A time to kill?
22 April 2005
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The death penalty the ultimate price to pay for a crime has recently reared its controversial head on both the UK and international political scenes.
At the end of last year, the newly-appointed Shadow Home Secretary David Davis, after just a week in the post, spelt out his desire to bring back capital punishment. Davis argued that the punishment should apply in cases involving premeditated multiple murders, and where there was clear evidence and no doubt of the guilt such as the Moors Murders or the Yorkshire Ripper. As the new Shadow Home Secretary, raising the issue provided him with the perfect way to underline a tough Tory stance on crime.
A month later, the capture of Saddam Hussein provoked discussion over the trying, and subsequent punishment, that the fallen tyrant should face. The UK and the US indicated that they would not stand in the way if an Iraqi court decided that the former president should be executed. This prompted an angry response from human rights organisation Amnesty, which argued that the coalition should be encouraging the permanent end of this obsolete and inhuman punishment.
The UK abolished the death penalty in 1965. No individual holds the ignominious record of being the last person to be hanged, as Peter Anthony Allen and Gwynne Owen Evans both went to the gallows on 13 August 1964. The last woman to be hanged, Ruth Ellis, who died in 1955, was a glamorous night-club hostess who shot her lover in a crime of passion, a story which captured the public imagination.
More than half of the countries in the world have abolished the death penalty, but four China, Iran, Saudi Arabia and the US account for around 80 per cent of recorded executions.
Some US commentators are hopeful that the winds of change are in the air for their country. At a Law Society conference late last year, Deborah Fleischaker, the director of the American Bar Association (ABA) Death Penalty Moratorium Implementation Project, and Death Penalty Information Center executive director Richard Dieter said that they believed todays environment could act as a catalyst for change.
Clifford Chance trainee Francesca Turquet, whose experience with a death row inmate is profiled below, is not so sure. She says: The US might find themselves isolated in their death penalty policy, but I dont think this is enough to make them change.
Fleischakers project was launched in September 2001 as the ABAs next step in working to obtain a nationwide moratorium on executions. She says: I think you can safely say that if you look at the three branches of American government, there are good things happening in two of them. Theres not much in the executive branch, though. George Bush clearly supports it so until we get a new president, our efforts are somewhat limited.
Judicially, however, there have been some giant steps in the past two years, primarily in the Supreme Court. In Atkins v Virginia, lawyers of death row inmate Daryl Atkins successfully argued in the Supreme Court that their client was mentally retarded, which in the US is defined as having an IQ of under 70. The court held that where retarded people were concerned, the death penalty went against the eighth amendment, stating that cruel and unusual punishments should not be inflicted. The court said that the action offended evolving standards of decency.
Ring v Arizona saw the Supreme Court rule that juries and not judges must determine not only defendants guilt or innocence, but also their punishment. In its decision, the court held that a sentence imposed by a judge violates a defendants right to trial by jury.
Kevin Wiggins death sentence was thrown out after the court ruled that Wiggins lawyers had not sufficiently investigated his background and made no attempt to inform members of the jury, who sentenced him to death by lethal injection, that he had been raped, beaten, burnt and denied food as a child. The Wiggins case also opens up the wider debate over the competency of US public defenders.
Fleischaker believes that it is not over-optimistic to speculate that the Supreme Court will have to deal with the execution of juveniles 16 and 17 year-olds in the next few years.
A May 2002 Gallup poll found that 72 per cent of US citizens support capital punishment, but this drops to 26 per cent for juveniles convicted of murder.
Fleischaker also pointed to the fact that Illinois has put in place a moratorium and North Carolina is debating a moratorium bill as reasons for cheer. In total, 12 states do not have the death penalty, while 38 do.
Dieter, whose organisation collects information on the death penalty for campaigning purposes, says that there is a potential for change that we havent seen for decades. He says that a glance through the 1990s shows how much the US has shifted its stance. In 1991, the death penalty was expanded to apply to 60 offences and support for the punishment was 80 per cent. Executions rose from 25 a year to almost 100 a year at the end of the 1990s. In the past two to three years, death sentences have dropped from around 300 per year to 150, although this will not be reflected in executions for a while as it takes around 10 years from sentencing to execution.
