The death penalty
Till the twentieth century the execution of criminals and political opponents was commonplace in most countries, but since the beginning of 1970s the number of nations using the death penalty has been steadily decreasing. Although there are a number of notable exceptions, including the two most powerful nations on earth, China and the United States.
Student protesters from Howard University conduct a sit-in in front of the White House September 21, 2011, demanding a last-minute intervention on behalf of Troy Davis, the Georgia death row inmate whose contention of innocence has drawn global attention and is scheduled for execution at 7 pm September 21, 2011.
Journalist [archival]: Indonesia's president has dealt a blow to two members of the Bali Nine drug smuggling ring facing death sentences. Ringleader Andrew Chan's last chance to avoid the firing squad is a plea for mercy to Indonesia's president. But Susilo Bambang Yudhoyono says he rejects almost all mercy pleas.
Annabelle Quince: The death penalty isn't a major issue in Australian politics today. The last person executed here was Ronald Ryan in 1967. The only time the issue really attracts our attention is when an Australian citizen is subject to the death penalty overseas.
While the number of nations using the death penalty has decreasing since 1970, there are a few notable exceptions, including the two most powerful nations on Earth; China and the United States of America.
Hello, I'm Annabelle Quince and this is Rear Vision on RN and via podcast. Today we trace the history of the death penalty, focusing particularly on China and America.
Before the 20th century the execution of criminals and political opponents was commonplace in nearly all societies. The death penalty was used extensively in Europe and was particularly popular in Britain. William Schabas is Professor of International Law at Middlesex University and the author of The Abolition of the Death Penalty in International Law.
William Schabas: I think if we go back before the 20th century there was just a huge variation in the use of the death penalty. It was generally used within Europe. In some countries the use of it would be very, very restricted and limited, and in others it was quite extensive. I mean, in England the death penalty was imposed for a huge number of crimes up until the 19th century, and then of course it was reduced dramatically and was essentially only used from that point on for murder and for a few political type offences like treason or piracy.
Annabelle Quince: The United States, like Australia, inherited the British legal system, including the death penalty. But according to Stuart Banner, Professor of Law at UCLA and the author of The Death Penalty: An American History, the death penalty wasn't popular in America before the beginning of the 20th century.
Stuart Banner: You know, it's funny, people find that hard to believe today, but there was a time from the late 1700s really through the early 1900s when the United States was well known for being one of the countries that use the death penalty least. There was a widespread sense, particularly in the era of the American Revolution, that capital punishment was a monarchical, aristocratic sort of institution, that it was the way that the elites kept the common people down and that it would be necessary or certainly wouldn't be as necessary in a Republic. And so for many years Americans really prided themselves on the leniency of our criminal laws. And that was true by and large right up until the mid 20th century. And of course today it's just the opposite.
Annabelle Quince: When the death penalty was imposed in American colonies it was predominately in the south.
Stuart Banner: Right from the beginning the southern colonies and the southern states always used the death penalty more frequently than the northern colonies and in the northern states. So, for example, there were more capital crimes in the southern colonies and the southern states, probably more executions per crime in the south than in the north, and that difference has carried through pretty much until today.
Annabelle Quince: And how do you understand that difference? Why did that happen?
Stuart Banner: That's a long, complicated story. In part it was an artefact of slavery. The southern colonies and the southern states had very large slave populations, and there were long lists of capital crimes for slaves. And even after the abolition of slavery, race was still a very important determinant of who got the death penalty and who was executed. That's much less true today but I think it was over enough years, the southern states built up this tradition of capital punishment that is still with them today.
Annabelle Quince: In China the use of the death penalty goes back over 1,000 years. Throughout the Imperial period the death penalty was used both as a punishment and a form of social control. Hong Lu is Professor of Law at the University of Nevada in Las Vegas. She's the author of China's Death Penalty.
Hong Lu: The death penalty throughout Asian China and contemporary China and even in the current context, it served multiple purposes, and one of the main purposes would be maintaining control by the state of the people. And social control was one of the primary functions of the death penalty.
Annabelle Quince: In 1949 the communists under Mao Zedong took power in China. They were as committed to capital punishment as the empires that preceded them.
