All the info are in the file. Along with articles. Please cite use examples from the readings and cite them appropriately. ?9781786433244-ComparativeCapitalPunish
All the info are in the file. Along with articles. Please cite use examples from the readings and cite them appropriately.
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1. Introduction: international perspectives on the death penalty Richard C. Dieter
For most of human history, the death penalty has been the norm, rather than the exception, as a societal response to the most serious crimes. It is only in recent times that capital punish- ment has found itself on the defensive—criticized and virtually abandoned by the majority of countries in the world.
Despite its long and pervasive presence, capital punishment is now being rejected in law and in practice at an accelerated pace. The growing number of abolitionist countries and the inter- national pressure exerted on retentionist countries point to a possible worldwide elimination of this practice, similar to the ending of the entrenched institutions of slavery and apartheid.
However, because the death penalty is so closely entwined with the political philosophies by which countries are governed, its complete disappearance in the near future seems unlikely. In some regions of the world it is actually expanding. Measuring the death penalty by the number of people potentially impacted by its use paints a different picture from one that counts only the number of countries with death penalty laws. Two-thirds of the world’s population resides in countries that retain the punishment, and many of those countries are rapidly growing in size.
This volume of in-depth essays on the death penalty examines many of the common themes from disparate parts of the world that have led to the recent rejection of capital punishment by many countries. This introductory chapter will briefly examine the status of the death penalty around the world and highlight the competing pressures that may either ensure the continued decline of the death penalty or allow its continuation for decades to come.
Other chapters will explore the sources of death penalty law, including the offenses meriting execution and the classes of offenders who may be spared from such punishment; the legal safeguards employed in various places to secure and confirm a death sentence; the modern problems of the death penalty that have come under closer review, including the methods of execution, conditions on death row, and the issues of race and innocence; and finally the international institutions that have taken up the mantle of challenging capital punishment, both in individual cases and systemically. The book closes with an assessment of the likely future of the death penalty, based on the myriad of forces pushing it along different paths.
ROOTS OF CAPITAL PUNISHMENT
When societies first formed to better protect the shared interests of individuals, the death penalty was often deemed necessary to ward off enemies and to punish those who threatened the common good. The roots of capital punishment run deep in early civilizations. The earliest written laws, such as the Code of King Hammurabi of Babylon—dating from the eighteenth century BC—the Hittite Code (fourteenth century BC), and the Draconian Code of Athens
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Introduction 3
(seventh century BC) all make reference to the death penalty.1 The Code of Hammurabi, for example, allowed capital punishment for many crimes, including stealing: ‘If any one is com- mitting a robbery and is caught, then he shall be put to death.’2 In early societies, there were no penitentiaries to house offenders for long periods of time, so punishments were often physical and inflicted swiftly, including the punishment of death.
As empires and colonizers spread around the world, they typically brought the death penalty to new lands. The Roman Empire incorporated its system of laws, including the death penalty, throughout its conquests and in neighboring provinces.3 Later, settlers from Europe brought the death penalty to the Americas. Executions in what was to become the United States were recorded as early as 1608 in Jamestown, Virginia.4 Indigenous people also employed capital punishment, although they were often the victims of this practice, as colonizers subjugated native tribes.5
US AND EUROPEAN INFLUENCE
Not all new nations, however, automatically adopted the death penalty. It was often the subject of considerable debate. Many new settlers in America were trying to escape the tyrannical rule of English kings. Capital punishment was rampant in England, where the death penalty allowed for scores of offenses in the ‘bloody code.’6 There was considerable debate when the US Constitution was formulated about whether to allow the death penalty. Historian John Bessler traces the questioning around the death penalty among some US founders to the European writer, Cesare Beccaria:
Although early US laws authorized executions, the founders greatly admired a now little-known Italian writer, Cesare Beccaria, who fervently opposed capital punishment. They also were fascinated by the penitentiary system’s potential to eliminate cruel punishments.7
Thomas Jefferson was among those who raised doubts about the death penalty, stating:
Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death.8
1 M Reggio, ‘History of the Death Penalty’ in L Randa (ed), Society’s Final Solution: A History and Discussion of the Death Penalty (University Press of America 1997) 1.
