Thursday, 15 May 2014

Insights into the European External Action Service and the EU Strategy for the Global Abolition of the Death Penalty: Observations from a research visit

by Dr Jon Yorke, BCU School of Law

SINCE THE FIRST QUESTIONING of the death penalty in the European Parliament in 1979, the EU has solidified an absolute abolitionist position. The punishment is now removed from the EU and the last execution by a member state was in Latvia in 1996. The Charter of Fundamental Rights of the European Union, Article 2(2), prohibits the “death penalty” and “executions,” and in 2001 abolition became a prerequisite for membership to the EU. Consequently, the focus has predominantly turned to the wider world. In her speech to the European Parliament on 16 June 2010, Catherine Ashton, HRVP, stated that promoting the EU’s work for the global abolition of the death penalty was a “personal priority” of hers.

So the focus now shifts to the work of the EEAS within the EU’s Common Foreign and Security Policy (CFSP), and specifically through the EU Guidelines on the death penalty and the "minimum standards" of a Third countries' capital judicial process. At the structural level of the EEAS the death penalty is a “thematic issue.” To develop effective strategies to help promote abolition and react appropriately when a capital judicial process is initiated through death sentences to executions, the “geographic” department may be consulted to provide expert advice on cultural, political and legal issues of the region (for example, the United States, North Africa, the Commonwealth Caribbean, and Asia, have specific regional - cultural/political/theological - issues which need to be considered). The EEAS also consults the Council Working Group on Human Rights when specific cases are being monitored to determine the appropriate action to be taken.

Pre-Lisbon Treaty, the rotating Presidency of the EU would identify appropriate communications, or “demarche,” when a death sentence and/or execution was imminent in a Third country. Post-Lisbon, the authorship of demarche is now centralised within the EEAS. Under the pre-Lisbon rotating presidency, the right of initiative resided within the presiding member states and would be communicated to the relevant embassies. There were four types of statements given by the EU in death penalty cases: 1) a Declaration of the EU (this occurred when the member states were aligned on an issue – as in the abolition of the death penalty), 2) a Statement of the Presidency of the EU, 3) a Statement of the Spokesperson of the EU, and 4) Statement of the Local Embassy in the country imposing the death penalty. Following Lisbon and strengthened by the Council Decision No. 2010/427/EU establishing the EEAS, this has been streamlined and either Catherine Ashton or her representative makes the statement on behalf of the EU.  

Every 10 October, on the World and European Day Against the Death Penalty the EU, jointly with the Council of Europe, makes a statement against the death penalty and calls for worldwide abolition. The EEAS distributes training packs to each of its delegations for this day to raise awareness of the ineffectiveness and inhumanity of the punishment. This helps promote the abolitionist discourse globally, as the EU delegations share this information with the embassies in retentionist countries around the world. A mission inter-linking is embedded through the training on the death penalty for all EEAS staff including delegations and third party contractors.

Of the 139 EU delegations, the most sophisticated dissemination of information on the death penalty is found in the Delegation of the European Union to the United States. The US delegation effectively monitors the application of the death penalty across the United States, organises dialogues with state politicians, provides training on the punishment and facilitates legal services in capital cases. The delegation website gives comprehensive resources on the death penalty, including examples of demarche in state and federal cases, and links to the EU amicus curiae briefs filed in death penalty cases. The EU briefs fall under the competency of the European Commission, and are affirmed through the advice of the delegations. The briefs in the United States Supreme Court cases Atkins v. Virginia 536 U.S. 304 (2002) and Roper v. Simmons 543 U.S. 551 (2005) were seen to positively contribute to the majority court opinions in striking down the death penalty for people suffering from mild mental retardation (now termed, Intellectual and Developmental Disabilities) and for juveniles convicted of murder.        

There have been further notable successes of the EU abolitionist policies. Council Regulation (EC) No. 1236/2005, which prohibits trading in execution technologies was the first of its kind in the world. However, there was a clear lacuna in the text in that the Regulation identified the lethal injection apparatus, but did not include a designation of the execution protocol fluids to be administered. Catherine Ashton spoke in the European Parliament identifying the legislative deficiency and affirmed that the EU would rectify it. After the trade issues were dealt with by the Commission (DG Trade), the Regulation was amended with Commission Implementing Regulation (EU) No. 1352/2011 and now no EU member state can manufacture and/or export any chemical substance which would be used by a receiving state in an execution.    

The EU also has a significant multilateral function and the work of the EEAS can be seen to contribute to the strengthening of the UN General Assembly Resolution on the moratorium on the use of the death penalty, G.A. Res 67/176,U.N. Doc. A/RES/67/176 (20 December, 2012) – in which 110 member states voted in favour, 39 against, and 36 abstained. The next vote on the Resolution will occur in December 2014. Although the UN General Assembly granted the EU higher participation status it is not the “lead” on the Resolution vote, but is part of the cross-regional alliance for achieving a global removal of the death penalty. What this demonstrates is that the abolition of the death penalty is not today a “western” or “European” discourse, but it is a question of human rights which affects all people. The Resolution vote demonstrates that the death penalty is a cross-cultural and political issue.

