‘We don’t execute’: The neglected reality of condemned prisoners in ADF countries

Efforts to persuade abolitionist de facto (ADF) countries to formally abolish capital punishment can be met with apathy. A common refrain is that the death penalty isn’t a priority for parliamentarians because the state ‘doesn’t execute’. But such complacency fails to appreciate the physical and mental deprivation caused to a condemned prisoner.

When Britain exported the death penalty to its colonies, it brought with it its regime for housing prisoners before they were sent to the gallows. That regime wasn’t designed for long-term custody, but with an expectation that execution would shortly follow conviction and sentencing - usually in a matter of weeks or, at most, a few months. During the six years that I with worked for The Death Penalty Project assisting persons on death row in the Caribbean and Africa, I found it was not unusual for prisoners in ADF countries to have been living on death row for more than two decades. One prisoner in Trinidad and Tobago had been there so long he was reported to be dead. No one outside the prison knew he was still alive.

18 African countries and all the former British colonies in the Caribbean continue to permit - and sometimes require - death sentences to be imposed on criminal offenders convicted of certain offences, even when the state lacks either the will or the resources to carry out those death sentences anytime soon. Lives might be spared, but there is little inquiry into the quality of life for those prisoners forced to remain indefinitely on death row.

Life on death row

Death row prisoners are often segregated from the rest of the prison population. Reports by inmates of solitary confinement, or of being locked in their cell for 22 to 23 hours a day, are common. Some prisoners complain that time outside in the open air is frequently missed altogether. In countries where condemned prisoners are permitted to interact with other prisoners, their uniforms may be different, singling out their status to other inmates. This can lead to stigma and isolation, especially in countries where there are strong cultural and religious beliefs that discourage association with the offender. Condemned prisoners are not usually permitted to take jobs in the prison and may be excluded from educational and rehabilitative programmes on offer to other prisoners. Their segregation and special status often entail that there is no provision for recreational facilitates.

In Africa, in particular, there is the problem of ostracisation of condemned inmates by their families and communities. The stigma of a death sentence means that the prisoner is, in effect, expelled from their home village. Women on death row are likely to be separated from their children who are brought up to disown them. Even when such women are fortunate enough to have their convictions overturned, or to be pardoned, they have nowhere to go. Research has shown that the death penalty disproportionately affects vulnerable individuals, so that many inmates have unmet needs caused by intellectual disabilities, poor mental health, and physical conditions like HIV.

Prison overcrowding can be a significant problem in countries where offenders are mandatorily or routinely sentenced to death. Poor ventilation and lack of hygiene facilities predominate. Inmates report untreated lice, vermin, and use of buckets as toilets. Disease outbreaks are inevitable. It is not surprising that the Inter-American Court of Human Rights has previously ruled that prison conditions for condemned prisoners in some Caribbean countries violate their right to human dignity,[1] and that the United Nations Human Rights Committee has found the same in certain Caribbean[2] and African jurisdictions.[3]

Psychological toll of a death sentence

Then there is the psychological toll that derives from the imposition of the death penalty itself. While the torture of being under constant threat of execution in retentionist countries is well recognised, few appreciate that even in ADF countries the shadow of death is always there. In Trinidad and Tobago, successive governments, confronted with high murder rates, routinely promise to bring back executions.  In mid-2021, the former Attorney-General said changes were afoot to make death sentences operational so that the country could ‘test’ how effective the punishment was as a deterrent. While the general public might dismiss such statements as rhetoric, prisoners sentenced to death do not have that luxury. They pay close attention, for they know that while the death sentence remains on the statute books, their execution is a possibility. Historically, Trinidad and Tobago would not be the first ADF country to resume executions after a long hiatus.

