country where people hold different opinions. This diversity of opinions must always be considered, according to the constitution. South Africans did it with the termination of pregnancy (which was legalised) and the death penalty (which was scrapped).</p><img src="https://counter.theconversation.com/content/185788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Jones does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>People make decisions throughout their lives about their health. But when they are terminally ill they are not allowed to decide when they want to die.Chris Jones, Chief researcher, Department of Systematic Theology and Ecclesiology, head of Unit for Moral Leadership, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1758112022-01-27T13:31:34Z2022-01-27T13:31:34ZThe moderate, pragmatic legacy of Stephen Breyer<figure><img src="https://images.theconversation.com/files/442841/original/file-20220126-26-16nbyan.jpg?ixlib=rb-1.1.0&rect=11%2C11%2C3739%2C2485&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A justice representing a kinder political age?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBreyerRetire/322df6a5f075411fa0d7810abac23943/photo?Query=Stephen%20Breyer&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=473&currentItemNo=37">AP Photo/Steven Senne</a></span></figcaption></figure><p>Stephen Breyer will leave a legacy that reflects the Supreme Court he joined nearly three decades ago – less fractious and less partisan than the bench he is <a href="https://apnews.com/article/stephen-breyer-supreme-court-retirement-2f9c1f5da824e3b1ef25964205131fff">reportedly set to leave</a> at the end of the current term.</p>
<p>When Breyer was <a href="https://clinton.presidentiallibraries.us/items/show/36180">nominated by Democratic President Bill Clinton</a> in 1994, he was not a controversial choice. He was confirmed by an 87-9 vote in the Senate, garnering the support of <a href="https://news.bloomberglaw.com/us-law-week/breyers-strong-bipartisan-confirmation-a-relic-of-the-past">79% of Republicans</a>.</p>
<p>There were few surprises at his relatively uneventful <a href="https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/ConfirmationMessesOldAndNew.pdf">confirmation hearing</a>. By and large, senators knew what they were getting: a moderate liberal who took a pragmatic approach to judging.</p>
<p>For Breyer, this meant a healthy respect for precedent and endeavoring to understand the practical consequences of the court’s cases, including how they affect the general population.</p>
<h2>Breyer’s majority opinions</h2>
<p>Breyer joined a court that had just reaffirmed the right to abortion in 1992’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>, and he consistently upheld the precedent set by that case and Roe v. Wade throughout his tenure. In 2000, he wrote the majority opinion in <a href="https://www.oyez.org/cases/1999/99-830">Stenberg v. Carhart</a>, invalidating a state law that criminalized “partial-birth” abortion. In more recent terms, his opinions in <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a> and <a href="https://www.oyez.org/cases/2019/18-1323">June Medical Services, LLC v. Russo</a>, in 2016 and 2020 respectively, struck down state hospital admission requirements for abortion clinic doctors.</p>
<p>As the court moved in a more conservative direction, particularly after the 2020 death of liberal Justice <a href="https://www.nytimes.com/2020/09/18/us/ruth-bader-ginsburg-dead.html">Ruth Bader Ginsburg</a>, Breyer forged an alliance with Chief Justice John Roberts at the Court’s <a href="https://www.theatlantic.com/ideas/archive/2022/01/stephen-breyer-retirement-supreme-court-biden/619331">pragmatic center</a>.</p>
<p>Together, they led the court to moderate rulings upholding the <a href="https://apnews.com/article/supreme-court-dismisses-obamacare-challenge-67cc2e9604a70b1b329c5f3b4177a688">Affordable Care Act</a> and the free-speech <a href="https://apnews.com/article/supreme-court-cursing-cheerleader-first-amendment-981374cd3adc0e73274d7d33c29a9e0e">rights of students</a>. </p>
<h2>Breyer’s dissents</h2>
<p>Breyer’s moderate, pragmatic approach to judging is also apparent in his dissents. For instance, in 2015’s <a href="https://www.oyez.org/cases/2014/14-7955">Glossip v. Gross</a>, Breyer argued that the death penalty was unconstitutional because it was not consistent with contemporary understandings of what constitutes “cruel and unusual punishment.”</p>
<p>To justify this, he pointed out that states were increasingly abandoning the death penalty, that support for the death penalty among the public was decreasing, and that the vast majority of members of the United Nations had ceased using the death penalty. </p>
<p>Being moderate didn’t mean that Breyer was without strong feelings. In the school integration case of <a href="https://www.oyez.org/cases/2006/05-908">Parents Involved in Community Schools v. Seattle School District No. 1</a>, which came before the court in 2007, Breyer read his dissent from the bench – a rare occurrence that <a href="https://www.minnesotalawreview.org/wp-content/uploads/2012/01/TimJohnson_MLR.pdf">signaled</a> his passion for the issue.</p>
<p>Breyer sharply criticized the majority’s decision to strike down voluntary integration policies aimed at achieving racial diversity in a student body. Lamenting what he viewed as a radical departure from precedent, Breyer wrote, “It is not often in the law that so few have so quickly changed so much.”</p>
<h2>Breyer’s Legacy</h2>
<p>Justice Breyer is a product of the era in which he was confirmed: a conservative America where only moderate Democrats were politically viable.</p>
<p>[<em>Over 140,000 readers rely on The Conversation’s newsletters to understand the world.</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-140ksignup">Sign up today</a>.]</p>
<p>Clinton had considered several high-profile <a href="https://www.baltimoresun.com/news/bs-xpm-1994-04-07-1994097137-story.html">liberal politicians</a>, including Maine Senator George Mitchell and then-Interior Secretary Bruce Babbitt, for the Supreme Court seat left vacant after the retirement of Justice Harry Blackmun. But in the end, he opted for a moderate judge who was already on the bench.</p>
<p>Breyer’s pragmatic approach allowed him to reach consensus with his more conservative colleagues.</p>
<p>His expected departure reminds America that the era of consensus has largely passed.</p><img src="https://counter.theconversation.com/content/175811/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There was little controversy when President Bill Clinton nominated Stephen Breyer to the bench in 1994. His tenure on the Supreme Court reflects those less partisan times.Paul M. Collins Jr., Professor of Legal Studies and Political Science, UMass AmherstArtemus Ward, Professor of Political Science, Northern Illinois UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1707572021-10-29T12:39:16Z2021-10-29T12:39:16ZA Catholic theologian argues for a death row inmate’s right to have the pastor’s touch in the execution chamber<figure><img src="https://images.theconversation.com/files/429138/original/file-20211028-5716-py8gzb.jpg?ixlib=rb-1.1.0&rect=31%2C0%2C3463%2C2324&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Physical touch at the end of life has a special significance in many cultures and offers solace.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/death-so-near-in-france-a-patient-receives-support-from-her-news-photo/120396710?adppopup=true">Valerie Winckler/Gamma-Rapho via Getty Images</a></span></figcaption></figure><p>The <a href="https://www.scotusblog.com/case-files/cases/ramirez-v-collier/">U.S. Supreme Court will hear arguments</a>