2 M Roth, Crime and Punishment: A History of the Criminal Justice System (Cengage Learning, Inc 2010) 19.
3 See Reggio (n 1) 2. 4 See ‘The Espy File’ (Death Penalty Information Center) http:// www .deathpenaltyinfo .org/
executions -us -1608 -2002 -espy -file ?scid = 8 & did = 269 accessed 11 June 2019 (‘Espy File’). 5 See, for example, David Baker, ‘American Indian Executions in Historical Context’ (2007) 20(4)
Crim Justice Studies 315–373. 6 John Bessler, The Birth of American Law: An Italian Philosopher and the American Revolution
(Carolina Academic Press 2014) 6. 7 See J Bessler, ‘Actually, the Founders Rejected the Death Penalty’ National Law Journal (27
October 2014) (op-ed). 8 ibid (quoting Jefferson’s autobiography).
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4 Comparative capital punishment
James Madison welcomed the debate in the states in that it might lead to the death penalty’s abolition. Prominent leaders such as Benjamin Rush and Benjamin Franklin also spoke elo- quently against the use of the death penalty.
Beccaria wrote in the eighteenth century and was very influential in both Europe and America. He ardently opposed capital punishment in principle:
What right, I ask, have men to cut the throats of their fellow creatures? Certainly not that on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggre- gate of that of each individual. Did anyone ever give to others the right of taking away his life? Is it possible that, in the smallest portions of liberty of each, sacrificed to the good of the public, can be contained the greatest of all good, life? If it were so, how shall it be reconciled to the maxim which tells us, that a man has no right to kill himself, which he certainly must have, if he could give it away to another?9
Despite the questions raised about the death penalty among the Founders in the US, it was indirectly incorporated into the Constitution through the Fifth Amendment, which required that no person be deprived of life without the due process of law.10 Also, because the death penalty was commonly practiced in the colonies at the time of the writing of the Constitution, it was assumed to be outside the prohibition of ‘cruel unusual punishments’ in the Eighth Amendment.11 The Supreme Court, however, never formally upheld the constitutionality of the punishment until 1976 in Gregg v Georgia.12
States were basically free to follow their own course on the use of the death penalty, and its use varied greatly among them. Between 1608 and the start of the modern era of the death penalty in the US in 1976, the three leading execution states (Virginia, New York, and Pennsylvania) carried out over 1000 executions each. Michigan, in contrast, carried out only 13 executions in the same 370-year span.13 It became the first state (and one of the first gov- ernments anywhere) to permanently abolish the death penalty in 1847, though the punishment was still allowed for treason.14 Michigan now bars the death penalty in its state constitution. Wisconsin carried out only one execution in its jurisdictional history. It abolished the death penalty permanently and for all crimes in 1853.15
It is interesting to note that all three of the leading US execution states in the country’s earlier years now carry out hardly any executions. New York has not had an execution since 1963, and eventually ended the death penalty in 2007. Pennsylvania retains the death penalty, though it has had only three executions since 1976 and currently has a moratorium on all exe-
9 Cesar Beccaria, On Crimes and Punishments (Philip Nicklin (ed), 2nd edn, Philadelphia 1819) (quoted in Alberto Cadoppi, ‘Cesare Beccaria, John Bessler and the Birth of Modern Criminal Law’ (2015) 3(2) University of Baltimore Journal of International Law Art 2).
10 US Constitution: amendment V; see also amendment XIV. 11 US Constitution: amendment VIII. 12 Gregg v Georgia 428 US 153, 187 (1976): ‘We hold that the death penalty is not a form of pun-
ishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.’
13 See Espy File (n 4) (executions by state). 14 Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (5th edn, Oxford
2015) 13. 15 ibid; see also Espy File (n 4) (number of executions).