Hong Lu: Mao was one of the leaders who advocated the use of the death penalty for the enemies of the state. Those enemies were not only meant by those who were anti-revolution, anti-government, but also those who were interfering with the state policy in terms of the state economic policy. Those government officials who engaged in extensive corruption, for example, were given executions in the 1950s to show an example of Mao's conviction of maintaining a clean government.
Annabelle Quince: Mao died in 1976, and Deng Xiaoping emerged as China's paramount leader. Although the reformist Deng led China towards a market economy, he was equally committed to the use of the death penalty.
Hong Lu: During Deng's era, roughly from 1978 through the 1980s and the 1990s, and during that two decades the death penalty was very much an integral part of the Chinese government's penal policy and the general political policy as well. And the death penalty was used frequently and promptly in order to suppress the increasing criminal activities, including violent crimes as well as economic crimes. So in that sense, yes, the death penalty was used as an instrument to protect the socialist goals and to maintain social order.
Annabelle Quince: The global push to abolish the death penalty began after World War II.
William Schabas: I think we can date the movement that is irreversible in the years following the Second World War. The aggressive countries use the abolition of the death penalty after the Second World War as a kind of symbolic break with the past, and so you see it actually being legislated out of existence in Germany, Italy and Austria in the late 1940s. And then by the 1950s many countries—Ireland, the United Kingdom, Canada—either stopped using the death penalty entirely or it becomes reduced to virtually nothing, and there are major public debates and major campaigns against it. Within Europe it's disappearing. Within most of Latin America it's already pretty much gone. And so that becomes very pronounced into the 1960s and 1970s.
The United Nations starts counting. It has a call within the United Nations in the early 1970s that it should do periodic reports on the status of the death penalty. And so in the early 1970s it counts I think about 30 states that have abolished the death penalty, but more than 100 that are still considered to be death penalty states. And from that point on you have about two to three states every year that abolish the death penalty. And that has continued fairly steadily ever since until the current day, and it's still going on.
Stuart Banner: Well, the United States participated in that global movement away from the death penalty right up until the 1970s, and then a couple of things happened that caused the US to depart. One was that violent crime rates in the United States are much higher, have been much higher than violent crime rates in other similar countries, than, for example, in Western Europe or in Australia. And so that has made people fearful, it's made them concerned about crime and it creates a lot of political support for harsher punishments. So that's part of it.
But then the other big thing that happened was in 1972 the US Supreme Court declared the death penalty unconstitutional in the United States. I should be clear, it didn't declare the death penalty itself unconstitutional but declared existing procedures for death sentencing unconstitutional. And that decision by the US Supreme Court really aroused quite a backlash. That is, the death penalty had been quietly, slowly fading away, but after that Supreme Court decision in 1972, states began rushing to amend their sentencing laws, to create new death sentencing schemes. The issue became politically salient, much more than it had been, and you start to see a big move towards support for the death penalty and you start to see death sentencing rates and execution rates start to go way up.
Annabelle Quince: Can you explain a bit more about what that case actually involved?
Stuart Banner: Before 1972, the way death sentences were imposed was that the jury would decide whether the defendant was guilty or not and if it was a capital crime or a potentially capital crime then the jury would next decide, well, should the penalty be death or prison. And there were no standards, there were no rules or anything, it was completely discretionary with the jury, and that was the aspect of it that the Supreme Court found unconstitutional. The Supreme Court said that the Constitution required some kind of logical procedure for distinguishing who would get the death penalty and who wouldn't, some way of setting apart the worst of the murderers to get the death penalty. That invalidated existing death penalty sentencing schemes, and so then all…well, not all the states but most of the states rushed to amend their statutes to provide rules to guide the jury in imposing the death penalty. And then a few years later the Supreme Court said the new statuary schemes satisfied the Constitution. That was 1976, that was the return of the death penalty to the United States.
Journalist [archival]: Overseas now and a parole board in the United States has rejected pleas for clemency from a woman due to be executed in Texas tomorrow. Karla Faye Tucker has been sentenced to die by lethal injection in a Texas prison for the axe murder of two people in 1983.
Journalist [archival]: Karla Faye Tucker is being held in the death cell of a Texas prison. Tomorrow she is due to be strapped down and given a lethal injection. She'd be the first woman to be executed in Texas in more than a century and the first in the United States for 14 years.