on <a href="https://www.kristv.com/news/local-news/ramirez-case-set-for-u-s-supreme-court-on-nov-9">Nov. 9, 2021</a>, in a case regarding a death row inmate’s plea that his Baptist pastor be allowed to lay hands on him in the execution chamber. The Supreme Court <a href="https://www.npr.org/2021/09/08/1035383975/supreme-court-stay-of-execution-john-henry-ramirez-texas-pastor">blocked John Henry Ramirez’s execution</a> in September, about three hours after he could have been executed. Ramirez was convicted and sentenced to death for a 2004 robbery and the killing of a convenience store clerk in Corpus Christi, Texas. </p>
<p>Texas policy allows an approved spiritual adviser to be present in the execution chamber, but <a href="https://www.npr.org/2021/09/08/1035383975/supreme-court-stay-of-execution-john-henry-ramirez-texas-pastor">there cannot be any physical contact</a> or vocal prayers during the execution. Ramirez has pleaded that this represents an infringement upon his religious liberty. </p>
<p>As a Catholic priest, ministering to the dying is at the core of my job. I have ministered to well over 150 people, from children to centenarians, in their final moments. At these times, I administer a set of ancient prayers and rituals that includes laying my hands on the dying person, anointing them with oil, reciting prayers for the dying and those they are leaving behind, reading Scripture and, if the person is conscious, <a href="https://www.usccb.org/sites/default/files/flipbooks/catechism/382/">giving them Holy Communion</a>, which Catholics believe is truly the body and blood of Christ.</p>
<p>But central to caring for the dying is touch.</p>
<h2>Touch as a primal instinct</h2>
<p>The laying of hands and, more specifically, physical touch at the end of life, holds special significance for many cultures because <a href="https://doi.org/10.1046/j.1365-2648.2001.01721.x">to touch is to reassure</a>. In my ministry with the dying, I have often witnessed how, when death is looming, the warmth and contact of a held hand can communicate deeply where words fail. </p>
<p>Touch is a primal instinct – a gesture of love and comfort that’s instilled in each of us since birth. Touch is a prime way in which <a href="https://doi.org/10.1016/j.earlhumdev.2007.09.019_">mothers communicate with their babies</a>. Universally, people greet others with words but also touch, including handshakes, hugs, kisses or high-fives. </p>
<p>Even during the COVID-19 pandemic, people have found opportunities for physical connection – tapping elbows or <a href="https://apnews.com/article/joe-biden-pandemics-mase-health-coronavirus-pandemic-50d84380a6e1c8801165d5b87141684d">giving fist bumps</a>. And a natural way to console is to not only say comforting words, but also to gently touch or hug. </p>
<h2>The power of spiritual touch</h2>
<p>Faith leaders often believe they have power that can be transferred to others through physical contact. The pioneering sociologist <a href="https://www.britannica.com/biography/Emile-Durkheim">Emile Durkheim</a> deployed the Polynesian term “mana” <a href="https://doi.org/10.1163/9789004349247_002">to describe a kind of spiritual energy</a> that, for many cultures, can be transmitted to others. </p>
<p>Durkheim was <a href="https://www.penguinrandomhouse.com/books/29427/the-way-of-qigong-by-kenneth-s-cohen/">describing a belief</a> also found in other cultures, including the Chinese “qi” and Hindu “<a href="https://www.oxfordreference.com/view/10.1093/acref/9780198610250.001.0001/acref-9780198610250-e-1925?rskey=0Salgu&result=1901">prana</a>.” </p>
<p>When Catholic deacons and priests are ordained, the <a href="http://www.jstor.org/stable/23959782">bishop places his hands</a> on the top of their bowed heads. The “laying of hands” is a sacred and <a href="https://www.ltp.org/products/details/RLPR/real-presence">symbolic transfer of power</a> that transmits the power to administer sacraments and celebrate the Eucharist, the ritual reenactment of Jesus’ Last Supper. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pope Francis putting his hand on the head of a priest bowing before him." src="https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429143/original/file-20211028-18-19446sd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pope Francis performs the imposition of hands on the head of Italian priest Guido Marini, ordained Bishop of Tortona, during an episcopal ordination mass on Oct. 17, 2021, at St. Peter’s Basilica in the Vatican.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pope-francis-performs-the-imposition-of-hands-on-the-head-news-photo/1235931229?adppopup=true">Alberto Pizzoli/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Physical contact is associated with not only communicating love and divinity, <a href="https://www.ltp.org/products/details/RLPR/real-presenc">but also with healing</a> – the practical expression of divine love. <a href="https://bible.usccb.org/bible/matthew/8">In the Bible</a>, Jesus heals by touch on at least 18 separate occasions. He cures people of blindness, leprosy and other ailments. As a <a href="https://dornsife.usc.edu/iacs/staff/">Catholic theologian</a>, I know that in all cases where Jesus touched people, or people touched him, they were not only restored to physical wholeness but <a href="https://www.pcusastore.com/Products/0664222811/gods-touch.aspxe">their rightful human dignity was also affirmed</a>. </p>
<h2>End of life and touch</h2>
<p>In our final moments, I believe, all people want to feel safe and consoled. Some meet their moment of death with tremendous resistance and a struggle to stay alive. Others go calmly. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bride holding the hand of a dying man on his bed with family members surrounding them." src="https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=466&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=466&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=466&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=585&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=585&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429146/original/file-20211028-25-1cj1ct1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=585&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fidelity (Till death do us part), painting by William Pape, woodcut by Richard Bong from Moderne Kunst (Modern Art), illustrated magazine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fidelity-painting-by-william-pape-woodcut-by-richard-bong-news-photo/857344666?adppopup=true">De Agostini Picture Library/De Agostini via Getty Images</a></span>
</figcaption>
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<p>In my experience, a peaceful death happens when someone is surrounded by love – friends and family are there with them. In ways that are hard to describe well but are unmistakable, I have felt that love in the room. In these instances, death is not a violent conflict, but rather a peaceful, even joyful passage.</p>
<p>In the 1995 film “<a href="https://www.washingtonpost.com/wp-srv/style/longterm/movies/videos/deadmanwalking.htm">Dead Man Walking</a>,” Sister Helen Prejean, a real-life Catholic nun played by Susan Sarandon, places her hands on the shoulder of convicted killer Matthew Poncelet, played by Sean Penn, as he walks to his execution.</p>
<p>“I want the last thing you see in this world to be the face of love,” Sr. Helen says to Poncelet. “So you look at me. I will be the face of love for you.”</p>
<p>Intentionally taking the life of another human being is <a href="https://www.usccb.org/sites/default/files/flipbooks/catechism/548">a grave sin</a>.
