The Day Canada Said No to the Death Penalty in the United States: Innocence, Dignity, and the Evolution of Abolitionism
UBC Law Review 55(2): 439-510 (2022).
72 Pages Posted: 1 Dec 2021 Last revised: 13 Jan 2023
Date Written: November 25, 2021
Sociolegal scholarship has explored why the United States stands alone among Western democracies in retaining capital punishment. Yet the focus on America-Europe comparisons has obscured the twentieth anniversary of a landmark Canadian decision, United States v. Burns, barring the extradition of two men wanted for capital murder in America. Intriguingly, it emulated the evolution of American abolitionism by centering on the risk of executing the innocent; and declining to recognize capital punishment as an inherent violation of human dignity as in European law. This Article situates these events in their wider historical, societal, and comparative context, which offers a stepping stone to theorize key questions regarding the evolution of prisoners’ rights.
Miscarriages of justice have always existed and have been a constitutive issue in Western civilization, from the trials of Socrates and Jesus to the birth of the English of Bill of Rights onto the French Revolution and beyond. The tendency to cast innocence as a newfound problem has a neglected underside, as it partly stems from the “tough-on-crime” movement’s rise in American society since the 1980s. As empathy toward the guilty became illegitimate, the anti-death-penalty movement gravitated toward the innocent. Given the United States’ capacity to influence foreign debates, this approach found its way into the Supreme Court of Canada’s reasoning, thereby exemplifying how social actors may be tempted to avoid the normative issues surrounding the death penalty by focusing on innocence. However, abolitionism has had a humanistic component since the Enlightenment, which spurred a larger normative evolution recognizing human dignity as a benchmark of punishment in liberal democracies. Eclipsing human dignity from the death-penalty debate may thus reflect ambivalence toward prisoners’ rights, as attitudes toward capital punishment and imprisonment are intertwined. Despite having abolished the death penalty several decades ago, Canada and European nations remain ambivalent toward protecting prisoners’ human dignity. Meanwhile, the de-legitimization of dignity in the United States helps explain why mass incarceration parallels capital punishment’s retention. Dignity is nonetheless gaining traction as a legal principle in these societies and worldwide. At this critical juncture, the Article provides a window into under-studied chapters of history by analyzing the intersection of dignity, innocence, and liberal democracy.
Keywords: criminal law, criminal procedure, criminal punishment, criminology, death penalty, mass incarceration, dignity, human rights, extraditions, innocence, wrongful convictions, race, Eighth Amendment, United States, Canada, Europe, comparative law, legal history, Plato, Enlightenment, liberal democracy
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