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Quick Reference to the Position on Capital Punishment of the 2004 Presidential Candidates   Inclusion or exclusion of a candidate on this page does not imply support by DPIC. For more information on each candidate, go to their individual 2004 Election homepage, or visit TheWashington Post's 2004 Election Tracker.


  • Candidates for the 2004 Democratic Party Nomination
  • Former Candidates for the 2004 Democratic Party Nomination
  • Republican Party Candidate for the 2004 Presidential Election


  • CANDIDATES FOR THE 2004
    DEMOCRATIC PARTY NOMINATION
    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    John Kerry
    johnkerry.com Opposes capital punishment, except for terrorists.  Believes that the system is flawed so long as innocents are in danger of being executed. "I'm opposed to the death penalty in the criminal justice system because I think it's applied unfairly, as even Republican governors have determined, and because I'm for a worse punishment.  I think it is worse to take somebody and put them in a small cell for the rest of their life, deprived of their freedom, never to be paroled.  Now, I think that's tougher."  (Meet the Press, December 1, 2002)

    In a Chicago Tribune interview on March 9, 2004, Kerry said he came to his conclusions about the death penalty from his years as a prosecutor in the Middlesex County district attorney's office; from his work helping to free a man wrongly convicted of murder; and even from his time in Vietnam. "There are cases in the system where there are miscarriages," he said, noting that he stopped a number of cases from moving forward when he was a prosecutor because he realized the defendants were not guilty. Kerry's time as a lieutenant on a Navy swift boat also factored into his decision-making about the death penalty. "What it did was it translated the killing into a more real event," he said.  (Kansas City Star, March 9, 2004) NOTE:  The Democratic Party Platform adopted by the party at its 2004 Convention in Boston, Massachusetts, does not include language referring to the death penalty in order to better reflect the Kerry / Edwards ticket.
    FORMER CANDIDATES FOR THE
    2004 DEMOCRATIC PARTY NOMINATION
    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    Carol Moseley Braun carolforpresident.com Opposes the death penalty in all cases. "I oppose the death penalty. In 1984, I filed Illinois' first bill to impose a moratorium on executions. The death penalty is too fraught with uncertainty and error, and is too often a revenge response. Civil society should not allow itself to be brutalized by resort to revenge and blood lust as an acceptable product of our system of criminal justice. Families who have been victims will often tell you that revenge does not bring redemption or even comfort: as Dr. King once said, "an eye for an eye will simply leave us all blind."  (Washington Post, november 6, 2003)
    Wesley Clark
    clark04.com Has expressed concerns regarding the implementation of the penalty. According to a recent Miami Herald interview, Clark endorsed a moratorium on the death penalty, saying there has been ''a lot of discrimination and a lot of injustice'' and that cases should be reviewed with DNA evidence.(Miami Herald, September 19, 2003)

    "I'll tell you, I'm uneasy about the death penalty.  A government like the United States has the right to, in extraordinary cases, take the life of a criminal, but I don't like the way the death penalty has been applied in America.  I think it's been applied in an unfair and discriminatory fashion and I think we need to go back and use modern technology and unpack all those cases on death row." (Village Voice, October 29, 2003)