Ramirez has been found to be guilty of murder. But Scripture also says that <a href="https://bible.usccb.org/bible/matthew/18">there is no value in vengeance</a>. It is hard to find support for the death penalty in the teachings of Jesus, for whom peace lies in forgiveness and true salvation involves reconciliation. And according to Catholic teaching, <a href="https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2018/08/02/180802a.html">capital punishment</a> is no longer ethically acceptable.</p>
<p>The message this sends to Catholics and people of faith is that they must hold high ideals when it comes to the feelings of other human beings enduring pain and suffering – even those who have committed dreadful crimes. </p>
<p>This means praying for and consoling not only the victim and their loved ones – but also the person responsible for the offense. Consolation can and should include touching them – including holding their hand or even embracing them as they die.</p>
<p>I do not pretend to know the nuances of state policy and federal law, but as a former minister at Men’s Central Jail in Los Angeles, I’ve spent time with convicted murderers. I’ve prayed with them and listened to their confessions. I did not see violent killers consumed by evil. Rather, I saw human beings. </p>
<p>And I know, regardless of the crimes they committed and decisions they made, they too have rights bestowed on them simply because they are human. High among those rights is to meet their end with dignity.</p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/170757/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dorian Llywelyn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When death is looming, the warmth of a held hand can communicate deeply where words fail.Dorian Llywelyn, President, Institute for Advanced Catholic Studies, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1691252021-10-15T11:36:56Z2021-10-15T11:36:56ZDo unbiased jurors exist in an age of social media?<figure><img src="https://images.theconversation.com/files/426289/original/file-20211013-15-1y076ge.jpeg?ixlib=rb-1.1.0&rect=16%2C8%2C5477%2C3582&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is it possible to have a jury whose members are unbiased?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-jury-box-in-the-centennial-court-room-in-the-milwaukee-news-photo/456338404?adppopup=true">Raymond Boyd/Getty Images</a></span></figcaption></figure><p>Jury selection that began on Oct. 18, 2021, in the trial of three men accused of murdering unarmed Black jogger Ahmaud Arbery has been, <a href="https://www.npr.org/2021/10/18/1047106255/ahmaud-arbery-case-trial">according to an NPR report</a>, a “very painstaking process.” That’s because it’s been hard to find jurors who have not been exposed to media reports of Arbery’s death or a graphic video of his killing taken by one of the defendants. And that, it is feared, could bias them either for or against the defendants.</p>
<p>Lawyers on both sides of the Arbery case aren’t the only ones grappling with the problem of finding unbiased jurors in the age of social media.</p>
<p>The U.S. Supreme Court <a href="https://www.cnbc.com/2021/10/13/boston-marathon-bomber-supreme-court-to-consider-death-sentence-for-dzhokhar-tsarnaev.html">heard oral argument</a> on Oct. 13, 2021, in the case of <a href="https://www.scotusblog.com/case-files/cases/united-states-v-tsarnaev/">Dzokhar Tsarnaev</a>, the lone surviving Boston Marathon bomber. While much of the <a href="https://www.cnbc.com/2021/10/13/boston-marathon-bomber-supreme-court-to-consider-death-sentence-for-dzhokhar-tsarnaev.html">news coverage has focused on whether the court will uphold the death penalty</a> for Tsarnaev, the case also presents a fundamental question for this era: Is it possible to find unbiased citizens to serve on a jury in high-profile cases during an age of ubiquitous social media?</p>
<p>This aspect of the case focuses on the “<a href="https://dictionary.law.com/default.aspx?selected=2229">voir dire</a>” process, which employs a French term that roughly translates to “speak the truth.” Voir dire occurs before the start of trial, when lawyers or the judge, depending on the jurisdiction, question prospective jurors to determine whether they harbor any kind of bias or prejudice against one of the parties.</p>
<p><a href="https://www.cnn.com/2015/04/08/us/boston-marathon-bombing-trial/index.html">Tsarnaev was charged with 30 counts</a> related to the bombing of the marathon. The case had <a href="https://www.wbur.org/tag/dzhokhar-tsarnaev-trial">received widespread attention</a>, including online commentary about the defendant and pictures of him <a href="https://www.today.com/video/boston-bombing-suspect-drops-backpack-in-video-27008067930">carrying a bomb-laden backpack to the finish line</a>. Voir dire in his case was extensive, lasting 21 days and involving 1,373 prospective jurors, each of whom completed a 28-page questionnaire.</p>
<p>At some point during voir dire, Tsarnaev’s attorney wanted the judge to ask a two-part question to prospective jurors. First, whether they had seen media coverage of the case, and second, what specifically they had seen. The judge asked the first part of the question, but not the second. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of news cameras focused on the courthouse where the Tsarnaev trial was held." src="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426290/original/file-20211013-15-1aqax9l.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">There was intense media focus on the crime and the subsequent trial; here, outside the courthouse on the first day of Dzhokhar Tsarnaev’s trial, May 4, 2015, in Boston.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-media-from-around-the-world-wait-outside-the-news-photo/465212542?adppopup=true">Scott Eisen/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘Does not suffice’</h2>
<p>Tsarnaev’s lawyers appealed the death penalty, saying in part that the trial judge should have asked what media coverage jurors had seen or read about the case to ensure a fair jury.</p>
<p>The First Circuit Court of Appeals <a href="https://www.wbur.org/news/2020/07/31/tsarnaev-death-sentence-overturned">found fault with the judge,</a> saying that asking the jurors “only whether they had read anything that might influence their opinion’ does not suffice,” because that sole question does not elicit “what, if anything, they have learned.” During the oral argument at the Supreme Court, <a href="https://www.scotusblog.com/2021/10/justices-appear-to-favor-reinstating-death-penalty-for-boston-marathon-bomber/">Justice Sonia Sotomayor noted that</a> “there was a whole lot of different publicity here.”</p>
<p><a href="https://ballotpedia.org/United_States_v._Tsarnaev">It is now up to the Supreme Court to decide who was correct</a>. </p>
<p>Since this appeal relates only to the <a href="https://www.wbur.org/news/2019/12/11/dzhokhar-tsarnaev-death-sentence-appeal-boston">death penalty sentence</a>, Tsarnaev’s guilty verdict and life sentence without parole remain in place. </p>
<p>The dilemma facing the Supreme Court is how prescriptive they want the voir dire process to be. It could issue an opinion requiring lower courts to ask jurors more penetrating questions about their exposure to media accounts in high-profile cases.</p>
<p>Some believe that trial judges should be given a measure of flexibility and autonomy in <a href="https://www.law.cornell.edu/supremecourt/text/409/524">how they conduct voir dire</a>. Others want the Supreme Court to step in and <a href="https://www.law.cornell.edu/supremecourt/text/409/524">spell out exactly how voir dire should be conducted</a>. </p>
<p>Those favoring this latter approach point out that Tsarnaev was facing a death sentence and <a href="https://courses2.cit.cornell.edu/sociallaw/Tsarnaev/TsarnaevTrial.html">made four requests for a change of venue</a> to move the case from Boston because, his lawyers argued, it would be impossible to get unbiased jurors in the local area. As a <a href="https://udayton.edu/directory/law/hoffmeister_thaddeus.php">scholar of criminal law and juries</a>, I believe a strong argument could be made that any trial judge in this situation should take additional steps to uncover bias in prospective jurors. </p>
<p>Those on the other side believe that requiring more questions will unduly lengthen the voir dire process and encroach on juror privacy. Despite these misgivings, courts around the country are increasingly questioning jurors about <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">such topics as social media and their use of the internet</a>. </p>
<h2>Can’t unplug a juror</h2>
<p>The issue confronting the Supreme Court here is part of a larger discussion about whether courts in the digital age can find objective jurors.</p>
<p>Finding unbiased jurors in the pre-digital age, even in high-profile cases, was not too difficult. Once chosen, <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jurydeliberate/">jurors needed to maintain that unbiased status</a> and were told not to discuss the case with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, jurors might be <a href="https://law.jrank.org/pages/10160/Sequestration.html">sequestered</a>. </p>
