Maryland Abolishes the Death Penalty

Maryland has become the 18th state in the United States to abolish the death penalty. Its legislature voted 82 to 56 in favour of the measure, which must now be signed by Governor Martin O'Malley. ‘Evidence shows that the death penalty is not a deterrent, it cannot be administered without racial bias and it costs three times as much as life in prison without parole,’ Governor O'Malley said. ‘What's more, there is no way to reverse a mistake if an innocent person is put to death

One important aspect of this development is its role in the attitude of the United States Supreme Court. It interprets the ‘cruel and unusual punishment’ clause in article 8 of the Bill of Rights with reference to ‘evolving standards of decency’. These are assessed in large measure with reference to the behaviour of the state legislatures.

For example, in 2005, when the Court declared executions of persons for juvenile offences to be unconstitutional, it relied on evidence of legislative repeal of such measures, even though a considerable number of states in the United States continued to retain such legislation (after all, if they did not, what would be the point of a challenge in the Court).

Change is underway in the United States, and the movement is all in one direction. Abolition of the death penalty is a matter of time. It will probably come sooner than most people expect.

Thanks to Alfred de Zayas.

Another Failing Prosecution at the International Criminal Court

It seems that another one of the prosecutions at the International Criminal Court is in a meltdown mode. This is the case against Ambassador Francis Muthaura, who is charged jointly with Uhuru Kenyatta, the frontrunner in the presidential race.

Last year, the Pre-Trial Chamber confirmed charges against Muthaura and Kenyatta. Since then, the Trial Chamber has been organizing the trial itself, due to begin later this year. But when the Prosecutor disclosed evidence to the Defence, she seemed to recognize that some of the materials on which the Pre-Trial Chamber based its decision confirming the charges were not reliable or plainly untrue.

Lawyers for both Muthaura and Kenyatta have filed motions asking the Trial Chamber to refer the cases back to the Pre-Trial Chamber so that it can reassess the confirmation of the charges in light of the changed evidentiary situation.

Replying to the motions, the Prosecutor has conceded that Muthaura’s motion is well-founded. She supports the referral to the Pre-Trial Chamber, which may be authorized under article 64(4) of the Statute. Here is what she says:

The witness whose statement is at issue was essential on the issue of Mr Muthaura’s criminal responsibility and, in fact, was the only direct witness against him. Hence, the confirmation decision, if stripped of references to the witness’ evidence, might not establish substantial grounds as a matter of law. The Prosecution also acknowledges that its disclosure error limited the Defence’s ability to challenge the critical witness’ testimony, which appears to have been the principal evidence relied upon by the Pre-Trial Chamber in its decision to confirm the charges against Mr Muthaura. In the particular circumstances of Mr Muthaura’s case, and given that he has elected to waive his Article 67(1)(c) right to go to trial without undue delay, the Prosecution does not oppose new confirmation proceedings with respect to him, should the Trial Chamber determine that there is a legal basis for such relief.

If it doesn't, the Prosecutor should apply to drop the charges altogether.

The Prosecutor has not made the same concession with respect to Kenyatta.

I have noted previously that the score sheet for the Prosecutor is not very impressive. Of 14 charges that have reached the confirmation stage, four have been dismissed. If Muthaura is also rejected, that will make five. A further case that went to trial has resulted in an acquittal. That makes six cases in which the Prosecutor chose to proceed but where there simply was not enough evidence. Soon we will know whether the Appeals Chamber allows the Trial Chamber to proceed in Katanga with modified charges. If it does not, presumably Katanga will also be acquitted, bringing the total to seven.

Six out of fourteen – possibly seven if Katanga is acquitted - is a pretty high rejection rate. By comparison, a recent study published by Alette Smeulers shows that the average acquittal rate at the ad hoc tribunals is about 15% (0% at the Special Court for Sierra Leone). It is true that the ad hoc tribunals do not have a confirmation stage. But this is not a significant distinction in terms of assessing the reliability of the Prosecutor’s decision to proceed with a case. The fact is that at the ad hoc tribunals, the Prosecutor gets a conviction in about 85% of the cases where he or she elects to proceed, whereas at the International Criminal Court, the success rate to date is barely over 50%.

Fully-funded doctoral studentships at Middlesex

Please spread the word about research studentships for doctoral studies currently being offered at Middlesex. Note that the deadline for applications is 22 March 2013 – only three weeks from today.

I am personally anxious to recruit some new doctoral students who will study under my supervision. This is a wonderful opportunity and I hope some strong candidates will apply.

These are fully-funded doctoral student positions in law and criminology, including all fields related to human rights: http://www.mdx.ac.uk/research/applications/fees/bursaries/law-crim.aspx

The positions are offered on a full-time basis and cover a maintenance award and fee payments (at the UK/EU rate). The Scholarships are for three years, subject to satisfactory progress. The level of the maintenance element of the Scholarships is linked to the level of corresponding awards made by UK research councils and is subject to regular review. Maintenance payments for 2012/13 are £15,590 per annum (including London weighting). The studentship bursaries are free of both tax and national insurance contributions.

In addition to work on the doctoral research project, successful applicants will be expected to contribute to associated activities within the School of Law.

Applicants must have a minimum of a first or an upper second class honours degree or equivalent, and preferably a good masters degree, in a relevant area. If your first language is not English, you should have a minimum IELTS score of 6.5 or TOEFL 575 (paper-based), 231 (computer-based).

How to apply

Applicants should submit a completed application form and a CV (including the names of 2 academic referees) plus a personal statement explaining your interest in the project area you have chosen and any relevant experience or knowledge that you may have. The statement should be approx. 1,500 words in length.

Candidates who are interested in studying under my supervision would be advised to provide me with a draft statement well before the deadline date so that I can provide feedback and perhaps make helpful recommendations. But please understand that you should not expect a prompt reply if you send me your draft the day before the deadline. Do this soon.

Application forms, CVs and personal statements should be submitted via e-mail to research.adm@mdx.ac.uk.

I repeat: Deadline for applications is 22 March 2013.