Stuart Banner: Since the '70s the United States has taken path than most similar countries. One reason why that may be is the decentralised nature of criminal justice in the United States. It's almost misleading to speak of the US as an entity when it comes to criminal justice because it's almost entirely a state matter. And so states decide for themselves what they want to do, and most of the main actors have to run for election. So judges in most states run for election, prosecutors, district attorneys run for election, and so it's very difficult for a criminal justice official in the United States to take any position contrary to the wishes of the voters, they'll get voted out.
In most similar countries criminal justice is much more centralised, it's a matter for the central government rather than local governments, and the relevant actors, particularly judges, typically don't have to run for election, so they are much more insulated from popular opinion. And so when they take polls in European countries that have abolished the death penalty they often find in the polls that a majority of the people would favour bringing it back, but it's just not on the agenda. That's something that would be very hard to imagine in the United States. In the United States if a majority of the people favour the death penalty, then that jurisdiction is going to have the death penalty.
Annabelle Quince: You're with Rear Vision on RN and via podcast. I'm Annabelle Quince, and today we're tracing the history of the death penalty, focusing on the United States and China.
One region that has dramatic reduced its use of the death penalty in the past few decades in Southeast Asia. William Schabas again:
William Schabas: In the countries in Asia, particularly in Southeast Asia, we see the death penalty reduced to very, very small numbers, and in some cases it has disappeared entirely, like the Philippines where the Philippines abolished it back at the end of the 1980s. They then returned to it briefly but I think now has definitely broken with the death penalty.
Taiwan, Malaysia, Singapore, Thailand and Indonesia are all sort of on the cusp. They haven't eliminated it but there are very, very few executions. Indonesia has of course a case involving two Australians, members of the so-called Bali Nine, that is proceeding, and the judicial attempts to prevent the execution there have not been successful. But I'm expectant that there will be a presidential pardon or some sort of intervention at the political level to correct that at some point in the future.
Journalist [archival]: Within the hour a young Australian man will be led to the gallows in Singapore. Such is the nature of capital punishment that we know that 25-year old Van Nguyen will die just before the sun rises over Changi Jail this morning, his life cut short by his drug smuggling and Singapore's insistence on implementing the mandatory death penalty.
William Schabas: Singapore was one of the most dramatic developments because a decade ago Singapore was leading the world in terms of the rate of execution per capita. It had the highest numbers in proportion to its population, and it has dropped hugely in recent years, perhaps out of embarrassment at the very high numbers. Its position hasn't changed, so that in the United Nations Singapore is still very vocal about its right to execute and its attachment to the death penalty, and that's different from the position in countries like Thailand and Indonesia where the governments have actually adopted a position of abstention on the General Assembly resolution and have suggested that they are in a moratorium mode on capital punishment.
Journalist [archival]: China's execution regime is wholesale carnage. Amnesty estimates that over 7,000 people are executed every year. Local academics put the figure at more like 10,000.
Hong Lu: When we count the death sentence we typically count them in raw numbers rather than in per capita, and China has the most population in the world. If we convert the number of death sentences and executions by the population rate, China is not the most punitive nation in the world. The state of Texas within the United States is by far the most punitive state or nation, surpassing China.
But on the other hand though, the number of death sentences and executions in China is no doubt one of the highest, and part of the reason, as I stated earlier, is that its frequent use was to maintain social order and maintain political control over the individuals or criminal behaviours.
Journalist [archival]: Apart from major crimes, such as murder and theft, people can be executed for white-collar crimes, for example tax evasion, and political crimes, like forming a group which agitates for Tibetan or Xinjiang independence.
Hong Lu: Since the turn of the 21st century, starting from the year of 2000, when we compare what's in the law book in 1997, criminal law, in terms of the sheer number of capital crimes, yes, we are seeing this reducing trend, the narrowing scope of capital offences. But in terms of the actual imposition of death sentences and executions, I'm not sure that I see the numbers in terms of a declining trend. Part of the reason is because China does not have official data on death sentences and executions each year. So I really do not have any official basis to make that estimation. But in terms of the Amnesty International data, if you look at the past 20 years of their report, from the '80s, the '90s, and even leading to the early 21st century, the numbers fluctuate greatly year by year. So there is no clear trend in terms of more or less of imposition of the death penalty.
