The Death Penalty

Miljen Matijašević
E-mail: [email protected]
Office: G10, room 6 (1st floor)
Tue, 15:30-16:30
Today’s session
1. Revision of the last session (Crime)
2. Death and the Law
Find the English equivalents
obiteljsko nasilje
ometanje istražnog
7. poticanje na rasnu
pranje novca
provalna krađa
utaja poreza
Find the English equivalents
1. infanticide
2. treason
3. perjury
4. domestic violence
5. obstruction of justice
6. arson
7. incitement to racial
money laundering
unlawful assembly
tax evasion
Answer the following questions
How can we define crime?
2. How are crimes classified
according to object
b. according to seriousness?
3. Explain the difference between the following:
1. murder, manslaughter and involuntary manslaughter
2. theft, larceny, shoplifting, robbery
4. What is actus reus and what form can it take?
5. What is mens rea?
6. Who is exempt from criminal liability?
Translate the following text
Most crimes are characterised by two elements: a
criminal act (actus reus) and criminal intent
(mens rea). To secure a conviction, prosecutors
must prove that both the criminal act and intent
were present when a particular crime was
In criminal cases, the burden of proof is on the
prosecutor to persuade the judge (or jury) that the
accused is guilty beyond reasonable doubt of every
element of the crime charged. If the prosecutor
fails to prove this, the defendant is acquitted.
EFL, Units 20&21
Death and the Law
 suicide
 euthanasia
 abortion
 the death penalty
 intentional causing of one’s own death
 before 1961 attempted suicide could result in criminal
 religions such as Judaism, Christianity and Islam
condemn suicide as an act against God
 decriminalised by the Suicide Act 1961
 however, the Act criminalised the act of helping or
assisting a suicide
 unique example – the perpetrator not prosecuted, only
the accessory
Think of arguments why attempted suicide should or
should not be criminally prosecuted!
What about assisting a suicide?
 How would you explain the term euthanasia?
 literally: “good death” (from Greek – eu+thanatos)
 ending another’s life in order to relieve pain and
What do you think the differences are?
 ACTIVE – done by an act (e.g. administering a lethal
dose of a drug)
 PASSIVE – done by ommission (e.g. not providing life-
saving treatment)
 VOLUNTARY – by choice of the patient
 NON-VOLUNTARY – when the patient is unable to
give consent
 INVOLUNTARY – done against the patient’s will
 ASSISTED SUICIDE – providing but not administering
the means to end the life
 PHYSICIAN ASSISTED SUICIDE – same as above only
done by a physician
Euthanasia and the Law
The United Kingdom
 illegal
 Suicide Act provides for up to 14 years imprisonment
for assisting someone in ending their life
 public polls in favour of legalising euthanasia
 Parliament continues to vote against it
 Mental Capacity Act 2005 – ADVANCE DIRECTIVES –
instructions given in advance on what to do about
treatment in the case of inability to express their will
Euthanasia and the Law
 illegal in most states except Montana, Oregon,
Washington (physician assisted suicide)
 Texas – allowed to physicians and hospitals (Texas
Futile Care Law)
 however, patient has the right to refuse treatment
(DNR – ‘do not rescussitate’)
 advance directives also available
Euthanasia and the Law
The Netherlands
 euthanasia legalised in 2002
 certain conditions must be met, e.g.
 patient’s conscious request
 unbearable suffering without prospect of improvement
 patient informed and aware of alternatives
 second opinion by independent physician
 medically acceptable method
 patient at least 12 years old
Euthanasia and the Law
 Swiss law: assisted suicide illegal only if done for
selfish reasons
 if evidence can be provided that the person asked for it
and had the capacity to make the decision – assisted
suicide lawful
 permitted also for foreign nationals
 development of ‘suicide tourism’
Euthanasia and the Law
 all forms of euthanasia/assisted suicide illegal
(ECHR 2002)
case study
Pretty v United Kingdom (ECHR)
 Diane Pretty was suffering from motor neurone
 paralyzed from neck down, could hardly speak, fed by
a tube
 wanted to commit suicide but was unable to
 wished for her husband to assist her
Pretty v United Kingdom (ECHR)
 Director of Public Prosecutions refused the request
not to prosecute her husband
 appeal to the House of Lords – refused
 appeal to the European Court of Human Rights
 grounds for application:
 violation of Articles 2, 3, 8, 9 and 14 of the European
Convention on Human Rights
Pretty v United Kingdom (ECHR)
 Art 2: ‘the right to life shall be protected by law’
 Art 3: ‘No one shall be subjected to ... inhuman or
degrading treatment ...’
 Art 8: ‘Everyone has the right to respect for his private and
family life ...’
 Art 9: ‘Everyone has the right to freedom of thought,
conscience ... [this freedom] shall be subject only to such
limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the
protection of public order, health or morals, or the
protection of the rights and freedoms of others.’
Pretty v United Kingdom (ECHR)
 no violation of the Convention was found
 the Court held that the right to life cannot be
interpreted as the right to die
 as regards Art 9 – the Court believed this right fell
under the limitations laid down in the Article
 Diane Pretty died soon after the decision was
Euthanasia – discussion
 Having heard the arguments above, write down the
conditions under which euthanasia or assisted suicide
should be made legally possible.
