International Perspectives on the Death Penalty: A Costly Isolation for the U.S.

Posted on Oct 01, 1999

Executive Summary Up

Western Europe has abolished the death penalty; Russia commuted the death sentences of all 700 of its condemned prisoners to life; and the U.N. Commission on Human Rights has called for a moratorium on all executions. The number of countries that have stopped implementing the death penalty has grown to an all-time high of 105.

Some of the world’s most respected leaders have also called for an end to the death penalty, including Pope John Paul II, Nelson Mandela, and U.N. High Commissioner for Human Rights, Mary Robinson. But the U.S. ignores these appeals and even the more moderate steps called for by the international human rights community. The U.S. has further distanced itself by expanding capital punishment to broader classes of crimes, and applying it against society’s most vulnerable offenders.
Consider the following:

  • The U.S. has become the most flagrant transgressor of the international ban on executing juvenile offenders. In 1999, Oklahoma executed Sean Sellers, who was 16 at the time of his crime. Texas has executed seven juvenile offenders since 1985.
  • Twenty-six U.S. states allow the execution of mentally retarded defendants.
  • Despite years of internal studies and international criticism, race continues to play a decisive role in who lives and who dies under capital punishment in the U.S. Almost nothing has been done to correct this injustice.
  • Fourteen foreign nationals from eleven different countries have been executed, and another 82 remain on death rows in the U.S., despite a wholesale disregard of one of the most important treaties for U.S. citizens: the Vienna Convention on Consular Relations. U.S. law enforcement agencies have routinely failed to inform foreign nationals of their rights under the Vienna Convention. This violation alone has resulted in multiple adverse decisions from the International Court of Justice, in repeated criticism from our closest allies, and by apologies from our Secretary of State, even as the lethal injections take place.

Right now, no other issue is pushing the United States further apart from its allies and the growing consensus of international law than the death penalty. The costs to the U.S. in terms of international stature and vital cooperation from other countries are substantial. By defying international agreements and turning a deaf ear to the entreaties of its friends, the U.S. is increasingly positioning itself as a human rights violator on this issue. By executing juvenile offenders and the mentally ill; by executing citizens from other countries who were not afforded the simple protections U.S. citizens routinely expect abroad; and by ignoring international norms against expanding the death penalty, the U.S. is showing disrespect for international human rights law both at home and abroad. The potential costs to the U.S. will be measured in loss of leadership and prestige, endangerment of the rights of U.S. citizens abroad, disrespect for international law and the tribunals which protect it, and a lost opportunity to be part of a fundamental change in the status of human rights at the start of the 21st Century.

Introduction Up

International developments in the past decade have produced a clear and emphatic trend away from capital punishment as countries abandon its use, call upon the remaining death penalty states to sharply curtail its use, and formulate international agreements which express a strong preference for an end to all executions.

This report examines the sequence of recent events that has increasingly placed the death penalty in the international spotlight. Some of these events are direct challenges to the practice of capital punishment in the U.S. Others are changes in the balance of death penalty practices and attitudes around the world.

The report looks at the ways in which the international community has sought to limit the application of the death penalty, and the U.S.’s response to these initiatives. It also explores the world-wide trend towards complete abolition of the death penalty and the U.S. reaction. Although much of the official U.S. response to international criticism has been denial, the report looks at some local and unofficial actions, which indicate a different direction. Finally, the report notes the present and potential costs the U.S. is facing for adhering to the death penalty.

The international direction away from the death penalty raises serious questions for the U.S.: How likely is it that sanctions will be invoked against the U.S. if it continues to ignore the growing international consensus? What damage is being done to the U.S.’s leadership and credibility in the field of human rights? Are the rights of U.S. citizens abroad being endangered because the U.S. has failed to follow international treaties and the decisions of international courts? Are there intermediate steps that the U.S. could take to show its good faith and recognition of these international concerns? The answers to these questions may profoundly affect the U.S.’s standing and the course of human rights for years to come.

I. International Efforts to Limit the Death Penalty and the U.S. Response Up

The Commission on Human Rights, … urges all States that still maintain the death penalty:

  • Not to impose it for crimes committed by a person below 18 years of age;
  • Not to impose the death penalty on a person suffering from any form of mental disorder;
  • Not to execute any person as long as any related legal procedure, at international or at national level, is pending; ¥
  • Progressively to restrict the number of offenses for which the death penalty may be imposed;
  • To establish a moratorium on executions, with a view to completely abolishing the death penalty;

-Resolution, U.N. Commission on Human Rights, April 28, 1999 [18]

The world community is keenly aware that the death penalty is firmly entrenched in some countries and is not likely to be abolished in those countries any time soon. Hence, much of the international focus has been on ways to limit the most egregious aspects of the death penalty. Increasing attention has been directed to the U.S. — not because it is the worst violator of human rights, but because of its stated commitment to the same ideals which have led other countries to seriously question the death penalty.

The international human rights community has identified its chief concerns about the death penalty in the U.S.:

  • The execution of juvenile offenders
  • The execution of those suffering from mental retardation or severe mental illness
  • The execution of foreign nationals who were not informed of their rights under the Vienna Convention on Consular Relations
  • The arbitrary application of the death penalty and the related problem of racial and economic bias
  • The length of time that death row inmates spend in extreme isolation and deprivation between sentencing and execution.

Each of these areas will be explored more completely below, along with an examination of U.S. practice and response to international concerns.

I. The Execution of Juvenile Offenders and International Law Up

Nowhere is the U.S. in such clear and direct conflict with the consensus of international law as with the execution of juvenile offenders. The practice of executing those who were under 18 at the time of their crime is directly prohibited by the International Covenant on Civil and Political Rights (ICCPR), by the U.N. Convention on the Rights of the Child, and the American Convention on Human Rights. So broad is the acceptance of this ban that it is widely recognized as a norm of customary international law, [19] i.e., a principle so universally accepted that it supersedes specific laws and treaties.

The International Covenant on Civil and Political Rights
The ICCPR is perhaps the most important human rights treaty in existence. The U.S. State Department praised it as “the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II.” [20] The treaty was forged from the founding principle of the U.N.’s Universal Declaration of Human Rights, which states simply: “Everyone has the right to life, liberty and security of the person.” [21] Nowhere is the U.S. in such clear and direct conflict with the consensus of international law as with the execution of juvenile offenders

The International Covenant on Civil and Political Rights

The ICCPR is perhaps the most important human rights treaty in existence. The U.S. State Department praised it as “the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II.” [20] The treaty was forged from the founding principle of the U.N.’s Universal Declaration of Human Rights, which states simply: “Everyone has the right to life, liberty and security of the person.” [21]

The ICCPR was adopted 18 years later and specifically addresses the death penalty and juvenile offenders in Article 6, which states, in part:

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. [22]

Today, the ICCPR has received almost universal endorsement, with 144 countries as parties to the treaty, including the U.S., which ratified the Covenant in 1992, but with reservations. Ratification of a treaty signals a country’s willingness to be bound by the treaty. Reservations carve out some exception to the complete adherence by a country to a treaty. Substantive reservations, such as the one the U.S. took to the ICCPR to allow the continued execution of juveniles, are highly controversial.

“Reservations of this nature [allowing executions of juvenile offenders] contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties.” -Sweden’s Objection to U.S. Reservation to Art. 6, ICCPR

One measure of the ICCPR’s effectiveness has been the virtual elimination of the execution of juvenile offenders around the world. Amnesty International reported that since 1998 the U.S. was the only exception to the rule, with four juvenile executions. [23]

Other Treaties and Juvenile Executions

The U.N. Convention on the Rights of the Child also specifically prohibits the use of the death penalty for juvenile offenders. Article 37(a) of this treaty states: “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” [24] Every country in the world has ratified this treaty, except the U.S. and Somalia. [25] President Clinton has signed the treaty, but the Senate is concerned with the conflict between the death penalty practice of many states in the U.S. regarding juveniles and Article 37(a).[26]

Similarly, the U.S. has signed but not ratified [27] the American Convention on Human Rights. Twenty-five countries of the western hemisphere have ratified this treaty, which states: “[C]apital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age.” [28]

The U.S.’s full participation in these important human rights treaties is stymied by its continued use of the death penalty against juveniles. It appears hypocritical for the U.S. to ask other countries to mend their human rights violations, when it refuses to join the mainstream on the important issue of juvenile offenders.

