LAWS 115 - Contemporary Issues in Law & Society: Death Penalty Review

This portfolio provides a comprehensive overview of contemporary issues in law and society surrounding the death penalty, focusing on Australia's stance and its efforts towards global abolition. It examines media coverage of cases involving Australian nationals facing capital punishment in countries like the USA, Indonesia, and Thailand, highlighting the role of news outlets such as ABC News and BBC. A literature review delves into the practice of the death penalty worldwide, its unjust application in the USA, and the ethical and legal considerations involved. The portfolio concludes with advice to the Australian Parliament, advocating against the reintroduction of capital punishment and urging continued efforts to promote its abolition internationally, emphasizing its incompatibility with human rights principles. Desklib provides access to this portfolio along with a wealth of other study resources.

Running head: CONTEMPORARY ISSUES IN LAW AND SOCIETY
Contemporary Issues in Law and Society
Name of the Student
Name of the University
Author Note

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Table of Contents
Introduction......................................................................................................................................2
1. Media Coverage.......................................................................................................................3
1.1. ABC News Coverage of the Case of Lisa Cunningham.......................................................3
1.2. BBC Coverage of the Bali Nine Drug Duo Executions.......................................................4
1.3. The Conversation’s Coverage of Antonio Bagnato in Thailand..........................................5
2. Literature Review.....................................................................................................................6
2.1. The Practice of Death Penalty in Different Parts of the World............................................6
2.2. The Un-Just Practice of the Death Penalty in the USA........................................................7
2.3. Imposition of Imperative and Important Requirements for Upholding the Death Sentence
against Felons..............................................................................................................................7
2.4. Capital Punishment and the American Cultural Imagination...............................................8
3. Advice to the Parliament.............................................................................................................9
Conclusion.....................................................................................................................................10
References......................................................................................................................................11

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Introduction
The abolition of the death penalty is a controversial and sensitive subject with
international human rights law condoning the act, and several countries doing away with this
system of punishment altogether (Hodgkinson, 2016). The country of Australia is one such
nation that has decided to put an end to the practice of capital punishment, with Ronald Ryan
having been the last man to be tried and executed under Australian laws in the year of 1967 (Zili
et al., 2016). Human rights researchers, practitioners and lawyers have for a long time being
arguing against such an unjust practice, stating clearly that the right to life is a fundamental
human right that must be guaranteed for all human beings living on this earth, by their respective
sovereign authorities. Yet there are many developed and developing nations of the world that do
continue to practice the death sentence, such as the USA, India and Southeast Asian countries
like Malaysia and Indonesia, largely because of its effectiveness in combating crimes that are
committed against humanity (McLeod, 2017). In Australia itself, the right wing political parties
have been advocating a return to capital punishment, arguing that it can help to invoke fear and
respect for the law and order system in the country while bringing about a fair reduction in crime
rates at the same time (Roberts, 2018). This assignment provides an overview of the media
coverage regarding Australia’s decision to do away with capital punishment and the debate as
how effective the Australian stance on the abolition of the death sentence world-wide should be,
engages in a literature review on the subject of the death penalty and its relevance and
significance and provides a number of recommendations that ought to be considered by the
Australian parliament when faced with the difficult decision of whether or not to incorporate the
barbaric system of capital punishment into the Australian legal system once again. The paper

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concludes that capital punishment is against humanity and undesirable therefore, and must by no
means find any place at all under the law and order framework in any other part of the world and
that the Australian government must work vehemently to put an end to capital punishment in
other developed and developing countries of the world.
1. Media Coverage
1.1. ABC News Coverage of the Case of Lisa Cunningham
ABC News Australia is a daily that has played in leading role in highlighting the
unfortunate situation of Australian National Lisa Cunningham in the United States of America.
Lisa, who formerly resided in the Australian state of Adelaide is now facing death sentencing
alongside her husband, over the murder of her step daughter. Lisa’s family members in Australia
including her parents, are helpless, with her parents being too old and fragile and ill to make their
way to the USA to give her the support that she needs, ABC Australia made an effort to get in
touch with the Department of Foreign Trade and Affairs of Australia to find out what the
government is doing, the steps that are being take etc to give Lisa Cunningham some reprieve
(Puddy, 2018). It may be pointed out in this respect that the Department of Foreign Trade and
Affairs of Australia receives regular operational funding from the Ministry as a part of the
Australian government’s international strategy against the abolition of the death sentence
(Puddy, 2018). Such a strategy is one that is aimed at formalizing the approach of the Australian
government towards advocacy against the death sentence in different parts of the world (Carrier
et al., 2019). When ABC News Australia got in touch with the Department of Foreign Trade and
Affairs, all that it was told was that efforts were being made to provide an Australian living in