Where can the EEAS enhance the death penalty discourse for achieving the goal of worldwide abolition?

Admitedly, we now find before us the hard task of asking resolute retentionist countries to abolish the death penalty. The future must see the abolitionist movement tackle the vestiges of absolute sovereign power. It must use human rights, the dismantling of the statist monopoly of criminal sanctions, and the deconstruction/reinterpretation of transcendent ideology/theology, to sever from sovereignty the power and right to put to death through capital punishment.

The EEAS is now a crucially important component of the worldwide movement for the abolition of the death penalty. It complements NGOs such as the World Coalition Against the Death Penalty, the International Academic Network for the Abolition of Capital Punishment, Amicus, Reprieve, and the International Commission Against the Death Penalty. It appears that the challenges ahead will need to be met through a collaborative effort. It must form a structural attack on the punishment at the bilateral and multilateral levels by governments and political regions, but also, crucially important will be the role of civil society and the cosmopolitan citizen in participation and contribution to events such as the World/European Day Against the Death Penalty. It is a government/citizen symbiosis.

This symbiosis can perhaps be viewed as an approach in hybridity discourse. It is hybrid because it involves governments and citizens of abolitionism verses the (dwindling) governments and peoples of retentionism. What is revealed by the current global trend towards abolition is that from the oldest legal code, most likely the Babylonian Code of Hammurabi (circa 1850 BC), to the mid-1980s, there was not a global drive to denounce the death penalty. The power of political sovereignty to use the death penalty has been only peripherally challenged for circa 3830 years. If we can point to around the late-1980s as the beginning of significant change, and the possibilities of global abolition solidifying, then we have only been able to see the light at the end of the tunnel for around 30 years. The global abolitionist movement is still only in the neonatal stage. It will grow-up and the EEAS has an important role in helping it to achieve maturity.

My research visit to the European External Action Service, builds upon an article I co-wrote with Christian Behrmann, The European Union and the Abolition of the Death Penalty, 4 Pace Int’l L. Rev. Online Companion 1 (2013). I am very grateful for the engaging conversations with EEAS members on the post-Lisbon Treaty external strategy. I am extremely grateful to Christian Behrmann and Antonis Alexandris for their every helpful discussions on the EEAS and the death penalty.  

Tuesday, 6 May 2014

The Controversy of Clemency and Innocence in America

by Sarah Lucy Cooper, Barrister and Senior Lecturer in Law, BCU Law School

IN FEBRUARY 2014 I was invited to present at the Academy of Criminal Justice Sciences Annual Conference in Philadelphia. The theme of the conference was “Perceptions of Crime and Justice,” with hundreds of scholars and practitioners, from across the world’s criminal justice systems, contributing the fruits of their research and field experience on a variety of panels. Philadelphia – the historical heart of the United States’ Constitution and Independence – was the perfect venue for a conference that naturally centred on themes of justice (picture opposite, Independence Hal, Philadelphia). I took the opportunity to share research Daniel Gough and I have conducted concerning the relationship between the American clemency system and innocence claims.

Clemency has been embedded in the American criminal justice system since the United States Constitution was drafted. Justified under a mixture of retributive, redemptive and utilitarian principles, “clemency” covers a variety of executive mechanisms an executive can use to relieve offenders, including pardons, commutation of sentences, reprieves and the remission of fines and forfeitures. Through these mechanisms, executives (and/or administrative bodies) can, inter alia, restore civil rights, acknowledge mitigating circumstances, correct egregious sentences, prevent deportations, and support political agendas.  They can also correct the wrongful conviction of innocents.

In the 1993 case of Herrera v Collins (1993) 506 US 90, the United States Supreme Court (USSC) placed great confidence in the clemency function to remedy wrongful convictions. In ruling that Herrera’s claim of actual innocence (absent some other procedural violation in his case) was not a ground for federal habeas relief, the USSC held that (1) clemency was the “failsafe” of the criminal justice system; (2) the state clemency process was the proper mechanism for assessing innocence claims; and (3) clemency had been the historic remedy for preventing miscarriages of justice where the judicial process had been exhausted.

Herrera was decided just as the American Innocence Movement was gaining momentum. In 1992, the Innocence Project had been formed by Barry Scheck and Peter Neufeld and, by the end of 1993, a combination of Innocence Project and National Registry of Exoneration numbers reported that over 100 people had been exonerated, including fourteen whose innocence had been conclusively proven by post-conviction DNA evidence. However, since then, a number of disturbing cases – such as that of Cameron Todd Willingham and Troy Anthony Davies – have steadily highlighted the impotency of clemency for providing relief to innocent inmates. Despite presenting significant evidence of innocence, Willingham and Davies were refused clemency by Governors in Texas and Georgia respectively and, soon-after, executed. Moreover, concerns about such decisions have been exacerbated by the USSC’s decision in Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998), to afford only “minimal” due process protections to defendants in clemency proceedings and, contradictorily, hold that clemency proceedings are not “an integral part of the…system for finally adjudicating guilt or innocence of a defendant.” (Id.)