The U.S. Response

The official response of the U.S. to the international prohibition against executing juveniles has been to claim exemption from the relevant treaties and to continue with the executions.

The U.S. was one of only three countries which took reservations to Article 6 of the ICCPR in ratifying the Covenant. Norway’s and Ireland’s reservations became moot when they abolished the death penalty. [29] The U.S. reservations remain in place and have been highly controversial in international forums.

The U.S. Reservation to Article 6 is quite broad and reads:

The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. [30]

The taking of reservations to fundamental parts of human rights treaties is controversial. In particular, reservations which contradict the “object and purpose” of the treaty are considered invalid. [31] Eleven countries formally protested the U.S.’s reservation to Article 6 and have stated that this reservation should not be allowed.

France’s objection criticized the U.S.’s reservation as: “incompatible with the object and purpose of the Convention.” [32]
“Reservations of this nature [allowing executions of juvenile offenders] contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties.”
-Sweden’s Objection to U.S. Reservation to Art. 6, ICCPR Sweden objected because: “Reservations of this nature contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties.” [33]

The other countries objecting to the U.S. reservation were among the U.S.’s closest allies: Belgium, Denmark, Finland, Germany, Italy, Netherlands, Norway, Portugal, and Spain.

When the U.N. body established to oversee the ICCPR (the Human Rights Committee) voted that the U.S.’s reservation to Article 6 was invalid, the U.S. Senate retaliated by threatening to withhold funds slated for U.S. participation in the work of Committee. [34]

When the U.N. body established to oversee the ICCPR (the Human Rights Committee) voted that the U.S.’s reservation to Article 6 was invalid, the U.S. Senate retaliated by threatening to withhold funds slated for U.S. participation in the work of Committee. [34]

The Fate of Juvenile Offenders in the U.S.

The U.S. has a long history of executing juvenile offenders. Since the founding of this country, approximately 355 juveniles have been executed. [35] Twenty-three states presently either have no age restriction on the use of the death penalty, or specifically allow it for those who committed their crime while under the age of 18. (See Appendix for Age Restrictions by State.)

The Supreme Court has ruled that it is not a cruel and unusual punishment to apply the death penalty to those who were 16 or 17 years-old at the time of their crime. [36] In so doing, the Court rejected international norms as a measure of the “evolving standards of decency,” and instead looked to various state standards.

The Supreme Court first recognized evolving standards of decency in the interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Trop v. Dulles. [37] In doing so, it looked to the international standards. The Court held that denying Albert Trop his citizenship for desertion in time of war was cruel and unusual. The Court cited world-wide opinion, stating: “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.” [38]

But when considering the cruelty of executing juvenile offenders, that international perspective was lost. Justice Scalia, in the opinion upholding the death penalty for juvenile offenders, explicitly rejected the notion that world-wide perceptions of decency were relevant to the Court’s consideration. [39] By contrast, Justice Brennan, in dissent, harkened back to the Court’s precedent in Trop: “Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.” [40]

With the Supreme Court’s approval, the execution of juvenile offenders has gone forward. Since 1973, states in the U.S. have sentenced over 180 juvenile offenders to death and have carried out 13 executions. Ten of the 13 executions have occurred in the 1990s, including 7 in Texas.

Although the most recent jurisdictions to adopt the death penalty (Kansas, New York, and the federal government) have excluded those under 18 from the death penalty, there have been frequent calls by politicians to lower the age of death eligibility, even to as low as eleven. [41] The U.S. reservation to the ICCPR is so broad that it would not (by itself) preclude even such shocking executions.

Death sentences for individual juveniles in the U.S. have drawn considerable criticism and legal challenges from other countries. While Paula Cooper was on death row in Indiana for a murder committed at age 15, over a million signatures were gathered in Italy protesting the sentence, and the Pope also sought to intervene. [42] Her death sentence was later reduced to a life term. In 1987, the Inter-American Commission on Human Rights held that the U.S. had violated the American Convention on Human Rights because of the execution of juvenile offenders. [43]
Countries like the U.S., which are members of the Organization of the American States but have not ratified the American Convention on Human Rights, are nevertheless subject to the petition procedure before the Inter-American Commission on Human Rights. [44] One such petition involved the execution of two juvenile offenders, Terry Roach from South Carolina and Jay Pinkerton from Texas. The Commission requested that their executions be delayed while the issues raised in their petition were considered. [45] This request was denied, and both were executed in 1986. “Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved….”
-Justice William Brennan

Most recently, the U.S. crossed another barrier when Sean Sellers became the first 16-year-old offender executed in over 40 years. Despite pleas from Archbishop Desmond Tutu, the American Bar Association, and other religious and human rights leaders, and despite his documented mental illness, Sellers was executed in Oklahoma in 1999. [46]

Around the world, the execution of juvenile offenders is very rare. Although records on such executions are incomplete, only five other countries are known to have executed juvenile offenders since 1990: Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. [47] The U.S. executed ten juvenile offenders in that time, more than any other country. With the near universal acceptance of the Convention on the Rights of the Child and the ICCPR, the U.S. is moving in the opposite direction from the entire world in this critical area of human rights.

Unofficial Response More Positive

Although the official U.S. position on juvenile executions has been one of intransigence, there has been some movement on the state level. Since the Supreme Court allowed the execution of 16- and 17-year-olds, no state which had an age limit of 18 has lowered their age. New states which recently adopted the death penalty have barred the death penalty for juvenile offenders. The states of Washington and Montana recently raised their age to 18, and Florida’s Supreme Court raised that state’s eligibility age from 16 to 17. A majority of U.S. states now either forbids executions all together, or at least bars juvenile executions.

The Clinton Administration has a unique opportunity to directly affect U.S. policy on this issue. The U.S. Supreme Court has asked for the government’s position on the effect of the ICCPR on juvenile executions in the U.S. [48] It is not yet known whether the Solicitor General will defend or renounce such executions.

Executing the Mentally Retarded and the Mentally Ill Up

The execution of those with mental retardation and severe mental illness has raised concerns within the international community similar to those voiced about juveniles. The recent meeting in Geneva of the U.N. Commission on Human Rights led to a resolution calling on nations “not to impose the death penalty on a person suffering from any form of mental disorder.” [50]

The U.N.’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, following his visit to the United States in 1997, also called for a halt to the use of the death penalty on the mentally retarded, stating that such executions were “in contravention of relevant international standards.” [51] Individual cases in the U.S. have evoked pleas for mercy from the Pope and other world leaders, usually to no avail. “The rights to life and dignity are the most important of all human rights … . And this must be demonstrated by the State in everything that it does, including the way it punishes criminals.”
-Justice Chaskalson, South African Constitutional Court, 1995 [49]

The U.S. Response

The overall U.S. response to this criticism has been to ignore it. The Supreme Court upheld the execution of those with mental retardation in 1987, but said it should be considered a mitigating factor. [52]

At least 34 individuals with identified mental retardation have been executed since the death penalty was reinstated in 1976 (about 6% of all executions), though not everyone is tested. Psychological testing of all the inmates on Mississippi’s death row revealed that 27% were “within the range of potential mental retardation.” [53]

The number of those suffering from mental illness represents an additional concern. A recent report from the Department of Justice revealed that 16% of inmates in the nation’s prisons suffer from mental illness. [54]