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the United States of America with consular support, and that not much else could be divulged on
the part of the department because of reasons of privacy and security. ABC Australia has also
pointed out how Australia has diplomatically failed to send across any message to the US
government regarding its stance against the death sentence and that little or no dialogue has been
carried out with the US government, in spite of the fact that the USA ranks fifth in the world
when it comes to countries that uphold the death sentence (Puddy, 2018).
1.2. BBC Coverage of the Bali Nine Drug Duo Executions
The BBC or British Broadcasting Corporation is also a media house that has covered
the Australian approach to abolishing the death sentence quite extensively. It has been
showcased by the BBC how Australian diplomatic efforts against the death sentence had proven
to be entirely inadequate in the case of the Bali Nine drug ring duo who were executed in
Indonesia after being on the death row for several years. Their attempt to traffic large amounts of
heroin to Australia had been busted after which they had been arrested, sent into rehabilitation
and finally executed (Macguire, 2018). Their situation was particularly one that evoked the
sympathy of people living in different parts of the world, and various sovereign authorities
largely because of the fact that the two arrested had been rehabilitated successfully and were
reformed persons at the time of their execution. The BBC points to how Australia needs to take
on a leading role in bringing about an end to the practice of capital punishment in countries such
as Indonesia and Malaysia, with several Australians having been executed in the former. The
BBC has also pointed to the hypocrisy that is shown by the average Australian citizen in this
respect, with more than sixty to seventy percent of the Australian population being in favor of
the death sentence being abolished in Southeast Asian countries, but who are not willing to say
anything capital punishment as practiced by the United States of America (Macguire, 2018)

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1.3. The Conversation’s Coverage of Antonio Bagnato in Thailand
The Conversation is also a well-known daily that has covered the issue of the death
sentence as it is practiced in several countries of the world and the Australian approach towards
abolishing this practice. The Conversation highlights the dangerous situation that an Australian
man of the name of Antonio Bagnato is in, in the country of Thailand following his scuffle with
Warren Schneider, a brawl that resulted in the death of the latter (McLnerney, 2015). Thai courts
had done away with the act of capital punishment following a moratorium that was declared in
2009. As, The Conversation rightly points out, the fact that the country chosen to resume this
barbaric practice following a moratorium indicates that this is a step backward for Thailand and
not a forward one. Thai courts are of the impression that the fight with Warren Schneider had
been instigated if not arranged by Antonio Bagnato and that he is therefore eligible to be tried
under the death penalty provisions of the country1. The Conversation reiterates in its piece how
the Australian national leadership needs to take on an active role not only into looking into the
case of Antonio Bagnato but also many other Australian nationals who are facing death sentence
in Thailand. Such efforts need to be particular intensified in the light of the failure of the
Australian government to secure reprieve for the Bali Nine drug duo. The Australian leadership
needs to go all out in showcasing before the world that upholding the death sentence is not the
answer to resolving crime as reflected in the views of The Conversation (McLnerney 2015).
2. Literature Review
1

