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Abstract

Literature on opposition to the death penalty typically characterizes abolition as inexorable and attributes its fulfillment to the age of human rights. Although most countries abolished capital punishment after the Universal Declaration of Human Rights in 1948, this article uses three comparative case studies to demonstrate abolition’s entanglement with a broader range of political, legal, and cultural factors. Applying a historically grounded nonteleological approach, we offer three insights. First, civilizationist values drove abolitionism in countries in the “vanguard,” such as Canada and England/Wales, where human rights rationales were expressed well after abolition and as a mark of superiority. Second, death penalty abolition has often allied with decolonization and penal reform, but assertions of independence and sovereignty have periodically provoked reinstatement, as in Mexican and Philippine history, which underscores the fragility of abolition. Third, state-centric approaches to de jure and de facto abolition overlook the practice of extrajudicial and summary “rebel” executions in polities such as Myanmar and Mali, which lack a state monopoly on force. Further historical studies that do not presuppose a human rights explanation of abolition and that compare jurisdictions within as well as between the Global North and South will better grasp the death penalty’s complex history.

Keywords

death penalty abolition comparative studies punishment politics history human rights postcolonial studies

Most contemporary accounts of the death penalty's abolition are based on a history of penal progress that escalated in the era of human rights. Gravitation toward a purported international norm, typically traced back to the Enlightenment, accelerated as conventions, covenants, and protocols proliferated two centuries later, defining the death penalty as a violation of human rights (Jouet, 2023). From the quill pens of philosophes to the blog posts of grassroots activists, “the abolition of the death penalty is rapidly becoming a norm of international law,” thereby fostering a sense of optimism (Bessler, 2009: 203). In the global trend toward abolition, states that have lagged and those that refuse to follow have been identified as outliers that will ultimately join the fold. Support for abolition, previously associated with Western polities, is increasingly evident in African and former communist countries. Despite recent upticks in death sentences passed in retentionist jurisdictions, there is still a “glimmer of hope” that the trend Amnesty International has helped to foster, from 16 abolitionist countries in 1977 to close to 150 by the 2020s, will persist (Amnesty International, 2023). Prominent abolition scholars have acknowledged that the roads to ending the death penalty may differ, but maintain these paths orient to the same destination of shared values through “constant progress” (Schabas, 2004: 419). Aiming to aid abolition, this body of scholarship enlists the past to service a future free of the death penalty.

Nevertheless, there are several problems with this progressivist orientation in the history of abolition. First, it demonstrates the “is-ought problem” by moving from descriptions of dominant historical trends in capital punishment and torture to what should be—the de jure defeat of the death penalty as the fulfillment of human rights in the present (Dudai, 2023; Moyn, 2011). Second, it positions human rights as the prime generator of the trend, based on the rapid increase in the number of abolitionist countries after their formal declarations in the mid-20th century, with European and other Western countries in the lead (Schabas, 1998; Zimring, 2003). And third, it makes unnecessarily sharp distinctions between abolition and retention, de jure and de facto (Haines, 2004). To tackle these problems requires a more critical analysis of the politics of abolition that focuses on the character of its advocacy and its opposition across time and jurisdictions (Jensen and Burke, 2024).

A nonteleological diachronic approach to the death penalty's history, based on comparisons between polities, challenges the notion of a global abolition “movement” or “timeline,” despite the appealing cadence of these optimistic metaphors (Yorke, 2008). As this paper demonstrates, abolition has had many ideological and political fellow travelers aside from human rights, both historically and in the recent past. Studies based on the history of the death penalty in the United States in comparison with other democracies have long questioned the claimed linkage between liberal democracy and abolition. However, contrasting America to the rest of “the West” produces a limited range of questions and insights. Even scholarship that interrogates similarities between the United States and other retentionist jurisdictions still makes the former the focal point of analysis (Garland et al., 2011). Hood and Hoyle observe that “the concentration on the United States inevitably means that the findings provide a rather distorted and partial view of the death penalty looked at in its worldwide context” (2015: 3). A comparative approach need not center the United States to explore how support for abolition, retentionism, and reinstatism has been articulated, mobilized, and put into policy.

This paper draws out underexplored strains of abolition's history by comparing three pairs of countries with similar histories—England/Wales and Canada, Mexico and the Philippines, and Mali and Myanmar. Building on recent studies that emphasize the need for “contextually and historically specific histories” of the death penalty beyond the concentration on the “Global North” (Black, 2022: 164), our pairings of jurisdictions question the utility of dividing “North” from “South” to capture the complexity of abolition's history, due to significant differences within, and not just between, that dichotomy (Patrick and Huskins, 2023). We demonstrate this by examining the politics of abolition in liberal parliamentary democracies, colonial and postcolonial polities, and de facto abolitionist states. Our study also highlights the need to identify and integrate numerous forms of governing authorities, not just nation states, to explain the diverse histories of capital punishment, its use, and disuse. As Daniel Little asserts, a comparative approach is the ideal vehicle for a “conjunctural contingent mesohistory” that foregrounds contingency, recognizes the role of individual and group agency in influencing the course of history, and anticipates a multiplicity of causes in historical change (Little, 2000: 90).

