Chicanary

Is there no end to US chicanery on the death penalty? To give credit where it is due, the NYT is tireless in tracking down examples of indifference to the value of one human life.
Thailand, in revising laws regarding Capital Punishment, beware of taking the US as an example.

An Urgent Plea for Mercy

Published: July 6, 2012 Editorial, New York Times

The Supreme Court banned the death penalty for mentally retarded offenders a decade ago, but Georgia apparently has not gotten the message. It is the only state with a statute requiring a defendant to meet the unfairly heavy burden of proving retardation beyond a reasonable doubt. This stringent standard could be readily manipulated by experts, resulting in unconstitutional executions.

In a closely divided 4-to-3 ruling, the State Supreme Court wrongly upheld the statute on the grounds that the United States Supreme Court left it to the states to set procedures for deciding on retardation. This unjust procedural requirement effectively denies protection for the mentally impaired, as required by the Eighth Amendment.

This week, Georgia issued a warrant to execute Warren Lee Hill Jr., a death-row inmate convicted of murder, who has an I.Q. of 70. The Georgia Board of Pardons and Paroles is the fail-safe in the state’s criminal justice system, with a mandate to exercise mercy when the court system has failed to come to a just result. That is clearly true in this case. The trial judge found that Mr. Hill was mentally retarded by applying the fairer “preponderance of the evidence” standard in determining his mental impairment.

The State Supreme Court, however, ruled that Mr. Hill had to prove his mental retardation beyond a reasonable doubt. The dissent rightly argued that applying the tougher standard is unconstitutional because it imposes too high a risk that a court’s conclusion will be wrong. The dissent relied on the United States Supreme Court holding that it is unconstitutional to require a defendant to prove that he is incompetent to stand trial by any standard higher than a preponderance of the evidence.

The United States Court of Appeals for the Eleventh Circuit avoided correcting the state court’s stark constitutional error, claiming that a federal statute on habeas corpus review imposes severe limits so that Mr. Hill had to show “that no fair-minded jurist” could agree with the Georgia court. The United States Supreme Court denied a review of Mr. Hill’s case in June. He is scheduled for execution this month.

Jurors from this case said they would have sentenced Mr. Hill to life without parole if they had had the option. The family of the victim has said Mr. Hill should not be executed. The pardon board has the discretion and the duty to commute his sentence to life without parole. The legal and factual record strongly compels that just decision.

Singapore Yields Grudgingly on Death Penalty

Singapore which claims success in countering drug trafficking and ascribes the supposed success to its practice of mandatory death sentencing,  yields in exempting certain cases from mandatory death sentences. Academic studies have long disproved the effectiveness of executions in countering crime. But it appears that Singapore is finally forced to admit that mandatory executions are inappropriate when confronted with the inhumane absurdity of the practice. 
The death penalty will be changed, allowing judges discretion to impose life imprisonment in certain specific instances of drug trafficking and murder. The announcement of the change in policy says that the leniency will apply to mere couriers of drugs, not the drug kingpins and distributors. But when has Singapore succeeded in arresting the higher echelons of the drug trade, rather than the fumbling nervous couriers?
The relaxation of mandatory death sentences will apply under two conditions:
"First, the trafficker must have only played the role of courier, and must not have been involved in any other activity related to the supply or distribution of drugs. Second, discretion will only apply if having satisfied this first requirement, either the trafficker has cooperated with the Central Narcotics Bureau in a substantive way, or he has a mental disability which substantially impairs his appreciation of the gravity of the act."

But we must not think that Singapore is embracing any quality of mercy. The mandatory death sentence will be replaced by life sentence in prison, and caning. Singapore's executioner used to comfort those whom he was about to dispatch to a 'better life", by assuring them that their fate was preferable to life imprisonment in Singapore's jail. He may have been right. But just to give an extra tilt to the balance of justice, the new sentence throws in a measure of the abominable practice of caning, a process which leaves everlasting scars on the body, marks of degradation and reprisal. 

