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| Sunday, 22 August 2004 |
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Innocents executed so... Death penalty not the answer by Prof. Ravindra Fernando, Professor of Forensic Medicine and Toxicology, University of Colombo. (Excerpts from a lecture delivered at a workshop organised recently by the Medico-Legal Society of Sri Lanka)
Amnesty International's latest information shows that: * 80 countries and territories have abolished the death penalty for all crimes. * 15 countries have abolished the death penalty for all but exceptional crimes such as wartime crimes. * 23 countries can be considered abolitionist de facto: they retain the death penalty in law but have not carried out any executions for the past 10 years or more. Therefore, only 78 countries retain and use the death penalty today, but the number of countries that actually execute prisoners is much smaller. Objectives of punishing criminals are three-fold. They are deterrence, retribution and rehabilitation. While death penalty, the ultimate cruel, inhuman, degrading punishment, does not result in retribution and rehabilitation, its supporters argue of its deterrent effect. Nowhere has death penalty been shown to have any special powers to deter crime. On the contrary, it diverts attention from real solution that is efficient, prompt and comprehensive investigation of crime followed by effective prosecution. Only two things about the death penalty are, however, certain beyond dispute. One is that it is irreversible. The other is that innocent people have been executed. Aren't these compelling reasons why this particular punishment should have no place in our criminal justice system? All available research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment and such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the so-called deterrent hypothesis. Reviewing the evidence on the relation between changes in the use of the death penalty and crime rates a study conducted for the United Nations in 1988 and updated in 1996 stated that "The fact that all the evidence continues to point in the same direction is persuasive a priori evidence that countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance on the death penalty". There are clearly documented cases where innocent men and women have been executed. I like to quote a few examples. Timothy Evans was executed on March 5, 1950 in England for murdering a woman. Three years later, another man, John Christie, admitted responsibility for killing 6 women, including the woman that Evans was supposed to have killed! Mr. James, a veterinarian, was convicted at Stafford Crown Court in England on May 25 1995 of the murder of his wife Sandra in January 1994, and sentenced to life imprisonment as the death penalty was then abolished in the UK. The cause of death was a fatal dose of immobilon, a drug used in veterinary practice to anaesthetize horses. The Criminal Cases Review Commission referred the case to the Court of Appeal on November 28, 1997, and the conviction was quashed on 28th July 1998 by Lord Justice Evans, Mr. Justice Sedley and Mr. Justice Hooper on the grounds that the terms of a note in Mrs. James' handwriting, discovered more than two years after her death, were consistent with her intention to commit suicide. A man called Mr. Mattan was convicted on July 24, 1952 at Glamorganshire Summer Assizes, Swansea, Wales, for killing Miss Lily Volpert in her shop on March 6, 1952. Leave to appeal was refused on 19th August 1952. Mr. Mattan was hanged at Cardiff Prison on September 3, 1952. Referred by the Criminal Cases Review Commission, the Court of Appeal quashed the conviction on February 24, 1998 ruling that the conviction was unsafe because the evidence of the main prosecution witness was unreliable. In February 1994, authorities in Russia executed serial killer Andrei Chikatilo for the highly publicised murders of 52 people. The authorities acknowledged that they had previously executed the "wrong man", Alexander Kravchenko, for one of the murders in their desire 'to stop the killings quickly'. It has been documented that in a period of 10 years, the DNA profiling tests have provided stone-cold proof that 69 people who were sent to prison and death row in the USA did not commit the alleged crime. In 1997, while supporting the death penalty, Chairperson of the US House of representatives Judiciary Committee said, "We have enormous protections, the best by far, but we're never going to have a system that will never execute an innocent person". History shows that in our country over a long period of time repugnance at the death penalty has been felt and expressed by individuals of varying political colours, and is a matter that should and can be taken out of party politics. Attempts to abolish the death penalty in Sri Lanka commenced before independence. As early as in 1928, the Legislative Council adopted a resolution moved by Hon. D.S. Senanayake that capital punishment should be abolished. Similar resolutions to this effect were thereafter at various times proposed by Susantha de Fonseka of Panadura, Dr. A.P. de Zoysa of Colombo South, and Fred E. de Silva of Kandy. All these attempts failed. Serious attempt The most serious attempt to abolish the death penalty was made as a result of a decision of the very first Cabinet meeting of the new government of S. W. R. D. Bandaranaike in 1956. The "Suspension of Capital Punishment Act" suspended the death penalty for a trial three-year period. However, after the assassination of Prime Minister Bandaranaike the caretaker government headed by Hon. W. Dahanayake repealed the Act. Executions resumed, but felt into disuse again after 1976 as Presidential pardons were given by successive Presidents from 1977. The Civil Rights Movement of Sri Lanka has consistently campaigned against the death penalty. One of its statements reminded that the State should not assume the role of executioner. "Defence of life and defence of the State may sometimes