In The News - Aug/Sep

So it appears the the Sri Lankan President has announced that the death penalty will start being enforced again. This is a country that had the death penalty but refrained from using it since 1977. As the BBC put it so eloquently in french, it has been in abeyance! Oh la la.

Now due to a spate of violent crimes in a seemingly rapid decline into lawlessness, the support for reigniting capital punishment is growing. This is particularly interesting given the prominance of Budhism in Sri Lanka.

This came to my attention through a Sri Lankan publication I've never even heard of before called The Island. The opinion piece is quite astounding and as I read it I felt compelled to comment on it.

The piece starts with a quote from Oscar Wilde, and this is what really caught my eye.

"He has killed so he deserves to die."

Does Mr. Dunusinghe, the author, even realise the irony of using this quote to begin an article entitled "Bringing back the hangman". For those who aren't familiar, this is a quote taken directly from Wilde's "The Ballad of Reading Gaol", which I have quoted in this blog in the past. Infact, the small stanza was one of the "Quotes of the day". If that doesn't raise some alarm bells, let me give you a little bit of history behind this Ballad. It was written by Wilde after he was imprisoned in Reading Gaol for committing the crime of "gross indecency" which was a lesser crime than "buggery". It was widely believed that he was either homosexual or bisexual. During his time in prison he felt the impact of an inmate being hanged for murder. Upon his release, while in exile, he wrote the ballad. The relatively long piece goes on in detail about the horrifying experience of a man condemned to die. The waiting, the certainty, the cold and calculated mechanism that is official murder. In two words, Albert Camus' "implacable ritual".

Other than the one I previously quoted, here is a section of it more directly related to the issue:

He does not die a death of shame
On a day of dark disgrace,
Nor have a noose about his neck,
Nor a cloth upon his face,
Nor drop feet foremost through the floor
Into an empty place

He does not sit with silent men
Who watch him night and day;
Who watch him when he tries to weep,
And when he tries to pray;
Who watch him lest himself should rob
The prison of its prey.

He does not wake at dawn to see
Dread figures throng his room,
The shivering Chaplain robed in white,
The Sheriff stern with gloom,
And the Governor all in shiny black,
With the yellow face of Doom.

He does not rise in piteous haste
To put on convict-clothes,
While some coarse-mouthed Doctor gloats, and notes
Each new and nerve-twitched pose,
Fingering a watch whose little ticks
Are like horrible hammer-blows.

He does not know that sickening thirst
That sands one's throat, before
The hangman with his gardener's gloves
Slips through the padded door,
And binds one with three leathern thongs,
That the throat may thirst no more.

Quoting it in an article that is pro-death penalty would no doubt make him roll in his grave (see grave above). It's a beautiful piece of writing which is quite complex and relates heavily to Wilde's experience in prison.

Dostoevsky puts it:

"But the chief and worst pain may not be in the bodily suffering but in one's not knowing for certain that in an hour, and then now, at the very moment, the soul will leave the body and that one will cease to be a man and that that's bound to happen; the worst part of it is that it's certain ... To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood or something of that sort, must surely hope to escape till the very last minute ..., but in the other case (execution) all that last hope which makes dying ten times as easy is taken away for certain. There is the sentence, and the whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible."

This is quite poignant also given the topic of the article. What is the point of having a death sentence that is not in use? Since 1977 people have been sentenced to death, have had to suffer the uncertainty of their fate, only to be pardoned by the President.

It has been an issue I have discussed quite often, the effect of the death penalty on those who are left to languish in its clutches. It's not something I have dedicated an entire blog entry to, so I think that is on the agenda.

Back to the opinion piece at hand. If this fatal flaw at the very outset wasn't enough to completely discredit it, then reading on will leave you without any doubt.

By far the most worrying part of the article is the endorsement of capital punishment as the only alternative to police taking vigilante justice.

"Today we have a new and frightening development with the Police taking the law into their hands and arranging fake encounters for the purpose of carrying out executions. Should not these murderers also be tried and put to death after a judicial process? I ask the ‘pious’ what if we had captured Prabhakaran alive? Did he not deserve to die at the gallows? Saddam was hanged for less by the Americans and the West."