<p>Today, that same approach won’t work.</p>
<p>Few jurors can go eight hours, much less a whole week, without using their smartphone or social media. Many people share aspects of their life with others in real time through social media, which is incompatible with jury service. In fact, being a juror makes their social media posts more interesting to others.</p>
<p>In Tsarnaev’s case, the court of appeals’ opinion referenced <a href="https://www.wbur.org/news/2019/12/11/dzhokhar-tsarnaev-death-sentence-appeal-boston">juror #138, who had a running dialogue about the case on Facebook with his friends</a>.</p>
<p>Today’s jurors also have much more information available to them. Where news stories about a crime or the defendant would have been difficult to discover or access previously, they are now just a click away. This information does not disappear when out of the news cycle; it remains online and accessible. In fact, often the information is pushed to the juror or shows up in their news feed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Investigators in white suits examining the bombing scene at the Boston Marathon." src="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=374&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=374&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=374&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=469&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=469&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426297/original/file-20211013-19-zem2rd.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=469&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On April 16, 2013, investigators examine the scene near the finish line of the Boston Marathon, one day after two blasts killed three and injured more than 260 people.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtBostonMarathonBombing/6d6dd5e671c54c97b941413ef2c9d2e9/photo?Query=Tsarnaev%20jury&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=94&currentItemNo=0">AP Photo/Elise Amendola, File</a></span>
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<h2>Dealing with the connected juror</h2>
<p>Judges across the country take a variety of approaches to combat the negative influences of the digital age on the jury. </p>
<p>Attorneys and judges will ask potential jurors questions. In addition, attorneys will investigate jurors to learn what they know about the case. This happens both in the courtroom at <a href="https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/">voir dire and online</a>, where attorneys research the juror’s digital footprint to include social media posts. The question of how far to pry during voir dire is the main issue of concern in Tsarnaev’s case. </p>
<p>Once chosen, jurors are told to follow the court’s instructions, but the lure of social media can be all too tempting. Thus, courts impose penalties on jurors who <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">are unable to follow the rules on seeking out information or discussing the case</a>. </p>
<p>These penalties include holding jurors in contempt of court, taking their devices or imposing sequestration, in which jurors are put up in hotels <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">away from their family and devices</a>. The common theme with all penalties is that once imposed, they make citizens less inclined to want to serve as jurors.</p>
<h2>Question time</h2>
<p>Some legal experts believe that if jurors are given sufficient information about the case, they will be less inclined to violate court rules and go online to look for information or discuss the case. One way to improve the appropriate flow of information to jurors is <a href="https://lawreview-dev.cu.law/wp-content/uploads/2013/11/8.-Hoffmeister-FINAL_s.pdf">to allow them to ask questions during trial</a>.</p>
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<p>Finally, there are calls to change jury instructions to fit the modern times. Since today’s jurors are so receptive to learning information online, they have to be told why practices that they regularly use are prohibited while on jury duty.</p>
<p>The jury, throughout its approximately 400-year history in America, has witnessed many changes in society. Through each one, the jury has adapted and survived. Thus, I believe it is highly likely the jury will weather the storm of the digital age.</p>
<p><em>This is an updated version of an article originally published on Oct. 15, 2021.</em></p><img src="https://counter.theconversation.com/content/169125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thaddeus Hoffmeister does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A video of Ahmaud Arbery was widely seen and shared by the citizens who could be called on to judge the accused killers. The issue was recently argued before the Supreme Court.Thaddeus Hoffmeister, Law Professor, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1671232021-10-08T03:34:49Z2021-10-08T03:34:49ZIndonesians’ support for the death penalty declines with more rigorous survey methods<figure><img src="https://images.theconversation.com/files/422526/original/file-20210922-25-1r4lylq.jpg?ixlib=rb-1.1.0&rect=0%2C112%2C2995%2C1881&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A vigil in protest against the death penalty in Jakarta, Indonesia, in 2016.</span> <span class="attribution"><span class="source">Muhammad Adimaja/Antara Foto</span></span></figcaption></figure><p>Indonesia, like its regional neighbours in Southeast Asia, has supported capital punishments for decades, particularly for drug-related offences. </p>
<p>This firm stance has been justified by evidence from national polls <a href="https://www.thejakartapost.com/academia/2021/04/20/death-penalty-false-cure-for-ailing-indonesian-justice-system.html">indicating</a> the public supports the death penalty. </p>
<p>However, these polls were <a href="https://www.lowyinstitute.org/publications/key-domino-indonesia-death-penalty-politics">not conducted using rigorous methodologies</a>. This means the results cannot be relied upon. </p>
<p><a href="https://www.deathpenaltyproject.org/knowledge/investigating-attitudes-to-the-death-penalty-in-indonesia-part-two/">Our latest survey</a> uses a more thorough and rigorous methodology. It found the public has little faith in the harshest penal responses. Although the majority (69%) favoured retention of the death penalty, only 35% felt “strongly” in favour of it. </p>
<p>The data indicate that respondents’ support for the death penalty declines when they learn more about the scope and administration of the death penalty. </p>
<p>Thus, if a country’s decision to retain the death penalty is based on a reference to democratic will, policymakers should draw only on rigorous and independent empirical research. </p>
<h2>Fragile and malleable support</h2>
<p>We worked with <a href="https://www.ipsos.com/en">IPSOS</a>, a leading international market research company, to conduct a public opinion survey. It involved a stratified random probability sample of 1,515 respondents in Aceh, Bali, Greater Jakarta, North Sumatra, South Sulawesi, West Java and Yogyakarta.</p>
<p>While support for capital punishment was high in general, we found it is based on an assumption that the death penalty is carried out fairly and proportionately. When people learn it is not, support diminishes. </p>
<p>When given the choice of alternative sentences, such as life in prison without parole, support for the death penalty fell to just 25%. </p>
<p>Further rigorous questioning suggests initial support reflects gut reactions to an emotive topic – a desire to see wrongdoers punished – rather than well-informed opinions. </p>
<p>Importantly, respondents lacked knowledge about the death penalty. Only 2% considered themselves very well informed. Only 4% said they were very concerned about the issue. </p>
<p>When reflecting on specific and realistic cases, their support decreased further. </p>
<p>For example, when given details about a man who shot dead a shop owner during a robbery, 40% of respondents thought he deserved the death penalty. But when told the man had no previous convictions, support for the death sentence decreased to only 9%. </p>
<p>Likewise, 50% thought a “kingpin” drug trafficker deserved the death penalty. For a similar case where the defendant was poor and uneducated, simply a drug mule, this dropped to just 14%. </p>
<p>More than half of those who supported capital punishment did so because they believed it deterred serious crime. Over a third would support abolition if religious leaders did. </p>
<p>But when questioned about preferred measures to reduce such crime in Indonesia, respondents showed little trust in capital punishment. They had more faith in effective policing, poverty reduction or therapeutic interventions, such as healthcare treatments for drug addiction.</p>