U.S. law prohibits the execution of the insane, [55] but that is a very high and rarely met standard. In 1992, then Presidential candidate and Governor Bill Clinton returned to Arkansas to preside over the execution of Rickey Ray Rector, a man whose brain had been lobotomized and who believed he could return to his cell for dessert after his execution. [56] In 1998, Horace Kelly in California was found sane enough to be executed, despite wallowing in his own waste, not bathing or combing his hair. Two psychiatrists and the prison warden raised concerns about his sanity, but a hearing found him fit for execution. [57]

Varnall Weeks in Alabama was executed in 1995 despite the fact that psychologists testifying both for Weeks and the State agreed that he suffered from pervasive and bizarre religious delusions causing him to believe he was God, that his execution was part of a millennial religious scheme to destroy mankind, and that he would not die but rather would be transformed into a tortoise and reign over the universe. [58]

Pernell Ford in Alabama faced execution in 1999 despite a long history of mental illness. Allowed to defend himself at trial, he appeared in a bed sheet and towel, and asked that the murder victims be brought to court so that they could be raised from the dead. [59]

Meanwhile, some progress has been made in this area. Since 1986, twelve states and the federal government have voted to ban the execution of the mentally retarded. Calvin Swann’s death sentence in Virginia was commuted to life in 1999 because of concerns about his severe mental illness. [60] Theodore Kaczynski, charged with the Unabomber killings, was permitted to enter a plea which avoided the death penalty because of his profound mental illness. [61] Roosevelt Pollard was removed from Missouri’s death row this year because of similar concerns. [62] And two inmates were removed from Nebraska’s death row after the state voted to exclude the mentally retarded from the death penalty. [63]

The Execution of Foreign Nationals: The Vienna Convention on Consular Rights Up

“[Mr. Breard’s execution] could be seen as a denial by the United States of the significance of international law and the Court [of Justice]’s processes in its international relations and thereby limit our ability to insure that Americans are protected when living or traveling abroad.”
-Letter from U.S. Secretary of State to Virginia’s Governor requesting a stay for Angel Breard [64]

“[T]he State of Virginia would be harmed by an order preventing it from carrying out its lawfully entered judgment of execution in a timely fashion, despite the fact that … the arguments presented in these cases about the Vienna Convention provide no basis for relief.”
-Brief of the U.S. Solicitor General to the U.S. Supreme Court arguing against a stay of execution for Angel Breard [65]

The most direct way in which the U.S. has been alienating its allies is the execution of foreign nationals, especially when they have not been accorded their rights under the Vienna Convention on Consular Relations. [66] The U.S., along with almost all of the other countries of the world, has long been a party to the Vienna Convention. Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to confer with the consular officials of their home country. [67] This provision, which is binding on all states under the U.S. Constitution, has been systematically ignored.

To begin with, international law, even when ratified by the U.S., is often disdained, particularly by state governments. As one spokesman for the California Attorney General’s office said, “Californians elect their legislators and their governor to write the laws … and they should not have to abdicate that authority to foreign treaties approved by someone in Washington.” [68]

Furthermore, there is a pervasive lack of knowledge about law enforcement’s obligations under the Vienna Convention. Police routinely fail to notify foreign nationals of their rights, partly because they are unaware of the law. Gerald Arenberg, executive director of the Association of Retired Police Chiefs noted: “In my 47 years in law enforcement, I have never seen anything from the State Department or FBI about this” duty to inform arrestees.” [69]

And New York Police Commissioner Howard Safir, when asked about the Vienna Convention, first said he had never heard of it, and then, after a brief explanation, remarked: “Oh, right, that treaty we’re not enforcing.” [70]

Even when they are aware of the treaty, law enforcement officials may believe it is inapplicable. Joe Owmby, a prosecutor in Texas, argued at a capital trial that the Vienna Convention was irrelevant because it was not a Texas law. “If you pick up the criminal code,” he said afterwards, “it doesn’t say anything about the Geneva [sic] Convention.” [71]

Execution of Foreign Nationals

Although nearly 100 foreign nationals have been sentenced to death since capital punishment was reinstated in 1976, none was executed until Carlos Santana of the Dominican Republic in Texas in 1993. Two days later, Ramon Montoya of Mexico was also executed in Texas. Montoya’s execution was met with outrage and street protests in Mexico, which strongly opposes the death penalty. [72] Mexico then began to try to intervene at earlier stages of death penalty cases. A fundamental problem became clear: neither Mexico nor the many defendants of Mexican citizenship had been notified at the time of arrest of their rights under the Vienna Convention. Research revealed at least 38 Mexican citizens on death rows across the U.S., and that a similar number of citizens from other countries, had also been sentenced to death without proper consular notification. [73]
The issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in 1998. Like most of the other foreign nationals on death row, Breard was not informed of his consular rights when arrested for murder in 1992. Breard was a citizen of Paraguay who had come to the U.S. in 1986.

At trial, he had rejected the advice of his appointed American lawyers, refusing a plea agreement offered by the state and insisting on testifying in his own defense. Breard admitted his involvement in the crime, but claimed he was compelled by a satanic curse placed on him by his father-in-law.[74] While such an admission may have garnered leniency in a Paraguayan court, here it sealed his fate. Advice from his consulate about these distinctions might have made a critical difference. Instead, he was found guilty and sentenced to death in 1993. “The Court, unanimously indicates the following measures: The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order.”
-International Court of Justice, 1998

Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had received early advice from his government, he would have avoided the mistakes he made at trial. However, intervention was barred by the Eleventh Amendment to the U.S. Constitution, which forbids suits by foreign countries against a state.[75] While this matter was being further appealed, Paraguay filed suit in the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear from both sides and render a decision, unanimously ruled that the execution should be delayed, at least until the court could fully review the matter.[76]

The U.S. Response

U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court, on the eve of the scheduled execution, considered the various petitions that had been presented to lower courts by Paraguay and by Angel Breard himself.

Paradoxically, while the Secretary of State was pleading with Virginia’s governor to halt the execution, the U.S. Justice Department was arguing in the U.S. Supreme Court that Virginia would suffer harm if it was not allowed to carry out the “execution in a timely fashion.” [77]

The court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner. [78] This procedural bar, the court held, not only precluded Breard’s individual claim, but also any influence of the International Court of Justice. The decision by the highest international court was summarily rejected because of U.S. procedural rules that speed up executions.

Virginia rejected Secretary of State Albright’s request and denied clemency. Breard was then executed on April 14, 1998. Breard’s case was one of the fastest to go through the appeals process since the death penalty was reinstated.

The implications of Breard’s execution and of other similar cases are broad. U.S. citizens travel frequently around the world. If arrested, they often depend on help from the U.S. Embassy in understanding and defending against charges from a variety of legal systems quite different from their own. Now the U.S. has taken the position that even when long-established international norms of justice are violated by the arresting state, the punishment can be carried out, so long as the arresting country’s legal procedures were followed.

“I am deeply troubled by the failure of consular notification in this case. Texas has conceded that the (Vienna Convention’s) requirement of consular notification was violated… It is clear that, but for these failures, Canadian consular officials would have visited Mr. Faulder in prison and offered him assistance before his second trial and direct appeals had been completed, when such assistance would have been critical … .”

-U.S. Secretary of State [81] The President of the European Union, in challenging a similar case of Stanley Faulder, a Canadian national denied his consular rights in Texas, raised the specter of broader disregard of important international law: “The EU (European Union) is seriously concerned that this disregard of Texan Authorities in a case where someone is under prosecution for a capital crime may lead to erosion of international consular protection.” [79]

Faulder was executed in Texas in 1999, as were a Thai citizen in California, and two Germans in Arizona, despite pleas and legal challenges from all of these countries. The State Department offered apologies to some of the countries involved, while the law enforcement branch pushed hard for the executions. [80]

On a broader scale, the U.S.’s actions have has diminished the power of the International Court of Justice in international affairs. If the U.S. refuses to delay an execution notwithstanding a ruling from the highest international court, then other nations may act exempt, as well.