 Prepare arguments against legalising euthanasia.
 termination of pregnancy before it is complete
 countries worldwide have varying legislation regarding
 ISSUE: Is the foetus a human being with its rights or is
it part of the body of the mother?
 two views:
 pro-life
 pro-choice
Abortion – the United Kingdom
 illegal until the Abortion Act 1967
 the Act provided for free provision of abortion under
the National Health Service
 abortion can be performed until the 28th week
 later lowered to the 24th week
 later abortions allowed if the reason is to save the life
 must be performed by a registered physician
 abortion still illegal in Northern Ireland
Abortion – the USA
 Colorado 1967 – first state to legalise abortion in cases
of rape, incest, or serious danger to the mother
 after this, many other states followed
 turning point: Roe v Wade (1973, US SC decision)
 considered that a foetus is not a person
 stated that abortion rights fall under the right to
Attitudes to Abortion
A 2009 UK poll asked if all women should have the right of
access to abortion
 37% Strongly agree
 20% Tend to agree
 12% Neither agree nor disagree
 7% Tend to disagree
 12% Strongly disagree
 3% Don't know
 9% preferred not to answer
Discuss the results of the poll. Are you pro-life or pro-choice?
The Death Penalty
 a.k.a. the capital punishment or execution
 the killing of a person as punishment for a crime in a
judicial process
 common methods:
 lethal injection
 electrocution
 hanging
 firing squad
The Death Penalty
 abolished by 95 countries
 still used by 58 countries (e.g. the USA, China, Japan,
Iran, Indonesia)
 in other countries the death penalty is legal but not
The Death Penalty
UN Human Rights Commission 1999
 Resolution supporting Worldwide Moratorium on
 opposed by the above countries
The Death Penalty
The Council of Europe
 6th Protocol to the ECHR (1983)
prohibits the death penalty in time of peace
 13th Protocol to the ECHR (2002)
prohibits the death penalty in all circumstances
 requirement for any applicant country
The Death Penalty
The European Union
 Charter of Fundamental Rights of the EU
 drafted in 2000, entered into force with the Treaty of
Lisbon, 1 Dec 2009
 among other things, prohibits the death penalty
The Death Penalty
The United Kingdom
 abolished
 1969 most crimes except treason and some military
 1998 all crimes
 ratified the 6th Protocol in 1998, 13th in 2003
 last execution in 1964
 last woman to be executed: Ruth Ellis, 1955
The Death Penalty
The People’s Republic of China
 estimates: several thousand people executed every year
 methods: lethal injection and firing squad
 capital crimes – not only murder but also some
economic and property crimes (tax fraud, crimes
against national symbols and treasures, corruption,
 repeating of crimes key to punishment
The Death Penalty
 capital crimes: murder, rape, drug trafficking,
terrorism, kidnapping, paedophilia, etc.
 but also: apostasy, adultery and homosexuality
 methods: hanging and stoning (disputed)
 claims of capital punishment carried out on minors
The Death Penalty
 abolished with the Constitution of the RC 1990
 last execution performed in 1987 (Dušan Kosić, for
quadruple homicide)
The Death Penalty
The United States of America
 abolished by law in 12 states + the DC
 several states have death penalty laws but don’t apply
 death penalty imposed, but carried out in
approximately 10% of cases (e.g. Texas executes 40%
and California 1% of those sentenced)
 capital crimes: although legislations vary, in practice
mostly given for murder with aggravating
The Death Penalty
The United States of America
 1972-1976 federal suspension of the d.p.
 declared as ‘cruel and unusual punishment’, prohibited
by the 8th Amendment to the Constitution, although
each SC Justice provided different reasons
 methods: lethal injection (by far most common); also
used: electrocution, lethal gas, firing squad
The Death Penalty
The United States of America
 racial issues
 African American convicted of homicide and
sentenced to death 3-4 times more often than whites
 studies have shown that the race of the victim may be
more decisive in giving the death penalty
The Death Penalty
 two views:
 abolitionist (against the death penalty)
 retentionist (in favour of the death penalty)
Think of arguments for abolitionist, i.e. retentionist
The Death Penalty
Listen to some details of the Ruth Ellis and Dušan
Kosić cases.
The Death Penalty
Lord Kennet’s speech in the House of Lords, 1961
 expressed his views on the capital punishment
 summarised it in five verbs:
 prevent
 reform
 research
 deter
 avenge
What do you think he meant under these verbs?
Read and find out.
Abolitionist arguments
(by Roger Hood, Professor of Criminology, Oxford University)
 an extreme example of torture, violation of human
rights – illegitimate for a state to employ
 no convincing evidence that murder rate is lower in
jurisdictions where capital punishment exists
 practice has shown that it is regularly applied with a
dose of arbitrariness, inequity and discrimination
 counterproductive in moral terms – undermines the
moral authority of the legal system
Key vocabulary
active euthanasia
passive euthanasia
voluntary euthanasia
non-voluntary euthanasia
attempted suicide
assisted suicide
advance directives
Thank you for your attention!