Singapore provides an elaborate cover story to justify its changes in sentencing. In reality the steps leading to the change are:
1. The contradictions in practice. While Singapore claims that the basis of its capital punishment policy is deterrence, the statistics of executions are hidden, no doubt to inculcate fear while maintaining a benign face.
2. Claims that Singapore justice is equal for all have been discounted The rich and well connected can escape sentence. The poor and unrepresented are hanged
3. The increasing juridical isolation of Singapore in its claim to be democratic while denying the right to life.
4. All of these faults of justice have come to a head in the case of the young Malaysian, Yong Vui Kong, arrested at the age of 19 whose story is told below in a posting made on May 25th last. Protest and outrage has been expressed across the world at the seeming certain execution of this young man. At last Singapore has found a way out. Yong Vu Kong is likely to be the first to escape execution, and relieve Singapore of acute embarasment.

We do not thank you Singapore for this concession, the alternative you offer is a regression and further diminution of respect for human rights.

Notes on beatings in Thai jails

Searches and Attacks in Bangkwang and other prisons

Attacks on prisoners by outside forces, on 16^th and 17^th May 2012

Searches were made throughout Bangkwang prison in Nonthabure, on the evenings of 16th and 17^th May. Bangkwang prison is located in Nonthaburi, where those serving sentences over 30 years are held, and those condemned to death. Reports told of beatings “without apparent reason” carried out by a special masked unit.

The first attack on prisoners was made by a group of blue uniformed persons wearing caps, identified by the prisoners as ‘police’. In the floor on which our informant was detained there were about 20 prisoners, the floor consisted of 24 such rooms of facing cells. At first they heard sounds of beating, shouts, and screams. The assailants moved from room to room, apparently carrying out beatings on every floor of every building. They carried batons and numbered from fifty to a hundred or more. Prisoners were made to squat on the floor while searches were carried out. Apart from the blue clad ‘police’, there were ‘officials’ wearing white tea shirts, possibly military or corrections department officials, and a special masked squad dressed in black. Attacks on prisoners appeared to be random; they reported that one prisoner, a Thai citizen, had been beaten to death, and another seriously injured, with a cracked skull, when telephones were found in their bed area. Our informant was kicked on the legs as he crouched on the ground. In another building an informant told us that the prisoners were warned in advance by their own warders to hide telephones, which they did by attaching them behind fans. Prisoners remarked that if the search had been made by warders themselves these phones would have easily been discovered. His account of the beatings corresponded to that of a prisoner in a separate building for prisoners condemned to death. Beatings carried out by masked assailants lasted about 90 minutes. A police man stood at the door of each cell while the occupants were being beaten. On one occasion a regular prison guard was heard calling for a doctor to come. On the following morning he observed two prisoners showing extensive wounds on their backs.

In one account the prisoners were addressed the following morning by a recently appointed prison governor, warning them that news of the previous night’s events were not to spread outside the prison. However, warders advised prisoners to tell their relatives during visits and called on them to make complaints. It was clear that regular prison staff were against these beatings by outside forces.

Reports in the Thai press report other “visits” by such a mysterious unit in Nakhon Sri Thammarat prison. Authorities claimed the events were to eliminate mobile telephones and drugs from the prison. They admitted that prisoners were out of control of permanent staff who feared retaliation to themselves and their families by outside contacts of prisoners who had discovered their identities and domiciles. 

From Bom Bak Phiset prison

An account of similar beatings has been received from prisoners in Bam Bak prison in both Thai and English versions. The following is the verbatim English version.

“Our Complaint to Foreign Embassies and to the Correctional Department

On 9^th May 2012 Thai correctional officers conducted a raid on Building 9 of Bom Bak prison looking for “illegal belongings”.

This search was completely different from all previous searches carried out by the relevant authorities.