justify the taking of life by law enforcement officials, but even in such cases the use of lethal force is constrained by legal safeguards to prevent abuse. Judicial execution, on the other hand, is not an act of defence against an immediate threat to life. It is the premeditated killing of an identified prisoner for the purpose of punishment, a punishment which could take another form. Moreover the safeguards envisaged are woefully inadequate. In any event, executions are no answer to the problem of law and order and will only serve to make the national scene more brutal than it already is". The Civil Rights Movement believes that rather than hanging some offenders, an alternative system should be devised to categorize murders into various degrees, with different minimum prison sentences applicable, and coupled with appropriate review mechanisms that take into account the circumstances of the crime. What then is the solution for the rising crime rate in Sri Lanka? How to response to public anger when persons convicted of particularly grave crimes are released after what appears to be an unduly short period? On June 16, 1995, holding the death penalty unconstitutional, all eleven members of the Constitutional Court in South Africa stated that, "The greatest deterrence to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system". Isn't this equally true of Sri Lanka as well? The Court also stated that punishment should be commensurate with the offence but it does not have to be equivalent or identical. "The State does not have to engage in the cold and calculated killing of murders in order to express its moral outrage at their conduct" the Court said. In our investigative, law enforcement and legal system there is real possibility of innocent people being convicted. For a proper criminal investigation, the integrity and reliability of the police investigation is absolutely crucial because it is from this that evidence emerges on which a man may be eventually executed. Disadvantage Our criminal justice system is heavily weighed against the poor and the disadvantaged, who do not have the capacity, knowledge and resources to search for evidence that would show their innocence, and who has less access to competent and experienced lawyers. Therefore, they are the most likely victims of miscarriages of justice. All-Ceylon cricketer Mahadeva Sathasivam would have been hanged if he could not afford to retain Dr. Colvin R. de Silva and get down Professor Sydney Smith, Professor of Forensic Medicine, University of Edinburgh to support the crucial medical evidence of Professor G. S. W. de Saram. Dr. Kularatna would have been hanged if he did not have resources to retain Mr. G. G. Ponnambalam and Dr. Colvin R. de Silva to defend him. I consider, based on scientific and circumstantial evidence, both were innocent. What is the plight of a poor, uneducated villager who is accused of murder? Those who support the death penalty say that there are adequate safeguards listed by the government such as the recommendation of the trial judge, the Attorney General, and the Minister of Justice, affirming the death penalty, based on the evidence presented during the trial. This I do not think is an ideal mechanism for arriving at a life and death decision as political considerations and pressures, and public outcry are bound to be key factors. During the Parliamentary debate to abolish the death penalty in 1956, Dr. Colvin R. de Silva said, "Of all things that the State may take away from man there is one thing which if you take away you cannot only not return but you can never compensate him for, that is his life. You may put a man in prison and deprive his liberty. You cannot, of course, return him the days he was in prison but you may in some degree compensate him in other ways for the wrong that is recognised to have been done when you locked him away. But if you take his life you may compensate his dependants and his relatives but never, can you give him anything adequate or inadequate, to replace that which was taken from him, once you are dead you may never brought to life again." As Charles Black stated in his book "Capital Punishment: Caprice and Mistake", "..... no sane person has ever claimed infallibility for any institution except the Papacy, and that only under the most rigid rules and on the most infrequent occasions, and on the basis of an assumption of divine guidance, hardly an assumption that fits our judges". Unsatisfactory The quality of some of our judgements, to say the least is unsatisfactory. This is not my opinion but the opinion of the Supreme Court. This is what the Supreme Court said about the judgements of the District Court and the Appeal Court in the Soysa vs. Arsecularatna case. "It appears that neither the original Court nor the Court of Appeal gave adequate consideration to the question of causation". "In any event, the Court of Appeal was clearly in error when it concluded that the defendant was negligent"... "Neither Court could have fallen to this error, if a proper evaluation of the evidence was made, as to what symptoms of the malady manifested and when they did manifest". The Supreme Court thinks that in this case the other Courts did not evaluate evidence properly. Isn't that exactly what is expected from a Court? We have to also consider the problems faced by the police in the investigation of crime. Some of them are: * Inadequate human and material resources If I have failed to convince that the death penalty must be abolished for ever, I do not know what will - perhaps, an incompetent judge aided and abetted by corrupt police officers, rigged or wrong laboratory reports, over-enthusiastic prosecuting counsel and a sleepy defence lawyer passing death sentence will! |
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The death penalty can be considered as a pre-meditated and cold-blooded
killing of a human being by the state in the name of justice. It violates
the right to life as proclaimed in the Universal Declaration of Human
Rights.