    Howard Dean deanforamerica.com Believes in the use of the death penalty for heinous crimes involving children or police officers, or as a deterrent to terrorism. "I believe the death penalty should be available for extreme and heinous crimes, such as terrorism or the killing of police officers or young children.  But it must be carried out with scrupulous fairness.  I applaud former Illinois Gov. George Ryan, who imposed a moratorium rather than administer a system in which 13 innocent men were released from death row."  (deanforamerica.com) John Edwards johnedwards2004.com Supports capital punishment, but advocates reform. "We need to make DNA testing more available to death penalty defendants to reduce the risk of wrongful convictions."  (johnedwards2004.com) Dick Gephardt dickgephardt2004.com Supports capital punishment, but advocates reform. Co-Sponsor of the Innocence Protection Act (a bill  calling for DNA evidence to be allowed in appeals, and for better representation for those facing the death penalty). Bob Graham
    grahamforpresident.com Supports capital punishment.
    Voted to remove the Racial Justice Act from the 1994 Omnibus Crime Bill.  As Governor, oversaw 16 executions. Dennis Kucinich kucinich.us/ Believes the death penalty is morally wrong and racially biased.  Favors Life Without Parole as a morally viable alternative. "The imposition of the death penalty is both racially and economically biased.  African American defendants are more likely to receive death sentences than others who committed similar crimes. Ninety-eight percent of all defendants sentenced to death could not afford their own attorney."  (kucinich.us) Joseph Lieberman joe2004.com Once opposed, but now supports capital punishment.  Co-Sponsor of the Innocence Protection Act. "I have been a steadfast supporter of the death penalty for crimes so heinous that they cry out for the ultimate response, if for no other reason than to give some justice to the family and friends of the slain. We are blessed with an excellent system of criminal jurisprudence in America, but judges, juries and lawyers are human beings, and none of us is infallible. If there has been a mistake and available DNA evidence can demonstrate with certainty the innocence of the accused, how can we justify letting it gather dust in an evidence room?"  (senate.gov/
    ~lieberman/press/01/03/2001307641.html) Al Sharpton sharpton2004.org Opposes capital punishment. "[I want to] raise issues that would otherwise be overlooked—for example,  affirmative action, anti-death penalty policy, African and Caribbean policy."  (al2004.org) REPUBLICAN PARTY CANDIDATE
    FOR THE 2004 PRESIDENTIAL ELECTION

    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    George W. Bush
    georgewbush.com/ Strongly favors the death penalty.  Was governor of Texas during a record 152 executions, the most of any recent governor. "I was the governor of a state that had a death penalty and, as far as I was concerned, I reviewed every case and I was confident that every person that had been put to death received full rights and was guilty of the crime charged."  (Bush press conference, May 11, 2001)


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    Amnesty International: Violation of the Rights of Foreign Nationals Under Sentence of Death AI INDEX: AMR 51/01/98 (Published in 1998)

    More than 60 foreign citizens representing 22 nationalities are under sentence of death in the United States of America (USA). In virtually every case, the arresting authorities failed to notify detained foreigners of their right to communicate with their consular representatives. As a consequence, foreign nationals confronted by an unfamiliar legal system were tried and sentenced to death without the benefit of the crucial support from the authorities of their native countries. Since 1993, the United States has executed at least 5 foreign nationals, including citizens of the Dominican Republic, Mexico and Cuba.

    In 1969, the USA ratified the Vienna Convention on Consular Relations, a multilateral treaty regulating the functions of consulates in at least 144 nations. Article 36 of the Vienna Convention requires the local authorities to promptly inform arrested foreigners of their right to consular assistance. At the request of the detainee, the authorities must notify the consulate of the arrest and permit consular access to the detained national.

    Article 36 ensures that all arrested foreigners have the means at their disposal to prepare an adequate defence and to receive the same treatment before the law as domestic citizens. Consuls are uniquely placed to provide a wide range of essential services to their nationals, including legal advice and assistance, translation, notification of family members, the transferring of documentation from the native country and observing court hearings.

    The right to consular notification and visits is also reiterated under international human rights standards, including Principle 16(2) of the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and Article 38(1) of the UN Standard Minimum Rules for the Treatment of Prisoners.

    The US Department of State considers Article 36 notification for American citizens arrested abroad to be a matter of the highest importance. However, the US federal government has taken no meaningful measures to ensure domestic compliance with the Vienna Convention or to remedy past violations which resulted in death sentences and executions of foreign nationals. Amnesty International is concerned that what appears to be a double standard applied by the US authorities may undermine the integrity of international law and endanger the fundamental human rights of foreign nationals detained worldwide.

    In May 1997, 32 US law firms that represent foreigners on death row sent a joint letter to Secretary of State Madeleine Albright, protesting the denial of their clients' consular rights. The letter pointed to "an alarming, widespread pattern of indisputable and indefensible violations" of Article 36 and urged the State Department to intervene. To date, there has been no substantive reply from the Secretary of State to the joint letter.