Dieter says: Theres a sense out in the public that there are serious problems with the death penalty on two issues. One is this whole issue of innocence and thats what exploded in the 1990s. As the executions were going up, so too was the scrutiny and concern about cases. They were assisted by the tool of the DNA testing. The other is fairness. Innocence and fairness both of those are things which resonate with the American public. Its been a long hard battle in changing peoples minds about the death penalty because its the symbol of someone whos committed a terrible crime, maybe multiple murders, maybe of children. If you go to the public with that, you dont have anything positive. Innocence changes that.
He also argues that contrary to most thinking on US policy, the international community is also having an impact. Theres now a greater consensus among allies of the US on the death penalty. In the 1970s it was something that some countries had, but some didnt. However, if they looked at it today, theyd see that democratic countries we are aligned to dont have it but we do.
Whether he likes it or not, US president George Bush stands shoulder to shoulder with the axis of evil Iran, North Korea and Iraq, although in the latter, a moratorium has been put in place by coalition forces.
Dieter also says that there is growing evidence of the importance of the international context generally in the US judiciary. In a now infamous speech in October last year, Supreme Court judge Justice Sandra Day OConnor said that she and her colleagues in the highest court in the US were increasingly going to rely on international law rather than looking to the US constitution. She revealed that the high court regarded world opinion when it ruled that executing the mentally retarded was unconstitutional in the Atkins case.
Not surprisingly, OConnors admission caused uproar among staunch nationalists, angry at what they saw as her lack of respect for the US constitution, but Dieter says this shows that the climate in which to erode the death penalty has never been better.
Fleischaker says that one nut to crack was getting the legal profession interested, as it could form a valuable pressure group. Trying to get the average lawyer to care about this is an uphill battle, she says. Most lawyers in the US are not involved in criminal justice and see no need to become involved. As lawyers we have no particular expertise in morality, but we do have expertise in the law and the capital punishment system in the US is a very good example of the law not performing as it should.
Francesca Turquet, a second seater trainee in litigation at Clifford Chance, has had first-hand experience of the US criminal justice system while working on the defence team of Tomas Gallo, a man who was subsequently convicted of capital murder, which carries life in prison or the death penalty.
Before starting her training contract, the firm sponsored her to go to Houston and work there with local lawyers on the case.
My main role was to interview witnesses and talk to Tomas every day. He cant remember anything thats happened. My job was to coax him into talking to us. I also had to liaise with the pathologist who carried out the autopsy to determine cause of death and other issues, says Turquet.
The murder in question was fairly horrific. The body of the three-year-old daughter of Gallos girlfriend was found in the bathroom the couple shared, with 183 bruises, broken ribs and a crushed skull. The toddler also had injuries from being sexually assaulted. Shaking hands with someone who may have done things you dont want to think about is quite scary, says Turquet, but she says that she found him eloquent, easy to talk to and well presented.
Gallo was found guilty of capital murder, but the defence team has secured a retrial on the grounds of mental retardation following the Supreme Court decision on Atkins.
Turquet says that she will be following the retrial, which is due to start imminently.
She is also involved in the case of Linda Carty, a British passport holder from the Virgin Islands who is also on death row in Texas. Clifford Chance has taken the case on a pro bono basis. Turquet is part of a 14-strong team and has the task of investigating the police involved in the case.
My personal view is that the death penalty is an inefficient way of administering punishment. I dont think it serves a function, she says. They get it wrong, time and time again. I find that pretty terrifying.
She argues that it acts neither as a deterrent or form of rehabilitation. I think its a kneejerk reaction. If you lose someone close to you an immediate reaction might be to want that person dead, but I believe the state should sit above that emotion and not administer emotional justice.
On Gallo, she says: Hes someone
who could benefit from intense counselling and therapy and could perhaps be rehabilitated.