Capital Punishment- An International Perspective

By Lexi Thiel

A few weeks ago, while scrolling the first page of the international law section of the British online newspaper, ‘The Independent,’ among the ten or so articles featured, I noticed that two of them were focused on the death penalty, albeit in different countries. The use of the death penalty is arguably one of the most controversial issues in the American legal system, but I had never stopped to ask myself whether it was the same way in other countries. After reading the two articles, I decided to look deeper into the death penalty issue internationally.

Initially, it is worth noting, that the state of the death penalty within the United States is not entirely clear. As of October, 2018, the death penalty is permitted in thirty states.[1] Capital punishment is also lawful within the federal government and military.[2] In recent years, many states have enacted legislation concerning the issue, but the results have been all over the place. Some states, such as Georgia and Colorado, passed legislation prohibiting the imposition of the death penalty for defendants with intellectual disabilities.[3] Interestingly, Georgia has also recently enacted legislation encouraging prosecutors to seek the death penalty in cases of murder of a law enforcement officer.[4] Florida now requires unanimity among jurors in order to impose the death penalty, while Idaho, likely responding to the recent trend of exoneration of death row inmates on the basis of new laboratory procedures being applied to decades-old evidence, passed a law requiring that sexual assault evidence kits in cases involving capital punishment be preserved by law enforcement until the execution is completed and no further unidentified suspects exist.[5] Over time, many states have simply abolished the death penalty.

While each state has its own legislation concerning the death penalty, and there is not much of a consensus between the states as to whether the death penalty is constitutional, how it should be applied, whether there are limits to who can be executed and for what crimes, etc., the fact remains that the death penalty is still alive and well in the United States. Internationally, the United States has held firm in that position as well. In December 2016, the General Assembly of the United Nations approved a decree “calling for a worldwide ‘moratorium on the use of the death penalty,’” for the sixth time in ten years.[6] The United States represented one of the forty votes against the moratorium, in contrast to the a hundred and seventeen votes in favor.[7] Those involved explained the United States’ vote by arguing that capital punishment decisions rest with each Member State individually, since capital punishment in general is not in violation of international law.[8] Commentators noted that “the position reflects the American reality of supporting the death penalty in principle, but increasingly outlawing it in practice.”[9] As mentioned above, only thirty states authorize the death penalty. Furthermore, even though the practice remains legal in over half the states, only five states actually performed executions in 2016[10].

The second part of the General Assembly’s resolution concerned safeguards for defendants in countries that chose to keep the death penalty. The General Assembly stressed the importance of the application of international laws to the death penalty decisions within the Member States.[11] Specifically, the resolution called for capital punishment to be limited to defendants who commit only the most serious crimes, which it defined as “intentional crimes that have ‘lethal or other extremely grave consequences.’”[12] The resolution also sought to impose procedural requirements when the death penalty was a possibility. These include a fair trial by a competent court, a final judgement, the right to appeal, and the ability to seek a pardon.[13] While the United States voted in the negative regarding the resolution as a whole, those involved with the decision seemed to be in full agreement with this second aspect of the resolution. In this regard, the U.S. practices what it preaches, since over time the Supreme Court has limited the capital punishment sentence to defendants over the age of majority who commit the most grievous murders, and even when the death penalty is imposed, there is often decades that pass before execution when the defendants are exercising their appeal rights established under due process in the U.S.[14]

The United States is not the only country that still authorizes the death penalty, but it is one of a limited few. The number of executions internationally has fluctuated in recent years, but currently the global trend seems to be moving towards abolition of capital punishment.[15] While in 2015 the number of global executions reached its peak, and in 2016 the number of death sentences imposed was at an all-time high, according to Amnesty International, since 2017 the world has seen a decrease in such measures.[16] As of 2017, hundreds of countries had outlawed capital punishment, leaving just a few who continue to carry out executions.[17] In fact, in a somewhat startling figure, just four countries accounted for 84% of executions that year.[18] Those countries were Iran, Saudi Arabia, Pakistan, and Iraq. That year, Iran recorded over 507 executions, Saudi Arabia recorded over 146, Iraq recorded over 125, and Pakistan recorded over sixty.[19] For comparison, the United States had the eighth-most executions in 2017 with twenty-three.[20] These countries have consistently been the global leaders in execution numbers. Interestingly, however, it is widely believed that China is actually responsible for the most executions, by a long shot. China considers data on capital punishment a state secret, so the number of executions are not publicly reported. Consensus seems to be, however, that China executes thousands of people annually, which, if true, would be more than the top eight countries with the most confirmed executions combined.[22]