Prabhakaran was the leader of the Tamil Tigers who was found killed in a "rocket attack" in may this year. But there are reports that he was killed by a close range bullet to the back of the head, execution style. Calling on the death penalty to fix gaping holes in the justice system such as this does not seem like a particularly wise course of action. If your police and armed forces are unable to operate in a functioning and just manner, how can it be imagined that the death penalty will somehow alleviate this situation. If anything it would make the system far more brutal and arbitrary. God forbid a police force that deems it appropriate to execute accused criminals before bringing them to trial should be tasked with investigating the case against accused who are at risk of being sentenced to death.

The author suggests that despite the "corruption" of the authorities, a review by 3 Supreme Court judges could solve any issues of "wrongful execution". Sadly, and possibly unbeknownst to the scholar who penned this article, judges rarely if ever have the opportunity to go fact finding on appeal, and often are there solely to examine the evidence put before earlier courts, or any additional evidence found since then.

"It has been medically proved that hanging is more humane than any of the other methods. The term ‘Capital’ incidentally originates from Latin capitalis, literally "regarding the head" (Latin caput). Hence, a capital crime was originally one punished by the severing of the head."

Here is a textbook lesson in wikipedia journalism. You'll find these exact words, regarding the etymology of capital punishment, at the beginning of the wikipedia article on capital punishment. What worries me is the suggestion that hanging is medically proven to be more humane than any other form of execution. Find me one modern "medical" source that makes this ridiculous assertion and I'll hang myself.

It continues:

"We do not need to have any qualms about carrying out executions as Capital punishment has been practiced in virtually every society, and thus can be considered to be almost universal or close to it. Capital punishment is meted out in countries where more than 60% of the world’s population live. The four most populous countries in the world (the People’s Republic of China, India, United States and Indonesia) apply the death penalty and are unlikely to abolish it. Forty five countries today retain the death penalty."

I know my point of view might come across and patriarchal and colonial, but suggesting as any sort of authority that the death penalty is "in favour" around the world simply because it was once employed in every country, at least in their history, is not only absurd but totally missing the point. That the majority of nations (94) have completely abolished the death penalty is where the point can be found, and the direction in which modern sensibilities are moving. Of the other 45? Such hallowed company as Iran, Iraq and North Korea. The U.S. being the only Western liberal legal system that employs, and that is only a minority of states within the states. The United States is by no means "united" on the capital punishment. Incidentally, according to the DPIC (Death Penalty Information Center) in 1977 only 16 countries were abolitionist. It's interest to note again that it was in 1977 that Sri Lanka held its last execution. Is this conicidence or the signs of a slow and steady progression towards abolition. So why now is Sri Lanka baulking against the international trend?

He then goes on to talk about the cost effective nature of the death penalty and the deterrant effect. The latter being a legitimate concern but wickedly difficult to establish either for or against. The former being one of the most discredited and disowned grounds for supporting the death penalty.

Perhaps my favourite section is this:

"Imprisonment is not for murderers. There are three purposes for prisons. Firstly, prison separates criminals from the general population. Second, prison is a form of punishment. Finally, prison is expected to rehabilitate prisoners; so that when prisoners are released from prison, these ex-convicts are less likely to repeat their crimes and risk another prison sentence. The logic for capital punishment is that prisons are for rehabilitating convicts who will eventually leave prison, and therefore prison is not for people who would never be released from prisons alive."

I hope that somebody doesn't come on here and tell me this is some marginal, ultra-conservative rag that nobody reads. Or that the opinion piece was written by an high school student and the editor desperately needed to fill a column. My fear is, after reading this article, this sort of misinformation could possibly be common.

Have I just wasted my time? Have I just given this article more air time and consideration than it deserves? Probably, but sometimes the ignorance of the many can be the firebrand of the few. Hmm, I quite fancy that phrase. (TM)

Quote of the day:

"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted; and a community is infinitely more brutalized by the habitual employment of punishment than it is by the occasional occurrence of crime."

