1. INTRODUCTION
This paper reflects on the school of thought that death penalty should be abolished in all nation states. As such, this paper will reproduce summarized ratiocinations of well celebrated human right activists who double as abolitionists. It should be known that this paper will, from the kick-off, portray the writer as a retentionist of the abolitionists’ appeal. In fact, the writer will pursue the rejection to the conclusive remarks of this paper.
The death penalty chant is not a topical harangue. In most nation-states, it borders on retribution or deterrence as key motive for upholding the death penalty. Because it involves the taking away of lives, the penalty is attributed to very limited offences such as murder, treason, treasonable felonies, armed robbery (in some jurisdictions) and kidnapping (in some jurisdictions). While there is a category of persons in the retentionist school that subscribe to death penalty for all the above offences, other retentionist clamour for its application or utilization to only cases of murder. Well, this writer, while largely writing with respect to murder cases, sides with the school upholding all the aforesaid offences with a big request that the offence of rape be added to the list. This writer believes that rape is worse than murder as the victim is left to relive such ugly scene – in fact, the presumption of guilt is a tempting solution line. This temptation will be considered in another article. For now, we can conveniently head into the issues to be determined by our conscience, sentiments, sound logic, et al.
2. ISSUES FOR DETERMINATION
This writer joins issues with Ivan Simonovic on the following arguments/positions:
A. That despite the greatest judicial efforts, wrongful convictions are not avoidable. Capital punishment is simply too final and irrevocable, and makes it impossible to correct such mistakes. The consequences for human error are too grave.
B. That there is no conclusive empirical evidence that the death penalty deters crime.
C. That the death penalty is cheap only if it is carried out quickly. Putting in place the necessary safeguards to prevent wrongful convictions often makes legal proceedings lengthy and much more costly than the longest prison sentence.
D. That long delays on death row make the death penalty a cruel punishment (unacceptable from a human rights perspective).
E. That long delays in carrying out executions also postpone closure and psychological healing for victims and their families, in a way that (for example) the perpetrator’s return to prison to begin a life sentence without parole does not.
F. That not all victims’ families support the death penalty, and even among those who do and who desire revenge or closure through it, the great majority are left frustrated because only a small minority of perpetrators are executed.
G. That the death penalty is not imposed in a just and equal way. Those sacrificed on the altar of retributive justice are almost always those who are vulnerable because of poverty, minority status or mental disability.
H. That the use of the death penalty should no longer be perceived as an entitlement of a sovereign state because it violates human rights. No national interest can justify human rights violations such as the death penalty or torture. International recognition and protection of human rights limit state powers in this regard.
I. That as long as the death penalty exists, it can be misused, for example to target particular social groups and political opponents.
This writer, while appreciating the concerns therein raised by Ivan Simonovic, will show reasons why this position must be rejected. Narrowly, this writer will tackle the throbbing core from the perspective of the Nigerian Criminal Jurisprudence.
3. THE REBUTTALS
“That despite the greatest judicial efforts, wrongful convictions are not avoidable. Capital punishment is simply too final and irrevocable, and makes it impossible to correct such mistakes. The consequences for human error are too grave.”
Before nose-diving into the merits of this position, it is material to put to test the ultimate result of “the greatest judicial effort.” By every standard, if the bench is manned by incorruptible sages, is it any possible for a mathematical accuracy in their quest for truths in every allegation of crime? With the mammoth embrace of “presumption of innocence”, does it not go to mean that there is only one possibility where the judiciary, adopting of course the incorruptible sage status, exerts their “greatest efforts” in a quest for justice? To show a great deal of fair play, the proviso in s.36 (5) CFRN 1999 (as amended) which relates to validity of laws like s.167 of the Evidence Act, 2011 – where presumption of guilt is buttressed in certain respects – the legal burden of proof on the defendant is on a balance of probability. The main gist of the section is that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. On this premise, let us consider the merits of this submission.
While it is admitted that wrongful convictions can happen or do happen, it cannot be said that they are unavoidable. To assume that with the greatest judicial efforts we can never attain a world unmarred by wrongful convictions, will be to assume a great deal. The assumption goes to the root of the commonweal of the polis, generally, as it seems to question the axiom that the court is the last hope of the common man. An arrival of such a bold assertion by Ivan Simonovic presupposes the skeptical disposition he attains whenever a finding of “guilty” is the call in a murder trial. It is, perhaps, accurate to say there is no total faith in the judiciary – from the abolitionist standpoint.
