Why Sri Lanka must not revive the death penalty. My insights from working on capital cases in the United States

Aug 7, 2018

A guest post from Catherine Dunmore, a former Sri Lanka Campaign volunteer who recently spent several months working with inmates facing the death penalty in Florida (US) through the charity Amicus.

In 1976, Sri Lanka became a regional trailblazer by turning its back on one of humanity’s most cruel, inhumane and degrading practices: the death penalty. The government’s moratorium on capital punishment, which has seen sentences for executions routinely commuted to life in prison, has meant that for the past forty years Sri Lanka has enjoyed the status of a country that opposes, at least on paper, forcibly ending the lives of citizens. This is a small but not insignificant redeeming attribute of a country where state-sponsored extra-judicial killings, torture and disappearances have otherwise been routine.

Yet today, even this remaining badge of decency is under threat, with Sri Lankan President Maithripala Sirisena apparently determined to see the death penalty re-imposed, beginning with the execution of 19 individuals on drug related offences. It is a move stemming from growing anxiety about Sri Lanka’s role as a transhipment point for narcotics smuggling, and a belief that a tougher approach is needed to combat a perceived increase in drug related crime. Rather disturbingly, officials have promised to “replicate the success” of President Duterte’s war on drugs in the Philippines – a “success” which has seen the extrajudicial killing of over 4,200 suspected drug dealers, the subsequent opening of a preliminary examination by the International Criminal Court, and a suggestion by a United Nations human rights chief that the President be referred for psychiatric examination.

As someone who has spent time working with a Public Defenders Office on death penalty cases in the United States – interacting with inmates, talking to medical experts, and witnessing depositions – I have seen first-hand the appalling toll that capital punishment extracts; not just on individuals, but on families and society at large. The Sri Lanka Campaign has previously outlined why the death penalty is never the answer – a message recently echoed by diplomats in Colombo, international organisations such as Amnesty International, as well as local activists. Here, based on my personal reflections of working on death penalty cases, I outline my five key reasons why the Sri Lankan government should not revive the death penalty:

1) The death penalty amounts to torture

Under international law, all persons have the right to live free from torture or cruel, inhuman or degrading treatment. This fundamental right is irreversibly breached by the act of killing itself; but is also breached where inmates are subjected to prolonged stays on death row.

Having seen the severe mental and emotional anguish that inmates can experience while waiting for their sentences to be carried out – periods often amounting to many decades – I can confidently say that international legal experts are correct when they state that simply spending time on death row can itself constitute a form of torture.

2) Capital punishment for drug offences is prohibited under international law

Under the International Covenant on Civil and Political Rights, to which Sri Lanka is a signatory, the use of the death penalty is restricted to only “the most serious crimes”. This means crimes involving intentional killing – and not the kind of drug trafficking offences to which Sirisena says he is responding.

3) Capital punishment allows judicial errors to become fatal and irreversible

An execution is an ultimate and irrevocable form of punishment, which precludes the possibility of subsequent judicial reversals based on, for example, new evidence or changes to the law. Incorrect findings of guilt arising from factors such as forced confessions, ineffective counsel, police evidence tampering and judicial or jury bias – factors particularly salient in the Sri Lankan context – cannot be redeemed. The risk of executing an innocent person can never be eliminated. Since 1973, 162 people sent to death row in the US have later been exonerated or released on grounds of innocence, whilst others have been executed despite serious doubts over their guilt.

4) Capital punishment has no proven unique deterrent effect

The death penalty has no proven unique deterrent effect on crime when compared to conventional forms of punishment, such as imprisonment. Claims to the contrary by executing nations have routinely been discredited by academic studies.

The hypothetical threat of a future execution is highly unlikely to enter the minds of perpetrators suffering from mental illness, or those acting under the influence of drugs, alcohol, or out of fear, panic or rage. Over 88% of America’s leading criminologists do not believe the death penalty is a deterrent to murder and, strikingly, the murder rate in non-death penalty US states has remained consistently lower than the rate in death penalty states.

5) Capital punishment is fundamentally discriminatory

The death penalty is a sentence disproportionately handed out to those from less advantaged socio-economic backgrounds and/or those belonging to racial, ethnic or religious minorities. For instance, research in Philadelphia and Houston has shown that black defendants are more than three times as likely to face a death sentence than white defendants. Additional studies have shown that 95% of convicts on US death rows come from underprivileged backgrounds. The socio-economic status of defendants in turn makes them more susceptible to miscarriages of justice; reliant as they frequently are on court-appointed lawyers who might lack sufficient means to access expert witnesses or specialist forensic examinations.[1]

In a country such as Sri Lanka, which has a long history of entrenched judicial bias against its minority communities, particularly Tamils, and where many individuals lack the economic means to mount an adequate defence against prosecutors when criminal charges are brought against them, the risk of discriminatory injustices involving the death penalty are all too clear.

The principled path

Amid many appalling violations by the Sri Lankan state over the past few decades, its long-standing moratorium on the death penalty has represented one of the few beacons of decency and respect for human life. The proposed resurrection of this barbaric punishment – premised on a knee-jerk policy response and a troubling sense of inspiration from one of the world’s bloodiest drug wars – would represent a major step backwards for the government’s already threadbare reputation as a protector of human rights.

Even more worrying, however, than the loss of international standing that would follow the revival of the death penalty, are the risks of grave injustice it would pose to all Sri Lankan citizens, particularly its most marginalised, as well as the accompanying wider erosion of respect for human life. The government of Sri Lanka appeared to recognise both these concerns when in 2016 it voted in favour of a UN General Assembly resolution calling for a global moratorium on the death penalty. It would do well to revisit these concerns, and remember its earlier commitment to a more decent, principled path.

A final note from the Campaign Director:

A further disturbing element of recent discussions about reviving the death penalty in Sri Lanka has been the contribution of Cardinal Malcolm Ranjith, the Archbishop of Colombo and the most senior member of the Catholic Church in Sri Lanka. In a media briefing on 12 July, the Cardinal – who has previously been tipped for the papacy – stated: “We will support President Maithripala Sirisena’s decision to subject those who organize crime while being in the prison to death sentence.”

Following intense criticism, the Cardinal released a statementclarifying his remarks. Yet a close reading of the text suggests that his position on the death penalty remains ambiguous, and that he believes that there are circumstances in which it may be permissible for offenders to be executed. “It should be the last option, if at all,” he said.

This position is squarely at odds not only with basic Christian teachings, but also the position of the Pope, who just last year stated: “however grave the crime that may be committed, the death penalty is inadmissible because it attacks the inviolability and the dignity of the person.”

The Sri Lanka Campaign has written to the Apostolic Nuncio to Great Britain, Edward Joseph Adams, calling on the Catholic Church to send a clear message to both Cardinal Ranjith and the government of Sri Lanka that it opposes the use of the death penalty without exception.

Footnotes:

[1] As stated recently by a group of United Nations human rights experts: “If you are poor, the chances of being sentenced to death are immensely higher than if you are rich. There could be no greater indictment of the death penalty than the fact that in practice it is really a penalty reserved for people from lower socio-economic groups. This turns it into a class-based form of discrimination in most countries, thus making it the equivalent of an arbitrary killing”.