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Legal Scholarship: A Proposal for Greater Prosecutorial Accountability

To rein in the social and economic costs caused by the overly aggressive use of the death penalty by prosecutors, a California legal scholar is proposing a plan he believes will reduce miscarriages of justice and increase prosecutorial accountability.

In Shrinking the Accountability Deficit in Capital Charging, a new chapter in the 2020 Oxford Handbook of Prosecutors and Prosecution, UCLA law professor Sherod Thaxton (pictured) argues that to temper the unfettered discretion local prosecutors now enjoy in capital charging decisions, states should establish advisory boards to issue opinions on whether the death penalty should be pursued in a particular case. If the prosecutor decides to seek death despite an adverse advisory recommendation, Thaxton proposes shifting the financial costs associated with the case to the local jurisdiction as means to hold prosecutors financially accountable for their decisions.

Professor Thaxton begins his analysis by noting that the high statewide costs of capital punishment are driven disproportionally by overly aggressive use of the death penalty by a small number of outlier jurisdictions, despite “sharp criticism from both legal analysts and officials in every branch of government.” These outlier jurisdictions, he says, contribute to most of the death sentences and executions in the country, but also have higher rates of error and contribute to higher costs for the administration of justice. In addition, Thaxton says, the overpursuit of the death penalty “may increase crime, decrease the likelihood of arrests for homicides, and lead to heightened risks of miscarriages of justice for non‐capital defendants.”

Given the outsized impact of these outlier jurisdictions, Thaxton argues, “[d]iscouraging the overly aggressive use of the death penalty by prosecutors may be the most effective (and efficient) way to reduce the overall prevalence of error in capital charging-and-sentencing systems, as well as unnecessary expense.”

Human Rights Organizations: Saudi Arabia's Claims to Have Banned the Death Penalty for Juveniles are Belied by the Kingdom’s Actual Practices

The Kingdom of Saudi Arabia continues to use the death penalty against people accused of crimes committed as juveniles, despite a royal decree claiming to ban that practice, human rights organizations and defense lawyers have charged.

On October 19, 2020, the European Saudi Organisation for Human Rights issued a statement saying that thirteen prisoners still faced the death penalty in the kingdom for alleged crimes committed as juveniles. The following day, citing “glaring exceptions” in the royal decree, Human Rights Watch warned that eight Saudi men remained at risk of execution for “protest-related” acts engaged in while they were minors. The men were sentenced to death on “charges that do not resemble recognizable crimes,” the rights group said, including “seeking to destabilize the social fabric by participating in protests and funeral processions,” “chanting slogans hostile to the regime,” and “seeking to incite discord and division.”

In April 2020, Saudi Arabia carried out the 800^th execution under the reign of King Salman bin Abdulaziz. At the same time, Amnesty International issued its annual global report on the death penalty, detailing the record number of executions in Saudi Arabia in 2019 and the rising political abuse of the death penalty throughout the Middle East.

Facing global criticism, King Salman responded with a royal decree asserting that the country would no longer apply the death penalty to individuals were younger than age 18 when their alleged crimes occurred. Instead, the King said, offenders faced a maximum sentence ten years at a juvenile facility. Although the kingdom’s Human Rights Commission has said the decree would be applied retroactively, it has not yet been published in official form.

“Saudi spin doctors are marketing judicial reforms as progress while prosecutors appear to blatantly ignore them and carry on as usual,” said Michael Page, deputy Middle East director at Human Rights Watch. “If Saudi Arabia is serious about reforming its criminal justice system, it should start by banning the death penalty against alleged child offenders in all cases.”

“There has been so much talk of reform, but no actual change for our clients,” said Maya Foa, director of human rights group Reprieve which represents three of the men facing execution. “Authorities announced that the death sentences of Ali al-Nimr, Dawoud al-Marhoun and Abdullah al-Zaher will be reviewed, but not when or how: we will believe it when it happens.”

Saudi defense lawyer Taha al-Hajji, who is living in exile in Germany while representing al-Nimr, said Saudi officials had still not told his client’s family that he is safe from execution. There remains a “gulf between rhetoric and reality,” he said.