- Oscar Wilde

In The News - August

The Supreme Court of the United States has ordered an evidentiary hearing should take place in light of new evidence, a decision that has been without precedent in 50 years. The pleas of Georgian death row inmate, Troy Anthony Davis, have not gone unheard around the world. He was convicted of killing an off duty Savannah police officer in 1989. He claims that almost all of the witnesses in his trial have since recanted their testimony and that the key witness is the shooter himself. However, this has not been a serious consideration in any of the appeal circuit courts due to the Antiterrorism and Effective Death Penalty Act which was instituted to streamline the death penalty. This ensures that the federal courts consider appeals based on constitutional grounds, and not factual or evidentiary grounds.

It’s unlikely that in the long term this decision will have any serious impact on the operation of the death penalty, but it certainly puts the question up in the air, and the more the waters are muddied, the more doubt that is put in the minds of America’s constituents, the better. This case also goes to show just how much power a collective of voices can have in seeing justice done. Troy Davis will now have the evidence against him properly reconsidered which is, at the barest minimum, justice. Whether or not his conviction is upheld remains to be seen. Should he be found innocent, I would expect the reverberations from such a decision to shake the very foundations of the death penalty in the United States. Here is a man, on death row 20+ years, having come close to execution numerous times, his call for a re-trial consistently ignored and finally found to be innocent.

This is such a endemic problem with the death penalty. Executing somebody demands even the most callous of people to be completely sure of their guilt. This is exactly why there are 11-13 stages of appeal for someone sentenced to death in the US. The problem I perceive, however, is the fact that the system needs to be “expedited” in the first place. Imprisonment isn’t a sentence that needs to be “hurried along”. It is a sentence than can be quickly reversed and easily maintained throughout a trial and all subsequent appeals. The death penalty needs to rush through countless appeals so that the actual sentence can then be carried through, after which, it is utterly irreversible.

"A state supreme court, a state board of pardons and paroles and a federal court of appeals have all considered the evidence Davis now presents and found it lacking”

In typical ultra-conservative fashion, Scalia has thrown out all reason and common sense by defending the decision of the previous federal court judges. To blindly put your trust in the functioning of the judiciary despite overwhelming evidence that the system is not working. Scalia is essentially denying that anybody could fall through the cracks and that the system could accidentally execute an innocent man. He seems to go as far as to suggest that if the state did execute an innocent man, because he was found guilty and that was upheld at every level of jurisdiction, the execution was “legal” despite innocence. Does he even realise that as the highest court in the U.S. it is his role to be a guardian of justice. Instead he seems to prefer turning a blind eye to the fact that perhaps capital punishment is not entirely infallible.

There’s no point dwelling on the ultra-conservative minority in this decision, especially when the split was 7/2. Justice Stevens summed it up well:

"Imagine a petitioner in Davis' situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The court correctly refuses to endorse such reasoning."

I’ll keenly await the outcome of Troy Davis’ evidentiary hearing.

______________________________________

Another big development has been a case which, about 2 years ago, I totally failed to put up on this blog, although I was aware of it. About 2 months before I arrived in the U.S. for my Reprieve internship, Michael Wayne Richard was executed while his lawyers scrambled to submit a motion for a stay of execution in order to lodge an appeal. Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, ordered the court closed at 5pm, against normal policy when an execution is about to occur.

It’s incredible to think that a judge who deals with cases and sentences that involve the execution of a person could be so capricious and heartless to take actions that would block this mans life from being spared. In truth, however, it’s not so hard to understand. When you have been dealing with state sanctioned murder so intimately and for so long, a form of brutalisation must occur. Seeing brutal murderers come and go, churned out by the implacable ritual that is capital punishment must be utterly soul destroying, especially when you take an active and complicit involvement in it. To Sharon Keller, execution must seem not only normal, but a huge inconvenience on her life, one which can be brushed aside effortlessly with a simple act of bureaucracy that screams of vindictiveness on a Machiavellian scale.

