By Pavel Chernov
“The death penalty has no place in the 21st century.”
Ban Ki-moon, 2 July 2014
As the global pandemic made an unexpected appearance on the global stage, governments across the globe were faced with reality whereby the correctional facilities had to be adapted very quickly to the new order of life. At the time when every arrest transforms into a potential death sentence, the UN High Commissioner for Human Rights Michelle Bachelet has called up the governments to reduce the number of persons in detention, stating that imprisonment should be a measure of last resort and that restricting measures should be introduced in a clear and transparent way. This is why Numerous states have indeed taken this path, releasing and pardoning large numbers of prisoners, ranging from Iran to Nigeria. European countries have also taken action on the matter, allowing early releases, increasing house arrests, and delaying the start of prison sentences.
This development also affected the death sentences. There have been expectations that the countries which still use capital punishment, executions, and death sentence verdicts would be brought to a halt. With the pandemic highlighting the value of human life, and the legal representation being hindered due to restricted access, it is natural to believe that the harshest punishment of all would be handled with exceptional precautions. And while numerous states, such as Cameroon, Chad, and Saudi Arabia, have taken decisive steps in this direction, limiting the application of death sentences and community already passed death sentences, a lot of other countries have not been this bold. The US states have halted executions, but not so long ago they were resumed in certain States. Moreover, death sentences have even been carried remotely in Singapore and Nigeria, in both of which Zoom videoconferencing app were used. The coronavirus has indeed affected the judiciary systems around the world, and holding online trials may appear as a viable option. Unfortunately, this is a misconception. Below, the aforementioned cases from Singapore and Nigeria together with resumed executions in the US will be explored, and arguments against such practices will be made. However, it is worth addressing the global trend regarding death sentences to better understand the context.
Global trends in regard to death sentences
In 2019, Amnesty International has recorded 657 executions in 20 countries, excluding China, where the information about executions cannot be publicly accessed and which is believed to carry out the highest total number of executions. While this figure does not evoke positive emotions, it is a positive development. First, viewed narrowly, this is one of the lowest numbers of executions in a year recorded by Amnesty. Second, on a wider scale, this figure is reflective of an ongoing process of abolition of death penalties. The death penalty has gone from being practiced by 97% of states in 1975 to 27% in 2015, and continues to drop as states impose moratoriums or get rid of this form of punishment altogether. Due to various factors, public support of the death penalty is also shrinking. Coronavirus, perhaps ironically, helped save lives of numerous inmates sentenced to death, either due to delayed executions or modification of criminal sentences.
As far as remote trials are concerned, Singapore recently made headlines. Two things have to be noted from the outset. First, Singapore has a notoriously strict policy towards drug-related offenses. It has a zero-tolerance approach to drug trafficking, and not long ago drug trafficking carried a mandatory capital punishment. Singapore frequently passes death sentences. For example, in 2013, eighteen men were sentenced to death, eleven of which committed drug-related felonies. Second, at the time this case took place, as part of the lockdown measures, most court proceedings have been pushed until the 1st of June, and the only hearing to be held is deemed essential.
Going to the case itself, on the 15th of May, Punithan Genasan, a 37-year-old Malaysian man received a death sentence for a heroin-related offense that took place in 2011. This the first case in Singapore where a death sentence is delivered remotely, the verdict being pronounced via Zoom. Peter Fernando, the lawyer of Mr. Genasan, stated that he did not oppose using online proceedings because they needed only to receive the verdict of the judge and that his client is connecting an appeal. According to the spokesperson for Singapore's Supreme Court, the hearing was conducted remotely for safety reasons. The method of execution is hanging, which the state deems an effective instrument of preventive control.
The ruling has been widely criticized, among others, by the Human Rights Watch and Amnesty International, the former calling the case “cruel and inhumane” and the courts and prosecutors “callous” for failing to respect the right of the defendant to be physically present during the trial, and the latter stating that Singapore “continues to defy international law and standards”.
The case of Mr. Punithan Genasan is, however, not the first of its kind. On 4th of May 2020, Olalekan Hameed, a Nigerian man accused of murder in December 2018 Jolasun Okunsanya, a 76-year-old mother of his employer, has been sentenced to death by a Lagos judge Mojisola Dada. At the time of trial, he Similarly to Singapore, at the time the verdict was passed, only urgent court cases could be considered. Mr. Hameed has also been sentenced to death by hanging. Notably, the hearing lasted only about three hours. This case has also been slammed by human rights watchdogs but received less publicity than its counterpart in Asia. A potential reason for it is that Nigeria does not carry out all of the death sentences it imposes for different crimes.
As mentioned above, the USA has resumed death sentences after a lockdown-related pause. As of now, the death penalty has been either abolished or curbed by a moratorium in about half of the states, Colorado being the latest to join this list. Some of the US states which still have not abolished the death penalty are already resuming executions.