Among the countries that still authorize capital punishment, there are significant differences in their application. One difference between countries lies in the crimes for which the death penalty can be imposed. As I discussed earlier, in the United States, each state has formulated its own legislation regarding capital punishment, so states differ with respect to crimes punishable by death. Federally, the United States lists forty-one capital offenses for which the death penalty may be imposed.[23] Most of these capital offenses consist of some sort of murder, such as murder of a member of Congress, an important executive official, or Supreme Court Justice, murder committed in a federal government facility, murder by a federal prisoner, etc.[24] Other examples of capital offenses include treason, death resulting from aircraft hijacking, willful wrecking of a train resulting in death, genocide, and espionage.[25]

As you can see, all of the capital offenses in the U.S. are either forms of homicide or offenses that are considered especially dangerous to the security of the country, usually relating to terrorism. Other countries take a different approach to defining capital offenses. Specifically, as of 2017, fifteen countries imposed the death penalty for drug-related offenses, predominantly those located in the Middle East and North Africa.[26] This practice seems wrong, compared with the U.S.’s practice of only imposing the death penalty for the most heinous, typically violent, offenses. The idea is not so far-fetched however, as only recently, President Trump publicly voiced support for capital sentences in drug-trafficking cases. Whether this ever comes to fruition is up for debate. It seems, though, to violate international law, which, as mentioned earlier, imposes limitations on the types of crimes for which a defendant may be executed.

Some countries who authorize the death penalty in non-violent drug cases have taken measures recently to limit the use of capital punishment in these instances. For instance, in Iran, the threshold for drug amounts required to enforce a mandatory death sentence was increased.[27] The fact that in Iran, not only is capital punishment authorized for certain non-violent drug offenses, but the death penalty is mandatory for those crimes without regard to aggravating or mitigating factors in any given case, is alarming. Time will tell whether Iran continues to restrict capital punishment’s role in drug cases. Additionally, in Malaysia, legislation was recently amended allowing for discretion in sentencing drug trafficking offenders, taking away the mandatory aspect it had before.[28]

Another difference between countries that authorize the death penalty concerns the types of people that can be executed. One major area of divergence among countries is the age at which a defendant may be sentenced to death. In the United States, the death penalty is not authorized for offenders under the age of eighteen, following the 2005 decision of the Supreme Court in Roper v. Simmons, which held that imposing the death penalty on defendants who were minors when the crime was committed violates the Eighth Amendment.[29] This practice is also banned under international human rights law under the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the General Assembly of the UN in 1966 and has been ratified by 169 countries, including the U.S.[30] Still, some countries continue to use the death penalty in cases involving minors. Specifically, Amnesty International found that since 1990, nine countries were responsible for the executions of 138 offenders under the age of eighteen.[31] Among those countries are China, Pakistan, Iran, and Saudi Arabia, countries that consistently perform the most executions worldwide.[32]

Countries also differ on the procedural protections provided to those facing a possible death sentence. ICCPR Article 6 expressly delineates the rights of defendants facing capital punishment under international human rights law.[33] Its provisions unequivocally prohibit the imposition of the death penalty to an individual who has not received a fair trial.[34] Under international law, a fair trial requires, at the minimum, “the presumption of innocence, being informed promptly and in detail of all charges, the right to appoint counsel of one’s own choosing, sufficient time to prepare a defense, the right to be tried without undue delay by an independent, impartial tribunal, and the right to review by a higher tribunal.”[35] Still to this day, several countries follow practices inconsistent with international law in this regard. One example is Indonesia, where research uncovered the country’s disregard for the requirement of a fair trial in death penalty cases. For example, international human rights law mandates that the defendant be afforded a “competent” and “professional” attorney and translator, yet these rights were often denied in Indonesia.[36] Additionally, due to the vagueness of the laws in Indonesia concerning police tactics during interrogation, the vast majority of convicts in the country are subjected to improper force and intimidation by police during interrogation in conflict with the rules surrounding obtaining confessions in death penalty cases.[37]