Thankfully, although massively delayed (2 years), she now stands trial for her acts. I would say that she should be held criminally liable for the death of this man, but I understand that it would be obtuse to suggest that a member of the judiciary could be held criminally responsible for a decision made within her official duties as a judge. That would completely compromise the independence and impartiality of the judiciary (which is already questionable in the United States).

I hope that the truth comes out in this trial and that the outcome does some small amount of justice to a man who was wrongfully executed.

Monster's Ball

Humanity and the death penalty is something I think I've written about on this blog and talked about all too often. Inhuman, evil and monster are words that I've extricated from my vocabulary when describing other people and their actions.

The whole question of humanity and the death penalty was raised again when I watched the movie Monster's Ball, starring Halle Berry, Billy Bob Thornton and Heath Ledger. I don't quite know how this film stayed under my radar for so long, but I had never really gone out of my way to see it.

Without giving away too much of the plot, it's the story of a family of three men from different generations who have grown up working as prison wardens on death row.

What really surprised me while I was watching the film was the moment Halle Berry arrives at the prison to see her husband on death row. To my surprise she pulled up to the all to familiar boom gates of Louisiana State Penitentiary, AKA Angola or The Farm. I felt like I'd been ambushed by a memory and a place that felt so familiar that I felt something akin to homesickness. It feels a bit absurd to say that I would be homesick for the entrance to a prison, but it has a way of bringing up very personal and vivid memories, which makes you immediately feel a sort of affinity with whatever you are engaging with, in this case, the film. I had spent so many hours at those front gates, waiting for the prison guard to arrive in his truck and take us on the long drive through the prison grounds to Camp D - Death Row. The wait was usually quite sombre. Surrounded by tall cyclone fences crowned with thick and menacing razor wire. The prison guards were always less than friendly, although our foreign accents sometimes elicited a smile from a usually taciturn demeanor. When I saw this place in the film, even though it was simply a scenic tracking shot that lasted a 20 seconds, it still made me sit bolt upright, my head swimming with memories.

The scene that followed was a visit between Halle Berry, her young son and her baby's daddy, as they say in the states, who was the condemned man. He was due to be executed the next morning and this was a farewell. The young boy asks why his father has to go, to which he responds, "Because I'm a bad man." The young boy asks him, "Who says?" to which he replies, "I do."

I've always believed that the death penalty destroys more lives than just the man who is executed. It ripples through society with corrupting after effects. This is beautifully portrayed in the film as the family of prison guards find their lives falling apart in the wake of this mans execution. The eldest, a retired prison guard, is an embittered, racist and generally cruel man who quite clearly takes great pleasure in the execution of criminals judging by the scrap book into which he lovingly pastes articles to do with executions. Billy Bob Thornton, the son of the eldest and the father of the youngest, is clearly heavily influenced by his father in terms of his racist beliefs, but it's unclear whether he truly harbours the same beliefs, or is simply dissembling to please his aging contemporary. Halle Berry as the wife of the condemned man, turns to alcohol while her morbidly obese son eats chocolate excessively. He hides this from his mother, who beats him when she eventually catches him with chocolate on his face.

None of the characters in the film have any redeeming qualities, with the exception of two. The condemned man, and the youngest generation of the prison guards, Heath Ledger. Both have extremely brief roles in the film, but their actions and personal stories have an impact on every other character in the film. In a way, their tragic stories engender a change in all of the other characters.

When the condemned man is waiting in his cell for the morning of his execution to dawn, the viewer is taken through a sort of intimate moment of shared suffering. He grabs the youngest prison guard and holds on to him through the bars of the prison cell. It's the most heartbreaking scene and you can't help but be filled with compassion. The father pulls his son away from the bars because he can see the compassion weakening the resolve of his son.

The condemned man, who enjoys sketching, begins to sketch both father and son as they sit outside his cell, keeping vigil. He tells the two of them, as he sketches the fathers face, "It truly takes a human being to see a human being."

