Roger writing the LAWmag

Requiem For A Death Penalty - MacJustice

There are few countries left where the death penalty is exacted upon those convicted of crime.

And yet, it is a debate of recent vintage as "life in jail" sentences were unheard of only a few generations ago.

Since Russia was the first to ban the death penalty in 1826, pundits would have you think that we’re down to China, Japan, South Korea, Taiwan, Singapore, Saudi Arabia and the USA.

The truth is that most countries still have the death penalty in their law books but either have not used it for many years or reserve it for the most egregious of offenses such as treason.

In September of 2004, 338 people died as a result of a hostage-taking incident at an elementary school in Beslan, Russia by Chechnyan separatists. 186 of the dead were school children.

Beslan pictureTo sit in judgment, one needs evidence.

The grisly pictures of surviving children being run out of the area brought the evil right into the homes of North American couch potatoes (see picture).

On October 24, 2007, Russian Alexander Pichushkin was convicted of the serial murders of 48 people, all of which he - or should I say "it" - gleefully admitted to.

In both cases, the hands of the Russian courts are tied because of the country’s disuse of the death penalty. All they can do is impose a life sentence.

China is an anomaly and given their "MacJustice", may well represent the worse of what capital punishment can be.

One newspaper report from Beijing, circa 2006, noted that of almost a million people arrested in that year in China, just over 2,000 were found to be not guilty.

In November 2006, the president of China's Supreme Court noted that between 1997 and 2005, the acquittal rate was 0.66%!

The highest conviction rate is for those accused of endangering state security, aka political crimes.

These ratios compares with an average conviction rate in democratic states of between 14 and 55 per cent.

A 2004 Amnesty International report quotes a Chinese judge’s question to an accused just before passing a death sentence:

"What evidence do you have that you did not commit the murder?"

Or, to quote a recent paper delivered at an international conference on law reform by Guangzhong Chen of the China University of Political Science and Law in Beijing, the standard of proof in criminal cases, with no distinction being made for cases where the available sentence is death, is that:

"The facts of the case are clear and the evidence is reliable and sufficient"!

Appropriately, China self-describes its criminal justice policy as an oxymoron:

"... severity tempered with leniency."

Professor's Chen's 2007 paper reveals another deadly feature of his nation's MacJustice system: less than 1% of the witnesses testify in open court, preferring instead to give written statements.

The Chinese are notoriously discreet about disclosure of execution statistics but in 2004, a Chinese legislator let it slip that the number is 10,000 annually.

By way of comparison, in the United States, only 59 convicted murderers were executed in 2004.

Hundreds of Chinese are executed every month, usually by a bullet to the head. One Chinese criminal lawyer told The Scotsman that 70% of the defendants have no access to legal counsel.

Nonetheless, countries are racing to sign extradition treaties with China, usually on assurances from China that in no instance would they resort to the death penalty in the event of an accused person arriving via extradition. France, Spain and Portugal have recently signed such treaties.

Around the world, on Thursday, November 1, 2007, Canada was reacquainted with this emotional debate when it was discovered that the government had changed its policy in regards to Canadian citizens facing the death penalty in the United States. Canada had historically and vigorously intervened on behalf of such persons in the past but now, as it was announced in Ottawa, Canadians on death row in the USA are being orphaned.

One Albertan, Ronald Smith, is facing capital punishment by lethal injection in Montana for the 1982 murder of two men and is expected to be the next Canadian to go.

Smith had been hitchhiking in Montana. He rewarded the two good Samaritans that picked him up by marching them into the woods and shooting both execution style, in the back of their heads, with a sawed-off .22 caliber shotgun. This, just to steal their car and, as he later admitted, "to find out what it would be like to kill somebody".

The Canadian government announced that it would make no effort to prevent the fulfillment of Smith's sentence in Montana, not yet scheduled but now free of any further appellate-related delays.

From Russia to Ottawa and all points in between, inflicting the death penalty seems to interfere with nature, and as such,such a profound gesture that it intellectually intimidates many.

For some, the death penalty is simply a social cleansing, an insurance that that type of individual will not risk society again nor will his or her DNA be allowed to continue.

Others, some untouched by crime or softened by age or time, hold first and foremost the Sixth Commandment or to the logic of "two wrongs do not make a right".execution

There are some candles of law and justice conundrums which may never be blown out by some creative, fit-all, please-all solution.

The bitter truth is that man and his still developing law and justice systems, has still not developed an answer to heinous crime.

This is rendered more difficult as the state's reaction to such crime is sensitive to culture and historical tradition, and just where any particular state is "at" in terms of human rights sophistication.

That is why, on a world scale, the policy is one of patchwork with no real international standard yet in sight, or any workable cross-referencing of policy.

Saudi Arabia beheads convicted criminals at a rate of 50 a year but based on what many statistics indicate may be a double standard; death penalty for foreign nationals, especially those doing manual labour for the oil-rich Saudis, and another sentencing scale for Saudis themselves.

Not a hundred years ago, the United States wrestled with a similar racist system in regards to black convicts (execution of a black man at Sing Sing Correctional Facility in Ossining, New York, pictured).

Not to be lost in the high blood pressure shouting matches this debate often sparks are the reflections of those on death row, many of which would welcome an opportunity to die tomorrow if their option was to spend the rest of their lives in a 4'x8' jail cell.

Perhaps at the end of the day Canadians had it just right, even for those on the political right.

Perhaps a long life in jail term really is a worse punishment than a quick death penalty.

But that was before.

Since the last hanging in Canada in 1962, and the abolition of the death penalty in 1976, the big heart of the justice system continues its clear migration away from a true life sentence. Parole frees all but a handful of killers after only a decade or two of time.

And so in our compassionate way, we debate and agonize to "do right", as do, in their own ways, well-intentioned citizens of all nations as they wrestle with the death penalty, and as we all inch closer to that ever-elusive eureka moment on this difficult legal issue, the death penalty.

References and Further Reading

  • The Scotsman, March 13, 2006 "Concerns Over 98% Chinese Conviction Rate" by Benjamin Robertson.
  • March 22, 2004 "China: A Moratorium On The Death Penalty Is Urgently Required", Amnesty International and "Executed According to Law? The Death Penalty in China", Amnesty International, published at amnesty.org/pages/chn-220304-feature-eng
  • Chinese Law Professor Blog, November 23, 2006 at lawprofessors.typepad.com/china_law_prof_blog/2006/11/chinas_low_acqu.html
  • Dui Hua Foundation, "Crimes Without Victims, Prisoners Without Names", Remarks to the Foreign Correspondents’ Club of Hong Kong, February 21, 2006
  • BBC News, March 20, 2007 "France Backs Extradition to China"
  • June 2007, "Reform of (the) Criminal Evidence System in China", presented to the 20th Anniversary Conference of the International Society for the Reform of Criminal Law, Vancouver, BC, by Professor Guangzhong Chen, Centre for Criminal Law and Justice, China University of Political Science and Law, Beijing, China. english.people.com.cn/90001/90776/90785/6290980.html
  • Prison Administration, Ministry of Justice, People's Republic of China, undated but ©2004, published at legalinfo.gov.cn/english/PrisonAdmin/PrisonAdmin.htm
  • CBC news, November 1, 2007 "Tories Bring Back Death Penalty For Canadians Abroad, Grits Charge"
  • Ronald Allen Smith v. State of Montana 2000 MT 327 (Supreme Court of the State of Montana) and State v. Smith (1985), 217 Montana 461

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