There are several arguments commonly used to support abolition of the death penalty. Countries that have outlawed capital punishment vary in their reasons. In Europe, the issue is viewed as one of morality. The European Union takes a strong stance on capital punishment by making abolition an absolute condition to EU membership.[38] This is based on the position that capital punishment “undermines human dignity and makes any miscarriage of justice irreversible and fatal.”[39] From this it is clear that the EU views execution as both contrary to its fundamental values and problematic in light of potential wrongful convictions. Interestingly, the countries that still authorize the death penalty are typically “less democratic and less committed to the protection of human rights,” so morality appeals may be less effective.[40] Though the United States is a democracy with a commitment to human rights, it retains the death penalty and similarly is not as concerned with moral considerations. Instead, the trend toward abolition in the United States is more a result of efficiency concerns.[41] Research in the U.S. has shown that the death penalty costs the states more money than life imprisonment.[42] In fact, before the economic recession in the U.S., only fourteen states had abolished capital punishment. Once states began facing financial difficulties, eight more proposed abolishment as a cost-saving measure.[43]

In sum, capital punishment is just as controversial globally as it is in the United States. This has led individual countries to have varying approaches to the issue, much like the states in the U.S. The prevalence of capital punishment has waxed and waned internationally over the past decade, so it remains to be seen whether this most recent decrease in executions will continue toward eventual abolishment worldwide. Either way, it is clear that the General Assembly of the UN and other international authorities will remain active in ensuring that capital punishment is implemented consistent with international law.

[1] Death Penalty Fast Facts, CNN (Mar. 22, 2019), https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html.

[2] States and Capital Punishment, NCSL (June 6, 2018), http://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx.

[3] Id.

[4] Id.

[5] Id.

[6] Lincoln Caplan, The Growing Gap between the U.S. and the International Anti-Death Penalty Consensus, The New Yorker (Dec. 21, 2016), https://www.newyorker.com/news/news-desk/the-growing-gap-between-the-u-s-and-the-international-anti-death-penalty-consensus.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Research Shows a Global Trend Towards Abolition of the Death Penalty, but More Work Remains, Amnesty International (Apr. 11, 2018), https://www.amnestyusa.org/reports/research-shows-a-global-trend-towards-abolition-of-the-death-penalty-but-more-work-remains/.

[16] Id.

[17] Id.

[18] Id.

[19] The Death Penalty: An International Perspective, DPIC, https://deathpenaltyinfo.org/death-penalty-international-perspective.

[20] Id.

[21] Id.

[22] Id.

[23] 41 Federal Capital Offenses, ProCon.org (Sept. 12, 2012), https://deathpenalty.procon.org/view.resource.php?resourceID=004927.

[24] Id.

[25] Id.

[26] Research Shows a Global Trend Towards Abolition of the Death Penalty, but More Work Remains, Amnesty International (Apr. 11, 2018), https://www.amnestyusa.org/reports/research-shows-a-global-trend-towards-abolition-of-the-death-penalty-but-more-work-remains/.

[27] Id.

[28] Id.

[29] Execution of Juveniles in the U.S. and other Countries, DPIC (Oct. 22, 2018) https://deathpenaltyinfo.org/execution-juveniles-us-and-other-countries.

[30] Id.

[31] Death Penalty, Amnesty International, https://www.amnesty.org/en/what-we-do/death-penalty/.

[32] Id.

[33] The Death Penalty under International Law, International Bar Association, https://www.ibanet.org/human_rights_institute/about_the_hri/hri_activities/death_penalty_resolution.aspx

[34] Id.

[35] Id.

[36] Sharifa Amalia, Research Finds Most Death Penalty Convicts in Indonesia Still Denied Fair Trials, Magdalene (Jan. 18, 2019), https://magdalene.co/story/research-finds-most-death-penalty-convicts-in-indonesia-still-denied-fair-trials.