These scenes of a mans last few hours are where the title of the film is most relevant. The monster's ball is the name given to a party held on the eve of a man execution, as was tradition in England before they abolished the death penalty. A similar tradition is represented in the film in the form of a mans last supper, which is still the norm in U.S. states that still use the death penalty. The condemned man orders whatever he wants for his last meal and, interestingly enough, in this scene it become clear that he never touches his food.

These three men share an intense and tragically intimate experience as they walk the condemned man to the electric chair. The cold, callous nature of a state sanctioned execution hits you so powerfully that when Heath Ledger, the youngest of the family, drops to his knees during the "last walk" and throws up, you are struck by just how terrible an impact this has on the guards, let alone the condemned man himself.

The tragedy of the Monster's Ball is that these people's lives disintegrate in the aftermath of the execution. I would say more but I would risk ruining the end of the film. Whether or not the ending has any redemption for the main characters is worth seeing for yourself. I think you'll find that the ending of the film speaks for itself.

Quote of the day:

"It truly takes a human being to see a human being."

- Monster's Ball (2001)

Changing Scope

I haven't blogged at all over the last 6 months and it's due entirely to applying and interviewing for graduate positions in January and February, and traveling Europe since March.

From July to December I'll be working as an intern for the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. During this time I hope to find the time to keep blogging, however, I wanted to make a slight change to the subject I've been writing about.

At the moment my purview is specifically state sanctioned executions. I wanted to change it slightly to include extra-judicial killings. This essentially includes genocide (the ultimate international crime) and mass murder committed by a state, a state body, the army or police. I have a strong interest in International Humanitarian Law, and mass executions are a horrifying, tragic and very real element in modern warfare.

I won't be including other warcrimes, for example torture, because then I think this blog will just start getting far too broad. I want to stick to state sanctioned and extra-judicial killings.

The obvious reason for this inclusion is that for the next 6 months I'll be working heavily with cases regarding war crimes during the Bosnian-Serbian war. As with my internship in New Orleans, I won't be able to talk about specific details of cases that I am working on, but I will be eager to write about the concept of warcrimes, the capture and trial of war criminals and any form of murder directly or indirectly undertaken by a government, government body, police or army outside the purview of the law.

During my visit to the Jewish Holocaust Museum in Berlin I saw a quote on the wall that is almost like a introduction to the horrifying expositions that follows, and it's a quote from Primo Levi an Auschwitz survivor and prolific writer.

"It happened, therefore it can happen again: this is the core of what we
have to say."

It occurred to me that although the Holocaust has not been repeated in history on the same scale, it certainly has been recreated in part through numerous conflicts, Sudan, Rwanda, Cambodia, Former Yugoslavia. Even with the creation of the International Criminal Tribunals for Rwanda and Yugoslavia, it still occurs. What needs to be done to stop it from continuing? The face of war has changed, and even though it is unlikely that a state will ever adopt a calculated policy of mass extermination like Hitler and the Nazis did, there are still conflicts in which massive amounts of non-combatants are murdered. Warcrimes Tribunals such as the one I will be working with have been extremely successful in holding warcriminals to account for crimes against humanity, but a more serious question is what more can be done to ensure that these crimes aren't allowed to occur at all, and when they do, how best to prosecute them.

Once I'm settled in The Hague I'm sure there will be lots on my mind.

Quote of the day:

"I am constantly amazed by man's inhumanity to man."

- Primo Levi

In The News - July

The Australian Government has made a big step towards ensuring that capital punishment cannot ever exist again in Australia. This is a strong message in support of global abolition and of course greatly in support of our Australians still on death row overseas.

The legislation will draw on the Commonwealth Government's external affairs power in s. 51(xxix) of the constitution. This power, it is argued, can interpreted to allow the Government to act upon international treaties, and therefore legislate on behalf of the states. The international treaty in question is the Second Optional Protocol to the ICCPR, of which we are signatories. We have also co-sponsored a resolution for a moratorium on the death penalty.