<p>Asked which measures would be most effective to reduce drug crime, only 9% of the public suggested increasing death sentences, with only 6% suggesting more executions. </p>
<hr>
<p>
<em>
<strong>
Baca juga:
<a href="https://theconversation.com/busting-the-myths-of-the-death-penalty-104716">Busting the myths of the death penalty</a>
</strong>
</em>
</p>
<hr>
<h2>The need for better methods for opinion polls</h2>
<p><a href="https://www.thejakartapost.com/academia/2021/04/20/death-penalty-false-cure-for-ailing-indonesian-justice-system.html">Indonesian opinion polls</a>, though infrequent, indicate around 75% support for the death penalty. A poll by Indo Barometer in 2015 found 84% supported the death penalty for drug dealers. </p>
<p>Superficial surveys may give us an idea of shifting opinions over time. However, they cannot measure strength of opinion, knowledge about the topic, or how the public might feel about whether particular types of offences or offenders should be subject to capital punishment. </p>
<p>Such polls also cannot elicit nuanced responses to particular features of cases involving, for example, strong aggravating or mitigating features. </p>
<p><a href="https://www.bjcl.org/assets/files/23.3-Hood.pdf">Comparative analysis of public opinion research</a> from eight countries demonstrates that reliable data on public opinion can only be produced by rigorous, methodologically sophisticated surveys. This includes surveys of the kind commissioned by The Death Penalty Project in <a href="https://www.deathpenaltyproject.org/knowledge/the-death-penalty-in-malaysia/">Malaysia</a>, <a href="https://www.deathpenaltyproject.org/knowledge/public-opinion-on-the-mandatory-death-penalty-in-trinidad/">Trinidad</a> and <a href="https://www.deathpenaltyproject.org/knowledge/12-years-without-an-execution-is-zimbabwe-ready-for-abolition/">Zimbabwe</a>.</p>
<p>Rigorous and independent empirical research that teases out the nuances of public support is necessary if retention is to be justified by reference to democratic will. </p>
<hr>
<p>
<em>
<strong>
Baca juga:
<a href="https://theconversation.com/why-indonesia-should-stop-sending-drug-users-to-prison-101137">Why Indonesia should stop sending drug users to prison</a>
</strong>
</em>
</p>
<hr>
<h2>What’s next?</h2>
<p>This strong empirical research is particularly important for drug trafficking in Indonesia, given the <a href="https://www.unodc.org/documents/scientific/ATS/2020_ESEA_Regonal_Synthetic_Drug_Report_web.pdf">high levels of national and international concern</a> about the harms caused by drugs.</p>
<p>Our findings demonstrated that when people are presented with accurate information about the retention and use of the death penalty, high initial support declines dramatically. </p>
<p>It seems the more informed the public are regarding the death penalty and its administration, the less they support it. </p>
<p>Support also reduces when people are presented with mitigating circumstances or when considering alternatives such as life in prison. </p>
<p>In light of this and the ongoing revisions to the Criminal Code, it is a good time to reflect on the criminal justice response to drug trafficking in Indonesia. This also has implications for neighbouring jurisdictions in the “golden triangle” of Southeast Asia that are similarly affected.</p>
<p>Indonesia should develop evidence-based policy on drug and crime control efforts and it should do so without assuming the public demands capital punishment. </p>
<p>Public opinion often is highly sensitive to new information, especially when that information is tailored to specifically address the public debate. Public opinion should be carefully measured if it is to inform public policy.</p><img src="https://counter.theconversation.com/content/167123/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Hoyle has conducted research with The Death Penalty Project for the past five years. The Report discussed in this article was made possible by funds awarded to The Death Penalty Project from the European Commission, the United Kingdom Foreign, Commonwealth and Development Office, the University of Oxford, and UK Research and Innovation.</span></em></p><p class="fine-print"><em><span>Parvais Jabbar is co-founder and co-executive director of The Death Penalty Project, a legal action NGO based in London that works to protect the human rights of those facing the death penalty.
</span></em></p>Indonesian public support for the death penalty declines when they learn more about its scope and administration.Carolyn Hoyle, Director of the Centre for Criminology, University of OxfordParvais Jabbar, Co-Founder and Co-Executive Director of the Death Penalty Project, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1684222021-09-23T12:30:01Z2021-09-23T12:30:01Z20 years after 9/11, the men charged with responsibility are still waiting for trial – here’s why<figure><img src="https://images.theconversation.com/files/422743/original/file-20210922-24-1gbobmy.jpg?ixlib=rb-1.1.0&rect=26%2C0%2C3000%2C1976&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Khalid Sheikh Mohammed and co-defendants return to court in November.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Sept11WhereAreTheyNow/6c9f5ca01f284537ab17763897a37847/photo?Query=trial%20AND%20guantanamo&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=170&currentItemNo=0">AP Photo/Janet Hamlin</a></span></figcaption></figure><p>As the <a href="https://www.911memorial.org/connect/commemoration/20th-anniversary-commemoration">20th anniversary of 9/11</a> passed, the five men accused of responsibility for the attacks were <a href="https://www.nytimes.com/article/september-11-trial-guantanamo-bay.html">still awaiting trial</a> in the Guantanamo <a href="https://www.mc.mil/">military commission</a>.</p>
<p>This case is the largest criminal prosecution in U.S. history in terms of number of victims. The charge sheet <a href="https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(Sworn%20Charges).pdf">lists the names of 2,976 people </a> who were direct casualties of two hijacked commercial airliners that crashed into the World Trade Center and caused the twin towers to collapse, another that crashed into the Pentagon and a fourth, probably aiming for the U.S. Capitol building, that was brought down in a field in western Pennsylvania when several passengers overpowered their hijackers. </p>
<p>Yet two decades after the U.S.’s worst terrorist attack, the 9/11 case remains mired in the pretrial phase with no start date for the trial. The hearings, which <a href="https://www.theguardian.com/us-news/2021/sep/07/911-attacks-khalid-sheikh-mohammed-pre-trial-resumes">resumed September 7, 2021</a> after a 17-month COVID-19 related suspension, were the first for the case’s new judge – the fourth officer to fill that role.</p>
<p>As someone who has visited Guantanamo on 11 occasions since 2013 to observe legal proceedings in the 9/11 case, I have come to understand that the delays are the inevitable result of an irreconcilable conflict: The U.S. government’s objective is to convict and <a href="https://www.aljazeera.com/news/2019/8/31/death-penalty-trial-date-set-for-alleged-september-11-attackers">execute the accused men</a> as a way to provide justice for the thousands of victims. But those goals are stymied by the fact that the defendants are also <a href="https://law.unc.edu/wp-content/uploads/2019/10/extraordinaryrenditionandNC.pdf">victims of CIA torture</a>.</p>
<h2>No martyrdom-by-military commission</h2>
<p>The 9/11 case involves five defendants. </p>
<p><a href="https://www.nbcnews.com/storyline/cia-torture-report/rectal-hydration-inside-cias-interrogation-khalid-sheikh-mohammed-n265016">Khalid Sheikh Mohammad</a>, whom the government refers to as KSM, is accused of being the “mastermind” behind the attacks. </p>
<p><a href="https://www.hrw.org/legacy/photos/2008/guantanamo/Mubarek-Bin-Attash.html">Walid bin Attash</a> is accused of training two of the hijackers how to fight in close quarters using box cutters to take over the planes. </p>
<p><a href="https://www.hrw.org/legacy/photos/2008/guantanamo/Ramzi-Binakshibh.html">Ramzi bin al-Shibh</a> is accused of recruiting some of the hijackers who formed a cell in Hamburg, Germany, and serving as an intermediary between lead hijacker Mohammed Atta and al-Qaeda leaders. </p>
<p><a href="https://www.dni.gov/files/documents/Newsroom/Press%20Releases/2006%20Press%20Releases/DetaineeBiographies.pdf">Ammar al-Baluchi</a>, whom the government refers to as Ali Abd al-Aziz Ali, and <a href="https://www.hrw.org/legacy/photos/2008/guantanamo/Mustafa-Al-Hawsawi.html">Mustafa al-Hawsawi</a> are accused of making money transfers to some of the hijackers.</p>
<p>The men were charged in 2007 and arraigned in June 2008. The Bush administration hoped that the trial could be concluded before President George W. Bush left office. But that hope was dashed in December 2008 when Mohammad and the other defendants <a href="https://www.nytimes.com/2008/12/09/us/09gitmo.html">offered to plead guilty</a> on the condition that they would be executed immediately. This <a href="https://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article1929229.html">attempt to martyr themselves</a> was not an option – the Military Commission Act does not have a provision for executions without trials.</p>