[37] Id.

[38] Statement on the Death Penalty, Delegation of the European Union to the Council of Europe  (Oct. 17, 2018), https://eeas.europa.eu/delegations/council-europe/52324/statement-death-penalty_en.

[39] Id.

[40] Carol S. Steiker and Jordan M. Steiker, The Pope Changed the Catholic Church’s Position on the Death Penalty. Will the Supreme Court Follow?, Time (Aug. 15, 2018), http://time.com/5359690/pope-death-penalty-supreme-court-united-states/.

[41] Id.

[42] Saving Lives and Money, The Economist (Mar. 12, 2009), https://www.economist.com/united-states/2009/03/12/saving-lives-and-money.

[43] Id.

 

“The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform”

The EU Takes One Step Forward, Two Steps Back in Digital Copyright Reform

By Lexi Thiel

On September 12, the European Union (EU) Parliament voted in favor of certain amendments to its existing copyright regime—amendments that sent waves across the world. On the most extreme side, some commentators are predicting the directive will bring about the end of the Internet, while others take the more modest view that the bill will have positive ramifications for some (such as film directors and screenwriters), and negative ramifications for others (including small and medium-sized digital platforms). Either way, this directive has sparked a massive amount of debate and controversy, and whether or not it results in the death of the Internet, it will undoubtedly change the landscape of digital media in Europe.

The European Union Directive on Copyright in the Digital Single Market, otherwise known as the Copyright Directive, is intended to modernize online copyright law in the EU.[1] With the digital landscape becoming increasingly prevalent in the realm of copyright, seldom few are arguing that some sort of update to existing copyright legislation in the EU was not needed. However, the prevailing view is that the bill is likely to cause more negative, than positive, effects.

In particular, Articles 11 and 13 of the Copyright Directive have received the most attention and criticism. The amendment to Article 11 provides publishers with a means to “obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers,” though hyperlinks are excepted from this amendment. The amended Article 13 mandates that digital content service providers enter into license agreements with copyright holders, and if the right holders do not want to license their content, the parties must “cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services.” In furtherance of this cooperation, online service providers must put in place sufficient remedial measures for those whose content is unjustifiably removed by the service providers.[2]

One proposition for which there is little doubt is that the new directive will shift the burden of protecting copyrighted content from the copyright owners themselves to digital platforms such as Google and Facebook[3]. Under this new regime, it will be up to the digital platforms to ensure that their users are not unlawfully sharing copyrighted content.[4] Initially, this effect seems sensible, since the owners of copyrighted content are likely often unaware that their work has been impermissibly shared online. However, this article has received intense backlash from the public. The primary argument against this provision is that it will create untenable costs for small platforms, who do not have the resources or capabilities to screen all content shared on their sites.[5] Additionally, experts contend that this sort of extensive screening of content can only be accomplished by automated filtering systems, which are flawed in-and-of themselves.[6]

One source of intense opposition to the directive is the Electronic Frontier Foundation (EFF), which identifies as “the leading nonprofit organization defending civil liberties in the digital world.”[7] The group advocates for free expression and innovation and is composed of over 37,000 members globally and approximately 3,000 members in the EU. In an effort to prevent the passage of the Copyright Directive in January, the EFF sent a memorandum discussing the reasons for its opposition to each member of the EU bodies negotiating the final draft of the directive.[8] With respect to Article 11, the EFF argues that portions of the article contain significant ambiguities which can lead to adverse effects.[9] For example, the EFF contends that Article 11 does not make clear “when the use of a quotation (such as in a news report) amounts to a use that must be licensed,” by the platform,[10] while some commentators have suggested that quoting more than one word  brings the platform under the purview of Article 11 and requires a license.[11] The EFF’s primary criticism concerning Article 13 is the high potential of abuse and false claims of copyright which the EFF believes will lead to over-censorship of content on the web.[12] Additionally, the creator of the World Wide Web, Tim Berners-Lee predicted that Article 13 “would transform the internet from an open platform for innovation to a tool for automated surveillance.”[13]