Even though it's merely a consolidation of the status quo in Australia, it's an important step in the right direction both at home and abroad. The Human Rights Committee observed that "all steps taken to abolish the death penalty must be viewed as progress towards the enjoyment of the right to life." This is no doubt the case by closing the door completely on the death penalty.

Andrew Chan, Myuran Sukumaran and Scott Rush are still on death row in Indonesia, and so any unified approach against the death penalty will not fall on deaf ears with our closest neighbours. What more powerful message to send than a complete and irrevocable refusal to ever allow the return of the death penalty.

The legislation is expected to be past in spring. For the sake of Australians abroad I hope that not too much political debate is raised by the Opposition, because only a bipartisan approach will send a strong enough message to perhaps save lives.

2008 - Death Penalty In Review

Here is a link to a really concise report from the Death Penalty Information Centre.

It shows the consistent trend away from the death penalty, with death row numbers and executions lowered across all States.

It also highlights the economic and social problems the death penalty creates, with taxpayers money being spent on housing death row inmates for over 12 years. With too little money being provided for indigent defendants, some courts have refused to hand down the death penalty until the legislature invests more money in the system.

The death penalty in America is on the verge of collapse, but this could spell even greater disaster for those on death row, as the system has the potential to shut down completely, or become even more draconian in the face of a financial crisis.

Enjoy reading and Happy New Year!

AFR - "Budding diplomats test career waters"

Monday, 01 December 2008 | The Australian Financial Review | Erica Cervini

International internships inspire law students to continue humanitarian work, write Erica Cervini.

As Jihan Mirza walked the halls of the United Nations in Geneva earlier this year, some people assumed she was a diplomat. She was, in fact, a final-year Monash University law student.

For two months Mirza was a UN intern at the Human Rights Council, which gave her the chance to mix with diplomats and academics and learn the finer points of diplomacy.

"It was an amazing experience," says Mirza, who was one of five students awarded a global internship for 2008 by Monash's Castan Centre for Human Rights Law.

Because Mirza was part of the Australian delegation to the Human Rights Council, she had the chance to address plenary sessions in the Palais des Nations on behalf of Australia. On one occasion, she gave Australia's response to human rights issues in Zimbabwe.

Mirza is one of many law students who head overseas to complete internships at organisations such as the Centre for Justice and International Law in Buenos Aires and the Global Policy Forum in New York.

Students often gain credit for the internship as a subject towards their degree and law schools often provide travel grants for the internships. The experience can also provide career direction.

Mirza says her internship has crystallised her decision to work in international policy and human rights. Next year Mirza, who has a Lebanese background, hopes to work for the UN in Lebanon or East Asia.

Sarah Callaghan agrees that doing an international internship cemented her wish to work overseas in humanitarian law. Callaghan spent three months with the UN Commission for Refugees in Cairo in 2003 while in her final year of law at the University of Adelaide.

"It [the internship] made me realise that there were a lot of people doing different things," she says.

"If you are open to opportunities and open to try different things, you never know where they will lead."

After graduating, Callaghan worked for the South Australian minister for justice but was always keen to return overseas.

Callaghan also spent a year in Liberia working on the 2005 elections and two years in Afghanistan working with the minister of counter narcotics with a UN non-governmental organisation on a refugee legal aid project.

She has also worked briefly in the Sudan on a law project.

Now, Callaghan is in Uganda working for Irish Aid on governance issues, such as justice reform, and expects to stay in the country until the end of the year.

John Riordan's three-month Reprieve Australia internship at the Louisiana Capital Assistance Centre in the US has inspired him to seek work overseas in humanitarian law.

Riordan, who finished his law degree at the University of Melbourne in June this year, says the internship in New Orleans gave him large responsibilities.

"I visited three prisoners on death row, and to chat to clients is a huge responsibility," Riordan says.

"We're there to give humanitarian support [so the prisoners] have some contact with the outside world," he says.

"There are not many opportunities in Melbourne to deal with clients so intimately, especially in such serious circumstances."

Riordan, who has assisted barrister Julian McMahon on the Bali Nine case, hopes to do a UN internship next year.

"I am really keen to do something other than corporate work," he says.