These officers used extreme violence and brutality and threatening behaviour. They repeatedly hit, punched and kicked vulnerable inmates who were all passive. Hundreds of victims required hospital treatment after the cowardly assaults.

These actions are illegal under existing Thai law. This leads to the question of why are high ranking Thai government officials ordering such illegal and horrific orders.

Therefore the foreign prisoners of building 9 urgently request that our embassies are informed of the truth about the illegal incidents so that necessary steps can be taken to ensure their safety.

Thanking you for these considerations

                        Foreign nationalities from building 9

                        Bom Bat Piset”

The statement was signed by 95 foreign prisoners from 17 different countries. Doubtless Thai prisoners were afraid to sign.

Note: All prisons in Thailand are chronically overcrowded and understaffed. It appears impossible for prison authorities to prevent prisoners accessing mobile phones, drugs, and gambling paraphernalia. Recently all gifts of food or other material brought by visitors have been banned so that smuggling by corrupt officials is the only conduit. A mobile phone inside the prison sells for ten times the outside price. Drugs appear to be readily available.

The populations of the prisons mentioned above are:

Bangkwang; 4008  prisoners

Nakorn Sri Thammarat; 3,202 prisoners

Bombot Prison; 3912 prisoners

Department of Statistics 1^st April 2012

Update, Thailand Death Penalty Statistics

Death Penalty Statistics of Thailand for 19^th June 2012

All cases

Gender	Appeal Court	Supreme Court	Court Procedure Complete	Total
Male	328	274	52	654
Female	55	11	6	72
Total	383	285	58	728

Drug related cases

Gender	Appeal Court	Supreme Court	Court Procedure Complete	Total
Male	156	89	31	276
Female	45	10	6	61
Total	201	99	37	337

Homicide and other cases

Gender	Appeal Court	Supreme Court	Court Procedure Complete	Total
Male	172	185	21	378
Female	10	1	0	11
Total	182	186	21	389

If the Innocent are Executed?

At last there is closure to one of the saddest misjudgments in judicial history.

In 1980 the two month old child of Linda Chamberlain was killed in an atrocious manner while the parents of the child were on a camping holiday near Ayer’s Rock in Central Australia. The parents of the child were arrested and charged with the murder. In their defence they claimed that the child had been taken by a dingo, an Australian wild dog. But the prosecution claimed that the awful wounds on the child’s body had been caused by a scissors to simulate the claws and fangs of a dog. In the very emotional climate that followed news of the child’s death, the mother was found guilty and sentenced to thirty years imprisonment with forced labour. Her partner, accused as an accomplice, escaped with a suspended sentence. But Linda Chamberlain continued to protest her innocence, and three years after sentencing the mother was released from prison on the finding of clothes of the infant near the lair of a dingo, which supported Linda’s claim. But popular opinion still considered her a murderess and she suffered continual attacks and insults.

On the 12^th June of this year, a court has finally ruled that the death was indeed caused by a dingo. The mother still raises questions of her conviction on the energetic charge that she was the killer, by police who were eager to satisfy public opinion at the time.

At last justice is done. Comments on the story in newspaper columns are mostly asking, why the fuss about an event which happened long ago in a far off place. But one commentator asked:

“A small reminder for supporters of the death penalty: that crime created an emotional climate in which the mother was found guilty of murder and sentenced to 30 years hard labour. And if she had been condemned to death? Could she be brought back to life today to receive justice?”

                            Mother Linda and her child Azaria

If there were no other argument against the death penalty, this story would suffice to put an end to it. We are always met with indignant questions that follow a savage killing; is the murderer to escape retribution for his crime? No, the murderer must not escape punishment. But should not the execution of a person who is possibly innocent outweigh the supposed satisfaction of a revenge matching the savagery of a crime? The outcome reveals human fallibility. What seems certain is never so. And even if the judgement approaches the near certainty of a public event, what is the benefit of matching one atrocity with another, killing a perpetrator to prove that killing is wrong?

