ADF project: 'Abolitionist in practice: Challenging the death penalty in countries which do not execute'

In academic and media coverage of the death penalty, attention is most often drawn to those states that retain the practice and carry out executions, or those that have gone through the process of abolishing it. Yet between the two lies a less visible group of states: those that retain the death penalty in law but do not carry out executions. Once a retentionist state reaches a period of 10 years without an execution, it is classified by the UN as ‘abolitionist de facto’ (ADF).

Over the past few years, the Death Penalty Research Unit (DPRU) and the Death Penalty Project (DPP) have been undertaking research and policy engagement in various ADF countries. Thanks to a grant provided by the University of Oxford’s Public Policy Challenge Fund, the DPRU and the DPP are now undertaking a collaborative research project (2023-25) examining the concept of ADF status and the challenges faced by policymakers in ADF states.

While working in ADF jurisdictions, we have identified a significant knowledge gap in relation to these countries’ relationship with the death penalty, leaving those intent on influencing policy towards abolition in ADF states with limited intellectual tools to shift penal policy in this area.

The implications of ADF status

There are approximately 40 states worldwide that have ADF status. Though there are a few ADF states in Asia, the vast majority are in Africa or the Caribbean. Countries can remain ADF for many decades: the median time without an execution is 33 years, while in some cases this is much longer (67 years for Brunei, 72 for the Maldives).

Although executions are not carried out in ADF states, death sentences can still be imposed. Of 50 states identified as ADF by the UN in 2018, 36 had imposed at least one death sentence in the previous decade. This means that individuals still live on death row, in some cases leading to death row populations of several hundred prisoners.

Furthermore, the cessation of executions, even for as long as 10 years, should not be taken automatically as a signal that a state is firmly allied to the abolitionist cause. The punishment’s existence in law can readily be translated into reality in response to political instability or heightened fear of crime, such that the practice of executing offenders can be revived after decades without use.

Even if executions do not resume, the retention of death penalty laws can be impactful and can shape criminal justice systems more widely, for example by influencing individuals’ likelihood of pleading guilty to avoid a capital conviction, and also can serve important symbolic and political functions within a country.

Prisoners convicted of capital offences in ADF states nonetheless experience the realities of life on death row, in conditions which can differ from those of the general prison population and often involve additional degradations and stigmatisation, as well as facing enduring uncertainty about their fate.

The concept of ADF status

Conceptualisations of what it means for a state to be ADF have been heavily shaped by the idea that ADF status constitutes a temporary phase preceding full abolition. Early UN reports on the death penalty in the 1960s considered ADF countries as ‘on the road’ to abolition, following a long but distinctive pattern through ADF status.

However, many countries’ experiences counter this assumption that abolition in law is preceded by an ADF phase. Over the period from 1989 to 2014, only 25 of the 58 countries that abolished the death penalty preceded this with a 10-year period of ADF.

Recent scholarship has argued that for some countries, rather than constituting a ‘stepping stone’ towards abolition, ADF status can become ‘increasingly stable’ – more entrenched – over time. This highlights the importance of understanding the varied factors which may shape states’ ADF status, and new research can present the opportunity to further expand these potential different meanings.  

Research questions and methodology

Among the key overarching questions motivating this research project are the following:

• What are the barriers to abolition in ADF states?
• How should ADF status be defined and what criteria are important as part of this definition?
• How can we make sense of punishments that could be described as ‘merely symbolic’?
• How do the dynamics around the death penalty in ADF states differ from those in retentionist states?

Our project seeks to develop a more robust intellectual framework to help to substantiate what it means to be an ADF country, how ADF status should be defined, whether the current labels and definitions are fit for purpose, and how they could be adapted to make them more effective at shifting policy at national and international levels.

We will also conduct specific research from two case studies from Africa and the Caribbean, our two main regions of interest: Kenya (which has been ADF since 1987) and Belize (which has been ADF since 1986). These countries represent two continents with similar obstacles to abolition in respect to perceptions about public opinion and deterrence but with distinct cultures and legal protections. The findings from our research in these two target countries will also be relevant for other ADF states within those regions and beyond facing similar policy challenges. 

Photo credit: Henry Mühlpfordt via Wikimedia, licensed under Creative Commons CC BY-SA.