DEATH PENALTY AND THE VICTIMS DEATH PENALTY AND THE VICTIMS DEATH PENALTY AND THE VICTIMS © 2016 United Nations Worldwide rights reserved. This book or any portion thereof may not be reproduced without the express written permission of the author(s), editor, or the publisher, except as permitted by law. The findings, interpretations and conclusions expressed herein are those of the author(s) and do not necessarily reflect the views of the United Nations. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Editor: Ivan Šimonovi´c Design and layout: dammsavage inc. Cover image: The cover features an adaptation of a photograph of a man who is granted mercy by the victim's family, sparing him from imminent execution. ©EPA/Arash Khamooshi Pictures from The Omega Suites by Lucinda Devlin, Bochum 2000 Electronic version of this publication is available at: www.ohchr.org/EN/NewYork/Pages/Resources.aspx Sales no.: E.16.XIV.2 ISBN: 978-92-1-154217-2 eISBN: 978-92-1-058395-4 DEATH PENALTY AND THE VICTIMS New York, 2016 with support of CONTENTS Preface – Ban Ki-moon, United Nations Secretary-General 7 Introduction – Who are the victims? Ivan Šimonovi´c, Assistant Secretary-General for Human Rights 9 CHAPTER 1 – MURDER VICTIMS’ FAMILIES 21 1.1 Complexity of Victims’ Families Position 22 • Marc Groenhuijsen, Michael O’Connell, Arguments against the death penalty as seen from a victimological perspective 22 • Maiko Tagusari, Does the death penalty serve victims? 41 1.2 Victims’ families’ perspective 49 • Mickell Branham, Listening to victims 49 • Mireya García Ramírez, The death penalty and the right to life 59 1.3 Victims’ Families and Closure 66 • Jody L. Madeira, Escaping the closure trap 66 • David Johnson, Does capital punishment bring closure to the victims? 75 CHAPTER 2 – THE CONVICTED AS VICTIMS? 85 2.1 Wrongful Convictions 86 • Carolyn Hoyle, Victims of wrongful conviction in retentionist nations 86 • Brandon Garrett, In the shadow of the death penalty 104 2.2 Discrimination and Mental Health Issues 111 • Ross Kleinstuber, Discrimination and the death penalty 111 • Sandra Babcock, Capital punishment, mental illness, and intellectual disability: The failure to protect individuals with mental disorders facing execution 128 2.3 Other cases of the death penalty against International Law 140 • Saul Lehrfreund and Roger Hood, The inevitability of arbitrariness: another aspect of victimisation in capital punishment laws 140 • Salil Shetty, Cases of the death penalty against international law: Amnesty International’s concerns 154 • Jens Modvig, Death penalty - torture or ill-treatment? 164 CHAPTER 3 – THE ‘HIDDEN’ THIRD PARTIES AS VICTIMS 175 3.1 Families of the Convicted 176 • Susan F. Sharp, Hidden victims: the families of those facing the death penalty 176 • Francis Ssuubi, The impact of the Death Penalty on the children with a parent on death row or executed 190 • Susannah Sheffer, Ending silence, ending shame 206 • Florence Seemungal, Lizzie Seal and Lynsey Black, Impact of the imposition of the death penalty on families of the convicted in the Caribbean 212 • Sandra Joy, Socio-Psychological Challenges of ‘Death Row families’ 227 3.2 Participants in death penalty proceedings and executions 249 • Florence Seemungal, Lizzie Seal and Lynsey Black, Death Penalty and Its Impact on the professionals involved in the execution process 249 • Robert Johnson, Executioners at work: Collateral Consequences of executions for Officers Working on Death Row and in the Death House 261 • Ron McAndrew, Painful then, painful now 279 • Susannah Sheffer, Fighting for clients’ lives: the impact of death penalty work on post-conviction capital defence attorneys 283 3.3 Society as the victim? • James R. Acker, The death penalty: killing what we instead could be 293 • Walter C. Long, The death penalty as a public health problem 304 Afterword, Zeid Ra’ad Al Hussein, High Commissioner for Human Rights 327 Acknowledgements 333 © UN Photo/Rick Bajornas “The right to life is the foundation of all human rights. The taking of life is irreversible, and goes against our fundamental belief in the dignity and worth of every human being. I call on all world leaders, legislators and justice officials to stop executions now. There is no place for the death penalty in the 21st century.” —Ban Ki-moon PREFACE Victims should always be at the centre of the debate on the death penalty. This book gives voice to a wide array of perspectives, includ- ing family members of crime victims, the wrongfully convicted and children of persons condemned to death, as well as judges, lawyers, prisoner staff and others whose job it is to oversee executions. Their testimonies make the brutality and trauma