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Introduction 5
cutions. Virginia has had 112 executions since 1976, but only four in the past five years and almost no new death sentences.16
Internationally, there were signs of discontent with the death penalty even earlier than in the US, though definitive legislative action often took more time. The Grand Duke of Tuscany (later part of Italy), abolished the death penalty in 1786, although it was later reinstated. The microstate of San Marino (located in northern Italy) has had no executions for almost 550 years.17 It formally abolished the death penalty in 1865. Venezuela last carried out an exe- cution in 1830 and abolished capital punishment for all crimes in 1863. Cape Verde, off the northwest coast of Africa, has had no executions since 1835, and finally abolished the death penalty for all crimes in 1981.18
In more recent times, West Germany and the new state of Israel rejected the death penalty for ordinary crimes in the early years of their new governments. The Supreme Court of South Africa found the death penalty to be unconstitutional in its first decision after the fall of apart- heid rule in 1995.19
THE ACCELERATING TREND AWAY FROM THE DEATH PENALTY
These early instances of abolition, however, did not become a groundswell until recent times. Most countries employed the death penalty well into the twentieth century. In 1965, a census prepared for the United Nations indicated there were only 25 abolitionist countries.20 However, today many research organizations and scholars concur that the death penalty is in sharp decline around the world.
Roger Hood and Carolyn Hoyle (one of the authors in this compendium) have commented on the ‘striking increase’ in the number of countries abandoning the death penalty in the fifth edition of their comprehensive review of the death penalty worldwide: ‘Over the 11 years from 1989 to 1999 inclusive, 41 countries became abolitionist…an average of three a year.’21 From 2000 to 2014, another 26 countries were added to the list, at least for ordinary crimes.
Amnesty International, while noting an increase in worldwide executions (excluding China) in 2015, nevertheless has underscored the overall trend away from the death penalty:
When Amnesty International began campaigning for abolition in 1977, only 16 countries had fully abolished the death penalty. Today the majority of the world’s countries are fully abolitionist, and dozens more have not implemented death sentences for more than a decade, or have given clear indications that they are moving towards full abolition.22
16 See ‘Executions by State’ (Death Penalty Information Center) http:// www .deathpenaltyinfo .org/ number -executions -state -and -region -1976 accessed 11 June 2019.
17 See Hood and Hoyle (n 14) app 1, table A1.2. 18 ibid. 19 Makwanyane and Mchunu v The State 1995 (16) HRLJ 154 (CC). 20 Hood and Hoyle (n 14) 14. 21 ibid 15. 22 Amnesty International, ‘Death Sentences and Executions 2015’ https:// www .amnesty .org/ en/
latest/ research/ 2016/ 04/ death -sentences -executions -2015/ accessed 11 June 2019 (‘Amnesty 2015’). Amnesty’s report on 2016 indicated a decrease in executions, again excluding the number in China. Amnesty International, ‘Death Sentences and Executions 2016’ (11 April 2017) https:// www
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6 Comparative capital punishment
The World Coalition Against the Death Penalty has reported on the progress within the United Nations on a recurring resolution supporting a moratorium on all executions. Only 40 coun- tries opposed the resolution in the most recent vote:
The UN General Assembly voted overwhelmingly for a sixth resolution calling for a universal mor- atorium on executions. On 19 December 2016, with 117 States voting in favour of the resolution, the UN member states reasserted their support for a universal moratorium on the use of the death penalty.23
Sandra Babcock (also one of the authors in this compendium) and her colleagues at Cornell University Law School have assembled an extensive interactive database of information about the use of the death penalty around the world, called ‘Death Penalty Worldwide’. Their project came to a similar conclusion about recent trends in its 2016 report:
By the end of 2015, 104 countries had legally abolished the death penalty for all crimes—more than half of the world’s roughly 200 states and territories, no matter how broadly defined. Sixty-one of these countries abolished in the 1990s and 2000s, giving birth to what we now consider a global move- ment toward the universal abolition of capital punishment. In 2015 alone, four countries promulgated laws that fully abolished the death penalty (Suriname, Fiji, Madagascar, Republic of Congo), and a fifth (Mongolia) repealed the death penalty to fulfill an international treaty commitment to abolish. Even in countries that retain the death penalty, the use of capital punishment is rare: forty-nine death penalty states have not carried out any executions in at least ten years. The use of capital punishment is increasingly confined to a small number of states that carry out large numbers of executions. Of the twenty-five countries where Amnesty International recorded executions in 2015, 89 per cent of all executions outside of China were carried out in three countries: Iran, Pakistan and Saudi Arabia.24
In a 2017 statement, Human Rights Watch, which monitors use of the death penalty around the world, confirmed the consensus regarding this trend away from the death penalty:
A majority of countries in the world have abolished the practice. In 2012, following similar resolu- tions in 2007, 2008, and 2010, the United Nations General Assembly called on countries to establish a moratorium on the use of the death penalty, progressively restrict the practice, and reduce the offenses for which it might be imposed, all with the view toward its eventual abolition. Former UN Secretary-General Ban Ki-moon also called on countries to abolish the death penalty.25
Another measure of the decline in the use of the death penalty is the growing number of countries that have signed international treaties that either ban or limit capital punishment. The Second Optional Protocol to the International Convention on Civil and Political Rights
.amnestyusa .org/ files/ death _penalty _2016 _report _embargoed .pdf accessed 11 June 2019 (‘Amnesty 2016’). However, the number in 2016 was higher than the average for the previous decade. ibid 4.
23 Elise Guillot and Aurélie Plaçais, ‘Moratorium’ (20 December 2016) http:// www .worldcoalition .org/ The -UN -General -Assembly -voted -overwhelmingly -for -a -6th -resolution -calling -for -a -universal -moratorium -on -executions .html accessed 11 June 2019.
24 Cornell Center on the Death Penalty Worldwide, ‘Pathways to Abolition of the Death Penalty’ (June 2016) 2 http:// www .deathpenaltyworldwide .org/ pdf/ pathways -english .pdf accessed 19 June 2019.
25 ‘Kuwait: First Executions in 4 Years’ (Human Rights Watch News, 26 January 2017) https:// www .hrw .org/ news/ 2017/ 01/ 26/ kuwait -first -executions -4 -years accessed 11 June 2019 (‘Human Rights Watch opposes capital punishment in all countries and under all circumstances. Capital punishment is unique in its cruelty and finality, and it is inevitably and universally plagued with arbitrariness, prejudice, and error.’).
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Introduction 7
prohibits executions outside times of war26 and has been ratified by 81 countries. As of 2014, 46 countries had ratified a similar protocol to the European Convention on Human Rights (ECHR) that bars the death penalty, at least in peacetime.27
EXECUTIONS WORLDWIDE
The number of executions serves as another barometer of the death penalty’s use. In coun- tries that retain the death penalty, the numbers have generally declined. The US is a prime example of this trend: from 1999 to 2016 there was an 80 percent drop in the annual number of executions.28
With respect to other countries, Hood and Hoyle reported that: ‘With very few exceptions, such as Iran and Saudi Arabia…the number of executions annually recorded appears to be falling almost everywhere.’29 They noted that Singapore, which had the highest per capita rate of executions in the 1990s and had 74 executions in 1994, had only five in 2009 and none in 2012 or 2013. Executions in Malaysia, Thailand, and India have also declined. India, the world’s second most populous country, had no executions between 2004 and November 2012.30
Of course, executions can flare up at any time in countries that retain capital punishment. Amnesty International, Human Rights Watch, and Reprieve have issued recent alerts about a spike in executions in various regions. Amnesty reported that executions in countries other than China increased 54 percent in 2015 compared to the year before, with most of the increase centered in just a few countries:
Of all executions recorded in 2015, 89% were carried out in just three countries: Iran, Pakistan and Saudi Arabia. The number of executions recorded in Iran and Saudi Arabia increased by 31% and 76% respectively, and executions in Pakistan were the highest Amnesty International has ever recorded in that country.31
Amnesty also noted an increase in the number of countries carrying out at least one execution:
Amnesty International recorded executions in 25 countries [in 2015], three more than in 2014. Chad and Oman resumed executions after years without executing anyone. Bangladesh, India, Indonesia
26 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 entered into force 3 January 1976 (‘ICCPR’) (allowing reservations to be taken by countries regarding the death penalty in time of war).
27 See Hood and Hoyle (n 14) 28 (citing Protocol 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221).
28 See ‘Executions by Year’ (Death Penalty Information Center) https:// deathpenaltyinfo .org/ executions -year accessed 11 June 2019.