    The cases of two Mexican nationals executed in 1997 illustrates the vital importance of timely consular intervention and the utter failure of the US authorities to meet their obligations under international law.

    On 18 June 1997, Texas executed Irineo Tristan Montoya, a Mexican national sentenced to death in 1986. Following his arrest, Montoya underwent a lengthy police interrogation without the presence of an attorney or the assistance of the Mexican Consulate. He then signed a four-page confession written in English, a language that he did not read, speak or understand.

    Although only eighteen years old at the time and despite his secondary involvement in the crime (Montoya was charged as an accessory to the murder), Montoya was condemned to death. The actual killer received a prison sentence. Texas authorities were fully aware of Montoya's nationality but failed to inform him of his right to consular access.

    Shortly before the execution, the State Department contacted the Governor of Texas, in a belated attempt to determine the circumstances surrounding the breach of Article 36. However, in a remarkable reply that showed the Texan authorities' misunderstanding of, or contempt for, international treaties, the officials refused to investigate the violation or to assess its possible impact, on the grounds that Texas was not a signatory to the Vienna Convention. A final appeal to the US Supreme Court on the treaty violation was dismissed without comment.

    Mario Benjamin Murphy was executed in Virginia on 17 September 1997. Murphy was one of six people charged with the 1991 'murder for hire' of a US Navy petty officer. Murphy fully cooperated with the police and was clearly not the most culpable individual. He was also the only defendant not offered a plea bargain by the prosecution and the only one sentenced to death -- and the only foreign national.

    Mario Murphy finally learned of his consular rights in 1996; however, both the prison warden and the Virginia Attorney General refused his request that they contact the Mexican Consulate on his behalf. A District Court judge later criticised Virginia officials for their "defiant and continuing disregard" of the Vienna Convention. During a hearing at the Fourth Circuit Court of Appeal, the Virginia Assistant Attorney General and two of the panel judges admitted that they had never heard of the Vienna Convention prior to the Murphy case.

    The Mexican Consulate filed an 'amicus curiae' brief (interested parties may appeal to a court via an 'amicus curiae' (friend of the court) brief), outlining the "flexible and far-reaching assistance to avoid imposition of the death penalty" which consular officials would have provided, including efforts to obtain a plea bargain and the gathering of mitigating evidence. Ignoring the obvious misconduct of state officials, the US courts ruled that the issue was "procedurally defaulted" because Murphy had failed to raise the claim at an earlier stage of appeal.

    The day after Murphy's execution, the State Department sent a formal apology to the Mexican Embassy for the failure of Virginia officials to provide Murphy with the required notification of his right to consular assistance.

    The consistent failure of the United States to meet its obligations under the Vienna Convention on Consular Relations is an issue of legitimate and growing concern to the international community. The governments of Canada, Mexico and Paraguay have all taken vigorous diplomatic and legal action to protect the consular rights of their citizens currently under a sentence of death.

    Despite sporadic advisory notices from the State Department, most state and local authorities remain ignorant of their Article 36 responsibilities. Gerald Arenberg, Executive Director of the National Association of Retired Police Chiefs, was recently quoted as stating that: "In my 47 years in law enforcement, I have never seen anything from the State Department or FBI about this".

    In an interview prior to the execution of Mario Murphy, the trial prosecutor, Robert Humphreys, showed contempt for Virginia's treaty violation: "I mean, what is the remedy? I suppose Mexico could declare war on us...To me, it's a completely ridiculous issue". In the same interview, Humphreys gave an entirely incorrect interpretation of Article 36: "The burden is on [defendants] to say, 'Hey, excuse me, I'm a Mexican citizen. Tell my Embassy'... ".

    Many violations of foreign nationals rights under the Vienna Convention are also violations of the USA's obligations under the International Covenant of Civil and Political Rights (ICCPR), ratified by the USA on 8 June 1992. For example, Article 14 (3a) of the ICCPR states that:

    '...[a defendant has the right] To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;' (emphasis added). General Comment 15 of the ICCPR's Position of Aliens under the Covenant also expands on the rights of foreign nationals charged with a criminal offence.