Annabelle Quince: Legally how are death penalty cases dealt with in China?
Hong Lu: When someone is charged with the death penalty and we call those cases as capital cases, cases typically moved through three stages. China has a two-tiered trial system. Each criminal case will first go through a law trial court, and if the offender was convicted and given the death sentence the case can be moved up to the appeals court, which is a higher court. And the higher court will have a ruling, assuming that it's the death sentence again, and within the current legal frame in China all death sentences need to go through a final review and approval procedure by the Supreme Court of the nation. And only upon the review and the final approval of that death sentence can execution be carried out. So three stages: lower court decision, higher court decision, and the final review and approval by the Supreme Court in order for the death sentence to be carried out.
Stuart Banner: In the US we are currently at about somewhere around 40 or 45 executions this year and similar last year. But just a few years ago that number was up near 100, so it's actually come down quite a bit.
Annabelle Quince: And I'm wondering if the death penalty is concentrated in certain states in the United States.
Stuart Banner: There are 30-odd, 30, 35 states with the death penalty on the books, but most of them haven't carried out any executions recently. So there's a few states that dominates the execution numbers, and Texas is always the leader.
Annabelle Quince: One of the interesting things that has happened in the United States, certainly since the early part of the 1990s, is you've had a whole series of innocent projects where DNA evidence has been revisited and a number of people who'd been on death row have been proved to be innocent and released from prison, and I'm just wondering whether or not things like those projects and the discovery of miscarriages of justice have started to change or shape public opinion in the United States.
Stuart Banner: I think the answer is yes, but there's going to be an inherent limit in how much that's going to change public opinion about the death penalty, for a couple of reasons. One is that most crimes, there's not going to be any DNA evidence. But I think the more serious limitation is that the ability of DNA to exonerate the innocent cuts both ways when you think about the death penalty. On the one hand it reveals the existence of innocent people on death row, on the other hand though it comforts supporters of the death penalty who can now think, well, all right, we've got this foolproof technology, so now we know for sure that the ones who are actually guilty, we know they really are guilty. I think it calms people's worries about executing the innocent.
Journalist [archival]: Troy Davis's last hope for clemency rested with the US Supreme Court. But after the highest court in the land rejected his bid for a stay of execution, Georgia prison officials began administering a lethal injection.
John Lewis [archival]: He said to the family that he was sorry for their loss but also said that he did not take their son, father, brother.
Annabelle Quince: The other aspect of the death penalty has always been that notion of clemency, that governors or various people could actually extend some form of clemency to people.
Stuart Banner: Yes that's right. Clemency has almost ceased to exist in the United States. It used to be quite common. So if you go back 100 years it would not be unusual, say, for 50% of death sentences to be commuted to prison terms. These days it is almost unheard of because of the political consequences. A governor who hopes to be re-elected, it would be a disaster to exercise his power of clemency to commute a death sentence. When there have been instances of clemency in recent times they've been governors who were in their final terms who had no future hope of holding elective office. They're the only ones free to commute sentences.
Journalist [archival]: It was the end of a 20-year legal battle. Troy Davis's lawyers had appealed to state and federal courts. Three times he was granted a last-minute stay of execution. But not this time.
Stuart Banner: There have been a number of studies of the cost of the death penalty, and the precise numbers vary from study to study and from state to state, but the unanimous conclusion is that having the death penalty is actually quite a bit more expensive than incarceration for life, which is sort of a counterintuitive result. It's driven by a couple of things. One is, as you mention, the process in a capital case is much more complex. The trials are much longer, much more complicated, they involve expert witnesses and so on. The appeals go on and on. So the litigation costs are quite high in a capital case, much higher than in a non-capital case.
And the other aspect of it is that because the appeals take so long, when people are executed they are typically not executed until 10 or 20 years have passed since the time of the crime. So the cost comparison isn't lifetime incarceration versus instant execution but rather versus incarceration for 20 years and then execution. So the death penalty ends up being quite a bit more expensive.
Annabelle Quince: This is in contrast to China, where the criminal justice system works very swiftly.