The U.S. is constantly in need of international cooperation on such matters as defense, drug enforcement, economics, and human rights. Its refusal to defer for even a short time to the ICJ’s decision to review the Breard issue may make it harder for it to secure cooperation from other countries when needed.
Ironically, the U.S. was the first country to appeal to the International Court of Justice to enforce the Vienna Convention. When Iran seized the U.S. Embassy and held Americans hostage in 1979, the U.S. sought and secured a ruling from the International Court condemning Iran’s action. [82] But with a ruling adverse to the its position, the U.S. has chosen not to comply.

It should be noted that the State Department has now, belatedly, undertaken an information campaign to alert law enforcement officers about their duties under the Vienna Convention. [84] Also, a few appellate courts have recognized a defendant’s rights under this treaty and granted some relief. [85]

But no one on death row has been granted relief under the Vienna Convention, despite the fact that consular assistance at the sentencing level might have made a critical difference. Foreign nationals from 29 countries are facing execution in the U.S., so this crisis will surely grow.

“I think domestic courts should faithfully recognize the obligations imposed by international law. The Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and our status as a free nation demands faithful compliance with the law of free nations.”
-Justice Sandra Day O’Connor [83]

Racial Bias and the Arbitrary Application of the Death Penalty Up

Three of the key human rights treaties which the U.S. has ratified condemn punishments meted out in an arbitrary or discriminatory way. The ICCPR forbids any arbitrary use of the death penalty. [86] The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the U.N. General Assembly in 1984 [87], signed by President Ronald Reagan in 1988, and ratified by the United States in 1994, forbids torture and the infliction of severe pain or suffering “based on discrimination of any kind.” [88] And the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), signed by the U.S. in 1966 and ratified in 1994, requires parties to “guarantee the right of everyone, without distinction as to race, … equality before the law” and all tribunals of justice. [89]

The U.N.’s Special Rapporteur and the International Commission of Jurists, following their visits to the U.S. in 1997 and 1996 respectively, decried the evident racial bias in the use of the death penalty. The Jurists particularly singled out the racial disparities and due process violations evident in the use of the death penalty in the U.S.:

“The Mission is of the opinion that … the administration of capital punishment in the United States continues to be discriminatory and unjust — and hence ‘arbitrary’ —, and thus not in consonance with Articles 6 and 14 of the Political Covenant (ICCPR) and Article 2(c) of the Race Convention.” [90]

More recently, the Inter-American Commission on Human Rights found the U.S. in violation of international law for the 1992 execution of William Andrews in Utah. Despite evidence of racial discrimination on the part of the jury at Andrews’s trial in the form of a note found saying, “Hang the Niggers,” the Utah court declined to hold an investigatory hearing and proceeded with the trial and death sentencing. U.S. courts upheld the sentence. The Commission’s ruling advised the U.S. to pay adequate compensation to Mr. Andrews’ next of kin for this injustice. [91] No such compensation has been provided.

The U.S. Response

The official U.S. response to this criticism has again been denial, despite an extensive array of conclusive studies pointing to racial discrimination in the death penalty. In a recent overview of research on the subject of race and the death penalty in the U.S. published in the Cornell Law Review, researchers found relevant race data in 29 of the death penalty states. In 90% (26/29) of these states, there was evidence of race-of-victim disparities (i.e., under otherwise similar circumstances, a defendant was more likely to receive a death sentence if the victim was white than if the victim was black). [92] These results were consistent with the conclusion of a 1990 General Accounting Office review finding similar patterns of racial bias across the country in the death penalty. [93]

Another recent study found that nearly 98% of the country’s district attorneys responsible for the decision to seek the death penalty are white. Only 1% are black. [94] Such persistent and pervasive reports cry out for remedial action, but almost nothing has been done.

The U.S. Supreme Court held in 1987 by a 5-4 vote that to establish a federal constitutional violation, discrimination must be proven on an individual case basis, not with statistical patterns of bias. [95] But the Court said that legislative bodies could provide statutory remedies relying on statistical evidence. However, the U.S. Congress has failed to pass the Racial Justice Act, which would allow broad challenges to the racially discriminatory application of the death penalty. Instead, Congress has recently curtailed the appeals process and withdrawn federal funds from the organizations best equipped to bring challenges to discriminatory death sentences. [96]

Time on Death Row -- An Additional Punishment Up

The typical death row inmate spends nine years in a 6 by 9 foot isolated cell, with little chance for exercise, visitors, or contact with other human beings. From day to day, he does not know when his death sentence will be carried out. Such physical and psychological mistreatment has been likened to torture. [97]

A series of decisions in international courts has found such prolonged confinement on death row to be cruel and inhuman punishment. One of the leading cases in this vein was decided by the European Court of Human Rights, involving what has come to be called “the death row phenomenon,” that is, the additional suffering inflicted through years of often solitary confinement under a sentence of death.

In the case of Jens Soering, a German national who committed murder in Virginia and then fled to England, the European Court, which was considering his extradition appeal, held that his extradition to the U.S. would be a breach of Article 3 of the European Convention on Human Rights forbidding inhuman and degrading treatment. Despite the fact that some of the delay on death row might be due to the defendant’s own appeals, such treatment was deemed unacceptable:

However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. [99]

Soering was eventually returned to the U.S. after Virginia agreed not to seek the death penalty. The European Court’s ruling on extradition was based on other factors in his case, as well as the death row phenomenon. Hence, it was not clear if extensive confinement under threat of execution alone was enough to render a death sentence a human rights’ violation. In a subsequent case, Pratt and Morgan, involving Jamaican citizens, a British court ruled that it was.

Earl Pratt and Ivan Morgan were arrested for the crime of murder in Jamaica in 1977 and sentenced to death two years later. After a lengthy period of incarceration on death row and appeals to various courts, they were finally granted relief in 1993 by the Judicial Committee of the Privy Council, a British court with final jurisdiction for 16 countries of the British Commonwealth. The Privy Council held that the prolonged detention on death row constituted cruel, inhuman and degrading treatment, in violation of Jamaica’s Constitution. The death sentences were commuted to life. [100]

The decision of the Privy Council in Pratt and Morgan held that confinement for longer than five years on death row is inhuman punishment and reduced the death sentences to life. Hundreds of prisoners in many of the countries subject to the Privy Council were affected. [101]

The U.S. Response

The issue of extremely long and torturous time on death row as being a cruel and unusual punishment was presented to the U.S. Supreme Court in a case from Texas. Clarence Lackey had been on death row for 17 years when he petitioned the Supreme Court to decide whether such an extensive and deprived confinement, only partly due to his own appeals, constituted cruel and unusual punishment. The Court declined to take the case, [102] but two Justices wrote separately that Lackey had raised an important and undecided issue.