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2.1. The Practice of Death Penalty in Different Parts of the World
Maguire and Houghton (2016), investigate in their research, how the death penalty is
upheld as the highest form of penalty against criminal behavior in a number of different
countries. Their work looks at the death penalty as it is practiced by certain nations of the
world while also taking a close look at the nations that are opposed to capital punishment.
The researchers argue how international legal commitments can be upheld by a country such
as Australia in its effort to speak out against the practice of capital punishment in the
countries where this is upheld, given that several Australian nationals have been executed on
foreign territory for the crimes that they have supposedly committed. What the researchers
essentially posit in this piece of work is that upholding the death sentence is to be perceived
as a human rights issue; it is tragic and barbaric and should not be allowed to continue in any
form. Maguire and Houghton (2016), conclude, that more effective and prominent advocacy
on the part of the Australian government can certainly help to bring about an end to the
practice of capital punishment at the nationwide level. The Australian government in their
view needs to be far more proactive than it is at the moment in pointing out the futility of
upholding the death sentence, before other sovereign powers of the globe, thus playing a vital
role in its ultimate extinction (Tully, 2016).
2.2. The Un-Just Practice of the Death Penalty in the USA
Marcus (2007), has touched upon the sensitive and difficult topic of capital punishment in
his work, stating that the practice of the death penalty in the country of the United States of
America is something that has been exposed to a lot of criticism and flak both domestically
as well as on an international level. A number of concerns have been addressed by Marcus

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(2007), in his work, all of which are related to the effectiveness of death penalty as a
punishment, over and above the morality of it, the unevenness with which this particular
penalty is imposed as well as the procedural problems that are likely to arise at the time of
implementation of the death sentence. Marcus (2007), argues, that while the constitutionality
of the death sentence is something that has been confirmed well enough by the Supreme
Court of the USA, specific uses of the capital punishment in specific circumstances has been
struck down heavily by the court. What Marcus (2007), argues in conclusion is that while the
practice of the capital punishment in the USA is an act that is definitely to be condemned,
such a practice is also seen to be in vogue in a number of other countries of world as well as
such as in Singapore and in the People’s Republic of China. Marcus (2007), raises the crucial
question in the course of his work, that, if death penalty as a punishment is being widely
done away with, why does its implementation still continue to be so widespread as well.
2.3. Imposition of Imperative and Important Requirements for Upholding the Death
Sentence against Felons
Binder, Fissell and Weisberg (2017), state in their research that under the Eighth
Amendment of the American Constitution, defendants who end up causing the death of a
person in inadvertent fashion while a felony is in progress is something who is eligible to be
tried for death penalty. The researchers engage in the study of a number of decisions that
have been taken on the part of the US Supreme Court such as the decisions in cases like
Tison versus Arizona and Emmund versus Florida, where culpability was required to be
shown as well for participants in a felony, who were not actually involved in the process of
killing. Binder, Fissell and Weisberg (2017), demonstrate in the course of their research that
both the selection of offenders as well as an assessment of culpability needs to be undertaken,

8CONTEMPORARY ISSUES IN LAW AND SOCIETY
in order to spare innocent people from being tried under the death penalty provisions of the
country. What Binder, Fissell and Weisberg (2017), argue in conclusion, is that such an open
question is something that needs to be addressed under laws pertaining to the Eighth
Amendment on the part of the Supreme Court, and that a uniform requirement for selection
of death penalty offenders must be imposed on lower courts, such as recklessness at the very
least, if the death sentence is to be declared and then implemented for a felony such as
murder.
2.4. Capital Punishment and the American Cultural Imagination
Lynch (2017), talks about capital punishment as it is perceived in American cultural
imagination. Lynch does so, with close reference to the text Execution Freedom by Daniel La
Chance, stating that it is one of the most important bodies of scholarship for understanding
the travesty that death penalty is and how it needs to be consciously avoided by governments
in every part of the world, the USA notwithstanding. Lynch (2017), also alludes to the
decision that was taken on the part of the court in the case Mc-Cleskey versus Kemp (1987),
in which compelling empirical evidence was disregarded of very widespread racial
inequalities, during the operation of the death sentence, while shutting the door at the same
time to the imposition of a number of systemic challenges that are posed when it comes to
upholding the death penalty. What Lynch (2017), argues, in the final analysis, is that the
implementation of the death penalty is an oppressive act, and that it does little to ensure
justice and the upholding of law and order over the long term.
3. Advice to the Parliament