The first state to carry execution in the USA at the time of pandemic is Missouri, where a 64-year-old inmate Walter Barton convicted for killing his former landlord Gladys Kuehler, received a lethal injection on 19th May 2020. This execution came as a final chapter of a long story of contradictory trials. Mr. Barton has been tried five times, during which he maintained innocence. The Innocence Project, non-profit US organizations aiming to exonerate wrongly convicted individuals, points out other conflicting features of this ruling. Thus, the type of forensic evidence used in a case if often misinterpreted; the prosecuting unit involved in his case has also convicted four other men who were later exonerated; several jurors hearing his case stated that they would have changed their mind in light of the new expert testimony.
Another State eager to continue executions is Texas, where 6 death sentences have been postponed by the courts due to the Covid-19 outbreak. One of the inmates awaiting execution of the death verdict is Ruben Gutierrez, a 43-year-old man who has been found to have killed 85-year-old Mrs. Escolastica Harrison in 1998 in an attempt to steal $600,000 had hidden in her house. Mr. Gutierrez denies killing Harrisson, but the prosecutor maintains that various pieces of evidence, which include a confession, leave little doubt. A delay was sought from the Texas Court of Criminal Appeals but has not been granted. The only thing which helped push Mr. Gutierrez’s execution was the U.S. Supreme Court, which granted a stay about one hour before the execution. This happened due to Texan policy preserving spiritual advisors accompany inmates to the death chamber. Gutierrez, a devoted Catholic, demanded the presence of a chaplain. The Supreme Court is expected to rule if the inmates sentenced to death are entitled to have a spiritual advisor present in a death chamber, which, according to Mr. Gutierrez’s lawyers, is a legal right, “not a convenience”.
Problematic nature of the aforementioned cases
The cases above highlight the flaws of passing death sentences and executions during the time of pandemic as well as the antediluvian nature of death sentences in general. First, problems caused specifically by remote trials will be considered. Studies indicate that they do not provide the same level of protection as traditional ones. Basic defense rights can be greatly limited, and the defendants are less likely to voice their objections. Moreover, if the defendant and his lawyer are accessing the trial from different trials, they have additional difficulties communicating with the each other during the proceedings, which can result in the defendant understanding less during the trials. Furthermore, the principle of a public trial is at stake in such proceedings, since less people will be able to join the hearing. Finally, remote trials violate the right of the defendant to be physically present during the trial.
The goals of this principle are to enable the defendant to pay attention to non-verbal cues of the judge, personally interact with the prosecutor, and better cross-examine witnesses and evidence. In a case where a person’s life is at stake, it appears unconscionable to restrict the defendant to a videoconference.
Moreover, as illustrated by the American cases, conducting executions during the pandemic is also a highly controversial choice. First, it needs to be said that it is hard to imagine that a certain execution has to be carried urgently. In the US, an average length a person spent on death row is about 15 years, and a quarter of these inmates die of natural reasons before reaching the day of execution. Second, executions during the pandemic mean limit restricted access to the inmate in the last minutes of life. Morally ambivalent, this also carries legal problems. Numerous jurisdictions allow a person to face execution to have a certain number of relatives and friends, as well as clergy and lawyers present during the execution. Carrying out death sentencing may mean either creating additional risk of contamination among those attending, which is absolutely unnecessary and avoidable, or limiting the number of people present to respect social distancing, which would infringe the inmate’s rights. Finally, as the Texan case vividly illustrates, executions entail last-minute decisions. Mr. Gutierrez received his leave in the day scheduled for execution. If the executions are being carried now, it reduces the likelihood of such events, since in the current situation judicial system struggles to operate with run-of-the-mill cases, not to mention the cases where man’s life is at stake.
Finally, the cases above serve as a reminder of the general arguments against the death penalty. There are a great many arguments against capital punishment, which cover moral, economic, legal, and sociological aspects of it. First, preserving the death penalty appears to go against the idea of the value of human life. Since the 1950s, the importance of the life of an individual has expanded, leading to the worldwide idea of human rights and the abolition of discriminatory laws and degrading practices. It appears counterintuitive that people can expect not to be tortured, have access to fair court, and protection of numerous human rights, but can have life taken away from them. Second, from a sociological point of view, death sentences do not appear to have an often assumed deterrent effect on criminals, and in fact, lead to the brutalization of society. This means that executions stimulate crime, which researches connected with the perceived devaluation of human life in the public sight. Third, taking into account global legal practice, it is clear that in any system there is a chance of an innocent person being convicted. Thus, capital punishment carries an inherent risk of wrongful conviction. For instance, in the USA, 165 persons sentenced to death have been exonerated since 1973. The human toll of wrongfully convicted shall not be treated as an unavoidable evil. The final, and probably most cynical argument against the death penalty is that it is very costly. The cost of a single death penalty is a combination of investigation, sentencing, appellate, and execution costs. Research in Kansas, for instance, the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case.
In conclusion, both having trials that potentially carry death sentences and execution at the time of pandemic are very poor choices which discard the rights and interests of defendants. They highlight the highly problematic nature of death sentence in general and make in conceptually harder to justify the preservation of this form of punishment. Hopefully, these cases will reanimate the public discourse on this matter, and will further contribute to the abolition of the death sentence.