This proposed directive is likely to cause even more confusion as a law within the EU as opposed to a law passed by the legislature of a single country. This is because, if the directive is passed, it will be up to each member state to implement the directive into its legal system, and the way in which the directive is implemented, and thereafter interpreted, by the various members will not necessarily be the same.[14] Given the broad, vague language of the articles in controversy and the ambiguities they thereby create, those platforms affected by the regulations will likely face considerable difficulty in determining how to adhere to the rules.[15] Additionally, digital platforms frequently traverse state lines and operate across any number of countries, and  in the United States, digital platforms like Youtube are accorded safe harbor from copyright infringement in certain cases. Therefore, the practical realities of this directive are further complicated.[16]

When the Copyright Directive was initially approved in September, the prevailing thought was that when up for a final decision in January, the EU members would vote to adopt the directive. However, that result is no longer foregone. For the directive to be rejected or reworked, there must be a sufficient number of EU states opposing the directive to constitute a “blocking minority.” That number is 35% of the EU members[17]. Due to a change in government since the vote in September, Italy no longer supports the passage of the directive, and combined with Germany, Finland, the Netherlands, Slovenia, Belgium, and Hungary, the opposition now constitutes more than 35% of the EU states.[18] However, the opposing members are not in consensus on their reasons for opposition and proposed solutions, so as of now, which way the vote will go in January remains up in the air[19].

In sum, whether the amendments, if passed, will amount to the death of the Internet, is unknown. However, the amendments will undoubtedly change the media landscape within the EU. Article 11 (the “link tax”) and Article 13 (the “meme ban”) contain broad and ambiguous language that will make it more difficult for online service providers to ensure compliance with the applicable copyright laws. Further, memes, an exponentially-growing phenomenon amongst the younger generations, will arguably run afoul of these new amendments. While memes are currently a benign, every-day mode of communication between many teens and young adults, Article 13 has been construed by many to prohibit the sharing of memes online, and soon, online service providers may be required to start filtering and removing memes from their sites.[20] Due to these potentially wide-ranging consequences, the EU bodies responsible for negotiating the final draft of the amendments before they become official law should make sure the language is clear and will best effectuate the goals best suited to the countries within the EU in this digital age.

[1]Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+TA+P8-TA-2018-0337+0+DOC+PDF+V0//EN

[3] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban

[4]James Vincent, EU Approves Controversial Copyright Directive, Including Internet ‘Link Tax’ and ‘Upload Filter’, The Verge (Sept. 12, 2018), https://www.theverge.com/2018/9/12/17849868/eu-internet-copyright-reform-article-11-13-approved.

[5] Id.

[6] Editorial Board, The E.U. Copyright Directive won’t Kill the Internet—but it could still cause Lasting Harm, The Washington Post (Sept. 30, 2018), https://www.washingtonpost.com/opinions/the-eu-copyright-directive-wont-kill-the-internet–but-it-could-still-cause-lasting-harm/2018/09/30/afa69f0e-bac0-11e8-a8aa-860695e7f3fc_story.html?noredirect=on&utm_term=.b9cee8035c60.

[7] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[8] Id.

[9] Id.

[10] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[11] Cory Doctorow, EFF’s Letter to the EU’s Copyright Directive Negotiators, EFF (Oct. 23, 2018), https://www.eff.org/deeplinks/2018/10/effs-letter-eus-copyright-directive-negotiators.

[12] Id.

[13] EFF Warns of ‘Ill-Considered’ Copyright Provisions, WIPR (Oct. 24, 2018), https://www.worldipreview.com/news/eff-warns-of-ill-considered-copyright-provisions-16872.

[14] Julia Alexander, ‘Internet is under Threat’” What you Need to Know about the EU’s Copyright Directive, Polygon (Sept. 11, 2018), https://www.polygon.com/2018/9/11/17843664/copyright-directive-europian-union-parliament-explained-internet-article-13-youtube-fair-use.

[15] Id.

[16] Id.

[17] Cory Doctorow, Italy may Kill the EU’s Copyright Filter Plans, Boing Boing (Oct. 23, 2018), https://boingboing.net/2018/10/23/trilogues-on-the-rocks.html.

[18] Id.

[19] Id.

[20] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban