The death penalty: a punishment for the poor?

20/10/2017
OP-ED
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"We have a system of justice that treats you better if you’re rich and guilty than if you’re poor and innocent," explains Bryan Stevenson from the NGO Equal Justice Initiative, time and time again. It’s a good way of summing up a certain form of American justice, but this chilling observation sadly also applies in other parts of the world. Poverty and the death penalty are inextricably linked in all four corners of the world, meaning that, in addition to being an inhuman, ineffective and irreversible penalty, capital punishment is also profoundly unjust and discriminatory. This was made abundantly clear on the 15th World Day Against the Death Penalty, on 10 October.

The facts are all there, and they are inescapable. According to the Equal Justice Initiative, 95% of convicts languishing on death row in the United States come from underprivileged backgrounds. Their court-appointed lawyers often don’t have the means to expedite the DNA or ballistics tests that could unravel the prosecution’s case. The same striking observation can be made in India where, according to a recent study by the University of New Delhi, 20% of them have never attended school. Once again, a largely deficient legal representation is to blame. Although the law allows for access to a lawyer before any initial court appearance, 89% of those on death row state that they have never been able to exercise this right. Aware of this shortcoming, the Supreme Court of India, in a 2013 judgement, held that poverty should be considered a mitigating circumstance (Sunil D. Gaikwad vs. The State of Maharashtra). In this case, the judges also commuted a death sentence to life in prison. This was a modest victory, however, as the ultimate punishment remains in force.

Another country, another context, equally flagrant discrimination. In Nigeria, the poor are once again the primary targets of capital punishment, as shown in an enquiry by the NGO Legal Defender and Assistance Project. Its Secretary-General, Chino Obiagwu, summarises the situation as follows: "The issue of culpability is almost secondary in our criminal justice system. It’s all about knowing whether you can keep under the radar of the judiciary system by paying the police during the investigation, paying a lawyer to defend you or paying to put your name on the list of pardons." That says it all.

In Saudi Arabia, it is migrant workers who are especially targeted by the ultimate punishment. This is no surprise; they are ostracised due to their foreign nationality, do not speak the language well and often don’t have the means to pay off the "diyat", the sum paid to a victim’s family so they will ask for the execution to be revoked. According to the Vietnamese Criminal Code, meanwhile, in its version dated June 2017 and applicable from January 2018, those sentenced to death for corruption but able to repay 75% of the sum they obtained through their crime will have their sentence commuted to life in prison. Of course, this provision does not cover the poorest convicts, who are generally not guilty of corruption, but is a fine example of the influence of social status on execution.

Europe is excluded from this macabre world tour, as the continent has gradually abolished the death penalty; that is, with the exception of Belarus, where the death penalty and social deprivation clearly go hand-in-hand.
Why are those on the lowest incomes discriminated against like this? First, because legal aid – which enables them to be represented by a public defender – if often not up to scratch. Having a court-appointed lawyer is one thing, but finding a competent one with the means to lead a proper counter-enquiry is quite another. Added to this is a series of obstacles linked to the social background in which the underprivileged grow up. As the economist Esther Duflo so rightly says, "the poor are not rich without money." Their situation is not only a financially precarious one; we also know that they encounter problems in accessing legal professionals, for example. This makes it rather difficult to ensure "their" rights are respected. We also know that they do not have any highly-placed representatives, nor a well-padded address book. In countries plagued by corruption, the sentence one is handed can largely depend on the support one has - or doesn’t have - within the regime. Put plainly, discrimination dominates. But the first to suffer from it - stigmatised and marginalised - often don’t have the means to denounce it.

To sum up, in addition to being humanly and morally intolerable, legally questionable and, politically, often instrumentalised by unscrupulous governments, the ultimate punishment is also profoundly discriminatory. Ultimately, it does not target the worst criminals, but those who have been dealt the worst lawyers or lawyers who themselves are amongst the poorest. This observation is especially chilling as it reveals another: with such an inadequate defence, some people are bound to be wrongly sentenced to death. In the United States, 156 innocent people have been sentenced to death since 1973, or one every three months. How long will this unjust punishment endure? This is the big question. The current global trend is significantly geared towards abolition: 40 years ago, there were 16 abolitionist countries; today, there are 141. The death penalty is clearly on the way out. Let’s bring it to a swift end.

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