<p>The Obama administration, after <a href="https://www.nytimes.com/2011/04/05/us/05gitmo.html">abandoning its plan to try the men in federal court</a> in New York, recharged them in the military commissions on April 4, 2012. In official filings, the abbreviated name for the case is KSM II to denote that this is a second attempt to pull this trial off.</p>
<h2>Demands for full disclosure</h2>
<p>For most of the 9/11 hearings I have attended, there have been fewer than 10 journalists in the media delegations. Procedural battles over complex and arcane points of law are seemingly not the stuff of headline news. </p>
<p>But as a <a href="https://soc.ucsb.edu/people/lisa-hajjar">scholar of law and torture</a>, they are fascinating to me. In trying to understand how torture does or should matter to the legal process in a case in which the defendants face the death penalty, I realized that the 9/11 case is caught between conflicting interests that play out in battles between defense teams and prosecutors over the <a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/#:%7E:text=This%20is%20the%20formal%20process,what%20evidence%20may%20be%20presented.&text=Depositions%20enable%20a%20party%20to,will%20say%20at%20the%20trial.">discovery of information</a> about what happened to the defendants during the years they were detained at CIA “black sites” – secret overseas prisons in which U.S. agents interrogated suspects.</p>
<p>The defense lawyers want access to all information the government possesses about their clients’ abusive treatment by the CIA, including granular details about their torture. They insist it is necessary to provide effective legal counsel.</p>
<p>The demand is especially pertinent in a capital case, but information about a defendant’s treatment in pretrial custody is legally relevant in any criminal case. </p>
<figure class="align-center ">
<img alt="Chairs line an empty courtoom." src="https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/422749/original/file-20210922-23-11tu9gu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Long spells of inactivity inside the U.S. military courtroom at Guantanamo Bay.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-united-states-military-courtroom-is-seen-at-camp-news-photo/171665926?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<p>The prosecution argues that documents containing the full details about the CIA’s now-defunct Rendition, Detention and Interrogation (RDI) program are too sensitive to share, even with lawyers with top-secret security clearances. The CIA’s secrets, as <a href="https://www.thenation.com/article/archive/government-secrecy-torture-stymied-9-11-terror-prosecution/">one prosecutor explained</a>, are “the most highly classified information that the government has … It’s extremely important that we protect that information.” </p>
<p>Instead of original CIA materials, prosecutors have provided about 21,000 pages of summaries and substitutions that obscure specific dates and locations and mask the identities of agents and contractors. </p>
<p>The CIA, which controls information about its operations and dictates what prosecutors can provide to the defense in discovery, has <a href="https://www.justsecurity.org/77835/nuremberg-prosecutor-says-guantanamo-military-commissions-dont-measure-up/">no institutional interest in due process or fair trials</a>, only in maintaining its secrets. </p>
<p>The prosecution, meanwhile, counters defense demands for more information by insisting that this trial is about the defendants’ roles in the crime of 9/11, and what happened to them afterward is unrelated to their involvement in these events.</p>
<p>“The CIA is not on trial,” said <a href="https://www.nytimes.com/2019/04/05/us/politics/guantanamo-trials-torture.html">prosecutor Jeffrey Groharing</a>.</p>
<h2>No ‘after torture’</h2>
<p>Since September 2019, many of the hearings have been devoted to defense efforts to persuade the judge to exclude evidence the government wants to use at trial, namely statements the defendants gave to FBI agents who interrogated them in 2007, five months after they were transferred from the black sites. The government referred to the agents as “clean teams” because they had no hand in the CIA’s torture program.</p>
<p>The prosecution maintains that because the FBI interrogators used lawful methods rather than coercion when questioning the defendants, these statements should be admissible in court. The defense has called witnesses, including the two architects of the CIA torture program, <a href="https://www.npr.org/sections/thetwo-way/2017/08/17/544183178/psychologists-behind-cia-enhanced-interrogation-program-settle-detainees-lawsuit">James Mitchell and Bruce Jessen</a>, who <a href="https://www.nytimes.com/2020/01/20/us/politics/911-trial-psychologists.html">testified in January 2020</a>. The Defense teams are making the case that there is no “after torture” for victims, and therefore the FBI statements are tainted by their past torture and should be dismissed – in legal terms – as “fruit of the poisonous tree.” </p>
<p>From my perspective, the pretrial logjam could largely be resolved if the government made a choice: If the priority is to protect
the CIA’s secrets, the death penalty should be taken off the table and plea bargain negotiations for life sentences should begin. If the death penalty remains a priority, the defense should be given access to all the information they seek, including, for example, the full <a href="https://www.jadaliyya.com/Details/43339/Connections-Episode-15-The-Lasting-Legacies-of-US-Torture">Senate Select Committee on Intelligence’s report about the CIA’s rendition program</a>.</p>
<p>Although this case garners sporadic media attention, it deserves greater public interest because the stakes are so high. No one can predict when the 9/11 trial will finally begin, let alone how this case will end, but one thing should be clear: an important chapter in the history of the U.S. in the 21st century is being written in the high-security courtroom in Guantanamo.</p>
<p>[<em>Over 110,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p><img src="https://counter.theconversation.com/content/168422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Hajjar does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar who has visited Guantanamo 11 times to observe legal proceedings in the 9/11 terrorism case explains why the conflict continues to delay the case going to trial.Lisa Hajjar, Professor of Sociology, University of California, Santa BarbaraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1664542021-08-31T15:10:12Z2021-08-31T15:10:12ZSuccesses of African Human Rights Court undermined by resistance from states<figure><img src="https://images.theconversation.com/files/418240/original/file-20210827-4994-2swhbp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The African Court on Human and Peoples’ Rights (<a href="https://www.african-court.org/wpafc/">African Human Rights Court</a>) holds great promise in protecting human rights and ensuring justice on the continent. But it operates amid resistance by states and this threatens its effectiveness and very existence.</p>
<p>The idea of a regional human rights court surfaced at the <a href="https://www.icj.org/conferencia-africana-sobre-el-imperio-de-la-ley-lagos-nigeria-3-7-de-enero-de-1961-informe-sobre-los-trabajos-de-la-conferencia/">1961 African Conference on the Rule of Law</a> held in Lagos, Nigeria. African jurists at the conference called on African governments to create “a court of appropriate jurisdiction” that would be “available for all persons under the jurisdiction of the signatory states”. Four and a half decades later, an operational regional court became reality.</p>
<p>The court is the African Union’s judicial arm, and sits in Arusha, Tanzania. It is one of three regional human rights courts in the world. The others are the <a href="https://www.echr.coe.int/Pages/home.aspx?p=home">European Court of Human Rights</a> and the <a href="https://www.corteidh.or.cr/index.cfm?lang=en">Inter-American Court of Human Rights</a>. They play an important role in protecting human rights within their respective regions.</p>
<p>The African court was established in terms of a <a href="https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-establishment-african-court-human-and">protocol</a> adopted in 1998. It began operating 15 years ago in 2006. In this way, African states have created an avenue for judicial scrutiny of their domestic laws and executive actions that have an impact on human rights. </p>
<p>The court entertains cases of alleged violations of human rights stated in the <a href="https://www.achpr.org/legalinstruments/detail?id=49">African Charter on Human and Peoples’ Rights</a>, and any other relevant human rights instruments that have been ratified by the state concerned. Its remedies include payment of fair compensation or reparations. Its judgments are binding on the concerned state.</p>