Read in the inverse, will abolitionists be unbothered where despite the greatest judicial efforts, wrongful acquittals are yet unavoidable? Is there a possibility that there are murderers who get to walk the city roads as freemen because the prosecution was choked while pursuing the legal burden placed on him – the proof beyond reasonable doubt? It remains a food for thought what the abolitionists call justice when these questions call for their responses. If we must reflect on the issue being considered, it will be correct to say that Ivan Simonovic calls it unavoidable injustice despite the greatest judicial efforts to pursue justice for nominal complainants and the polis at large. The choice word, “greatest” speaks of heightened bias and it is not safe for a nation to uphold this kind of rhetoric as it cannot be gainsaid that citizens who cannot rely on the courts to administer corrective and distributive justice in its pure form, are in a hopeless state.
Beyond a doubt, capital punishments are final and irrevocable. It is not in question that human errors can pose as very grave. It is because of the possibility of wrongful conviction that we have appellate courts – the convict is presented further opportunities to prove his innocence. While the abolitionists will at this juncture address the issue of intervention of DNA testing in exonerating 140 death row inmates in the United States since the 1970s, it does not go to affect the core values of a nation-state that adopts the principle of preservation of human life (the victim in this case) and the utilization of death penalties as retribution or deterrence. It is argued even that the jury system during murder trials could prove a lot political especially the sentiments considered during jury selection. As an observation, these abolitionists from United States have not convinced the majority of people in their country nor have they succeeded in persuading their government otherwise. In fact, it will appear that with the paucity of data on the number of wrongful convictions per nation-state, it will be faulty to hastily generalize that this judicial slip is the global practice.
Besides, the argument of Ivan Simonovic is more of a recommendation to the retentionist school of thought than a submission to champion the abolishment. This writer believes that it behooves on all nation-states to ensure that the practice of convicting defendants when the legal burden on the Prosecution is discharged, remains the religion. It is not even convincing to say that because DNA Testing exonerated that number of persons after conclusion of murder trials since 1970, that it is unsafe to believe that the Court can rightly convict a person. It is not convincing to assume that because the DNA Testing facility will prove expensive at post trial stage, then we should abolish the death penalty. It is not convincing because you do not need DNA Testing where circumstantial evidence can prove a case beyond a reasonable doubt. Logically, there should be no further protests from abolitionists where DNA Testing is utilized more during trials. But truth is, the remonstration will not stop even with such improvement (assuming that the trials have ever been conducted in appalling conditions).
As has been mentioned already, the hierarchy of courts serve as more options for the defendant. They are not fanciful structures but a place where justice is dispensed. The argument that since the appellate courts play a limited role by considering questions of law and not facts canvassed at the court of first instance (trial court), should not even hold sway as good ground why wrongful conviction is unavoidable. It is the law that if records of proceedings from the trial court are not the exact capturing of events at the trial or the records were missing, it is for the defendant to impeach the records of proceedings. Where records are impeached, the facts become in issue. In fact, while we must admit that the appellate courts do not meddle into evidence evaluated by the trial judge, the legally recognized exception is that evaluation of documentary evidence are not within the exclusive preserve of the trial court vide EZEUKO V. STATE [2016] EJSC (VOL 43) 36 S.C. Also, while the appellate courts answer the legal questions, if the appeal is on mixed law and facts, facts become in issue. Even, while points of law are to be determined at the appellate courts, a retrial order can be made as well in the interest of justice. Point is, since the trial court observed the trial, the appellate court will be guided by the records as it is a moot court. If a trial court failed in its primary duty of making findings of facts on issues joined between parties, and the evidence is such that the appellate court cannot make findings and come to a decision on all the relevant issues, an order of retrial is the proper call.
Furthermore, it should be understood that a retrial order is hardly granted. It does not operate as injustice where there were no substantial irregularities in the conduct of the case; or where the proceedings were conducted at the trial court largely in conformity with rules of evidence and procedure, et al.
“That there is no conclusive empirical evidence that the death penalty deters crime.”