“When it comes to Cuba’s record on human rights, Japan’s trade practices, or Iraq’s compliance with treaties on chemical weapons, the United States is a staunch proponent of international law. But when the tables are turned and we’re accused of violating international law, we couldn’t care less. Nowhere is this more apparent than with respect to the death penalty… . “
-Prof. David Cole

Justice Stevens recalled that the reinstatement of the death penalty in 1976 rested on its serving two principal societal purposes: retribution and deterrence. “It is arguable,” Stevens wrote, “that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death.” [103]

Similarly, Justice Breyer, in dissenting from the Supreme Court’s refusal to hear the case of William Elledge from Florida, said Elledge’s argument that 23 years under sentence of death is unusual and “especially cruel” was worth considering. [104] Breyer also noted the importance of the Supreme Court’s addressing this question because of international concerns. [105]

On a state level, some judges have taken corrective action in light of the lengthy time inmates have spent on death row. The Florida Supreme Court recently struck down a death sentence because of the 12-year delay in holding an evidentiary hearing for Ronnie Jones. [106] Judge Charles Wells wrote: “I cannot accept any excuse or have any tolerance for the state placing a person on death row and allowing a person to linger there for the period of time, or even near the period of time, that has occurred in this case.” [107]

In Florida, death row inmates spend their time in tiny foot cells and are allowed 4 hours of outside exercise a week. In New Jersey, a judge recently sentenced a man to death, but only if the execution is carried out in 5 years. The judge called the typical death penalty process “unacceptably cruel.” [108]

The U.S. tried to make sure that it could sidestep this issue on an international level by filing a specific reservation to the Torture Convention:

The United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty. [109]

The typical death row inmate spends nine years in a 6 by 9 foot isolated cell, with little chance for exercise, visitors, or contact with other human beings. From day to day, he does not know when his death sentence will be carried out. Such physical and psychological mistreatment has been likened to torture. [97]

A series of decisions in international courts has found such prolonged confinement on death row to be cruel and inhuman punishment. One of the leading cases in this vein was decided by the European Court of Human Rights, involving what has come to be called “the death row phenomenon,” that is, the additional suffering inflicted through years of often solitary confinement under a sentence of death.

In the case of Jens Soering, a German national who committed murder in Virginia and then fled to England, the European Court, which was considering his extradition appeal, held that his extradition to the U.S. would be a breach of Article 3 of the European Convention on Human Rights forbidding inhuman and degrading treatment. Despite the fact that some of the delay on death row might be due to the defendant’s own appeals, such treatment was deemed unacceptable:

However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. [99]

Soering was eventually returned to the U.S. after Virginia agreed not to seek the death penalty. The European Court’s ruling on extradition was based on other factors in his case, as well as the death row phenomenon. Hence, it was not clear if extensive confinement under threat of execution alone was enough to render a death sentence a human rights’ violation. In a subsequent case, Pratt and Morgan, involving Jamaican citizens, a British court ruled that it was.

Earl Pratt and Ivan Morgan were arrested for the crime of murder in Jamaica in 1977 and sentenced to death two years later. After a lengthy period of incarceration on death row and appeals to various courts, they were finally granted relief in 1993 by the Judicial Committee of the Privy Council, a British court with final jurisdiction for 16 countries of the British Commonwealth. The Privy Council held that the prolonged detention on death row constituted cruel, inhuman and degrading treatment, in violation of Jamaica’s Constitution. The death sentences were commuted to life. [100]

The decision of the Privy Council in Pratt and Morgan held that confinement for longer than five years on death row is inhuman punishment and reduced the death sentences to life. Hundreds of prisoners in many of the countries subject to the Privy Council were affected. [101]

The U.S. Response

The issue of extremely long and torturous time on death row as being a cruel and unusual punishment was presented to the U.S. Supreme Court in a case from Texas. Clarence Lackey had been on death row for 17 years when he petitioned the Supreme Court to decide whether such an extensive and deprived confinement, only partly due to his own appeals, constituted cruel and unusual punishment. The Court declined to take the case, [102] but two Justices wrote separately that Lackey had raised an important and undecided issue.

“When it comes to Cuba’s record on human rights, Japan’s trade practices, or Iraq’s compliance with treaties on chemical weapons, the United States is a staunch proponent of international law. But when the tables are turned and we’re accused of violating international law, we couldn’t care less. Nowhere is this more apparent than with respect to the death penalty… . “
-Prof. David Cole

Justice Stevens recalled that the reinstatement of the death penalty in 1976 rested on its serving two principal societal purposes: retribution and deterrence. “It is arguable,” Stevens wrote, “that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death.” [103]

Similarly, Justice Breyer, in dissenting from the Supreme Court’s refusal to hear the case of William Elledge from Florida, said Elledge’s argument that 23 years under sentence of death is unusual and “especially cruel” was worth considering. [104] Breyer also noted the importance of the Supreme Court’s addressing this question because of international concerns. [105]

On a state level, some judges have taken corrective action in light of the lengthy time inmates have spent on death row. The Florida Supreme Court recently struck down a death sentence because of the 12-year delay in holding an evidentiary hearing for Ronnie Jones. [106] Judge Charles Wells wrote: “I cannot accept any excuse or have any tolerance for the state placing a person on death row and allowing a person to linger there for the period of time, or even near the period of time, that has occurred in this case.” [107]

In Florida, death row inmates spend their time in tiny foot cells and are allowed 4 hours of outside exercise a week. In New Jersey, a judge recently sentenced a man to death, but only if the execution is carried out in 5 years. The judge called the typical death penalty process “unacceptably cruel.” [108]

The U.S. tried to make sure that it could sidestep this issue on an international level by filing a specific reservation to the Torture Convention:

The United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty. [109]

Conclusion: A Disingenuous Response Up

The U.S. has taken contradictory stances in responding to international efforts to limit the death penalty. On the one hand, the U.S. invites international investigations, but then it dismisses their findings, as it did with the report of the U.N. Special Rapporteur on Executions. [110] It signs international human rights treaties, but takes debilitating reservations to protect the status quo. It apologizes to countries whose citizens rights were ignored by U.S. law enforcement, but still argues in court for the speedy execution of the same defendants. It argues before the International Court of Justice, thereby acknowledging the Court’s jurisdiction, but then fails to abide by the decisions from the same Court.

As constitutional law expert David Cole wrote: “When it comes to Cuba’s record on human rights, Japan’s trade practices, or Iraq’s compliance with treaties on chemical weapons, the United States is a staunch proponent of international law. But when the tables are turned and we’re accused of violating international law, we couldn’t care less. Nowhere is this more apparent than with respect to the death penalty… . ” [111]

The federal government often takes the position that the death penalty is a state issue. But there is a place for national leadership on the elimination of the death penalty for juveniles and the mentally retarded, for passage of legislation to allow challenges to patterns of racial discrimination, and there are alternative positions that the U.S. could take in federal and international courts concerning the binding quality of international treaties. To date, that leadership has been absent.

III. The Costs to the U.S. Up

The United States represents its interests so robustly and directly, even in issues of far less importance. Respecting international laws cannot be a one-way street.
-German Justice Minister Herta Daeubler-Gmelin announcing a suit against the U.S. in the International Court of Justice for the execution of two German nationals, 1999 [132]

The U.S.’s refusal to take any significant steps in response to the world-wide concern about the death penalty is likely eroding U.S. prestige and leadership in the field of human rights. For example, the world community has recently gone ahead without the U.S. on such important matters as the treaty to ban land mines and the establishment of the International Court of Criminal Justice, even though the U.S. had worked extensively on those endeavors. [133]

The breakdown of mutual respect for protection of one’s citizens in a foreign country would not serve the U.S. well. Many U.S. citizens live or travel abroad and depend on their right to consult with their embassy whenever trouble arises.

While no country has threatened to ignore its obligations under the Vienna Convention, if that treaty were to be given the low priority it has been accorded here, the results could have a profound effect on U.S. citizens abroad.
“If Texas executes Stanley Faulder on Thursday, Canada’s willingness to co-operate with American justice may suffer. That would be an unfortunate setback in cross-border relations.”
-The Toronto Star

The skirting of the decisions of the International Court of Justice and the failure to provide any remedy to foreign citizens facing execution whose Vienna Convention rights were admittedly violated discourages other countries from affording it cooperation in matters such as extradition and the U.S.’s own petitions to the International Court.

As the Toronto Star editorialized regarding the execution of a Canadian citizen: “If Texas executes Stanley Faulder on Thursday, Canada’s willingness to co-operate with American justice may suffer. That would be an unfortunate setback in cross-border relations.” [134]

Unfortunately, this is happening at a time when, from Kosovo to China, the U.S. depends on international cooperation.