29 See Hood and Hoyle (n 14) 19. 30 ibid. 31 See Amnesty 2015 (n 22) 3–4. The number of executions in Iran in 2016 was at least 530, accord-
ing to Iran Human Rights, but that was a decrease compared to the annual numbers for the past five years. See ‘Iran: Annual Report on the Death Penalty 2016’ (Mohabat News, 12 March 2017) http:// mohabatnews .com/ en/ ?p = 3390 accessed 11 June 2019.
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8 Comparative capital punishment
and South Sudan executed people in 2015; no executions were reported in these countries in 2014, although each executed people in 2013.32
In its report on the death penalty in 2016, Amnesty noted that the number of executions outside of China had declined and the number of countries carrying out executions also decreased.33
Human Rights Watch reported that Bahrain and Jordan returned to carrying out executions after lengthy periods of having none.34 Reprieve—a London-based organization opposed to the death penalty—noted Pakistan’s increased use of capital punishment in 2016:
In Pakistan, the authorities continued to execute scores of prisoners from the country’s 8,000-strong death row. A total of 419 prisoners have been hanged since a moratorium on the death penalty was lifted in December 2014.35
These numbers are a stark reminder of the wide divergence of views and practice among nations about the use of the death penalty. Political changes or a rise in terrorism can often trigger a return to punitive rhetoric and harsher punishments.
COUNTING ABOLITION COUNTRIES
Tracking the use of the death penalty in over 200 countries around the world is a herculean task, especially since many countries are secretive about their practices or have no central accounting of criminal justice statistics. Amnesty International stands out among organiza- tions taking on this challenge. Founded in 1961, Amnesty’s initial focus as an organization had been the identifying and freeing of political prisoners, particularly in countries with repressive regimes, and opposing the death penalty for prisoners of conscience. However, in 1971 it announced that it intended to work towards the abolition of the death penalty in all countries and for all crimes.36
Since 1979, it has published a regular report on the death penalty worldwide, examin- ing trends in individual countries and regions. In particular, it established the widely used three-tier approach to categorize countries on their practice of the death penalty: Retentionist, Abolitionist in Practice, and Abolitionist in Law (which is subdivided into countries that have abolished the death penalty for all crimes and those that retain it just for extraordinary crimes like treason or in time of war).
The list of countries that have abolished the death penalty versus those that retain it in law and use it in practice is perhaps the best measure of death penalty use around the world. Executions and death sentences are much harder to compile on a worldwide basis. In particu-
32 See Amnesty 2015 (n 22) 6. The number of countries carrying out executions dropped to 23 in 2016.
33 See Amnesty 2016 (n 22) 4. 34 See Human Rights Watch (n 25). 35 Reprieve, ‘Global executions in 2016’ (2017) http:// www .reprieve .org .uk/ update/ global
-executions -2016/ accessed 11 June 2019. 36 A Karn, Amnesty International and the Death Penalty: Toward Global Abolition (University of
New Mexico Press 2010) 116.
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Introduction 9
lar, China reportedly carries out more executions than the rest of the world combined,37 but no one (outside of China) knows how many there are each year. So, to say that executions worldwide have decreased or increased in a given year is misleading. Trends in China could make the exact opposite true, if known.38
Amnesty’s middle category, ‘Abolitionist in Practice’ (or abolitionist de facto), must also be used cautiously. A country generally falls into this category if it has had no executions in ten years and is believed to have a policy of not carrying out executions despite retaining the death penalty in law. However, there are many reasons short of a commitment to eventual abolition that could influence why a state has not carried out an execution. All of the states in the US had at least a ten-year break in carrying out executions related to the national moratorium that extended from the last execution in Colorado in 1967 to the first one in Utah in 1977, after the death penalty was allowed to resume by the Supreme Court. Despite this pause, 38 states returned to the use of the death penalty and almost all have actually carried out executions after the break. Ohio, for example, had no executions between 1963 and 1999, but has had 53 since then.39 And the federal government carried out the execution of Timothy McVeigh in 2001 after a 38-year period of no executions (including many years when there was no valid federal capital punishment statute in place).