If the abolitionists call it mythical, it is actually on them to lead empirical evidence to establish otherwise at the international plane. It is heavy to swallow that while the abolitionists admit that it has been impossible to conduct public opinions of people in Africa and some other continents due to how repugnant the question may pose, they can suddenly hold the imposition of death penalty as mythical. They stand on assumptions ultimately without data to negate the simple logic that a death penalty as a law to deter A from killing B should make A realize the consequences of his actions; the penalty is justice in its richest vitamins. Point is, he who asserts, must prove. The ball has not left the abolitionists’ court despite their remonstrations.
“That the death penalty is cheap only if it is carried out quickly. Putting in place the necessary safeguards to prevent wrongful convictions often makes legal proceedings lengthy and much more costly than the longest prison sentence.”
If the safeguards intended here is the DNA Testing, it has been treated above. If the safeguards are the appeals, then it is true that it could prove costly especially for the impoverished. It is not conceded, however, that the safeguards will pose as much more costly than the longest prison sentence. The exaggeration appears to be part of the submission and it equates to it not being regarded. In fact, does the one second delay in executing a death penalty make it expensive? This is blurry. The cheapness or otherwise has no weight on the core values considered by nation-states. It is not good reasoning to state that a thorough establishing of necessary safeguards will be too expensive enough for life imprisonment without parole to be the recognized punishment. This reasoning fails to see the gravity of criminal wrong as murder on such a victim and his family while lying under the pretext of fighting for justice of the killer. It is misunderstood what this kind of human rights activism proposes to encourage. This position scarcely advances the argument of the abolitionists; if it advances it, the weight attached is infinitesimal.
“That long delays on death row make the death penalty a cruel punishment (unacceptable from a human rights perspective).”
There is need to halt and embark on metaphysical introspection on possible take homes from this fourth submission. Firstly, the choice words, “long delays” and “cruel punishment” could mean that the abolitionists have problems with the long delays on death row than with the execution of convicts when instant. Because of expected smart responses such as, “this is one other reason out of a bunch”, it is apposite the submission be tested as to weight.
If a convict is on death row for years at his own instance, especially where he has his case pending on appeal, does it become cruel that his execution is delayed? One will think not. Indeed, as established in NAFIU BELLO V. AG, OYO STATE [1986] 5 NWLR (Pt. 45) 828, it is sheer injustice where the execution takes place during the pendency of an appeal. That much is cruel because there exist further rights of the defendant/appellant. To ascribe theories of cruelty to a convict who has exhausted all his legal rights, will be needless tattooing on sound jurisprudence. The convict cannot become a victim of long delays on death row when, in nine out of ten cases, prays for longer opportunities to see another day. If there is one prayer of convicts, it is that pardon from the Governor/President finds them. Most of them want this delay, logically. To stress that the long delay amounts to cruel punishment is an admission by the abolitionists that they have not been paying attention.
From more introspection, the sentencing of the convicts by the court of law does not attach in its wordings, “immediately”. The punishment is complete upon the finding of guilt and pronouncement of sentence. It could not have been cruel at the point of sentencing save an innocent man was wrongly convicted. In line with the core values of retentionist nation-states, this is justice. It is in the position of the judiciary or the victim’s relatives to remonstrate when there is a delay and not a convict who has no legal rights anymore. The fact that the convict is made to hope against hope as the execution tarries is a matter of choice; this sentiment cannot make him a victim, this sentiment cannot lead a cavalry charge to bloody submissions that is “Abolition!” Again, the submission favours the retentionists to the extent that it is considered as valid recommendation if we must avoid prison congestions.
“That long delays in carrying out executions also postpone closure and psychological healing for victims and their families, in a way that (for example) the perpetrator’s return to prison to begin a life sentence without parole does not.”
No. what will never amount to closure and psychological healing is the acceptation of life sentence without parole as the punishment for killing another human with the requisite guilty mind and criminal act itself. No. Short, long or no delays at all do not determine whether a psychological healing will occur. The pain may linger forever but the State has only lifted part of the burden. There is a relief that the court has convicted the murderer; that closure or psychological healing reads from the execution of the convict is not a tested hypotheses – if tested, the outcome is yet published to show its universal or general resolve. The argument of closure and psychological healing leading to life sentence as proffered solution is not convincing for conservative nation-states. It is an argument from liberalists and the thing about the liberals is that they nurse the proclivity to abuse certain liberties – it is an abuse to the conscience of values of the society for one to advocate for life sentence under the pretext that it is how best he can grief with the families of the victim. The root of the death penalty is retribution and deterrence; the submission of the well-respected law scholar can be summarized as merely trying too hard.