Following this methodological prescription, we bring the distinctions commonly made between “retentionist” and “abolitionist” countries and between the death penalty's judicial and extrajudicial character into question. Drawing on evidence from our case studies, we ask: what arguments and tactics have informed abolition and its opposition in different regimes? What leaders, groups and institutions have shaped the politics of abolition? What events and forces, internal and external, have retained, abolished or reinstated the death penalty under changing historical circumstances? What legal and political mechanisms have sustained or rejected de facto abolition? Answering these questions requires tracking the “conjunctural unities and the particular articulations” of abolition and resisting the a priori assumption of its correspondence with the triumph of human rights (Decoteau, 2018: 96).

Canada and the United Kingdom: The postwar vanguard and human rights in retrospect

Delegates from Canada and the United Kingdom were significant players in the negotiations that led to the adoption of the UN Declaration of Human Rights in 1948. A Canadian lawyer wrote the first draft, and eight years earlier, British intellectual H.G. Wells published a tract titled “the rights of man.” In the 1950s, both governments conducted major inquiries into capital punishment and its possible abolition (Jayewardene, 1972: 370). Members of Parliament in the United Kingdom and Canada prepared abolition bills that required the endorsement of the upper house, granted first in England/Wales in 1969 and seven years later in Canada (Strange, 1995; Twitchell, 2012). Aside from this slight difference in timing, no executions were carried out in Canada after 1962 or in England or Wales after 1964. By the mid-1970s, both jurisdictions became mid-point members of the abolition club. Yet appeals to align national penal policy with human rights values did not drive the course of abolition. Well into the 20th century, aspirations to “civilization” focused on what it meant to be British, what it meant to be Canadian. Freighted with imperial and racist baggage, a civilizationist discourse infused British and Canadian death penalty politics (Celermajer and Lefebvre, 2020: 8–9). As the next section argues, it was only in retrospect that politicians identified human rights as the ideal that led to de jure abolition.

The assumption that all abolitionist countries appear alike, based on the causal explanatory framework of human rights, seems apt at first glance for Britain and Canada. Nevertheless, as Garland cautions, each country's penal politics draws on “distinctive national forms in a context of specific local meanings” (Garland, 2010: 22–23). The shared common law tradition, the national governments’ constitutional authority to formulate criminal law, and parliamentarians’ preparedness to lead, rather than follow, public opinion provide ample grounds to consider Canada and England/Wales as exemplary of the “vanguard” of liberal democracies that rejected the death penalty as state policy (Hood and Hoyle, 2015: 41). However, the death penalty's history in the “mother country” and the dominion, both members of the “Global North,” differed. The role of the judiciary, the character of the upper house, the machinations of the party system, the demographic makeup of each nation's population and the proximity to retentionist and abolitionist jurisdictions were key differences that produced unique national and international reference points in the death penalty's politics, traceable through parliamentary debates over abolition.

Seeding abolition: Restricting the death penalty

England's past includes some of the most brutal and encompassing capital statutes in the modern period, and the metropole also profited from the enslavement of Africans. From the late 18th century, campaigns to make the “Bloody Code” less sanguine and the cause of antislavery conjoined (Devereaux, 2023). In fact, up to the mid-19th century, calls for “abolition” referred not to civil punishment but to the end of slavery, which began with the trade's abolition in 1807, followed by the freeing of enslaved persons in 1833. Four years later Parliament radically narrowed the scope of capital offenses, but most criminal law reformers insisted they supported the death penalty's retention. Antislavers asserted that their goal was to bestow on the Empire's slaves the rights enshrined in the 1688 Bill of Rights, namely the “ordinary privileges of freemen—those common but indispensable rights without which liberty could be nothing but a name.”¹ By contrast, bills introduced from the 1840s defined the death penalty's abolition in terms of “civilization” rather than rights. Death penalty retentionists, meanwhile, appropriated the aspiration to civility by supporting the restaging of executions to the inner chambers of prisons in 1868 (McGowen, 1994).

The former British North American colonies that federated as the dominion of Canada in 1867 followed suit in 1870 by ending public executions. This was one measure in a suite of criminal statutes the dominion's leaders deemed fit for the new polity's unique challenges. Racism and internal colonization inflected nation-building in Canada's early years, but the process was also riddled with fears of its nearest neighbor, recently destabilized by the Civil War. This meant that British law could only guide, not dictate Canada's criminal statutes. One example was the application of the death penalty to rape and carnal knowledge, which England had already abolished in 1840. The dominion's need to deter “blackguards” and “negroes” prone to making “felonious assaults on white women,” justified retaining the death penalty for these offenses, according to the first Prime Minister, John A. Macdonald (Strange, 2018: 539–540). One Senator insisted Canada's position was “different from that of England, from our proximity to the United States,” from which criminals came and to which criminals fled. The abolition of the death penalty in bordering U.S. states—Michigan and Wisconsin—was considered a further threat to Canada's security, not an inspiration. Although carnal knowledge was stricken from Canada's capital statutes in 1877, the death penalty remained as a nonmandatory penalty for rape, and men convicted of that crime continued to face the prospect of execution in Canada until 1954, more than a century after England lopped the offense off its list of capital crimes.