One area where the U.S. has frequently sought cooperation is the exchange of prisoners. The U.S. has extradition treaties with many countries whereby the country which detains a defendant charged with a serious crime in another country will return that defendant to the charging country. An exception, however, is made in capital cases. Countries such as England, France, Canada, Mexico, Italy, the Dominican Republic, and Germany have refused or delayed the extradition of people charged with murder in the U.S. in order to secure assurance from the prosecution that the death penalty will not be sought.

Even if a country does decide to return an accused to the U.S. to face a possible death sentence, that country may be censured by the tribunals which oversee the various human rights treaties. At a minimum, the death penalty issue may cause a delay of years, and costly litigation.

Charles Ng, for example, was arrested in Canada in 1985. After six years of litigation in Canada’s courts, Ng was finally returned to the U.S. in 1991. The case, which ultimately did result in a death sentence in 1999, has been the most expensive in California history, particularly because of the extradition delays caused by seeking the death penalty. [135]

In the future, the U.S. may face economic sanctions for its death penalty stance. European Parliament official Alan Donnelly warned of possible economic consequences for U.S. states that continue to use the death penalty. In a letter to Texas Governor George Bush, Mr. Donnelly pointed to the European Parliament’s condemnation of the death penalty and stated that “Many companies, under pressure from shareholders and public opinion to apply ethical business practices, are beginning to consider the possibility of restricting the investment in the U.S. to states that do not apply the death penalty.” [136]

Conclusion Up

My primary concern here is not compassion for the murderer. My concern is for the society which adopts vengeance as an acceptable motive for its collective behaviour. If we make that choice, we will snuff out some of that boundless hope and confidence in ourselves and other people, which has marked our maturing as a free people.
-Pierre Trudeau, former Prime Minister of Canada [137]

The international trend towards the abolition of the death penalty and the U.S.’s refusal to abide by existing international law regarding capital cases puts the United States in an increasingly embarrassing position. The thrust of the treaties and human rights covenants among virtually all of the nations in the world community is that countries should move towards ending capital punishment, and in the interim, should restrict the death penalty to fewer offenses and fewer executions, and spare juvenile offenders, the mentally retarded and the severely mentally ill entirely.

The U.S. is paying an enormous price in obstinately holding on to the death penalty. It has defied consecutive unanimous rulings from the highest international court, it has isolated itself on two of the most important human rights treaties of the century, it has alienated its allies by turning a deaf ear to their entreaties for mercy and due process, and it has endangered its own citizens abroad by disrespecting international law.

In 1998, the world celebrated the 50th anniversary of the Universal Declaration of Human Rights. This pivotal U.N. document, which the United States helped forge, is being used to limit or abolish the death penalty in regional treaties and in the decisions of international courts. But precisely at a time when the U.S. needs international cooperation, it is increasingly becoming the target of international criticism for violating the spirit of this document. Our violation of international norms is a source of confusion to our allies, and an excuse for other countries to break other rules of international law. Hiding behind the technicalities of reservations and procedural barriers defies the essence of these treaties and serves us poorly as a leader in the pursuit of human rights into the 21st Century.

Our practices of executing juvenile offenders and the mentally ill, of refusing to pass legislation to counter racial discrimination in the death penalty, of failing to inform defendants of their consular rights, of increasing executions, and expanding it to new states and new crimes, will mean further isolation of the U.S. from the international community. Unless steps are taken soon to rectify this affront to the norms of international justice, the U.S. will suffer enormously in the critical arena of human rights.

Appendices Up

I. International Treaties

A. International Covenant on Civil and Political Rights - excerpts, with U.S. reservations

B. International Convention on the Elimination of All Forms of Racial Discrimination - excerpts

C. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - excerpts, with U.S. reservations

D. Convention on the Rights of the Child - excerpts

E. American Convention on Human Rights - excerpts

F. Vienna Convention on Consular Rights - excerpts

II. Execution of Juvenile Offenders

A. Minimum Age Requirements for the Death Penalty in U.S. Jurisdictions

B. Juvenile Offenders Executed in the U.S. since 1976

C. Execution of Juvenile Offenders Worldwide

I. International Human Rights Treaties

Full text versions of the following treaties, including ratification status and reservations, are available on the United Nations Documentation Research Guide: Special Section on Human Rights Internet website here.

A. International Covenant on Civil and Political Rights (Excerpts)

General Assembly resolution 2200A (XXI) of December 16, 1966

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

UNITED STATES OF AMERICA

Reservations:

(2) That the United States reserves the right, subject to its Constitutional constrains, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.

B. International Convention on the Elimination of all Forms of Racial Discrimination (Excerpts)

General Assembly resolution 2106 (XX) of December 21, 1965

Article 1

1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Article 2

1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

(e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

(b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution;

C. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Excerpts)

General Assembly resolution 39/46 of December 1984

Article 1

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

UNITED STATES OF AMERICA, Upon ratification:

Reservations:

I. The Senate’s advice and consent is subject to the following reservations:

(1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment’, only insofar as the term `cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

II. The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

D. Convention on the Rights of the Child (Excerpts)

General Assembly resolution 44/25 of December 12, 1989

Article 1

For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.

Article 6

1. States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.

Article 37

States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

Article 51

2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

E. American Convention on Human Rights, “Pact of San Jose, Costa Rica ” (Excerpts)

1144 UNTS 123, OASTS 36, November 22, 1969

PART I. STATE OBLIGATIONS AND RIGHTS PROTECTED

CHAPTER I. GENERAL OBLIGATIONS

Article 4. RIGHT TO LIFE. 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

3. The death penalty shall not be reestablished in states that have abolished it.

4. In no case shall capital punishment be inflicted for political offenses or related common crimes.

5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

F. Vienna Convention on Consular Relations (Excerpts)

(full text is not included on the United Nations website cited above)

596 U.N.T.S. 261, April 24, 1967

Article 36: Communication and Contact with Nationals of the Sending State

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody, or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.

II. Execution of Juvenile Offenders

A. Minimum Death Penalty Ages by American Jurisdiction

16 death penalty jurisdictions have expressly chosen age 18 at the time of the crime as the minimum age of eligibility for the death penalty:

California, Colorado, Connecticut, Illinois, Kansas, Maryland, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Oregon, Tennessee, Washington, and the U.S. Government

Another 5 jurisdictions have chosen age 17 as the minimum age:

Florida, Georgia, New Hampshire, North Carolina, and Texas

The other 18 of the death penalty jurisdictions use age 16 as the minimum age, either through an express age in the statute (8 states) or by court ruling (10 states):

Alabama, Arizona, Arkansas, Delaware, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Nevada, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Wyoming

B. Juvenile Offenders Executed in the U.S. Since 1976

Name Date of Execution Place of Execution Race Age at Crime Age at Execution Charles Rumbaugh 9/11/85 Texas White 17 28 J. Terry Roach 1/10/86 South Carolina White 17 25 Jay Pinkerton 5/15/86 Texas White 17 24 Dalton Prejean 5/18/90 Louisiana Black 17 30 Johnny Garrett 2/11/92 Texas White 17 28 Curtis Harris 7/1/93 Texas Black 17 31 Frederick Lashley 7/28/93 Missouri Black 17 29 Ruben Cantu 8/24/93 Texas Latino 17 26 Chris Burger 12/7/93 Georgia White 17 33 Joseph Cannon 4/22/98 Texas White 17 38 Robert Carter 5/18/98 Texas Black 17 34 Dwayne Allen Wright 10/14/98 Virginia Black 17 24 Sean Sellers 2/4/99 Oklahoma White 16 29

C. Executions of Juvenile Offenders Worldwide

Country

Name of Offender Age at Execution Date of Execution

Bangladesh

Mohammed Sleim 17 Feb.27, 1986

Iran

Kazem Shirafkan

3 unnamed males 17

16, 17, 17 1990

Sept. 29, 1992

Iraq

5 Kurdish males

8 Kurdish males 15 to 17

14 to 17 Nov-Dec, 1987

Dec. 30-31, 1987

Nigeria

Matthew Anu 18 Feb. 26, 1989

Pakistan

1 male 17 Nov.15, 1992

Saudi Arabia

Sadeq Mal-Allah 17 Sept. 2, 1992

Yemen

Nasser Munir Nasser alÕKirbi 13 July 21, 1993

(Source: V. Streib, - The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1973-June 1999”)

Sources

1. Mary Robinson, High Commissioner for Human Rights, on the Texas exe­cu­tion of Karla Faye Tucker, Feb. 4, 1998, quot­ed in Human Rights Magazine, Summer 1998, at 10 (American Bar Assoc.).

