The enigma of de facto abolition: Researching the death penalty in countries which do not execute

In academic and media coverage of the death penalty, attention is most often drawn to those states that retain the practice and carry out executions, or those that have gone through the process of abolishing it. Yet between the two lies a less visible group of states: those that retain the death penalty in law but do not carry out executions. Once a retentionist state reaches a period of 10 years without an execution, it is classified by the UN as ‘abolitionist de facto’ (ADF). Thanks to a new grant provided by the University of Oxford’s Public Policy Challenge Fund,[1] the DPRU and its partner organisation the Death Penalty Project (DPP) is now beginning a collaborative research project examining the concept of ADF status and the challenges faced by policymakers in ADF states.

There are approximately 40 states worldwide that have ADF status, primarily in Africa and the Caribbean. Countries can remain ADF for many decades: the median time without an execution is 32 years, while in some cases this is much longer (66 years for Brunei, 71 for the Maldives). Yet although executions are not carried out in ADF states, death sentences can still be imposed. Of 50 states identified as ADF by the UN in 2018, 36 had imposed at least one death sentence in the previous decade. This means that individuals still live on death row, in some cases leading to death row populations of several hundred. For example, in July 2023, Kenya – which has not carried out an execution since 1987 – commuted the death sentences of over 600 people to life imprisonment, the latest of several Presidential commutations in the country in recent decades.

The persistence of death penalty laws without executions across so many jurisdictions poses an important question for death penalty researchers: what prevents ADF states from reaching full abolition? This problem is one which the late Professor Roger Hood (1936-2020) – whose work provided the foundations for the establishment of the DPRU – raised in his final publication, titled ‘The enigma of de facto abolition of capital punishment’. Hood wrote that engagement with the situation of ADF states should not be overlooked by the abolitionist movement, whose objective “should be to remove the threat of the judicially imposed death penalty, whether enforced by executions or not, from the laws of all countries. By doing so, the moral message that it cannot prevail in any forms, even symbolically without executions, can prevail universally.”

Conceptualisations of what it means for a state to be ADF have been heavily shaped by the idea that ADF status constitutes a temporary phase preceding full abolition. In the UN’s early reports on the death penalty in the 1960s, passage through ADF status was characterised as part of a common trajectory followed by states that eventually abolished in law. Yet ADF status is no guarantee that executions will not resume: in 2022, Myanmar carried out executions after a period of 34 years without doing so; between 1965 and 1988, 13 countries which had reached ADF status went on to resume executions. Roger Hood and Carolyn Hoyle (2015) observe that in ADF states, “[the punishment’s] dormant existence in law can readily be translated into a practical reality in response to a heightened fear of crime or political instability, such that the practice of executing offenders can be revived after decades without use.”

Even if executions do not resume, the retention of death penalty laws can be impactful. The presence of capital punishment can shape criminal justice systems more widely, potentially influencing individuals’ likelihood of pleading guilty in order to avoid a capital conviction; while the very principle of capital punishment alone can serve important ‘symbolic’ and political functions within a country. Prisoners convicted of capital offences in ADF states nonetheless experience the realities of life on death row, in conditions which can differ from those of the general prison population and sometimes involve additional stigmatisation, as well as facing ongoing uncertainty about their future fate. Yet the limited external scrutiny of ADF states can mean that little is known about the situation of death row prisoners and the administration of the criminal justice process leading to their convictions.

A complicating factor in engaging with the ADF concept is that its definition is not universally agreed. While the UN, as noted, classifies states as ADF after a period of 10 years without executions, Amnesty International, in its annual reports on the death penalty, requires the additional condition that the state also has a “policy or established practice” of not carrying out executions. This leads to differences in how the two institutions categorise states, with Amnesty listing only 23 ADF states in its latest global report. These definitions have also evolved notably: at the time of the UN’s early reports in the 1960s, the benchmark for ADF status was set at the significantly higher threshold of 40 years without executions. Alternative formulations for the term itself, such as “suspended retentionist” (Hood and Hoyle), have also been proposed in order to more clearly distinguish ADF states from those without death penalty laws.

Furthermore, recent scholarship in this area has sought to interrogate the meaning of ADF status in greater depth. Challenging the assumption that ADF status is a phase preceding full abolition, Ron Dudai (2023) has argued that for some states, ADF status may in fact reflect a situation of inertia which can grow more entrenched – “increasingly stable” – over time, making full abolition less rather than more likely as time passes. He argues that the ADF category may therefore encompass two distinct groups of states, where “one sees ADF status as a steppingstone towards, or indication of intention to embrace, full abolition in principle; the other employs it as a compromise between retaining the death penalty as a symbol of ultimate state power but not enforcing it.” New scholarship of this kind prompts researchers to expand understandings of the varied factors which may shape states’ ADF status.

The DPRU and the DPP’s new research project is intended to directly take on the question of why states remain ADF, and to encourage wider discourse on this topic. Working with both academic experts and policymakers, the project team seeks to further develop the intellectual framework underpinning the ADF concept, and to produce a comprehensive dataset and interactive online map of ADF states worldwide. As an engagement-oriented project, it is hoped that working directly with policymakers in case study states in Africa and the Caribbean will assist in understanding the particular barriers to abolition in ADF contexts, learnings from which could be used as a template by policymakers elsewhere. For those interested in this topic from academic and/or policy perspectives, we would like to welcome engagement as we launch this project over the coming months.

Daniel Cullen is Project Manager in the Death Penalty Research Unit (DPRU), University of Oxford.

Photo credit: Henry Mühlpfordt via Wikimedia, licensed under Creative Commons CC BY-SA.