THE DAY CANADA SAID NO TO THE DEATH PENALTY IN THE UNITED STATES: INNOCENCE, DIGNITY, AND THE EVOLUTION OF ABOLITIONISM.

• Author: Jouet, Mugambi

INTRODUCTION

When it comes to opposing the death penalty, it is revealing whether a society considers the fundamental question "Could an innocent be executed?" or "Should a government be allowed to kill the guilty?" This article explores the intersection between these distinct approaches through a sociolegal and historical perspective, thereby shedding light on why certain societies or actors gravitate toward innocence or dignity. Its thesis suggests that the way the death-penalty debate is framed has far greater implications than is commonly realized for the evolution of both criminal punishment and liberal democracy.

Innocence and dignity are both constitutive societal questions. First, miscarriages of justice have been defining issues in the history of Western civilization. The death sentences of two innocents--Socrates and Jesus--have influenced its philosophy, faith, and culture. Wrongful convictions later played a neglected role in the rise of democracies rooted in the rule of law, such as by inspiring the English Bill of Rights of 1689, (1) ultimately shaping modern constitutional protections in Britain, Canada, the United States, and beyond. Second, the growing recognition of dignity as a fundamental legal principle since the Enlightenment buoyed an anti-death-penalty movement convinced that killing prisoners is inherently inhumane. (2) This normative paradigm shift has extended beyond state-killing by influencing debates over prisoners' rights as a whole. Nowadays, the abolition of the death penalty and other degrading punishments is increasingly regarded as a benchmark of liberal democracy and human rights. (3)

A tension nonetheless exists between these two constitutive questions. Focusing on innocence as the key reason to abolish capital punishment suggests that, but for the risk of error, it would be legitimate to kill the guilty. Dignity instead aspires to transcend practical considerations like innocence by recognizing the inhumanity of any execution. Accordingly, each approach offers a window into fundamental issues, including how social, historical, legal, and political circumstances shape the acceptable limits on punishment.

Today, the United States stands out not only in conserving the death penalty, but also in refusing to consider it a question of human rights or dignity. (4) At the outset, American society is an outlier within the Western world, which is generally understood as encompassing the United States, Canada, Australia, New Zealand, and European nations, except Russia and states in its orbit like Belarus. (5) All other Western democracies are in the abolitionist camp. Abolition accelerated in postwar Europe when regional powers took this step, namely West Germany (1949), the United Kingdom (1965), (6) and France (1981). Yet other nations preceded them generations earlier, including Portugal (1867), the Netherlands (1870), Norway (1905), Sweden (1921), and Denmark (1933). This trend is hardly Eurocentric. New Zealand (1961), Australia (1984), and Canada (1976), as we will see in greater detail, have abolished capital punishment. (7) Furthermore, America is increasingly an outlier in the wider world, where over two-thirds of all countries have abolished capital punishment in law or practice. Abolition has encompassed nations on diverse continents, such as Costa Rica (1877), Uruguay (1907), Namibia (1990), Nepal (1990), and South Africa (1995). (8) Alongside the United States, the leading executioners have overwhelmingly been dictatorial regimes, such as China, North Korea, Iran, and Saudi Arabia. (9) Mirroring the global decline, however, international law is progressively barring capital punishment. (10) For decades before the flurry of federal executions during Donald Trump's final months as president, (11) America's retention of the death penalty chronically fostered tensions with allies concerned about its disregard for international human rights norms. (12) In sum, the United States is an exception within the modern Western world and a relative exception within the wider world. (13)