The same is true of other countries. Human Rights Watch recently noted:
In the regional trend to increasing use of the death penalty, in January, 2017, Bahrain ended a six-year de facto moratorium on the death penalty, executing three people. In December 2014, Jordan ended its eight-year moratorium on the death penalty, executing 11 people.40
Hood and Hoyle, too, caution about the temporary nature of the de facto abolition category, noting that countries can quickly return to the Retentionist column, especially after a regime change:
In several cases the ‘ten-year gap’ has occurred not because governments have wanted to curb executions, but because they were thwarted by successful legal interventions, as in countries of the Commonwealth Caribbean. Since 1994, 11 countries that appeared to be abolitionist de facto resumed executions—although none on a regular basis—thereby returning to the retentionist camp (Bahamas, Bahrain, Burundi, Chad, Comoros, Gambia, Guinea, Guatemala, St. Kitts and Nevis, Trinidad and Tobago, and Qatar).41
DECLINE IN THE US
Probably no country has so much data available on the use of the death penalty as the United States. The availability of news articles and governmental statistics to anyone with a computer
37 See Amnesty 2016 (n 22) 19. 38 See, for example, ‘Strike Less Hard’ (The Economist, 3 August 2013) http:// www .economist .com/
news/ china/ 21582557 -most -worlds -sharp -decline -executions -can -be -credited -china -strike -less -hard accessed 11 June 2019 (reporting dramatic decline in executions in China).
39 See generally ‘Executions by State’ (n 16) (as of 24 July 2017, with more executions scheduled in coming months).
40 See Human Rights Watch (n 25). 41 Hood and Hoyle (n 14) 20.
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10 Comparative capital punishment
means that there are many ways of analyzing and reporting on the use of capital punishment. Each state is a microcosm of a government electing to keep or end the death penalty. In addition, the national ten-year pause in the death penalty referenced above has created a new baseline in maintaining real-time information.
The trend away from the death penalty in the US has been robust. The Death Penalty Information Center (DPIC), based in Washington, D.C., and founded in 1991 to better inform the public about how the death penalty is being applied in practice, keeps statistics on many aspects of the death penalty. The Center cooperates with others studying this issue so that any errors can be quickly identified and remedied.
When the death penalty was allowed to return following a Supreme Court ruling in 1976 that upheld the constitutionality of capital punishment,42 states adopted the restrictions the Court endorsed, returned to regularly imposing death sentences, and soon began executions. By the late 1990s, the number of executions had reached nearly 100 per year and death sen- tences were being imposed at a rate of 300 per year. Surprisingly, that strong growth in the use of the death penalty took a dramatic turn beginning around the year 2000.
That downward trend has continued to this day. As DPIC noted in its annual report summa- rizing developments in the US death penalty in 2016:
Use of the death penalty fell to historic lows across the United States in 2016. States imposed the fewest death sentences in the modern era of capital punishment, since states began re-enacting death penalty statutes in 1973. New death sentences are predicted to be down 39% from 2015’s 40-year low. Executions declined more than 25% to their lowest level in 25 years, and public opinion polls also measured support for capital punishment at a four-decade low.43
The reasons for this dramatic turnaround have been thoroughly analyzed in the media and scholarly works.44 However, the US has not been a world leader in abolition of the death penalty. Almost all of the US’s major allies have not only abandoned the death penalty, but also pro-actively work for its abolition everywhere. In contrast, the US continues the death penalty in many of its states and on the federal level, often ranking among the top five execu- tion countries in the world.45 There were strong indications that the US was ready at last to join its allies in this regard, but the 2016 national elections, as discussed below, may have delayed that final step.
A CONTRASTING ANALYSIS OF WORLDWIDE TRENDS
If the international death penalty were only measured by the number of countries that are actively using it, it would appear that capital punishment is practiced by only a minority of
42 Gregg (n 12). 43 See ‘The Deathy Penalty in 2016: Year End Report’ (Death Penalty Information Center, 2016)
http:// deathpenaltyinfo .org/ documents/ 2016YrEnd .pdf accessed 11 June 2019. 44 See, for example, Frank Baumgartner and others, The Decline of the Death Penalty and the
Discovery of Innocence (Cambridge 2008); see also D McCord and T Roitberg Harmon, ‘Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from their Post-Furman Peak’ (forthcoming in Albany Law Review)
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