    In response to mounting international pressure, the State Department is reportedly considering measures to ensure better domestic compliance with the Vienna Convention. These measures are said to include revised material for advising US police forces of the procedures to be followed when arresting foreign nationals.

    Amnesty International welcomes these preliminary steps. However, the organization believes that they are insufficient to ensure that all US police departments are aware of--and comply with--the binding requirements of Article 36.

    Amnesty International also remains deeply concerned over the reluctance of the US authorities to develop effective remedies in the cases of foreign nationals who were sentenced to death without receiving notification of their consular rights. The US Government continues to oppose efforts by death-sentenced foreign citizens (and their governments) to obtain relief through the courts.

    In response to a law-suit filed by the Republic of Paraguay against Virginia officials, attorneys for the US Department of Justice argued that foreign governments are not entitled to a judicial remedy for Article 36 violations and that the proper recourse for breaches of consular rights is through diplomatic channels. However, it is not clear how diplomatic channels could correct the violation of the rights of those foreign nationals currently under sentence of death.

    In light of the State Department's insufficient efforts to intervene prior to the recent execution of foreign nationals, Amnesty International finds this position completely unacceptable. Without fair and effective remedies for past violations of Article 36 in capital cases, any assurances of future domestic compliance from the US authorities can only be seen as hollow promises.


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    Testimony of Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center to the Illinois House of Representatives addressing innocence and

    HISTORIC ILLINOIS HEARINGS ADDRESS INNOCENCE AND THE DEATH PENALTY

    Following a series of celebrated releases of innocent defendants from its death row, Illinois's House of Representatives held hearings to address the state's system of capital punishment on September 15 & 16, 1999. Among those who testified were Sister Helen Prejean, author of Dead Man Walking; Mike Farrell, actor and human rights activist; Renny Cushing, Director of Murder Victims Families for Reconciliation; Bryan Stevenson, Director of Equal Justice Initiative; Professor Lawrence Marshall, Northwestern University School of Law; Richard Dieter, Executive Director of Death Penalty Information Center

    ***********

    Illinois House of Representatives

    Testimony of Richard C. Dieter, Esq. Executive Director,
    Death Penalty Information Center Washington, DC

    September 15, 1999

    Good afternoon. My name is Richard Dieter. I am an attorney and the Executive Director of the Death Penalty Information Center in Washington, DC, a position I have held since 1992.

    I want to thank the members of this committee for your recognition of the importance of this issue and for affording myself and others the opportunity of offering a variety of perspectives on how the death penalty is being administered around the country.

    The Death Penalty Information Center is a non-profit organization which seeks to educate the public about the practice of capital punishment through objective information and analysis. We are funded primarily through foundation grants. In our analysis of the death penalty, we examine questions of fairness and the possibility of mistake, and in this we have been critical of the death penalty. Nevertheless, the Death Penalty Information Center does not have a position on the death penalty per se.

    When it comes to the issue of innocent defendants being sentenced to death, I believe we have a special expertise to offer. In 1993, Representative Don Edwards, who was then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, asked us to prepare a report on the dangers of executing innocent people. Our analysis of this issue included a discussion of 48 cases in the prior twenty years where people had been freed from death row after evidence demonstrated their innocence.

    That report was released as a Staff Report of the Subcommittee and the list of cases became a basis for an ongoing concern about innocence and the death penalty. The Subcommittee released an updated version of this report in 1994 and we released a further update in 1997. Our 1997 Report contained a total of 69 cases where innocent people had been released from death row. By the time of the national conference on innocence held here in Chicago in November of last year, that number had risen to 74 cases, and today it stands at 82.

    Clearly, the risks of executing innocent people that this large and growing number of cases represents, and the terrible costs to the lives of these 82 people, call for some radical changes in our system of justice. I commend the members of this committee and the Illinois House of Representatives for the courage to address this issue head-on. The problem is not one which is unique to Illinois. (In fact, more innocent people have been released from Florida's death row than from Illinois's.) And I have no doubt that many more such innocent people remain on death row today -- some in states that provide little or no representation for post-conviction review, or which resist releasing innocent inmates, even when the evidence of mistake is overwhelming.