Civilization and parliamentary posturing in the early 20th century

In the 1910s, Canadian parliamentarians began to consider what the U.K. Parliament had debated 50 years earlier—the death penalty's abolition—but the national and international context for abolitionism and retentionism had shifted. The United States had leapt ahead of both countries, as a cluster of states, including Southern ones, joined a growing group of abolitionist jurisdictions. Britain, the “professed pioneer in our humanitarian reforms,” had abdicated its throne, one abolitionist observed. Unless Canada was “willing to stand self-convicted of a lower civilization,” it must follow abolitionist jurisdictions.² But civilization was a volatile signifier that could also be used to justify retention, especially at a time when “foreigners”—migrants from southern, eastern, and northern Europe—appeared to threaten the “peaceable” dominion. In a 1915 debate over an abolition bill, the Minister of Justice insisted Canada needed capital punishment due to the alarming number of murders committed disproportionately by recent immigrants, many of whom came from countries such as Italy, which had already abolished the death penalty. “We are getting flooded with a population who are accustomed to think that you can kill your neighbour but that your life is so sacred” (Strange, 1995: 614–615). To deter those less civilized and to protect civilized Anglo-Saxon society, Canada required the death penalty.

Civilizationist rhetoric also informed the politics of capital punishment in Britain's parliament, but it led there to the further amelioration of the death penalty. In 1922, a new offense of infanticide was introduced to preserve accused mothers from the threat of execution, and in 1930 an amendment to the Army Act removed cowardice and desertion from military offenses punishable by death (McHugh, 1999). Abolition agitation rose substantially after the first Labour government formed in 1924, and in 1928, the House of Commons voted by a majority of one in favor of an abolition bill, promoted to keep pace with the advancement of education and civilization. By contrast, reference to “rights” was made narrowly through the lens of gender. As one Labour MP argued, now that “women could claim equal rights with men,” it should be equally “repugnant” for the state to execute a man or a woman.³ Retentionists disagreed. In a civilized state, the rights that mattered were already enshrined in the accused's right to a fair trial, further anchored by the establishment of a Court of Criminal Appeal in England in 1907 (Potter, 1993). This was the tenor of the rights argument in the 1920s, after which abolition's political momentum dissipated, not to regenerate until the late 1940s.

Abolition and civilization in the age of human rights

In the context of the Cold War, both rights and civilization took on new meanings in relation to the death penalty in democratic versus totalitarian and communist states. The adoption of the UN Declaration of Human Rights occurred the same year the U.K. Parliament established a Royal Commission to determine whether the death penalty “should be limited or modified, and, if so, to what extent and by what means,” and to advise what punishment should replace it. Although its terms precluded the consideration of abolition, the Commission's final report, tabled in 1953, presented compelling evidence that the death penalty provided no unique deterrent effect. Retentionists mounted a counter attack in two ways: first they referred to the public's support for capital punishment, affirmed by published opinion polls; second, they used the rhetoric of rights—the rights of citizens—to be protected by a penalty that recognized the gravity of murder (Bailey, 2000). Only a government of autocrats would ignore the will of the people and their long-enshrined rights. It took a committed abolitionist Prime Minister with a Labour majority government to pass a bill in 1965 that imposed a five-year moratorium, argued on the basis that inflicting a “barbarous penalty” was unbecoming of a civilized society (Wright, 2014: 137). Although the UN Declaration of Human Rights had been introduced two decades earlier, the resolution to end the death penalty on a permanent basis was articulated in 1969 through the language not of rights but of civilization.

In Canada, death penalty moratoria also preceded de jure abolition, but it unfolded in a more protracted manner. Minority parties and backbenchers supported several private members’ bills in the late 1950s and early 1960s, one of which explicitly connected abolition to Canada's Bill of Rights—“An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms”—adopted in 1960. That act did not rule out the death penalty, but it did prohibit any punishment that was “cruel and unusual.” Was it not torture under the Bill of Rights, one MP chided, for a condemned offender to anticipate death by hanging?⁴ Yet, this rights-based rationale for abolition was an exception in pro-abolition arguments. In fact, it was retentionists who invoked rights to support their cause. Some MPs complained that solicitude over offenders’ rights had tipped perilously in favor of criminals: “It is ridiculous to see what is being done and said in the name of liberty, human rights, and civilization.”⁵

As Canada's murder rate rose over the late 1960s and early 1970s, the emotive victims’ rights movement lent potency to critiques of offenders’ human rights. Retentionists also used rights-based arguments to wedge politicians who supported abortion's decriminalization. In a debate over the 1976 abolition bill, retentionists taunted abolitionists for believing the unborn had no right to life while they insisted “the murderer who kills his victim should not be touched.”⁶ Only one MP reminded Parliament that Canada had become a state party to the International Covenant on Civil and Political Rights (ICCPR) when he argued it would be a “supreme irony if Canada … should reject the bill and start again this horrible aspect of the criminal justice system, execution by hanging.” However, he closed by returning to more tilled ground: “Surely it is time for Canada to take its place among the civilized nations of the world.”⁷

In the decades since England/Wales and Canada abolished the death penalty, two factors have brought the countries closer together over penal politics: periodic efforts to reinstate capital punishment and opposing assertions that international human rights norms support abolition and set an example that retentionist states should follow. Yet, the pride both governments express in their longstanding abolition club membership cloaks the cracks in the politics of the death penalty in each country, further obscured by the distinctions each has drawn between more and less “advanced” countries and civilizations.