With this legal landscape as a backdrop, the research conducted by Daniel and I considers to what extent clemency is fit to handle innocence claims, in particular from the perspective of innocents who are incarcerated and seeking post-conviction relief. First, we trace the history of clemency, demonstrating how the function has never truly been one of legal significance but rather political power and policy-making, which is unfavorable to innocents. Second, we consider current clemency procedures across America, identifying obstacles for innocents applying for relief. These obstacles include a lack of transparency and meaningful review, high eligibility and relief thresholds, and unfavorable procedures and administrative board compositions. Third, we evaluate the effectiveness of Woodard’s minimal due process standard for protecting against allegedly unconstitutional clemency procedures, by reviewing a cohort of cases where such claims have been made. The rulings is these cases show, overall, courts to be applying Woodard very narrowly, a practice that has allowed clemency frameworks with significant deficiencies to continue without judicial intervention. Finally, we conclude that with little history or current frameworks dedicated to innocence claims, obstacles to meaningful review, antipathetic executive attitudes, minimal constitutional protection, and courts reluctant to interfere, clemency, to a large extent, is a hostile environment for innocence claims.

The findings of our research appear all the more important after a study released in May, 2014 concluded that 4% of defendants sentenced to death in America are innocent. Although not focused on clemency, the findings of the study should lead us to question more aggressively the utility of the clemency system for innocence claims. The study concluded that “the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten.” Lead researcher, Professor Samuel Gross, commented to The Guardian “In many cases when people are released from death row, little or nothing is done to deal with the equally bad injustice they now face – that they will spend the rest of their lives in prison for a crime they didn’t commit.”  For these defendants, clemency will be a crucial, if not the only, remaining avenue for obtaining relief once their post-conviction arsenal has ran out. As such, the need to resolve the tension between the clemency systems and innocence has never been greater.

Sarah Lucy Cooper & Daniel Gough, The Controversy of Clemency and Innocence in America (forthcoming 2014).
Herrera v Collins (1993) 506 US 90
Ohio Adult Parole Authority v Woodard 523 U.S. 272 (1998)

Thursday, 1 May 2014

First Publication: Ashgate Series, Controversies in American Constitutional Law

I am delighted to announce the first publication in the Ashgate Series, Controversies in American Constitutional Law. It is:

Sarah Lucy Cooper (ed), Controversies in Innocence Cases in America, Ashgate, 2014.

The book info:

Controversies in Innocence Cases in America brings together leading experts on the investigation, litigation, and scholarly analysis of innocence cases in America, from legal, political and ethical perspectives. The contributors, many of whom work on these cases daily, investigate contemporary issues presented by innocence cases and the exoneration movement as a whole. These issues include the challenges faced by the movement, causes of wrongful convictions, problems associated with investigating, proving, and defining 'innocence', and theories of reform. Each issue is placed within a multi-disciplinary perspective to provide cogent observations and recommendations for the effective handling of these cases, and for what changes should be adopted in order to improve the American criminal justice system when it is faced with its most harrowing sight: an innocent defendant.

Dr Anne Richardson Oaks and I are the Series Editors and the series info is:

Controversies in American Constitutional Law presents and engages with the contemporary developments and policies which mould and challenge U.S. constitutional law and practice. It deals with the full spectrum of constitutional issues, publishing work by scholars from a range of disciplines who tackle current legal issues by reference to their underlying legal and political histories and the philosophical perspectives that they represent. Its cross-disciplinary approach encourages analysis of past, present and future challenges to the idea of U.S. constitutionalism and the power structures upon which it rests. The series provides a forum for scholars to challenge the boundaries of U.S. constitutional law and engages with the continual process of constitutional refinement for the protection of individual rights and liberties, within an evolving framework of legitimate government. CALS promotes research, scholarship, and educative programs in all areas of U.S. law, and is the home of the British Journal of American Legal Studies. Faculty members have extensive experience in submitting amicus curiae briefs to the United States Supreme Court and lower federal courts, and advising on criminal justice issues in many states. CALS coordinates the largest British law undergraduate internship program to the United States. Through this program, and members’ research, CALS has created relationships with over one hundred partners in over twenty-five states. CALS faculty advise public bodies, provide professional training, and speak at conferences across the USA.

 If you are interested in submitting a book/collection proposal for this series, please contact me on:

Controversies in Innocence Cases in America by Sarah Lucy Cooper

Controversies in Innocence Cases in America by Sarah Lucy Cooper