2. W. Schabas, The Abolition of the Death Penalty in International Law 295 (1997).

3. See A. Stanley, Pope, in St. Louis Mass, Urges U.S. Catholics to Oppose Death Penalty, N.Y. Times, Jan. 28, 1999, at A14.

4. U.N. Panel Votes for Ban on the Death Penalty, N.Y. Times, April 291999.

5. R. Cohen, U.S. Execution of German Stirs Anger, N.Y. Times, March 51999.

6. Breard v. Pruett, 134 F.3d 615, 621 (4th Cir. 1998) (Butzner, J., concurring).

7. M. Jimenez, Texas Rules Alberta Man Will Die But Canadian Momentum Builds to Save His Life, (Canada) National Post, Nov. 241998.

8. Letter, Madeleine Albright to Victor Rodriguez, chair of Texas Board of Pardons, Nov. 1998.

9. E. Olson, U.N. Report Criticizes U.S. for Racist’ Use of Death Penalty, N.Y. Times, April 7, 1998, at A17.

10. Associated Press, Yeltsin Signs Death Sentence Decree, June 31999.

11. Reuters, Estonia Takes Step to Scrap Death Penalty, March 181998.

12. Amnesty International Report, (AI Index: ACT 53/​01/​98) (Jan. 1998).

13. Amnesty International, Death Penalty News: March 1998 (AI Index: ACT 53/​02/​98)

14. Reuters, Sept. 11998.

15. Reuters, Lithuania Abolishes Death Penalty, June 221999.

16. Associated Press, Turkmenistan Suspends Death Penalty, Jan. 61999.

17. BBC News, The 50th Anniversary of the Universal Declaration of Human Rights, Dec. 101998.

18. United Nations High Commission for Human Rights, Resolution 199961, 58th Meeting, April 281999.

19. See, e.g., Schabas, note 2, at 87, quot­ing UN Human Rights Commission.

20. U.S. Dept. of State, Civil and Political Rights in the United States: Initial Report of the United States of America to the U.N. Human Rights Committee under the International Covenant on Civil and Political Rights, July, 1994, at i (intro­duc­tion).

21. Universal Declaration of Human Rights, G.A. Res. 217 A (III) (1948).

22. International Covenant on Civil and Political Rights, 999 UNTS 171 (1976), at Art. 6 (empha­sis added).

23. Reuters, Amnesty Calls for Ban on Executions, June 161999.

24. G.A. Res. 4425, U.N. GAOR, 44th Sess., Supp. No. 49 (1989).

25. See B. Crossette, Tying Down Gulliver With Those Pesky Treaties, N.Y. Times, Aug. 8, 1999 (Week in Review).

26. Indeed, President Bush refused to even sign this accord because it is con­trary to some state laws, because it pro­hibits cer­tain crim­i­nal pun­ish­ment, includ­ing the death penal­ty, for chil­dren under age eigh­teen.” T. McNulty, U.S. Out in Cold, Won’t Sign Pact on Children, Chicago Tribune, Sept. 30, 1990, at 4.

27. Under the U.S. Constitution, the President signs inter­na­tion­al treaties, but they are rat­i­fied by the Senate, which advis­es and con­sents with the President. Under inter­na­tion­al law, a coun­try is expect­ed to abide by a treaty it has signed, even as it awaits final rat­i­fi­ca­tion. See International Commission of Jurists, Administration of the Death Penalty in the United States 33 (June 1996).

28. Amer. Conv. on Human Rights, Article 4(5); OASTS N.36 (1979).

29. See Schabas, note 2, at 82 – 83.

30. U.S. Reservation to Article 6 of the ICCPR, UN Doc. ST/LEG/SER.E/13, p.175 (empha­sis added).

31. See Schabas, note 2 at 81 – 82.

32. Id. at 316.

33. Id. at 318.

34. Id. at 90.

35. See V. Streib, Moratorium on the Death Penalty for Juveniles, 61 Law and Contemporary Problems 55 (1998).

36. Stanford v. Kentucky, Wilkins v. Missouri, 492 U.S. 361 (1989).

37. 356 U.S. 86 (1958).

38. Id. at 102.

39. Stanford, 492 U.S. at 370, n.1.

40. Id. at 390 (Brennan, J., dissenting).

41. L. Davis, Texas Legislator Wants Minimum Execution Age Lowered to 11, Dallas Morning News, April 71998.

42. See J. Megivern, The Death Penalty: An Historical and Theological Survery 405 (1997).

43. Human Rights Watch, United States: A World Leader in Executing Juveniles, at 9 – 10 (March 1995).

44. See Schabas, note 2, at 266. Individuals can bring peti­tions chal­leng­ing a coun­try’s adher­ence to Article I of the American Declaration on the Rights and Duties of Man, which all OAS mem­bers are bound to follow.

45. Roach and Pinkerton v. United States (Case No. 9647), Resolution No. 387, report­ed in: OAS Doc. OEA/Ser.L/V/II.71 doc. 9 rev. 1, p.147 (1987).

46. See L. Romano, Reaching Out as Time is Running Out, Wash. Post, Jan. 22, 1999, at A8.

47. Amnesty International Report 1999, (AI Index: POL 10/​01/​99) (1999), at 11.

48. Domingues v. Nevada, No. 98 – 8327, peti­tion for cer­tio­rari pend­ing (U.S. 1999).

49. Makwanyane and Mchunu v. The State, 16 HRLJ 154 (Const. Ct. of S. Africa 1995).

50. Commission on Human Rights res­o­lu­tion, 199961 (58th Meeting, April 281999).

51. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions by Mr. Bacre Waly Ndiaye, E/CN.4/1998/68/Add.3, at ¶ 145.

52. Penry v. Lynaugh, 492 U.S. 302 (1989).

53. C. Stafford Smith & R. Starns, Folly by Fiat: Pretending that Death Row Inmates Can Represent Themselves in State Capital Post-Conviction Proceedings, 45 Loyola Law Review 55, 69 (1999).

54. U.S. Dept. of Justice, Mental Health and Treatment of Inmates and Probationers, BJS, July, 1999.

55. Ford v. Wainwright, 477 U.S. 399 (1986).

56. See R. Cohen, The Execution of Rickey Ray Rector, Wash. Post, Feb. 23, 1993 (op-ed).

57. See D. Terry, Jury to Decide if Condemned Man Comprehends His Fate, N.Y. Times, April 121998.

58. C. McCarthy, Insane and on Death Row, Wash. Post, May 61995.

59. Correspondence from L. Davis, Ford’s attor­ney, to DPIC, June 28, 1999 (on file with DPIC) (stay of exe­cu­tion granted).

60. See D. Baker, Gilmore Stops Execution for First Time, Wash. Post, May 131999.

61. W. Glaberson, Kaczynski Avoids a Death Sentence with a Guilty Plea, N.Y. Times, Jan. 231998.

62. See K. Bell, Man on Death Row is Ruled Mentally Incompetent, Escapes Execution, St. Louis Post-Dispatch, Feb. 21999.

63. See T. Korte, Mentally Retarded Killer is Off Death Row, Lincoln Journal Star, July 11999.

64. Letter from Madeleine Albright, U.S. Secretary of State, to James Gilmore, Governor of Virginia, April 131998.

65. Paraguay v. Gilmore, No. 97 – 1390, Amicus Brief for the United States, at 48 (U.S. 1998)

66. Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 (April 24, 1963) (rat­i­fied by the U.S. in 1969) (here­inafter Vienna Convention).