Mexico and the Philippines: Death penalty abolition as postcolonial restraint of power

From two countries in the “vanguard” of abolition, we move to Mexico and the Philippines—both former colonies that share a more complicated relationship with the death penalty. Because Mexico and the Philippines formally abolished the death penalty recently (2005 and 2006, respectively) they fall within what scholars call the “new dynamic” of post-Cold War abolition (Hood and Hoyle, 2017: 408). However, using the metric of complete abolition may overlook older traditions of death penalty restraint prior to the advance of human rights. Histories of abolition premised on de jure abolition at the nation-state level may not sufficiently decenter imperial and European hierarchies to account for divergent penal expressions (Black et al., 2021). Comparative historical analyses of Mexico and the Philippines show considerable variation in abolitionism that does not align with a Eurocentric explanation of diffusion based on human rights values (Anckar and Denk, 2024). In these two postcolonial polities, the death penalty was abolished via an irregular series of setbacks and advances, as opposing views were co-opted into compromises and as new legal structures appeared that did not fully replace old ones.

In both Mexico and the Philippines, opposition to the death penalty was ancillary to broader debates over the limits of government power. These debates occurred during a period of U.S. imperialist expansion following centuries of Spanish rule, which imparted a Roman Catholic religious tradition. In Mexico, death penalty abolition was made contingent on the establishment of a modern penitentiary system, a goal of progressive reformers in the 1850s. In the Philippines, death penalty politics were embedded in nationalist discourse and a prolific tradition of extrajudicial executions. Considering all forms of colonial state violence alongside formal penalties provides a more complete account of the complexities of colonial coercion and control, including reliance on proxy actors (Sherman, 2009). Formal abolition framed in human rights terms obscures deeper causal variables of penal reform, such as Catholic influence, anti-imperialism, as well as Enlightenment-era and nationalist debates about the role of the state. When support for restraining state power was high, as during the Mexican constitutional drafting process or the Philippines’ colonial occupation, death penalty opposition peaked. Retentionist views prevailed when deference to the state predominated, as at independence.

Death penalty abolition as derivative of early criminal justice reform: The case of Mexico

Like the United States, Mexico's federal and state governments have enacted, abolished and reinstated the death penalty. Abolitionist sentiment first emerged in the 19th century, allied to efforts to establish a modern penitentiary system, leading to long periods of death penalty nonuse. After independence in 1821, instability resulted in widespread politically motivated executions. In 1855, the overthrow of strongman Antonio López de Santa Anna provided the impetus for abolition for political crimes (Timmons, 2005). Although liberal members of the constitutional convention's drafting committee pushed for abolition for ordinary crimes too, they agreed on a compromise that made death penalty abolition contingent on the founding of a system of penitentiaries, as codified in Article 23 of the 1857 constitution. This compromise reflected the idealism of a new generation of educated and socially mobile progressives who dominated the drafting process. They believed in the Enlightenment notion that criminal behavior was the result of individual choices rather than innate traits, but were also sensitive to crime control concerns due to instability and brigandage after territorial losses to the United States (Timmons, 2005: 82).

After 1857, the Mexican intelligentsia stressed the contingency of death penalty abolition on the establishment of modern penitentiaries. President Benito Juárez (1858–1872) approved plans for a new Federal District penitentiary in 1868 and funds were appropriated in 1871. Despite vigorous lobbying, unrest delayed the opening of Mexico's first modern penitentiary until 1900 (Buffington, 1993). According to jurists of the time, the death penalty was only appropriate under martial law or when suitable detention was not possible, a view that President Porfirio Diaz endorsed (Shipley, 1907). Diaz used his commutation powers extensively, preventing most executions during his time in office (Piccato, 2001).

A new constitution, drafted after the Mexican Revolution in 1910, reflected positivist ideas of practical, scientific solutions that prevailed over the idealistic liberalism of 1857 (Buffington, 1993). The new 1917 constitution preserved the pragmatic compromise that viewed the death penalty as a temporary measure. Article 22 of the 1917 constitution prohibited the death penalty for political crimes but permitted it for “high treason … parricide, murder that is treacherous, premeditated, or committed for profit, arson, abduction, highway robbery, piracy, and grave military offenses.” The view that the death penalty was no longer needed prevailed under the reformist President Emilio Portes Gil, who abolished the death penalty in the Federal District penal code when it was revised in 1929 and 1931 (Meade, 2010). In the next decade, eleven other Mexican states abolished the death penalty in their own codes.