Hong Lu: China's criminal justice process is actually very brief and efficient, if you want to put that. Based on the 500 or so death penalty cases that I've examined, the numbers in terms of the days, a typical death sentence case moves from the lower court to the final approval review and approval, the average time that it used was 449 days based on those 500 or so cases. From 62 days to close to 2,000 days. That's still much less, only a couple of years.
William Schabas: I would say in the case of both China and the United States that we see signs of shifting views and a shifting approach to the death penalty. Both of those countries in the last decade have very marked and measurable drops in the use of capital punishment. While they are far from having abolished the death penalty, there's something underway in those countries that actually is in my view very consistent with the general international trend, it's just they were so far behind. And they had a public that was committed to it and a political establishment committed to the death penalty that is resistant, perhaps more resistance to change than in other countries.
But to take them one by one, the United States now executes somewhere between 40 and 50 people a year. That's down quite dramatically from the late 1990s when the United States was executing more than double that number. The vast number of those executions, the 40 to 50 in the United States every year, are in one state, which is Texas.
You've had in recent years three of the states in the United States have abolished the death penalty. If it was a very enthusiastic 10 or 12 years ago, one could say that it's much less enthusiastic, and I think the writing is on the wall.
Stuart Banner: We've lived through periods like this before. So there have been several earlier periods of diminishing support for the death penalty, reduced number of executions, states abolishing the death penalty and so on. That happened in the 1960s, it happened in the decade before World War I, and it happened in the 1840s and '50s. And so at each time people who were alive at the time, they've extrapolated from current trends and they foresaw the eventual nationwide abolition of the death penalty. And of course it never happened. Each time eventually the pendulum swung back. These episodes in the past make it hard to be optimistic that the United States is going to abolish the death penalty anytime soon.
William Schabas: In the case of China, I'd been closely following the death penalty in China for more than a decade and I visit there on average probably twice a year, generally for seminars and meetings on the death penalty. And I've watched a very, very dramatic evolution on the subject of the death penalty towards abolition.
Journalist [archival]: China's top judge has thrown down the gauntlet to the entire Chinese legal system to reduce drastically the use of the death penalty in his country.
William Schabas: The people that I deal with, who would be senior judges, senior officials in the justice system, all insisted that they are committed to abolition of the death penalty, although they say that it's a long-term process.
Hong Lu: Especially in the past 10 to 20 years, there is definitely a shift, but in terms of moving away from the death penalty or complete abolition of the death penalty there will be a long way to go before China would completely abolish the death penalty.
Annabelle Quince: Are we likely to see the continuing decline of the death penalty, not only in China and the United States but also globally?
William Schabas: Absolutely. I have a prediction that the death penalty will disappear by some time in the next decade, that is some time around 2025. The rate of abolition has been about two and a half states a year and that's been fairly consistent for more than 30 years. So there are about 40 states that are still using the death penalty, so you can divide two and a half into 40 and that gives you an approximate idea of when this will happen. Certainly it's going to happen in my lifetime and most of our children and grandchildren are going to grow up in a world where the death penalty will just be viewed as…it will be like in those torture museums you have in some cities where you learn about these barbaric tortures of the Middle Ages, and very soon we will just be including the death penalty as such amongst them.
Annabelle Quince: William Schabas, Professor of International Law and author of The Abolition of the Death Penalty in International Law. My other guests: Hong Lu, Professor of Law, and author of China's Death Penalty; and Stuart Banner, Professor of Law and the author of The Death Penalty: An American History.
If you'd like to hear this program again you can find a podcast and a transcript on the Rear Vision website, and while you're there, drop us a line.
Today's sound engineer is Philip McKellar, I'm Annabelle Quince, and this is Rear Vision on RN. Thanks for your company.
- Stuart Banner
- Norman Abrams Professor of Law at UCLA.
- Hong Lu
- Professor of law at the University of Nevada
- William Schabas
- Professor of international law, at Middlesex University
- The Abolition of the Death Penalty in International Law
- William Schabas
- Cambridge University Press
- The Death Penalty: An American History
- Stuart Banner
- Harvard University Press (March 31, 2003)
- 31 Mar 2003
- China’s Death Penalty: History, Law and Contemporary Practices
- Hong Lu and Terance d. Miethe
- Routledge Publisher
- Annabelle Quince