<p>The court can also give opinions which are “advisory” in nature but carry significant legal authority because it is an apex regional court.</p>
<p>Cases can only be brought against states that are party to the court’s protocol. States that are party to the protocol, the <a href="https://www.achpr.org">African Commission on Human and Peoples’ Rights</a> and African intergovernmental organisations can bring cases to the court directly. NGOs with observer status at the commission and individuals can only access the court directly if the relevant state party permits them to do so. Otherwise, individuals and NGOs can only access the court if the African Commission takes their case to the court. </p>
<p>Requests for advisory opinions can be submitted by the African Union or its members or organs, or African organisations that it recognises.</p>
<p>But, sadly, the African Human Rights Court’s success in protecting human rights and upholding the rule of law is undermined by state resistance. This has been evident as far back as the early years of the court’s establishment.</p>
<h2>Striking a blow for human rights</h2>
<p>Despite current restrictions on direct access to the court, it has lived up to its promise in most cases. It has issued some progressive and ground-breaking decisions and remedies, including substantial reparations. </p>
<p>For example, it found, in response to a request brought by <a href="https://lawyersofafrica.org">the Pan African Lawyers Union</a> that vagrancy laws, which many African Union member states retain on their statute books, were <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5fd/0c6/49b/5fd0c649b6658574074462.pdf">incompatible with African human rights standards</a>. That’s because the laws criminalise poverty, homelessness or unemployment. The court has called on states to review and amend or repeal such laws. </p>
<p>The court has also required states to uphold rights and principles of fairness, transparency and inclusiveness <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/60f/574/3a6/60f5743a61e75369142990.pdf">in elections during the COVID-19 pandemic</a>. States should not use the postponement of elections to “unduly” prolong elected officials’ term of office. </p>
<p>In contentious cases, the court has enforced various rights such as fair trial rights, the right to property as well as the right to participate freely in government, freedom of association, freedom of expression and non-discrimination. </p>
<p>It has made it clear in a case against Kenya, for example, that environmental conservation and development policies cannot be at the expense of <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/5fe/9a9/5f55fe9a96676974302132.pdf">the rights of indigenous communities</a>. It has also shown, in a case involving a Tanzanian individual, that it will not defer to states on <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/646/bfc/5f5646bfc496d510939321.pdf">difficult issues such as nationality</a>. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&rect=10%2C6%2C265%2C269&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=609&fit=crop&dpr=1 600w, https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=609&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=609&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=765&fit=crop&dpr=1 754w, https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=765&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/418033/original/file-20210826-25-m4d1r6.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=765&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>The court has enforced <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/215/dbc/5f5215dbcd90b917144785.pdf">marriage and inheritance rights</a> in a case against Mali, highlighting the rights of women and girls. </p>
<p>In a case involving Tanzanians who had been sentenced to death, it affirmed states’ obligation to <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/63d/93c/5f563d93ceb8d690262130.pdf">remove mandatory death penalty</a> from their laws. </p>
<p>It has also set a precedent for <a href="https://www.african-court.org/cpmt/storage/app/uploads/public/5f5/618/fbd/5f5618fbd47b3094543746.pdf">non-criminalisation of defamation</a>, in a case involving a journalist in Burkina Faso.</p>
<h2>Constraints</h2>
<p>Only 31 of 55 African Union member states (including Western Sahara) <a href="https://www.african-court.org/wpafc/basic-information/">have ratified the court’s protocol</a>. Only six states – Burkina Faso, Gambia, Ghana, Malawi, Mali, and Tunisia – permit individuals and NGOs direct access to the court.</p>
<p>As stated by the <a href="http://opiniojuris.org/2020/05/19/a-court-in-crisis-african-states-increasing-resistance-to-africas-human-rights-court/">African Commission</a>: </p>
<blockquote>
<p>Non-ratification of the Court Protocol and reluctance of States to make the Declaration impede the protection of human rights in Africa.</p>
</blockquote>
<p>In addition, some countries have withdrawn their permission for individuals and NGOs to access the court, following adverse decisions against them – <a href="http://opiniojuris.org/2020/05/19/a-court-in-crisis-african-states-increasing-resistance-to-africas-human-rights-court/">Rwanda, Tanzania, Benin and Côte d'Ivoire</a>. </p>
<p>By so doing, the states are not only challenging the court’s authority, but preventing it from considering future claims from individuals and NGOs against them.</p>
<p>The <a href="https://www.african-court.org/wpafc/activity-report-of-the-african-court-on-human-and-peoples-rights-1-january-31-december-2020/">court is concerned</a> that, should the withdrawals trend continue, millions of citizens will be deprived of the right to justice.</p>
<p>Also, the nomination of judges in the early years was met with <a href="https://www.researchgate.net/publication/325436019_The_African_Court_on_Human_and_Peoples'_Rights_Mapping_resistance_against_a_young_court">resistance</a>. </p>
<p>States have further failed to ensure that the court has enough human and financial resources to function effectively. </p>
<p>These patterns of resistance <a href="https://www.researchgate.net/publication/325436019_The_African_Court_on_Human_and_Peoples'_Rights_Mapping_resistance_against_a_young_court">“might be seen as hindering development of the Court’s authority”.</a> </p>
<h2>Compliance crisis</h2>
<p>The court has a serious non-compliance crisis. About 75% of states do not comply with its decisions, and there are no built-in consequences in its protocol. The court’s orders indicate that states that fail to pay reparation amounts within a stipulated timeframe will pay interest on arrears. Only one country – Burkina Faso – has fully complied with the court’s judgments.</p>
<p>Some states, such as Tanzania, have complied with only some aspects of decisions, and <a href="https://www.african-court.org/wpafc/category/publications/activity-reports/">ignored other aspects</a>.</p>
<p>The court <a href="https://www.african-court.org/wpafc/category/publications/activity-reports/">is concerned</a> that resistance to its decisions threatens not just “the effective discharge of its mandate, but its very existence”.</p>
<h2>Future sustainability</h2>
<p>The very poor level of compliance has limited the potential impact of the court’s decisions at the domestic level. It is crucial that African countries translate their commitment to human rights on paper into practice.</p>
<p>It is important for the court to stay the course. Retrogression, for fear of risking further exits, is not an option when it comes to protecting human rights. </p>
<p><em>This article is based on the author’s <a href="https://www.wits.ac.za/display/events/?view=fulltext&month=08&day=17&year=2021&id=d.en.2542070&timestamp=1629300600&">inaugural lecture</a> at the University of the Witwatersrand recently.</em></p><img src="https://counter.theconversation.com/content/166454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lilian Chenwi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court has lived up to its promise in most cases, issuing some progressive and ground-breaking decisions and remedies.Lilian Chenwi, Professor of Law, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1660962021-08-19T00:52:54Z2021-08-19T00:52:54ZAfter nearly 70 years, the death penalty again becomes a real prospect in Papua New Guinea<figure><img src="https://images.theconversation.com/files/416737/original/file-20210818-27-5hb992.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>On July 30 2021, <a href="http://www.paclii.org/pg/cases/PGSC/2021/54.html">the Supreme Court of Papua New Guinea (PNG)</a> quashed the National Court’s temporary stay of executions for all people sentenced to death. </p>
<p>The judgment has cleared a major obstacle to carrying out death sentences for the first time in nearly 70 years. It makes execution a real possibility for <a href="https://www.thenational.com.pg/pokanis-no-law-on-executions/">15 individuals who are on death row</a>. </p>