The death penalty's abolition at the state level in Mexico evidences the durability of the original 1857 compromise. Although the federal death penalty remained on the books until 2005, by the late 1960s all but three states of 29 had abolished. The last state to carry out an execution and the last to abolish the death penalty for ordinary crimes was Sonora in 1975 (El Universal, 2020). Additionally, the 1857 compromise insulated political officials from popular sentiment calling for reinstatement of the death penalty, especially after sensational murders. In 1942, a notorious serial killing prompted the legislature to hold a full hearing on death penalty reinstatement before voting it down (Meade, 2010: 359). When President Vicente Fox (2000–2006) proposed final abolition to bolster Mexico's leverage in protesting executions of its citizens in Texas and other U.S. states, the motivation was not simply to be a foil to the United States. Rather, Fox aimed to prevent an opposition party from reinstating the death penalty in a state referendum (LADB Staff, 2003). Mexico's long tradition of restraint was not a guarantee against backsliding, but rather represented a partial process prone to compromise and the occasional reversal.

Death penalty abolition as anti-imperialist project: The case of the Philippines

In the Philippines, views on the state's role in deciding life and death alternated between restraint and expansion depending on political context. Like the Spanish before 1898, the American colonial establishment used the death penalty against insurrectionists such as Mauricio Sakay, leader of the short-lived Tagalog Republic (1902–1906). Despite a “vigorous outcry for executive clemency,” Sakay was hanged in 1907 after he unconditionally surrendered (Cullinane, 2009: 63). During the period of the Insular Government (1902–1935), American authorities attempted to modernize Philippine criminal justice by adopting reforms such as parole. One reform, in 1923, was the electric chair. According to its legislative sponsor, electrocution was more humane than the “ignominious and barbaric” method of hanging, or worse, the Spanish garrote (Ariate, 2019). Like the abolition of public executions in 1906, the electric chair reflected punishment's modernity as “institutionally ordered and discursively represented in ways that deny the violence which continues to inhere in its practices” (Garland, 1991: 150).

President Franklin Roosevelt's overwhelming victory in 1932 created space for progressive priorities in the Philippines, including women's suffrage. The last American governor-general, future U.S. Supreme Court Justice Frank Murphy, was a devout Irish Catholic and lifelong abolitionist. After his appointment to Manila in 1933, he implemented a moratorium and commuted every death sentence to imprisonment (Zipes, 2021). Upon Murphy's arrival, then-President of the Philippines Senate Manuel Quezon encouraged Murphy to show his faith “very openly and plainly,” which delighted the local Church hierarchy (Fine, 1979: 31–32). Quezon publicly defended Murphy when he commuted several death sentences in July 1935, preventing a backlash and contributing to sympathetic newspaper coverage that described his decision as an act of conscience (Manila Times, 3 August 1935). During the Commonwealth period (1935–1946) Quezon, as the newly elected president, continued the moratorium until his death in 1944 (Lunt, 1962: 89). In his autobiography, Quezon recalled Filipino independence hero José Rizal, executed by the Spanish government for rebellion in 1896: “This story had something to do with my reluctance to believe that capital punishment should ever be carried out …. [D]uring my presidency, no man ever went to the electric chair” (quoted in Ocampo, 2016).

The death penalty was reinstated at independence in 1946, justified as the prerogative of a sovereign government. The Philippines carried out 17 executions of Japanese war criminals between 1948 and 1951, but the government issued pardons to hundreds of others in exchange for reparations (Lawson, 2013). The significant political role of the Catholic Church helps explain the reluctance to embrace capital punishment even during times of penal populism and authoritarian retrenchment. The Catholic Bishops’ Conference of the Philippines (CBCP) was a persistent source of opposition to the Ferdinand Marcos dictatorship (1965–1986), founding several human rights initiatives that doggedly protested political detention, disappearances, and public executions (Sanchez, 2017). The death penalty was abolished in 1987 under President Corazon Aquino, reintroduced in 1993 under President Fidel Ramos, and abolished again under President Gloria Arroyo in 2006 (Tagayuna, 2004). At each step, the CBCP bolstered the abolitionist resistance by convincing Philippine legislators that death penalty retention could cost votes (Colmenares, 2023). Even after 2016, majorities of religious Catholics opposed President Rodrigo Duterte's populist proposals to reinstate the death penalty, by contrast to support from Protestant and Evangelical minorities (Sicat et al., 2017–2018).

The narrative of abolition in the Philippines masks a more significant history of extrajudicial executions to create a circumstance that Johnson (2020: 57) refers to as “abolitionist lite.” At least 3000 extrajudicial executions took place in the Marcos dictatorship, compared with only 31 judicial ones (Johnson, 2020: 53). Thousands more extrajudicial executions occurred during Arroyo's abolitionist presidency. After 2016, Duterte implicitly encouraged extrajudicial executions for drug traffickers carried out by private vigilantes, which resonated with sectors of the public critical of the dysfunctional criminal justice system (Johnson, 2020). While extrajudicial executions encompass all extralegal modes of targeted killing, the term “vigilante” refers to private actors “seeking to mete out their own brand of extrajudicial law enforcement,” as distinct from lawful acts of self-defense in the absence of state authority (Moore, 2013: 1659). The example of the Philippines shows that even these distinctions are not as clean as they suggest. The Philippines’ unique brand of “state vigilantism” refers to government endorsed targeted killings, usually through police encounters, disguised as actions of concerned private citizens (Raffle, 2021).

