Capital punishment at the intersections of discrimination and disadvantage: the plight of foreign nationals

Abstract

Around the world, differential rates and experiences of victimization, criminalization and punishment can be largely accounted for by race, religion and citizenship.2 Death sentences and executions are extreme examples of the effects of disempowerment, disadvantage and discrimination on certain populations subject to the criminal process. While some groups recognized as vulnerable—such as juveniles, pregnant women or the intellectually disabled—are in most countries excluded from the ultimate penalty by categorical exemptions, characteristics such as race, religion and citizenship status are not protective and are sites of discrimination in the administration of the death penalty. Furthermore, these characteristics can interact with each other to create a sum of disadvantage greater than its parts. To date, most research on the death penalty has been conducted in the US and has focused on discrimination on grounds of race, although empirical research has also demonstrated the adverse impact of inadequate resources.3 Much less attention has been paid to factors such as religion, citizenship, gender and sexual orientation. Beyond the US, there is a paucity of empirical data on jurisdictions that make regular use of the death penalty, especially those that rely on migrant workers. This chapter will focus on under-researched countries in the Gulf and Asia, particularly Saudi Arabia, the United Arab Emirates (UAE), Pakistan, Malaysia and Indonesia. In such jurisdictions, we learn little by focusing only on race. There, it will be argued, discrimination and arbitrariness in the administration of the death penalty would be better understood in relation to disadvantage at the intersections of ethnicity, religion and citizenship. In considering these under-researched sites of discrimination and disadvantage, this chapter adopts an intersectionality approach, turning the lens on foreign nationals who do not enjoy