How to campaign better against the death penalty… and what to replace it with?

The debates of the 5th World Congress are organized along strategic lines determined either by their weight in the current agenda or by the possibilities they offer to take action in favour of abolition in the short and medium terms.

From strategies to counter the argument that the fight against terrorism could justify the death penalty, to the defense of foreign nationals sentenced to death, international anti-drug policies and the resulting executions, the fate of juveniles faced with the death penalty, the avenues for cooperation between international organizations and civil society, the involvement of victims’ families in favour of abolition, the innocence argument, instruments offered by European institutions and the links between the death penalty and torture – all those issues will be debated by the participants.

Among the potential directions and discussions to be tackled at the Congress, Penal Reform International’s death penalty project manager Jacqueline Macalesher asks the question of alternative sanctions in the following article: what replaces the death penalty after its abolition?

There has been a global trend towards the abolition of the death penalty and a restriction in the use of capital punishment over the last fifty years. According to Amnesty International, 140 states and territories have abolished the death penalty in law or in practice and 58 retain the death penalty. Of those 58 states, only 21 were reported to have carried out an execution in 2012.

However, the challenges within a criminal justice system do not end with the institution of a moratorium or with abolition of the death penalty. Many countries that institute moratoria do not create humane conditions for prisoners held indefinitely on death row, or substitute alternative sanctions that amount to torture or cruel, inhuman or degrading punishment, such as life imprisonment without the option of parole, and solitary confinement for long and indeterminate periods of time.

Punitive conditions of detention and less favourable treatment are prevalent for reprieved death row prisoners.

Not surprisingly, given states are responding to serious crimes that evoke public outrage (usually crimes involving loss of life in particularly abhorrent circumstances), governments try to appease a concerned public by taking a “tough on crime” approach, without proper consideration of whether or not the sanction is proportionate, just or compatible with international human rights standards. It is often considered a sufficient benefit if the convicted person’s life has been spared, although such an assumption has disregard for the rehabilitative nature of imprisonment.

The global trend towards abolition of the death penalty therefore poses important challenges for states in fulfilling their responsibility to protect the public, while administering justice fairly.

What should a state consider when selecting alternative sanctions to the death penalty?

While the purpose of sentencing is ultimately punitive, the nature of the sentence should be proportionate to the seriousness of the offence and individualised to the specificities of the crime, including the circumstances in which it was committed. Sentences should not, therefore, be used to serve wider political purposes or purely to punish the offender.

The UN Crime Prevention and Criminal Justice Branch’s 1994 report, Life Imprisonment, states that penal policy should only allow for life imprisonment with the purpose of protecting society and ensuring justice, and should only be used on offenders who have committed the most serious crimes. It proposes that states should provide for the possibility of release and only apply special security measures for genuinely dangerous offenders.

The absence of life imprisonment without parole (LWOP) as an applicable sentence even for the gravest offences within the jurisdiction of the International Criminal Court – war crimes, crimes against humanity and genocide – constitutes a distinct indication that LWOP is not a proportionate response even for the “most serious offences” punishable under the criminal jurisdiction of a state. Article 110(3) of the Rome Statute provides that a life sentence must be reviewed after 25 years.

Article 37 of the Convention on the Rights of the Child (CRC) prohibits the application of life imprisonment without parole to juveniles below the age of 18.

As a starting point, states considering an alternative sanction to the death penalty should, at a minimum, select a sentence that is fair, proportionate and provides the offender with a realistic right of review.

The increasing use of ‘life’ and long-term sentences contributes to a growing prison population

As many countries move towards the abolition of the death penalty, research indicates a significant increase in the number of offences that carry the sanction of life imprisonment, often without the possibility of parole, and a striking increase in the number of life sentences being passed by the courts.

Thus, the replacement of the death penalty by life imprisonment has resulted in a widening net, applying life sentences beyond the “most serious crimes” and no longer confined to formerly capital offences.

While in some countries it is only the most serious offences, such as murder, which carry the sentence of ‘life’ imprisonment, many others introduced long and indeterminate sentences for less serious crimes, including non-violent offences.

Detention conditions of life-sentenced prisoners

Being sentenced to prison is punishment in itself: the conditions of imprisonment and the treatment and care received in prison should not amount to further punishment.

However, life and long-term prisoners are often subjected to worse conditions and treatment than other prisoners, and are separated from the rest of the prison population. The conditions are often highly restrictive and damaging to physical and mental health, with no effort or willingness to invest in rehabilitation. Current conditions for reprieved death row prisoners, or those serving a life sentence, include:
• solitary confinement for up to 23 hours a day in small, cramped, airless cells, often under extreme temperatures;
• inadequate nutrition and sanitation arrangements;
• limited contact with family members and/or lawyers, including prohibitions on any kind of physical contact;
• excessive use of handcuffing or other types of shackles or restraints;
• physical or verbal abuse;
• lack of appropriate health care (physical and mental);
• being denied access to books, newspapers, exercise, education, employment, or other type of rehabilitative activities.

The UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) contain provisions relating to substantive prison conditions, which, if fully enforced, would go some way toward setting clear standards against which prison systems could be judged. The SMRs do not contain any separate provisions for life-sentenced prisoners, but are applicable to life and long-term prisoners just as to any other category of prisoner.

Abolition of the death penalty poses real, but not insuperable challenges for states

There is no doubt that adjusting to the post-death penalty landscape while adhering to such principles based on good practice poses a significant challenge for legislators and policy-makers, as well as for all those responsible for implementation (including judges, defence lawyers, prison and probation staff). It is also extremely challenging to explain the new policy, practice and the law to the public, including victims, in such a way as credibly to reassure them that justice is being done and public safety is protected.

However, experience shows that states that fail to make this adjustment in planning for, or responding to abolition of the death penalty, and in addressing the most serious crimes, solve few of the challenges posed by the most serious crimes and create many new and entrenched problems.

Not least of the latter is the question of what to do with prisoners who become eligible in law for release into the community but have been so neglected, or treated with such calculated lack of respect for human dignity that they may still pose a risk.

Effectively locking away criminals for life and creating the belief that prisons can be the panacea to problems of crime and social control fails to tackle the structural roots of crime and violence. Sentences should provide the offender with a meaningful opportunity for rehabilitation and reintegration back into society, thereby leading to law-abiding and self-supporting lives after their release.

Jacqueline Macalesher

For more information, please see Penal Reform International’s information pack “Alternative Sanctions to the Death Penalty”, available for download (in English, French, Russian and Arabic).

Illustration: cartoon by Tunisian artist "Z"