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The Australian parliament should be encouraged to pursue its abolitionist stance towards
capital punishment as far as possible. This is because the death penalty is a punitive action that
violates the right to life (Keim & Armstrong, 2015). The right to freedom from the infliction of
ilva person (Silverman, 2016). It is an unusual and cruel form of punishment as a result of which
many progressive sovereigns like the United Kingdom for instance, has decided to do away with
it (Kim, 2016). Since Australia is an important member of the Commonwealth of nation’s it
should take its cue from the UK and encourage other countries to do away with this form of
punishment, given that Australia itself took the brave stance of abolishing the death sentence so
many years ago in 1967 (Schabas, 2016). The death sentence should be something that the
Australian government is encouraged to get other countries to abolish, primarily because of the
fact that it is hugely deterrent in its value, it is also very costly where monetary terms are
concerned and it next to impossible to make sure that innocent people shall not get prosecuted
when such a form of punishment is implemented (Novak, 2018). The abolitionist stance adopted
by the country of Australia towards the death sentence as it is practiced in several counties of the
world is a commendable effort, but the government of Australia needs to be far more persistent
in its efforts if such efforts are to be effective in the long term (Quinlan, 2017). It needs to press
the idea of doing away with the death sentence at international meetings and forums especially
during meetings that are conducted by the United Nations so that it is able to convince other
governments in a more effective way as to why the penalty needs to be done away with in the
first place (Ehrlich, 1977).
Conclusion

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Thus, while Australia did a successful job of doing away with the death sentence several
years ago in 1967, there is a lot more that it can do in terms of convincing other governments of
the world to do the same. The rate at which Australian nationals are being executed or are
serving on the death row in other countries, notably in the countries of Southeast Asia is quite
alarming, and is indicative of the fact that the Australian government has far more to do as far as
pushing its abolitionist stance towards the death penalty is concerned. The strategy that has been
undertaken on the part of the Australian government to abolition the death sentence as practiced
in other parts of the world is a commendable one. Capital punishment is cruel and inhuman and it
should not be allowed to exist in any sovereign nation, as it deprives an individual of his or her
right to life. The right to life is something that is regarded to be a fundamental human right. Such
a right most definitely needs to be respected and granted by all governments, democratic and
otherwise. Capital punishment also does not assure the government or citizens of a country, that
crimes of an inhuman nature will not continue unabated. The upholding of the death sentence is
especially tragic in instances where the accused undergo a process of rehabilitation, become
reformed but are executed anyway, as is evident in the case of the Bali Nine Drug duo. Both the
accused were executed in spite of having been successfully rehabilitated and after having
become gainfully occupied and productive with their lives. Hence Australia must continue to do
all that it can to make sure that other sovereign powers of the world which are in favor of the
death sentence, realize the futility of this form of punishment.

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References
Binder, G., Fissell, B., & Weisberg, R. (2016). Capital punishment of unintentional felony
murder. Notre Dame L. Rev., 92, 1141
Carrier, N., Piché, J., & Walby, K. (2019). Abolitionism and Decarceration. The Handbook of
Social Control, 319
Ehrlich, I. (1977). Capital punishment and deterrence: Some further thoughts and additional
evidence. Journal of Political Economy, 85(4), 741-788
Hodgkinson, P. (2016). The International Library of Essays on Capital Punishment, Volume 3:
Policy and Governance. Routledge.
Keim, S., & Armstrong, B. (2015). Fighting to the death: Thoughts for anti-death penalty
activists to make further progress towards the goal of an end to judicial and extra-judicial
executions. Pandora's Box, (2015), 65.
Kim, D. (2016). International non-governmental organizations and the abolition of the death
penalty. European Journal of International Relations, 22(3), 596-621.
Lynch, M. (2017). Capital Punishment and the US Cultural Imagination: Daniel La-Chance's
Executing Freedom. Social Justice, 44(4), 144-147.
Macguire, A. (2018). As Thailand resumes executions, Australia must push its abolitionist
stance. Retrieved from http://theconversation.com/as-thailand-resumes-executions-
australia-must-push-its-abolitionist-stance-98853