67. Id. at Article 36(1)(b).

68. S. Meisler, Activists Say Courts Abuse Rights of Juvenile Defendants, L.A. Times, Nov. 18, 1998 (quot­ing Rob Stutzman).

69. M. Jacobs, Foreigners on Death Row Seek Link to Diplomats, S.F. Daily Journal, Nov. 51997.

70. L. Ballard, The Vienna Convention, Consular Access, and Other Assistance Available to Foreign Nationals: A Guide for Criminal Defense and Immigration Attorneys, at n. 6 (1998) (on file with DPIC).

71. A. Villafranca, Consulate Issue Raised in Trial of Mexican Convicted of Murder, Houston Chronicle, Oct. 21997.

72. Texas Executes a Mexican Killer, Raising a Furor Across the Border, N.Y. Times, Mar. 261993.

73. See Are 65 Illegally on Death Row in U.S.?, National Law Journal, April 27, 1998, at A16.

74. See B. Masters, World Court Tells U.S. To Halt Va. Execution, Wash. Post, April 10, 1998, at C1.

75. See Breard v. Greene, 140 L.Ed.2d 529, 538 (1998) (per curiam).

76. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) No. 99 (International Court of Justice, April 91998).

77. L. Greenhouse, Court Weighs Execution of Foreigner, N.Y. Times, April 14, 1998, at A14 (quot­ing the Solicitor General’s brief).

78. Breard, 140 L.Ed., at 537.

79. Letter from Helmut Tuerk, Austrian Ambassador to the U.S., to Gov. George W. Bush of Texas, Dec. 8, 1998 (on file with DPIC).

80. See, e.g., Court Blocks Execution of Canadian in Texas, Wash. Post, Dec. 10, 1998 (Associated Press) (Texas parole board vot­ed 17 – 0 for exe­cu­tion despite pleas from U.S. Secretary of State).

81. Letter from Madeleine Albright to Victor Rodriguez, chair of Texas’s Board of Pardons, Nov. 1998.

82. United States Diplomatic and Consular Staff in Iran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgement of May 24).

83. S. O’Connor, Federalism of Free Nations, in International Law Decisions in National Courts 13, 18 (T. Franck & G. Fox eds., 1996).

84. See U.S. Dept. of State, Consular Notification and Access , peri­od­i­cal­ly updat­ed, (instruc­tions for law enforce­ment officials).

85. See, e.g., United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999); Ademodi v. State, No. 90063152 (4th Dist. Minn. Dec 211998).

86. See ICCPR, note 22 at Art. 6(1).

87. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.Res. 3946 (Dec. 171984).

88. Id. at Art. 1(1) (empha­sis added).

89. G.A. Res. 2106 A (XX) (Dec. 21, 1965), at Art. 5 (empha­sis added).

90. International Commission of Jurists, note 27, at 68, § vi.

91. Inter-American Commission on Human Rights,Report No. 5796 (1998).

92. D. Baldus, et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell Law Rev. 1638, 1661 (1998).

93. U.S. Gen. Acct. Ofc., Death Penalty Sentencing: Research Indicates Patterns of Racial Disparities (1990).

94. See J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors, 83 Cornell Law Rev. 1811 (1998).

95. See McCleskey v. Kemp, 481 U.S. 271 (1987).

96. See R. Tabak, Why the ABA Opposes Unjust Executions, 4 Georgetown Journal on Fighting Poverty 181 (1996). One state, Kentucky, did pass a some­what weak­er ver­sion of the Racial Justice Act in 1998.

97. See R. Hanley, Judge Orders Death Penalty with a Five-Year Deadline, N.Y. Times, May 8, 1999, at A17 (judge describ­ing time on death row as a cru­el­ly whim­si­cal cat toy­ing with a mouse.”).

98. Photo: copy­right Ken Light from Texas Death Row, pub­lished by Univ. of Miss. Press 1 – 800-7377788, for repro­duc­tion use con­tact [email protected]​uclink4.​berkeley.​edu

99. Soering v. United Kingdom and Germany, 11 EHRR 439 (European Ct. of Human Rts, Series A, Vol. 161, July 71989).

100. Pratt et al. v. Attorney General for Jamaica et al. , 4 All E.R. 769 (Privy Council, 1993).

101. See H. Mills, Death Row Prisoners Escape the Gallows, The Independent, Nov. 3, 1993, at 6.

102. Lackey v. Texas, No. 94 – 8262 (U.S. Mar. 271995).

103. Id. at 1 (Stephens, J., mem. respect­ing denial of cert.)

104. Elledge v. Florida, 1998 WL 440561 (U.S. Fla.) (Breyer, J., dis­sent­ing from a denial of cert.).

105. Id.

106. Reuters, June 171999.

107. Jones v. State, 24 Fla. Law W. S 290 (Fla. June 17, 1999) (Wells, J., concurring).

108. See Hanley, note 97.

109. Torture Convention, note 87, U.S. Reservation I(4) (empha­sis added).

110. See, e.g., E. Kaban, U.S. Rejects UN Executions Charge as Severely Flawed,” Reuters, April 151998.

111. D. Cole, We’ve Long Been Death Penalty Outlaws, Legal Times, April 27, 1998, at 23.

112. R. Hood, The Death Penalty: A World-wide Perspective 8 (2d edit. 1996).

113. See Amnesty International, United States of America: The Death Penalty 228 (Appendix 12) (1987) .

114. See Amnesty International, Facts and Figures on the Death Penalty (AI Index: ACT 50/​02/​99 (April 1999).

115. See Schabas, note 2, at 1.

116. Reuters, S. Africa’s Tutu Applauds Vote Against Hanging, Nov. 71997.

117. See Schabas, note 2, at 5 – 6.

118. See Hood, note 112, at 15.

119. Id. at 14.

120. Id. at 55.

121. L. Rohter, In the Caribbean, Support Growing for the DeathPenalty, N.Y. Times, Oct. 4, 1998, at 14.

122. African National Congress Daily Press Briefing, Aug. 27, 1998 (on file with DPIC).

123. E/CN.4/1997/12 (April 31997).

124. E/CN.4/1998/L.12 (Mar. 30, 1998); see note 18 (1999 Resolution).

125. Executive Order: Implementation of Human Rights Treaties, Dec. 10, 1998 (President Clinton).

126. See 18 U.S.C. §§ 3591 – 97.

127. E. Rosenthal, Number of Executions in China Seems to Decline, Rights Group Says, N.Y. Times, Sept. 41998.

128. Associated Press, As China Signs Rights Treaty, It Holds Activist, N.Y. Times, Oct. 6, 1998, at A13.

129. See Rohter, note 121.

130. Philippine Daily Inquirer, Dec. 311996.

131. Amnesty International Report 1999, AI Index: POL 10/​01/​99 (1999) . Amnesty states that, as in oth­er years, there have undoubt­ed­ly been oth­er judi­cial and extra­ju­di­cial exe­cu­tions which they have not been able to con­firm. See also Amnesty International, Death Sentences and Executions in 1998, AI Index: 51/​01/​99 (April 1999) and AI reports for pre­vi­ous years.

132. Reuters, Sept. 161999.

133. See Crossette, note 25 above.

134. Editorial, Faulder Shouldn’t Die, Toronto Star, June 151999.

135. See The State’s Costliest Murder Case, San Francisco Chronicle, Oct. 151995.

136. PRNewswire, June 25, 1998, European Parliament Delegation for Relations.

137. Amnesty International, When the State Kills: The Death Penalty v. Human Rights 35 (1989) (quot­ing Trudeau).