Extradition from foreign countries and the death penalty

Factual Questions
1

The current issue with Neil Entwistle got me thinking. He was recently extradited from the UK to Massachusetts for allegedly murdering his wife and child. The maximum penalty he faces is life in prison, as Massachusetts does not have the death penalty.

The GQ: Had he been charged in a state that had the death penalty, would there have been any difference in the extradition process?

I ask because I thought I heard something somewhere along the lines of: foreign states that oppose the death penalty will not allow extradition if the death penalty is on the table. Plus, the UK is a state that opposes capital punishment, no? Admittedly, I don’t recall where I heard this and it may be a bunch of horsefeathers for all I know, so hence my question.

My thanks in advance.

2

I believe you are correct, and if that had been the case the state would have set that the maximum penalty would be life without the possibility of parole (or something similar). I live in California and that has happened before…

3

I don’t know about the UK, but France wouldn’t extradite Ira Einhorn for the murder of Holly Maddux until the death penalty was off of the table.

4

I’ve heard this before, that the UK cannot and will not extradite if the case will potentially involve the death penalty. It wouldn’t surprise me if in such situations, there’s negotiations to ensure that the accused will face lesser charges, with a full sentence still resulting.

5

(I mean, a full sentence for the lesser charge, i.e. a big jail term but not the death penalty)

6

The issue arises over the Sixth Protocol of the European Convention on Human Rights, embodied (in the UK) in the Human Rights Act 1998. This prohibits the death penalty, except in times of war.

The leading case is D v UK (1997). In this case, the European court ruled that it was a violation of the Convention to extradite a criminal to a country in which he would suffer “inhuman and degrading treatment”, in contravention of Article 3 of the Convention. In R v Ullah (2004) the House of Lords ruled that other articles of the Convention (including Article 2, the “right to life”, and the Sixth Protocol), do not necessarily prevent extradition, and there has never been a case where this has been raised explicitly as grounds for denying extradition.

In In Re Al-Fawwaz (2001), one of the Guantanamo Bay cases, Lord Scott said:

In other words, although the UK has a policy of not extraditing criminals who are likely to face the death penalty, this isn’t actually part of UK law.

7

http://www.usextradition.com/uk_bi.htm

So extradition was essentially mandatory, but if he could get the death penaly, it became discretionary at best.