“That not all victims’ families support the death penalty, and even among those who do and who desire revenge or closure through it, the great majority are left frustrated because only a small minority of perpetrators are executed”
It is true that not all families of victims support the death penalty. Their reasons are not in one figured box. It varies. But should the minority prevail over the majority ever willing to preserve the core values of the polis? This should be rhetorical. In 155 pages of the abolitionists’ side of the story, it was not shown how they arrived at the great frustration of the greatest number. They did not even reveal how they arrived at the conclusion that a minority of perpetrators get to be executed when many nation-states are so far, guilty of not publishing its executions. Even if the abolitionists are right as to the existing moratoria, how can we determine the level of frustration indeed if it is not a creation of the abolitionists sorely to amplify their voices? Besides, that a minority have been executed (say we assume but not concede) does not mean that the rest will not be. In an amusing way, it seems the frustrated party is the abolitionist – it attracts barrels of good laughs if they are frustrated that the execution did not come speedily in the best interest of the families of the victims supporting the death penalty. If this is so, then this becomes yet another recommendation as the debate should quench if closure can be guaranteed with speedy executions.
“That the death penalty is not imposed in a just and equal way. Those sacrificed on the altar of retributive justice are almost always those who are vulnerable because of poverty, minority status or mental disability.”
The pinning of death penalty is not done unjustly or unequally. The issue of poor or mentally disabled as sacrificial lambs is arguable. The mentally disabled on death row must have been determined by the court to be a person suffering under a mental disability, committed the criminal wrong at a time when he could deduce his right from wrong. It is not foul if the M’Naghten’s Rule is tested. While it should be admitted that this is injustice if ultimately the case, it cannot be seen how life imprisonment without parole becomes justice. Are we to fight for justice of murderers? It does not affect the root of death penalty even where we consider these odds. Again, it is like a recommendation as where there is such a transparent and unbiased system of Government, there is equilibrium. The clamour for equilibrium is a better way to advance the roots of the death penalty – ensuring retributive justice meets all convicts.
“That the use of the death penalty should no longer be perceived as an entitlement of a sovereign state because it violates human rights. No national interest can justify human rights violations such as the death penalty or torture. International recognition and protection of human rights limit state powers in this regard.”
With all due respect, the only violation here is the bold assertions slanted which are not legally protected. It should be understood that the foundation of all the abolitionists’ clamour is “right to life”. A constitutionally protected human rights of Nigeria, for instance, stresses that “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.” While right to life is protected, a death penalty negates one’s right to further enjoy such right. No. it is not in the place of a careless remark to have significant weight on the preamble of a nation’s constitution. It is near ludicrous to fight for justice of a convict who violated the right to life of a deceased victim. It is perceived that there are levels to this activism – one which this writer is not interested in stepping into.
International laws, treaties, et al, do not limit state powers in this respect save where there is existence of a treaty obligation or the customary international law practices. It does not limit the sovereignty where the laws are not domesticated; in Nigeria for instance vide s.12 CFRN 1999. The question now is whether the death penalty falls under the Jus Cogens? The answer is in the negative. The question of torture is settled under relevant provisions of the Anti-Torture Act, 2017. The issue of torture is cruel but it is definitely not established by the abolitionist that this treatment exists – even if it does, the best is a sanction of defaulting officers, costs, job loss or trial.
“That as long as the death penalty exists, it can be misused, for example to target particular social groups and political opponents”
Misused by whom? The courts? This submission seems to forget that while the politicians can pin allegations on adversaries, it is the court to find truths. If by misusing, Ivan intended the execution stage, what is the big deal about the motive? After all, all convicts on death row are to experience same fate – though it tarries, it will come to pass. This however admits to the exception of pardon.
4. RECOMMENDATIONS
It is apposite to conclude with the following:
1. It will not be bad to entertain a post-conviction or habeas review where capital offences are considered.
2. The courts should ever advise and in other cases, ask that another counsel represents the accused. The issue of half-baked lawyers trying to save lives when they need saving themselves should be prohibited. Only diligent defence attorneys should be recommended to handle serious felonies (any criminal case in fact).
3. The executive arm of government should be accountable or transparent. The governed are entitled to know the number of persons on death row, those executed, the reasons behind the moratorium, et al.
4. The court of law should stick to the principle in WOOLMINGTON V. DPP and should not convict if the legal and evidentiary burden is yet discharged.