Capital Punishment's latest folly

"The lethal-injection quandary is playing out in a second lawsuit brought by The Associated Press and other news organizations to challenge five states that are violating a 2002 federal court mandate that the law requires every step of execution to be witnessed in behalf of the public. When the death chamber curtains have been drawn lately in Idaho, Washington, Montana, Arizona and Nevada, the main insertion of the lethal injection has already occurred. Some subjects have been seen to barely move, with suspicions arising about some inhumane trauma taking place out of sight.

This shortcut is obviously designed to lessen the risk of official embarrassment if something goes wrong. In the past, bungled injections have left some subjects writhing in agony on a gurney. The death penalty is barbaric. These problems are all reminders of why it is folly to pretend that state execution can ever be made humane."

From editorial, New Your Times, 26th May 2012

The fairy tale is that the executed fall into a peaceful death, like children lured to sleep by their parents

Yong Vui Kong: Answer to Singapore question

“Yong Vui Kong is young. But if we say ‘We let you go’, what is the signal we are sending?”

Mr. K. Shanmugam, Minister of Law and Minister of Foreign Affairs of Singapore has posed this question. As related in an earlier posting on this blog, Yong Vui Kong was arrested when 19 years old. He has been condemned to death on a drug charge. He is now 23 years old.

Here is an answer to Mr. K. Shanmugam:

The signal will say, strongly and clearly, human life is inviolable. The Government respects and acts in respect of this principle. It rejects the trade of drugs on the same principle, but recognises that killing is not an appropriate rejection of killing. It is as simple as that.

The message you send is that this young man has wagered human life for personal gain. He must be punished. But the punishment will involve rehabilitation, the chance to remake his life, based on the same conviction that human life must never be violated.

Meanwhile, you will admit that capital punishment is not a remedy for the problem of drugs. Drugs are like cancer. It is an ill of multiple facets. Cancer may be limited and perhaps cured by therapies which are almost lethal. But cancer must also be treated by enhancing the life and health of the patient; only the mentally and bodily strong survive. The incidence of cancer in the community must be tackled by ensuring a pure environment, eliminating noxious chemicals and pollutants. Likewise, drugs are a social ill. They multiply in a society filled with stress and disappointment.

There are brave new initiatives against the culture of drugs. The basis is an honest appraisal of the harm of drugs. Amphetamines are not as addictive and destructive as heroin and its derivatives. The injury of drugs cannot be measured by mere quantity, such that the death penalty applies to all on a quantitative scale. Some drugs can be tolerated to the same extent as alcohol or nicotine. Though their use is regrettable they cannot be measured on the scale of a human life.

Let Singapore look to its competitive, stressful, and very unequal society where the invitation to escape into a drug nirvana becomes attractive. Every life is valuable, life can be fulfilled in various ways, economic success is not the measure of a life.

The final message is an admission that the death penalty is not an effective counter to drug trafficking. Surely, Singapore’s history as the world’s highest executioner in proportion to its population has proved this point. Drugs are still traded, and the low level drug dealers are still executed. For what end? To promote the false premise that Singapore is serious about drugs? The experience of the great majority of nations rejects the claim. Let Singapore respond that its barbarity is ill placed. Your respect for human life will be warmly welcomed and you will receive encouragement and cooperation in joining efforts throughout the world to control the morbid trade of drugs and addiction.

Death of Thai Executioner

At the end of April, Khun Chavorat Jaruboon , the executioner of Bang Kwang prison, died of cancer.
His wife prayed that he would be accepted in the afterworld by the 55 persons he had executed. No doubt they will have learned the wisdom of pardon and be merciful to him.
The best that can be said of him is that he tried to make the process of execution as efficient as possible. One cannot say, as painless as possible, for execution is the most horrendous injury which can be inflicted on a human being.