    What can be done? On one level, this is a simple problem: if life imprisonment were substituted for the death penalty, there would be zero danger of executing the innocent. But I'm aware that this committee needs to hear concrete suggestions for changing the system without necessarily abandoning the death penalty. I will leave to those more familiar with the intricacies of Illinois's laws and procedures to suggest where practical changes could be made to ameliorate this problem. I would like to propose some broader areas of change:

    Racial Bias
    The issue of racial bias in the death penalty system is a different one than the issue of innocence. But they overlap. Ten out of the twelve people who have been released from Illinois's death row are members of a minority. Most are African-American. That doesn't prove racial bias, but it should raise concerns. Illinois's death row is made up of approximately 156 individuals, 97 of whom are black -- that's 62% in a state where the black population is less than 15%. Again, those figures do not prove any racial bias, but such a glaring disproportion is evidence that something is wrong at some level of society. If race is playing a role in who is sentenced to death, then it can also be playing a role in who is wrongly convicted. In any case, no one should be satisfied with racial bias in death sentencing, even if everyone charged is guilty.

    Around the country, there is overwhelming statistical evidence that race does play a significant role in the death penalty. The U.S. General Accounting Office was asked by Congress to review the race data that had been collected in the U.S. by 1990 and found that: the "race of [the] victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those murdering blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."1

    Award-winning researcher David Baldus of the University of Iowa Law School recently made a more recent review of death penalty race studies data in the U.S. for the American Bar Association. He 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) -- and that included studies in Illinois.2 Unfortunately, the Illinois's studies are somewhat dated and new research needs to be conducted.

    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. In Illinois, at the time of this study in 1998, 100% of Illinois chief prosecutors were white -- there was not a single black or Hispanic among the 102 people who decide who is to face the death penalty in this state.3

    In 1990 and again in 1994, the U.S. House of Representatives passed a bill called the Racial Justice Act. It simply allowed those facing execution to challenge their sentences on the basis of patterns of racial disparities, just as such data are used in housing or employment discrimination suits. However, the bill was defeated in the Senate. Just this past year, a similar bill became law in Kentucky, the first state to adopt it. A Racial Justice Act would not end the death penalty. But it would limit it in a way that would make it fairer and more accurate.

    Mental Retardation

    Allowing those afflicted with mental retardation to be subject to the death penalty also results in a less reliable death sentencing process. Defendants with mental retardation are more likely to be inappropriately compliant with the police, less able to assist in their own defense, behave at trial in ways that the jury may misconstrue as flippant, unremorseful, or even dangerous. In 1987, the U.S. Supreme Court looked at the question of mental retardation and the death penalty. At that time, they found only one state, Georgia, that forbid the execution of the retarded. Today, 12 states and the federal government exclude those with mental retardation from the death penalty, with more states likely to follow. Illinois is not yet among those states.

    Lingering Doubt

    I would like to suggest one other change which would limit the death penalty in Illinois. One of the problems with capital punishment in the United States is that there is vast discretion among nearly 2,000 district attorneys to seek the death penalty. The result can only be described as arbitrary and unpredictable. We have the largest death row in our history and probably the largest in the world -- and it is getting larger. Such a method of punishment is incredibly burdensome to the taxpayers, the criminal justice system, and the judicial system. Illinois is a good example. In 25 years, Illinois has had 12 executions and 156 people remain on death row. At that rate, it would take 300 years to execute just those on death row today. Even assuming Illinois executed 2 people per year, which is it's more recent pace, it would still take 75 years to empty death row, provided no one else was sentenced to death.