Some prisoners will have been incarcerated long enough to remember the time when the state was actively executing. One prisoner told me how he had been housed next to the holding cell, where he could hear prison officers making coffins in preparation for a spate of hangings. He described hearing inmates crying and begging for their lives followed by the snap of the trapdoor. At one point, he was scheduled for execution himself, but was reprieved at the very last moment. He said the holding cell was filled with the vomit and faeces of men before him, whose fear had made them unable to control their bodily functions. Even though this experience was over two decades ago, he said he still found it difficult to sleep due to nightmares about being hanged.

Miscarriages of justice

As with any criminal justice system, there is the risk of miscarriages of justice. In many ADF countries, legal assistance during police interviews is rare, as is tape or video recording. Low education levels mean poor awareness of legal rights. Where there is illiteracy, opportunities for abuse of power are increased. Written confessions can find their way into the courts evidenced as true by a defendant’s thumbprint. These alleged confessions can sometimes be the only evidence against the defendant, despite the fact the defendant would have had no means of verifying that what the police recorded in the statement was what they said. Even where there is no bad faith on the part of investigators, multiple tribal languages and dialects in Africa risk miscommunication.

In the case of women specifically, statistics repeatedly indicate that a significant proportion of women who kill have been subjected to domestic abuse or other abusive familial relationships. The prevalence of physical and sexual violence towards women may be widely acknowledged in a jurisdiction, but how that fits with the defence of provocation and sentence mitigation is not well understood. As a result, murder convictions increase, and so does the number of death sentences that are imposed.

In some African jurisdictions, lack of forensic expertise and small communities can negatively affect the quality of an investigation. The comparatively high mortality rate of children throughout the continent means mothers in rural areas are regularly blamed for their child’s death. One prisoner, convicted of the murder of her son, was accused by the paternal grandmother, who had originally been arrested for killing him. It turned out that the new officer in charge of the investigation had been the grandmother’s brother.

A lack of legal aid funding makes correcting miscarriages of justice through appeal difficult. In the Caribbean, most death penalty cases on appeal to the Judicial Committee of the Privy Council (JCPC) are conducted pro bono. In one African country, a prisoner was ‘advised’ by a prison guard that, rather than appeal, a better way to save herself was to pretend to be ‘mad’. She kept the pretence up for months, at the cost of ridicule, ill treatment, and further isolation. Some prisoners really do become mentally unwell after being sentenced to death, or they have untreated conditions, such as psychosis, which deteriorate. For one condemned prisoner who appealed to the JCPC, recognition of his severe mental illness came too late. Although his conviction was reduced to manslaughter, he died before the prison had transferred him to a psychiatric hospital.[4]

Cruel and unusual punishment

The attachment to the death penalty in ADF countries can be baffling. No research has been able to establish a clear link between retaining the death penalty and a reduction in crime. Research carried out across different jurisdictions has repeatedly shown that the general public are less supportive of capital punishment than their governments claim. Meanwhile, the plight of condemned prisoners and the - potentially lifelong - deprivations associated with their incarceration are ignored. With a few notable exceptions where reforms have been made (Kenya, for example), condemned inmates continue to be treated as ‘dead men walking’. While the move away from executions in ADF countries may be progress, there is a risk that one cruel and inhuman punishment is simply being exchanged for another.

Amanda Clift-Matthews is a barrister and former in-house counsel at The Death Penalty Project. She is currently undertaking a part-time DPhil in the Centre for Criminology, University of Oxford.

[1] e.g. Hilaire, Constantine and Benjamin et al v Trinidad and Tobago (2002) IACHR Series C No 94, 21 June 2002 (Inter-American Court of Human Rights).

[2] e.g. Simpson v Jamaica (2001) Case No. 695/1996, views adopted on 31 October 2001 (UN Human Rights Committee).

[3] e.g. Mwamba v Zambia (2010) Case No. 1520/2006, views adopted 10 March 2010 (UN Human Rights Committee).

[4] Robinson v State (Trinidad and Tobago) [2015] UKPC 34 (Judicial Committee of the Privy Council).