Why did he volunteer to be executioner, the choice was his? He mentions that he needed the cash payments of  2000 baht he received each time he carried out a killing. He also enjoyed the prominence he received from his superiors and from those outside who knew his trade; in ordinary prison service he would have passed unnoticed. The British Embassy liked to have him on show at receptions.

A Canadian film, 'The Widow of St. Pierre' depicts a small French colony having neither a guillotine nor an executioner. A murder is committed in a moment of drunken rage. The murderer could have passed his life in some kind of penal servitude if he had not attracted the interest and attraction of the wife of the Governor of St. Pierre. To end the gossip of the island, a guillotine was imported. But an executioner was not available. Eventually, an illegal immigrant was pressed to take on the post.

Executions require an executioner. Khun Chavorat accepted the mandate of the State to execute as directed. But he was also a Buddhist and knew well that the primary teaching of the Buddha was a respect for all living things and a consequent prohibition on killing. He consulted the monk who accepted the bodies of those executed in the temple adjoining the prison, who told him that his act was good as it gave entry to a new incarnation for those whose fate it was to die for their crimes.
He accepted the command of the State and the rationalisation  of religion, ending the days of execution with a beer drinking session.

Such is the personal tragedy of the one who takes on our responsibility of punishment. Violence is accepted in the State, in the life of the executioner, and in the lives of all of us.
On an occasion when I met Khun Chavorat, he held out his hand in greeting. Perhaps he did not sense my hesitation to return the hand shake. It took a moment for me to realise that I too, citizen of a country which executes, was also an executioner. Chavorat was my deputy.

Justice, not yet

The story may be found in the archive (13/5/2007) of a Karen villager condemned to death for a murder committed 19 years earlier. The trial and sentence were blatant miscarriages of justice, but four years were to pass before the case was dismissed by the Appeal Court. Meanwhile the unfortunate villager, 66 years old and in poor health, was confined to prison. Bail was refused on the unlikely ground that he might try to flee, to where who knows. While he was in prison his wife died but relatives concealed the news from him as he was already in a depressed state.
He has been released, and has returned to his village in the mountains. There has been no compensation paid for the miscarriage of justice and the last years of his life spent in cruel confinement.
Here is his picture, a man who has suffered, and who still waits for justice.

Chalerm would bypass Thai and International Law

 The website of the Phua Thai Party has posted a statement by Police General Chalerm Yoobamrung, that discussion is imminent on implementation of the law relating to drug crimes, to the effect that when a person has been condemned to death for drug related crime, in a court of first instance, and in an appeal court, execution will be carried out within 15 days.

Is the Thai Phua Thai Party not aware that such a proposal is contrary to the Thai justice system which assures the right of all persons to refer their cases to the Supreme Court, and to submit an appeal for Royal Pardon?

Such a measure conflicts with Thailand’s 2^nd National Human Rights Programme, 2009 -2013, which includes abolition of the death penalty as an objective.

Finally, it is a measure which is in conflict with International Human Rights Law:

As contained in the UN Economic and Social Council resolution of 1984/50 of 25 May 1984

·        “the deprivation of life by the authorities of the State is a matter of the utmost gravity” par 51.

·        “To determine whether a particular offence falls among the most serious crimes,..., requires interpretation and application of the relevant international law rather than of the subjective approach opted for within a given State’s criminal code and sentencing scheme” par 44.

·        “With respect to particular offenses, the Commission on Human Rights and the Human Rights Committee have determined that a wide range of specific offences fall outside the scope of the “most serious crimes” for which the death penalty may be imposed. These include: ...., drug related offences, ...” par 51

·        “the Committee and the Commission have rejected nearly every imaginable category of offence other than murder as falling outside the ambit of the most setious crimes” par 52

·        “the death penalty can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life” Summary 3

·         

The Phua Thai party must be aware that its human rights record, pursued so assiduously in the recent UPR process in Geneva, will be utterly destroyed by such blatant abuse of the law. The proposal must be immediately rejected and the plan of the 2^nd National Human Rights Plan reinstated.