<p>From the PNG government’s perspective, there remain rather brutal administrative considerations: <a href="https://www.thenational.com.pg/pokanis-no-law-on-executions/">regulations authorising officers</a> to carry out executions, and nominating the “<a href="https://postcourier.com.pg/14-death-row-prisoners-to-be-executed-pokanis/">most possible</a>” of the <a href="http://www.paclii.org/pg/legis/num_act/cca62013222/">approved methods of execution under law</a>.</p>
<p>The then Australian administration <a href="https://www.loc.gov/item/global-legal-monitor/2015-02-11/papua-new-guinea-cabinet-approves-guidelines-for-implementation-of-the-death-penalty/">abolished the death penalty</a> in PNG in 1970. The PNG government reintroduced it in 1991. </p>
<p>Despite its reintroduction in law, PNG has not carried out any executions since 1954. Even so, the death penalty, or at least the threat of its implementation, has been used as a form of social control and has remained part of PNG’s criminal justice system. As of August 2021, there are 15 prisoners on death row. </p>
<p>In the past ten years, the death penalty has been part of the domestic political debate in PNG. In 2013, the parliament expanded the scope of the death penalty. Sorcery-related murder, aggravated rape, and robbery all became punishable by death under the <a href="http://www.paclii.org/pg/legis/num_act/cca62013222/">Criminal Code (Amendment) Act 2013</a>. </p>
<p>In 2015, the PNG cabinet <a href="https://www.abc.net.au/news/2015-02-18/png-government-defends-death-penalty-following-new-guidelines/6143738">endorsed guidelines for execution</a> by approving three modes of execution: hanging, lethal injection and firing squad. It also determined the location for the execution. </p>
<p>Three years later, the judiciary applied the revised criminal code by <a href="http://www.paclii.org/pg/cases/PGNC/2018/273.html">sentencing eight men to death for sorcery-related murder</a>.</p>
<p>By 2020 it had become such a part of political discussion that the government promised a <a href="https://www.thenational.com.pg/survey-on-death-penalty/">nationwide consultation</a> to examine the level of public support for the death penalty. </p>
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Read more:
<a href="https://theconversation.com/if-papua-new-guinea-really-is-part-of-australias-family-wed-do-well-to-remember-our-shared-history-159528">If Papua New Guinea really is part of Australia's 'family', we'd do well to remember our shared history</a>
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<p>On the international stage, PNG has so far resisted the trend towards abolition of the death penalty. At its most recent <a href="https://www.upr-info.org/sites/default/files/document/papouasie-nouvelle-guinee/session_25_-_avril_2016/recommendations_and_pledges_papua_new_guinea_2016.pdf">UN Universal Periodic Review</a>(2016), PNG did not accept recommendations to move away from the death penalty. </p>
<p>Since 2007, <a href="https://www.monash.edu/law/research/eleos/blog/eleos-justice-blog-posts/the-death-penalty-in-papua-new-guinea-and-tonga-human-rights-mechanisms-and-international-expectations">PNG has voted against, or abstained from voting on</a>, the <a href="https://www.un.org/en/ga/">UN General Assembly</a> resolution calling for a moratorium on the death penalty. </p>
<p>Indeed, in 2020, PNG <a href="https://www.passblue.com/2020/12/17/many-countries-cheer-gains-to-ending-the-death-penalty-globally-but-foes-harden-their-stance/">actively opposed the resolution</a>, appearing to commit itself to a position in direct tension with the abolitionist majority of the international community.</p>
<p>PNG’s justification for retaining the death penalty has centred on it being an effective deterrent to heinous crimes. In 2013, the then prime minister, Peter O’Neill, proposed the expanded use of the death penalty to tackle violent crimes. He <a href="https://www.abc.net.au/news/2013-05-01/png-to-toughen-violent-crime-penalties/4663510">claimed</a> the “majority of our people are demanding it”. The then opposition leader, Belden Namah, also supported these measures, viewing it as an effective deterrent.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/416731/original/file-20210818-15-zekve7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">As prime minister, Peter O'Neill proposed expanding the use of the death penalty to tackle violent crimes.</span>
<span class="attribution"><span class="source">Aaron Favila/AP/AAP</span></span>
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<p>Resorting to increasing the severity of punishment to tackle serious crime has achieved little across different jurisdictions. These include the <a href="https://theconversation.com/americas-mass-incarceration-problem-in-5-charts-or-why-sessions-shouldnt-bring-back-mandatory-minimums-78019">US</a>, the <a href="https://www.jstor.org/stable/10.1086/592810">UK</a> and, more recently, <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release">Australia</a>. In this sense, there is nothing new in PNG attempting to solve problems of violence through the use of harsher criminal punishments. But a consequence of PNG’s punitive turn could be dire.</p>
<p>There is no doubt PNG experiences a severe range of violent crime, including tribal fighting and sorcery-related deaths. In <a href="https://www.theguardian.com/world/2020/nov/14/they-just-slaughter-them-how-sorcery-violence-spreads-fear-across-papua-new-guinea">violence related to sorcery accusations</a>, many of the victims are women who have been gang-raped and sometimes beaten or burnt to death. But victims are reluctant to report these crimes to police for fear of being targeted again or of their family being attacked. Unless beliefs about sorcery change, it is unlikely any criminal punishment will serve to curtail violent incidents, especially if the community does not trust the police to intervene and offer protection to the victims. </p>
<p>Furthermore, there is <a href="https://www.nap.edu/catalog/13363/deterrence-and-the-death-penalty">no scientific evidence</a> that proves the death penalty is an effective deterrent compared to other sentences such as life imprisonment.</p>
<p><a href="https://www.amnesty.org/en/what-we-do/death-penalty/">Two-thirds of countries</a> have abolished the death penalty or have not executed anyone for ten years or more. While Asia lags behind this global trend, the Pacific Island countries are at the forefront of the abolitionist movement. </p>
<p>Every Pacific Island state apart from PNG and Tonga has abolished the death penalty for ordinary crimes. If PNG was to resume executions, it would entrench itself as an outlier among Pacific Island states.</p>
<p>PNG is not bound to proceed with executions. In the Supreme Court’s judgment, Justice Manuhu’s dissent is particularly instructive. He endorsed the National Court’s <a href="http://www.paclii.org/pg/cases/PGSC/2021/54.html">finding</a> that</p>
<blockquote>
<p>[…] it is now too late to execute any of these prisoners, as their right of protection against inhuman punishment has been infringed.</p>
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<p>Indeed, of the 15 on death row in PNG, 13 have been in prison for more than five years. Some have been there for more than 17 years.</p>
<p>PNG is next scheduled to participate in the UN’s Universal Periodic Review in October 2021. It will be an opportunity for a direct and meaningful diplomatic exchange with abolitionist states. </p>
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Read more:
<a href="https://theconversation.com/a-dam-has-been-breached-a-covid-crisis-on-our-doorstep-shows-how-little-we-pay-attention-to-png-157323">'A dam has been breached': a COVID crisis on our doorstep shows how little we pay attention to PNG</a>
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<p>Taking steps towards the abolition of the death penalty at law would not constitute a substantial change for the PNG community, given its moratorium for nearly 70 years.</p><img src="https://counter.theconversation.com/content/166096/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mai Sato receives funding from Australia's Department of Foreign Affairs and Trade. She is Deputy Director of CrimeInfo, an NGO based in Japan (<a href="https://www.crimeinfo.jp">https://www.crimeinfo.jp</a>). </span></em></p><p class="fine-print"><em><span>Matthew Goldberg has received funding from Australia's Department of Foreign Affairs and Trade. He is a board member of the Capital Punishment Justice Project. </span></em></p>While most other Pacific nations take a strong abolitionist stances on the death penalty, PNG is moving in the opposite direction – despite not having executed any prisoners since 1954.Mai Sato, Associate Professor, Director of Eleos Justice, Faculty of Law, Monash UniversityMatthew Goldberg, President, World Coalition Against the Death Penalty; Senior Fellow, Eleos Justice, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.