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3 posts from November 2013
Death Row and Solitary Confinement – an Unconstitutional Practice
On November 12, 2013, Judge Leonie M. Brinkema of the United States District Court for the Eastern District of Virginia held that automatic and permanent placement of death row prisoners in solitary confinement violates the U.S. Constitution in Prieto v. Clark. In the United States, a majority of prisoners on death row will serve years in solitary confinement, awaiting execution. Although international human rights bodies have recognized that solitary confinement can constitute a form of torture; Prieto is one of a few U.S. cases that highlight the inhuman aspects of prolonged solitary confinement.
In Virginia, capital offenders are automatically placed in solitary confinement upon sentencing, without the possibility of subsequent classification review. Death row prisoners are isolated in their cells for 23 hours a day, the lights are always on, and they are only allowed five hours of recreation a week. The judge described these conditions as "dehumanizing."
In her holding, Judge Brinkema commented that while not all incidences of solitary confinement are unconstitutional, conditions that constitute "atypical and significant, hardship" without the potential for reclassification violate the Due Process Clause of the Fourteenth Amendment. The plaintiff's confinement, in this case, was held to be such a hardship. Judge Brinkema noted that the prisoner's solitary confinement furthered few, if any, penological interests.
Solitary confinement, in combination with the mental torment of a pending execution, causes severe mental suffering. The UN Special Rapporteur on Torture recently concluded that solitary confinement can amount to torture because of the devastating and irreversible psychological effects it has on detainees. Likewise, the Human Rights Committee concluded that prolonged solitary confinement can amount to torture or other cruel, inhuman or degrading treatment. The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment explains that torture includes "the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses."
Although Prieto does not cite this international authority, the court's conclusions are consistent with the growing consensus that solitary confinement is unnecessarily cruel and inhumane. Judge Brinkema's holding, which explicitly recognizes the cruel and inhuman aspects of solitary confinement, represents a step in the right direction.
- Shubra Ohri
Posted at 2:11 PM | Permalink
Death for Dissidents, Petty Thieves, and "Scoundrels" in North Korea
Although North Korea goes to great lengths to conceal its use of capital punishment, our research reveals that the country sentences its citizens to death for an astonishing array of crimes, ranging from political offenses to petty theft. We have just updated our research based on our review of North Korea's amendment to its Penal Code (in the original language) and other sources that shed light on the country's arbitrary use of the death penalty as an instrument of state power.
The North Korean Criminal Code includes 22 death-eligible crimes, most of them defined simply as "especially serious" categories of criminal offenses. But the term "especially serious" is interpreted with Orwellian irony: executions have reportedly been carried out for offenses such as stealing six cows or half a sack of rice. Perhaps the most farcical provision of the North Korean penal code provides that an individual convicted of an "especially serious" case of being a "scoundrel" is punishable by death.
Death sentences may also be imposed for political offenses such as "ideological divergence," "opposing socialism," and "counterrevolutionary crimes." In practice, the regime appears to use capital punishment not only to punish perceived dissidents, but also to rid itself of individuals who have somehow embarrassed the regime. For instance, a former Cabinet official who was in charge of talks with South Korea was reportedly executed by firing squad for policy failure in 2010, and in 2012, Kim Chol, North Korea's Vice Minister of the People's Armed Forces, was reportedly executed for drinking alcohol during the mourning period for former leader Kim Jong-il.
Most executions reportedly take place in North Korea's notorious political prison camps that hold prisoners who have allegedly committed political crimes, along with every member of their families for "guilt by association." Political or "anti-state" offenses are considered most serious, and those who are convicted of such offenses are never released from detention. People have reportedly been detained for listening to South Korean broadcasts, possessing Bibles (in spite of constitutional protection of religious freedom), and attempting to flee the country.
At the political prison camps, living conditions are reported to be barely habitable. In Yodok camp, for instance, detainees and prison guards report that extreme hunger causes inmates to resort to eating snakes or rats. Sanitation is poor and prisoners do not change their clothes during their incarceration and are rarely able to bathe or wash their clothing. One toilet is reportedly shared by 200 prisoners, no blankets are available in the winter, and public executions are carried out in front of prisoners, including executions of family members. Yet North Korean representatives have told the UN Human Rights Council that public executions are carried out to punish "very brutal violent crimes" and used only "in very exceptional cases."
North Korea's practices provide the clearest example of how the death penalty may be used for political ends. With no respect for the rule of law, no independent judiciary, and no respect for fundamental human rights, the current regime is unlikely to reform its use of the death penalty in the near future.
-- Jee Won Oh and Sandra Babcock
South Korea's Ambivalent Position on the Death Penalty
Based on newly obtained information on South Korea's criminal legislation (in the original language), Death Penalty Worldwide has significantly updated and revised its research on South Korea. Since its last execution in December 1997, South Korea's stance on the death penalty has seemed rather ambivalent. When former President Kim Dae-jung took office in 1998, it seemed as though South Korea was beginning to inch toward abolition. Kim was a former death row inmate and an outspoken opponent of the death penalty. Yet efforts to abolish capital punishment have never moved forward – the National Assembly has failed to pass three bills aimed at abolition and the Constitutional Court has twice upheld the death penalty in the face of constitutional challenges. In fact, South Korea passed new legislation in 2010 that expanded the number of death-eligible crimes.
South Korea's official position in the international arena has been just as ambivalent. While repeatedly abstaining from voting on the UN General Assembly's Moratorium on the Death Penalty Resolution, the South Korean government has expressed its willingness to consider ratifying the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty.
It appears, however, as though South Korea may be moving backwards in the midst of a global trend against the death penalty. Current President Park Geun-hye publicly expressed her support for capital punishment five months prior to taking office, and a recent survey of college students indicated that 76% of the respondents were in favor of resuming executions in response to the rise in heinous crimes. In 2012, the government delegation stated at South Korea's Universal Periodic Review at the UN Human Rights Council that the abolition of the death penalty required careful review of "public opinion and … social realities." In our view, an official moratorium on executions, let alone abolition of the death penalty, cannot be expected in the short term.
-- Jee Won Oh