This comparison of death penalty politics in Mexico and the Philippines suggests that the role of nationalist and anticolonial discourse in abolition is ambiguous: colonial use of executions may create skepticism of the death penalty, but optimism over the nationalist project sees state power as a form of self-determination (Hynd, 2024). In both nations, durable traditions of death penalty skepticism waxed and waned. The political role of Roman Catholicism contributed to the nonuse of the death penalty. Mexico had a century-long record of abolition at the state level and longtime desuetude of the federal death penalty. In the Philippines, periods of death penalty decline always coexisted with extrajudicial state killing, sometimes outsourced to private vigilantes. Histories that focus on complete abolition at the national level or that study countries’ treaty ratifications or UN votes overemphasize the straightness of the abolitionist “path” (Dudai, 2023: 142) and make assumptions not only about the stages and timing of abolition, but also positivist notions of statehood and state authority to enact and enforce laws (Provost, 2021).

Mali and Myanmar: The persistence of state killing in nominally abolitionist jurisdictions

As the preceding Philippines example illustrates, scholarship on the death penalty increasingly acknowledges that in both nominally abolitionist and retentionist jurisdictions, lethal state violence may persist in forms other than judicially sanctioned executions (e.g., Hood and Hoyle, 2015; Johnson and Zimring, 2009; Miethe et al., 2005). Counts of both extrajudicial and judicial killings typically presume politically unified, legally monist states. Yet other examples escape this conceptual frame, where “states within states” engage in killing in a manner resembling the judicial death penalty. A focus on the sovereign nation-state as the unitary measure of abolition or retention within the academic and activist literature often overlooks more complex situations on the ground and obscures the tangled history of capital punishment and the politics of abolition.

Our third comparison uses the examples of Myanmar's (until 1989, Burma's) long-running internal armed conflicts and current Jihadist group operations in Mali to question the host states’ status as “abolitionist in practice” death penalty jurisdictions. Both encompass situations where, despite falling within the physical territory of a nominally de facto abolitionist state, rebel groups which hold territory have administered their own rudimentary forms of justice that often include the death penalty. We label this form of legally pluralist capital punishment “rebel executions,” situating the practice within recent scholarship on proto-justice administered by insurgent groups (Ledwidge, 2017; Provost, 2021). Recognizing that judicial killings may be defined on a sliding scale, with quick summary trials by revolutionary courts at one end and U.S. “super due process” at the other (Hood and Hoyle, 2015; Provost, 2021; Schabas, 2002) sharpens our understanding of the myriad ways that political entities can inflict violence against their subjects across history, even in the so-called “age of abolition” and during the recent spread of human rights-consciousness. By incorporating “rebel executions” perpetrated by self-appointed political authorities into the analysis, we further challenge claims of inexorable progress toward a death penalty-free future.

Myanmar's rebel groups—administering frontier justice

The judicial death penalty has been used in territory controlled by Myanmar's central government since Burma's independence from Britain in 1948. Occasional executions for offenses against the state, murder, and drug trafficking were interspersed with general amnesties until 1988 (Amnesty International, 1979 , 1989). After violent prodemocracy protests and a 1988 coup d'état, Myanmar's military leadership, while never seriously considering de jure abolition, imposed an informal moratorium on executions as a performative means of ruling in a manner consistent with Buddhism's First Precept (Johnson and Zimring, 2009).

Myanmar retained the death penalty in law, and civil and military courts continued to pass death sentences relatively frequently (Amnesty International, 1990; Wai, 2003). However, excluding extrajudicial killings, Myanmar's central governments did not execute any prisoners for more than 30 years—1989 to 2022. Then, in 2022, the latest coup-installed military junta resumed judicial killings as a show of force toward a burgeoning protest movement against its rule. As of 2023, at least four prisoners convicted in special military tribunals have been put to death (Liljeblad, 2023). Myanmar is thus a recent example of the fragility of abolition “in practice” (Hood and Hoyle, 2015), particularly in states suffering military coups or revolutions. Yet judicial executions conducted, postponed, or canceled by its military and civilian governments reveal only part of Myanmar's death penalty story.

During the 1989–2022 lull in Myanmar's “official” executions described above, some prominent rebel groups conducted executions that could be described as “judicial” or at least as “summary” (McCartan and Joliffe, 2016), rather than as “extrajudicial,” or “arbitrary” (Pascoe, 2016). Prisoners accused of crimes such as murder, drug trafficking, and rape were tried in rudimentary village courts and were usually put to death soon after being found guilty. The court proceedings were often unfair by ICCPR standards, in that there were no defense counsel and no appeals, or even in that some results were preordained (McCartan and Joliffe, 2016). Yet, historians have described comparable examples of executions under revolutionary tribunals in newly Communist China, Vietnam, and the Soviet Union as the infliction of the “death penalty” (McCauley, 2013; Pascoe, 2016; Zhang, 2015). Indeed, civil and military court-sanctioned executions in centrally governed Myanmar have also taken place after grossly unfair trials (Amnesty International, 1989; Liljeblad, 2023). “Rebel executions,” conducted in occupied borderlands for adjudicated contraventions of insurgents’ local regulations, are arguably little different.