of the death penalty wrenchingly clear. I have advocated forcefully and continuously for the abolition of the death penalty, and called on Member States to end executions. I have met with experts whose research shows that the death penalty does not deter crime. And I have talked with family members of crime victims who came to realize that the execution of the perpetrator did not help their families heal. The right to life is the foundation of all human rights. The taking of life is irreversible, and goes against our fundamental belief in the dignity and worth of every human being. I call on all world leaders, legislators and justice officials to stop executions now. There is no place for the death penalty in the 21st century. Ban Ki-moon United Nations Secretary-General 7 Gas Chamber, The Omega Suites © Lucinda Devlin “Victim's perspectives, taken holistically, make a compelling case against the death penalty. When it comes to the death penalty, almost everyone loses.” — Ivan Šimonovi´c INTRODUCTION: WHO ARE THE VICTIMS? The front-page photograph is horrifying. A terrified blindfolded man is facing imminent execution. We do not see his eyes, but his face clearly reflects his fear and shock. A group of people are putting a rope around his neck…or are they? No, they are not. In fact, they are removing the rope. By this sym- bolic gesture, family members of the victim are granting mercy to the convicted murderer and are halting the execution. He has not yet realized that his life has been spared at the last moment, and he is obviously in shock. The right of victims or their families to spare the life of the crime perpetrators or influence their sentence is embedded in many cul- tures.1 Therefore, it is quite obvious that when discussing the death penalty, the victims’ perspective is highly relevant. From a human rights perspective, victims’ views should always be at the centre. How- ever, things become more challenging when we move to the next step and ask ourselves: who are the victims whose perspectives have to be taken into account? There is wide consensus that the surviving family members of crime victims should also be considered as victims. They may not only suffer from crime emotionally and psychologically, but also socially and economically.2 For practical purposes, it may be questioned how close to the victim a family member or another person needs to be in order, for example, to be entitled to compensation or to be heard by the court when the sentencing is discussed. However, these questions are not our focus here. What we are most interested in is: what is the attitude of victims towards the death penalty, 1 For example, under sharia law, the principle of revenge—qisas—entitles families of the murder victim to take revenge but they also have the option to forgive the perpetrator, and receive diyat (blood money) as compensation. 2 This is also reflected in the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution 40/34, adopted on 29 November 1985, available herehttp://www.un.org/documents/ga/res/40/a40r034.htm). 9 and how does it affect them? Do victims demand the death penalty or not, and how does the imposition—or non-imposition—of the death penalty, as well as the actual execution of the crime perpetrator—or lack thereof—reflect on the victims? The fact that a large proportion of homicides are committed by family members adds pressure in making such a choice and may cause divisions among surviving family mem- bers. Does the death penalty offer closure, or does it prevent closure? How does it affect the healing process? How does it fit with retributive and restorative justice approaches? Is reconciliation with the perpe- trator possible, and if so, under which conditions? Do contemporary justice systems prioritize victims’ or some other interests? These and related issues are discussed in Chapter 1 of the book. I am fully aware that expanding the concept of victims beyond the circle of persons close to the direct victims of crime may seem con- troversial to some. Chapter 2 raises important arguments towards considering at least some persons sentenced to death as victims themselves. In other words, not only crime victims, but also potential “victimizers” have human rights, and if they are violated, they can also be considered victims.3 The most obvious case are the wrongfully convicted, i.e. innocent persons who have been sentenced to capital punishment and some- times executed for a crime they have not committed.4 If they were given a prison sentence, after exculpatory evidence is obtained they can be released and sometimes compensated. However, if they were executed, the error cannot be undone and the harm is irreparable.