07 Mar ADPAN Webinar Series
In conjunction with the World Day against Death Penalty
13 October 2021
Article Contributed by,
Women on Death row and the Future of the Death Penalty in South Asia
The use of the death penalty has unique albeit devastating impacts for women in capital cases. This year’s 19th World Day Against the Death Penalty encouraged advocates of the abolition of the death penalty to more closely consider the particular challenges faced by female death row inmates and their loved ones.
On 13 October 2021, the Anti-Death Penalty Asia Network (‘ADPAN’) convened a virtual forum examining the female experience in capital cases in South Asia. ADPAN was joined by speakers from Justice Project Pakistan, Project 39A, the National Law University Delhi and lawyers working in-country.
What emerged from this gendered discussion was a greater understanding of the impact of the death penalty for women and the potential for effective advocacy in the region.
What are the direct impacts of the death penalty for women in capital cases?
In India, there are approximately 17 women on death row who were convicted of various capital offences, including murder. Comparably, Pakistan which houses one of the largest death row populations in the world, has imprisoned 29 women, most of whom were convicted of murder in addition to kidnapping, terrorism and/or blasphemy. Similarly, Sri Lanka has imprisoned 33 women, which comprises less than 10% of the total national death row population. Of the officially documented prisoners in Bangladesh, 3.9% are women.
In each of these countries, it is common for female defendants to be treated less fairly than males by the judiciary. This is true not only for capital offences, but also for offences which do not attract the death penalty. Dr Anup Surendranath of Project 39A stated that the courts in India display a tendency to engage in gender discrimination and a harsh, if not punitive, attitude towards women. For example, if both a female and male are involved in the offending, the courts will refuse – or at least, are reluctant – to inquire into whether the male held an influence over the female accused. This is problematic because it ignores the possibility of the man exerting control or engaging in violence in order to procure the cooperation or involvement of the woman. Indeed, in Pakistan, approximately 65% of death sentences were delivered despite there being evidence of sexual violence. The courts appear to assume that a female defendant possesses qualities deviating from social expectations of women, explains Sarah Belal of Justice Project Pakistan.
Indeed, women are often punished throughout the curial process, particularly during sentencing when mitigating factors are quickly dismissed, if considered at all. This has only worsened since the emergence of COVID-19. During the pandemic, defence counsel have been unable to properly perform ‘mitigation investigations’. Even if those investigations could be conducted, it is unlikely a court would give appropriate weight to any mitigating factors identified if the accused is female. The ability to make mitigation submissions is further debilitated by a decline of in-person hearings. The gendered and discriminatory treatment of women in capital cases is also seen in the media, with patriarchal or misogynistic reporting of the factual circumstances of the offending. This in turn causes the sexualisation of women in mass media, reinforcing the punitive treatment of females in the criminal justice system, notwithstanding that their guilt or innocence is yet to be proven.
What are the indirect impacts of the death penalty on women?
Sarah Belal explained that while gender-based discrimination in capital cases affects female defendants at trial, it also has adverse impacts at other stages of the criminal process. For example, police are more likely to apply torture to force confessions from women charged with serious offences, such as the death penalty. Further, gender inequalities in prisons are abundant but are not properly managed, primarily because those prisons are administered and governed by men who have failed to provide adequate care addressing women’s needs. In many prisons, the speakers reported that in order to obtain key amenities or access to certain prison infrastructure, such as healthcare, prisoners are forced to engage in a system of bribery. This in turn subjects female convicts to a system of criminality in prison, undermining the rehabilitative objectives of imprisonment as a form of punishment. As a result, many women lack adequate food and bedding. This is, however, particularly problematic in the context of the mentally ill who are unable to obtain a formal diagnosis.
Other inequalities have contributed the plight of women and vulnerable groups who are imprisoned. A large proportion of the death row populations in the countries discussed at the webinar comprise of individuals with low-socioeconomic backgrounds. As such, many are unable to obtain (or retain) adequate legal representation. In some cases, they may not be able to afford an interpreter to attend police interviews or court hearings. The financial burden can shift to family members who may be reluctant or unable to pay for a lawyer. This highlights the questionable status of access to justice in these jurisdictions. The rights to legal representation and interpreter services are fundamental fair trial rights, however, many accused persons are convicted in circumstances where there is a denial of due process.
The effect of a death sentence can also impact the children of women on death row. For example, in some countries, children who seek employment must submit to a police check which can record whether the child has a family member who has been convicted and the sentence which that family member is serving. Consequently, the social stigma associated with criminal offending is attached not only to the woman but also their family members.
How has COVID-19 impacted the use and implementation of the death penalty?
The COVID-19 pandemic has highlighted pre-existing structural inequalities resulting in the imposition of death penalty sentences.
In prisons, there is a great fear of infection. This is caused by several factors including overpopulation. In Pakistan, there are approximately 78-80,000 prisoners, placing the prisons at 113% capacity. Similarly, Bangladeshi prisons are at double capacity. This is combined with a lack of adequate COVID-19 diagnostic testing and treatment facilities. The risk of contracting the virus is compounded by prisoners protesting the inadequate state of the prisons as well as increased imprisonment rates in response to states which maintain a ‘war on drugs’ policy.
The pandemic has had detrimental impacts for due process, particularly in relation to the right to legal representation. As above mentioned, access to legal representation is already limited for many prisoners. However, the replacement of in-person interactions with virtual technology has had further consequences. In India, Dr Anup Surendranath found that online conferencing technologies are difficult platforms through which lawyers can develop rapport and trust with clients and exacerbates communication and language differences. The difficulty is finding a balance between public health and access to justice in prison and remand centres.
In other cases, however, the pandemic has had some positive consequences. For example, it has made imposing or reintroducing executions more difficult. In Pakistan, for example, there has now been an unofficial moratorium on the death penalty for approximately 18 months. This is of course due not only to COVID-19, but also the government’s desire to avoid international trade sanctions due to the importance of trade to the national economy during pandemic times. For example, the risk that the tariff reductions which Pakistan receives under the Generalised System of Preferences (‘GSP’) would be revoked by the implementation of the death penalty has been an effective incentive not to resume executions, says Sarah Belal. Comparatively, the GSP is less valued in Sri Lanka as reported by Ambika Satkunanathan. Evidently, the political cost of retaining the death penalty can impact the decision to implement a moratorium, unofficial or otherwise.
Where to from here?
Ultimately, there remain pervasive barriers to abolition and arguably the challenges are even greater when the accused is a female. While we can be more optimistic in some jurisdictions such as Pakistan, this is not due to the humanitarian policies of the government of the day, but rather the ability of retentionist states to withstand trade sanctions.
The speakers highlighted that what is needed is strategic campaigning and advocacy. In some jurisdictions, this form of advocacy may yield slower progress, and more gradual form compared to others, depending on the political climate. They also identified that there exists a need to educate the public on the death penalty and related rhetoric. This can be achieved not only through traditional advocacy campaigns but also through engaging initiatives such as twitter polls and online informative games or activities. Importantly, the speakers proposed greater collaboration with NGOs advocating for women’s rights.