In Myanmar, such premeditated killings have occurred in territory held by the United Wa State Army, Kachin Independence Organization, Karen National Union, New Mon State Party, Karenni National Progressive Party and National Democratic Alliance Army, among other militant groups (Crouch, 2019; McCartan and Joliffe, 2016). Some of these organizations have, over time, made their own shifts away from using executions as a means of social control, whereas others continue to execute, both judicially and extrajudicially (McCartan and Joliffe, 2016). While it is difficult to provide definitive numbers, even one execution following a cursory judicial process is enough to call into question a state's abolitionist classification or claimed reductionist trajectory.

Moving from an internationally recognized government to any rival political entity that as a “state within a state” seeks to exert a localized monopoly on force (McCartan and Joliffe, 2016) thus reveals flaws in the traditional definition of “abolition.” Myanmar is one of the best examples of this phenomenon due to the historical persistence of its civil conflicts. Myanmar's rebel groups are not waging temporary insurgencies against the Tatmadaw (Burmese military)—several have held territory since independence in 1948.

One may legitimately query whether organized insurgents do govern and punish by law or instead rule arbitrarily by whim. However, several of Myanmar's rebel groups clearly apply preexisting legal standards as their village courts sentence captives to death (McCartan and Joliffe, 2016; Provost, 2021). While they may contravene prevailing international law standards, such “summary” executions still fall within the death penalty paradigm (Schabas, 2002). Most importantly, from the perspective of the populations potentially subject to these punishments, “rebel executions” make a mockery of Myanmar's former classification as a de facto abolitionist state.

The Islamic state in Mali: Claiming theocratic legitimacy

The reach of Islamic State (ISIS) and its affiliates in Africa further undermine the notion that a nation-state's de jure or de facto abolition of the death penalty spells a complete end to judicial executions. Although ISIS’ maximum hold over territory occurred in (retentionist) Iraq and Syria in 2014, the significance of the group's African operations is the presence of a Jihadist entity claiming to rule over parts of what are several nominally abolitionist de jure or de facto states. In a large tract of eastern Mali, Islamic State and its local affiliates have exercised proto-state control over local populations and territory since 2015 (European Council on Foreign Relations, 2019). Central to Islamic State's claim to rule is that the organization administers justice in strict accordance with Islamic legal principles (Provost, 2021), which include both mandatory (e.g., unlawful sexual intercourse, apostasy, highway robbery) and discretionary (murder) capital crimes tried by Sharia judges. In eastern Mali and in other occupied regions across Africa, ISIS has conducted executions, often through brutal means, for alleged breaches of Islamic Law following summary trials (Chason, 2023; MEMRI, 2023).

Crucial here are the death penalty positions of ISIS’ “host states.” In Mali, the central government retains the death penalty on the books, and its courts still issue death sentences (Amnesty International, 2024); yet the state last conducted executions in 1980 (Parliamentarians for Global Action, 2024), shortly after its former colonial power France abolished in “civilizationist” terms (Nye, 2003). Thus, while the official record denotes Mali as last having executed more than a generation ago, in more recent times, judicially sanctioned executions were conducted on Malian territory.

The temptation for death penalty scholars, for UN bodies and for abolition activists is to downplay ethno-nationalist insurgent, ISIS, and other “rebel executions” as extrajudicial in nature, as conducted within the context of civil war or failed states, or as being unrecognized by the international community (Novak, 2014). Whether in Myanmar, Mali, or elsewhere in the Global South or indeed North, the default method of framing death penalty retention is through the lens of an untrammeled central political authority. Partly this reflects professional training, but also a resistance to integrate a few errant, unrecognized actors which might discredit the purportedly unstoppable progress of the global abolitionist movement (Dudai, 2023). Mali and other African states such as Mozambique, whose territory has been partially held by ISIS (Washington Institute, 2024), are collectively important to Africa's claim to be the next totally abolitionist world region. But, as we have seen, the reality on the ground is very different. Localized, self-appointed, political actors may hold rudimentary trials and conduct uncounted executions to shore up their rival claims to rule. “Rebel executions” may remain resistant to de facto or de jure abolition by the central authority.

Conclusion: Abolition's legacies and futures

The death penalty's demise is the abolitionist's endgame, but advocacy of penal reform and critical analysis make uncomfortable bedfellows (McGowan, 2011). As we have shown, analysis of the death penalty's abolition best serves that aspiration by confronting its complex histories. In the past half century, abolishing the death penalty has been allied not just with the advocacy of human rights but to civilizationist values that assert ideals of national self-worth and global status without critiquing capital punishment's historic biases. In newly independent nations rulers have both resorted to and rejected the death penalty; however, in some postcolonial states, substate and self-appointed authorities have used the death penalty well past the date when their former imperial rulers abolished (McLure, 2023). Even in de jure abolitionist countries that appear on the league table of success stories, extrajudicial death squads can operate, as the Philippines’ recent history shows. Accounts of the death penalty's abolition that refer to dates in law—the “counting heads” approach—sustain hope in the consistent, progressive, and irreversible spread of the abolitionist ideal but they obscure its multifarious history. If, as Patrick and Huggins (2023) caution, it is a “mistake” to homogenize and reify the Global South, the same holds for the Global North. This is true of abolition's history not only in Canada and England/Wales but also, for example, in the Republic of Ireland and in Northern Ireland (Black, 2022; Doyle and O’Callaghan, 2022), plus retentionist countries, such as Japan. By focusing squarely on the specific politics of abolition, both its advocacy and its opposition across time and between jurisdictions, we can best comprehend how the present came to be and what may unfold in the future.