The death penalty's retention is intertwined with additional facets of American exceptionalism, (14) the notion that the United States is an exception by diverse objective measures. (15) For instance, the United States virtually has the world's highest incarceration rate following the emergence of mass incarceration in the 1980s. (16) None of this means that it is a permanent exception. (17) Every society is malleable and the United States has experienced innumerable social transformations since its founding. (18) Modern America may actually be in the process of gradually abolishing the death penalty. The practice has markedly declined in the 21st century, reflecting a longstanding social ambivalence about capital punishment. (19) Twenty-three states have now abolished it. In 2021, the number of executions (11) and death sentences (18) were around their lowest historical levels. (20) Compared to other countries, the United States may thus be lagging behind in a long-term abolitionist process, rather than bound to remain an exception. (21) This incremental evolution exists within the United States itself, as certain states were among the earliest jurisdictions worldwide to permanently abolish capital punishment: Michigan (1847), Wisconsin (1853), and Maine (1887). (22) Given that capital punishment is primarily a Southern phenomenon in a continent-size country, the references to the US death penalty in this article should not be misinterpreted as negating stark regional variations. (23)

Sociolegal scholarship has still sought to elucidate why the United States has become an outlier on the death penalty. (24) Besides factors leading to the retention of capital punishment itself, scholars have addressed how American society has debated the issue. In particular, the risk of executing an innocent has assumed a central role in US abolitionism since the late 20th century. (25) Epitomizing this trend, Joe Biden's 2020 presidential campaign platform based its commitment to abolition squarely on innocence:

Over 160 individuals who've been sentenced to death in this country since 1973 have later been exonerated. Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government's example. (26) As Virginia abolished the death penalty in 2021, Scott Surovell, a state senator and the bill's sponsor, stressed: "The problem with capital punishment is that once it's inflicted you can't take it back, it can't be corrected." (27) Of course, innocence is not the only dimension of modern American abolitionism. It encompasses other concerns, including racial disparities, the high financial cost of capital trials or appeals, and the death penalty's ineffectiveness against crime. (28) That being noted, we will see how innocence has gained importance in the US sociolegal debate and has recurrently been framed as the cornerstone of abolitionism.

By contrast, normative objections to state-killing play a greater role in abolitionism in many other parts of the world nowadays. In particular, Europe has gravitated toward a categorical objection to the death penalty on the ground that any execution violates human rights rooted in dignity. (29)

Meanwhile, scholarship has largely ignored Canada's position in this historical evolution, despite the profound insights it has to offer. Canada appears to have taken a middle-road between the United States and Europe. On one hand, its Parliament abolished the death penalty in 1976--the same year as the US Supreme Court reauthorized it in Gregg v Georgia, (30) following its temporary abolition in Furman v Georgia four years earlier. (31) Canada's foreign policy has regularly embraced global abolitionism based on human rights. (32) On the other hand, Canada's constitutional jurisprudence has been disinclined toward the human rights rationale against capital punishment, partly because of a plausible US export: an attempt to settle the issue by focusing narrowly on innocence.

The overwhelming focus on America-Europe comparisons in sociolegal scholarship has actually obscured a key, albeit little known and under-studied chapter in death-penalty history. Two decades ago, Canada said "No" to America's death penalty. In United States v Burns (2001), the Supreme Court of Canada barred the extradition of two men facing capital punishment in Washington State. (33) The defendants were Canadian citizens from British Columbia who allegedly fled across the border to their home province after murdering three people. The case offers an extraordinary window into the US death-penalty system through foreign eyes. While Burns has been described as a constitutional milestone under the Canadian Charter of Rights and Freedoms, (34) this article offers another perspective on its twentieth anniversary. The Court said "No" to America's death penalty for doubtful reasons, especially a newfound risk of executing the innocent, and did not offer a resounding "Yes" to fundamental principles of liberal democracy--human rights and dignity. This appeared to be because, at least to an extent, a modern conception of abolitionism in the United States found its way into the Supreme Court of Canada's reasoning, namely the notion that the death penalty is wrong because it may fail to kill only the guilty.

This history risks being lost following the Supreme Court of Canada's recent landmark decision in R v Bissonnette, which prohibited life without parole as an affront to human dignity. (35) Although the Canadian Criminal Code did not allow life without parole, the Justices struck a statute enabling de facto life without parole through consecutive life sentences. (36) In Bissonnette, Canada's highest court therefore did what it refused to do in Burns: address the crux of...