Our comparative case studies, although brief, offer prompts for further research on abolition's history that seek out significant points of similarity and difference. The vanguard abolitionist club membership granted to countries such as Canada and England/Wales has excluded countries such as Mexico and the Philippines, which shifted back and forth in the authorized use of the death penalty. However, the seeds of abolition in these latter two jurisdictions were planted long before the era of human rights, being differently associated with postcolonial debate over the appropriate reach of state power. As Futamura observes, in democratizing regimes, “the death penalty becomes not only a matter of human rights but also of peace, security, governance and context-based justice, in relation to which transitional governments face difficult choices and must find a balance” (Futamura, 2014: 28). Furthermore, the shared history of Roman Catholicism in Mexico and the Philippines suggests that religious authority may be as potent a variable as state politics in the governance of the death penalty and its abolition, a factor that merits deeper study within and beyond the Catholic former colonies of European powers.

In states with weaker institutions, de jure or de facto death penalty designations during the history of abolition fail to account for “rebel executions” whereby internationally unrecognized groups have held territory and administered executions following some kind of judicial process. This is true not just of Mali and Myanmar but of many nominally-abolitionist postcolonial and peripheral regions where state power is contested, shared with local elites or seized by rival authorities, both religious and secular. Prominent examples are executions conducted by Hamas in Gaza (2007–present), Colombia's fragmentary rebel groups (1964–present), or the Shining Path movement in Peru (1980–1992). Most significantly, comparing the politics of the death penalty in Mali and Myanmar raises the broader question of what constitutes a “state” in scholarship on abolition's recent past. Using Westphalian theory or UN membership as the sole criteria to analyze the authority under which executions are conducted or ruled out should be reconsidered in further research.

Moving forward, scholarship on abolition will benefit by approaching its history as a cluster of moves, for and against the death penalty. In some countries, like Canada and Britain, as well as in Western Europe, the reduced scope of the death penalty and moratoria preceded de jure abolition for all crimes. However, future studies may challenge the expectation that interim policy measures such as mass commutations, reduction of capital offenses, or increased sentencing discretion signify progress to eventual abolition (Hodgkinson, 2016). Recent research on the history of former colonies which abolished or retained the death penalty in the context of decolonization and independence movements in and beyond Africa, South America and Asia is laying the groundwork for fully textured histories of abolition (e.g., Black et al., 2023; Chisholm, 2024; Seal and Ball, 2023). Such historically grounded studies of the death penalty's politics highlight abolition's fragility, rather than its inevitability. As our mesohistorical analysis suggests, a host of moves may shape death penalty politics under new rules and rulers, as it did in Mexico, the Philippines, Myanmar and Mali, and as it may still do, even in countries counted in the “vanguard” of abolition.

Footnotes

Acknowledgments

This article has benefitted from the insights of two anonymous experts and the advice and support of the journal's editor. We also appreciate the critical comments of Mark Finnane on an earlier draft.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Carolyn Strange

Notes

Carolyn Strange is a Professor of history at the Australian National University. She has published extensively on the death penalty and clemency in Canadian, Australian, American and British modern history. Her publications include The Death Penalty and Sex Murder in Canadian History (Toronto: 2020) and Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression (NYU Press: 2016).

Daniel Pascoe is an Associate Professor at the School of Law, City University of Hong Kong. His research focuses on criminal law and punishment in comparative perspective, also extending to Southeast Asian law, Islamic law, and legal pedagogy. His publications include Last Chance for Life: Clemency in Southeast Asian Death Penalty Cases (Oxford University Press 2019) and ‘Worthless Checks? Clemency, Compassionate Release, and the Finality of Life Without Parole’, Northwestern University Law Review, 118 (2024).

Andrew Novak is an Instructional Associate Professor at the Department of Criminology, Law and Society at George Mason University. He is a specialist in international and comparative criminal law and human rights. He is co-editor (with Daniel Pascoe) of Executive Clemency: Comparative and Empirical Perspectives (Routledge: 2020) and author of The Global Decline of the Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Routledge: 2014).

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The politics of abolition: Reframing the death penalty's history in comparative perspective

Abstract

Keywords

Canada and the United Kingdom: The postwar vanguard and human rights in retrospect

Seeding abolition: Restricting the death penalty

Civilization and parliamentary posturing in the early 20th century

Abolition and civilization in the age of human rights

Mexico and the Philippines: Death penalty abolition as postcolonial restraint of power

Death penalty abolition as derivative of early criminal justice reform: The case of Mexico

Death penalty abolition as anti-imperialist project: The case of the Philippines

Mali and Myanmar: The persistence of state killing in nominally abolitionist jurisdictions

Myanmar's rebel groups—administering frontier justice

The Islamic state in Mali: Claiming theocratic legitimacy

Conclusion: Abolition's legacies and futures

Footnotes

Acknowledgments

Declaration of conflicting interests

Funding

ORCID iD

Notes

References