    One limitation on this process would be to try to eliminate from death sentence consideration those cases where there is some doubt about the person's guilt. When states reinstated the death penalty after the Supreme Court's Furman decision in 1972, they looked to the Model Penal Code for language which might be acceptable to the Supreme Court. They largely followed the proposed statutes in the Model Code, except for one recommendation: an instruction on lingering doubt in death cases. The American Law Institute, the writers of the Code, suggested the following instruction. When a defendant is found guilty of murder, the Court shall impose a non-death sentence if it is satisfied that:

    (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.4

    The American Law Institute explained the need for such a provision in its Commentary to this subsection:

    [This section] is an accommodation to the irrevocability of the capital sanction. Where doubt of guilt remains, the opportunity to reverse a conviction on the basis of new evidence must be preserved, and a sentence of death is obviously inconsistent with that goal.5

    Unfortunately, although many states employed a list of aggravating and mitigating circumstances for capital cases similar to the Model Penal Code's suggestions, no state or federal jurisdiction has adopted this protection against the execution of the innocent. In light of the heightened danger of error in capital cases, it is vital to at least amend existing statutes in line with the Model Code's recommendations. An additional revision would be needed to allow appellate courts to take similar action when evidence of innocence does not emerge until well after the trial.

    Besides the critically important goal of saving innocent lives, such legislative changes could quickly eliminate from the lengthy death penalty appeals process some of the most troubling and time-consuming cases, i.e., those approaching execution with a legitimate claim of innocence. This would save the criminal justice system both time and money.

    Conclusion
    I would like to close with one additional observation: Reform of the death penalty may be a futile task. Some of the best legal minds of our era have concluded, after close observation, that the death penalty is irredeemable within our constitutional framework and should simply be ended. This was not only the conclusion of Justice Thurgood Marshall (who actually represented people facing execution) and Justice William Brennan, but of Justice Lewis Powell and Justice Harry Blackmun, both of whom supported the constitutionality of the death penalty in the key Supreme Court decisions of 1972 and 1976.

    Certainly, there is no way that reform can completely eliminate the possibility of executing the innocent. But that is not to say that further reform should not be tried. The rest of the world is becoming increasingly critical of the U.S.'s use of the death penalty. Pope John Paul II and the U.S. Catholic Bishops, the United Nations Commission on Human Rights, the American Bar Association, the major human rights and civil rights organizations, the religious leaders of most of the major denominations in the U.S., family members of murder victims, and many, many others are saying that at least a moratorium should be placed on executions until this system can be more closely examined. It would be foolhardy for us not to make some positive response.

    Thank you. I would be happy to answer any questions from members of the committee.

    ________________________ .

    1. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990), at 5.

    2. 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).

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

    4. See Model Penal Code (Proposed Official Draft 1962), American Law Institute, at section 210.6(1) (emphasis added).

    5. Id., commentary (1980).

    Return to Testimony, Resolutions, Statements, & Speeches on the Death Penalty


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    International Convention on the Elimination of All Forms of Racial Discrimination

     

    A Response to the Initial Report of the United States  to the United Nations

    Ford Foundation Symposium

    October 17, 2000

    by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center

     

    The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has signed and ratified, guarantees "the right to equal treatment before [all] tribunals . . . administering justice,"1 and this certainly includes the application of the death penalty. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ."2 The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination.

    The United States, in its recent report on its compliance with the Race Convention, acknowledges the concerns that have been raised about the persistent problem of racial disparities in the death penalty, but it has failed to undertake or even to recommend the means that would help to remedy these disparities, as required under the Convention.

    The volume of evidence showing that race distorts and effects the critical decisions about who lives and who dies in this country is now overwhelming and irrefutable. The history of racial bias in the death penalty contributed to the United States Supreme Court's finding that the existing death penalty was unconstitutional in 1972.3 Subsequent revisions of state and federal laws were intended to correct for the arbitrary and capricious quality of capital punishment, which opened the door to racial bias.4

    But the problems of racial disparities have not been eliminated.5 African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole.6 Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-two percent of the executions carried out since 1976 have involved the murder of a white victim,7 even though whites are victims in only 50% of the murders committed in the U.S.8 When interracial murders are examined, the statistics are even more glaring. Since 1976, 158 black defendants have been executed for the murder of a white victim, but only 11 white defendants have been executed for the murder of a black victim.9 Indeed, in the entire history of the U.S., it has been extremely rare for a white person to be executed for murdering a black person, while executions of blacks for the murder of whites have been relatively common.10

    In 1990, the U.S.'s own General Accounting Office conducted a review of the existing studies on race and the death penalty and concluded that the overwhelming majority of these studies showed that: "those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks."11

    Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, concluded that racial discrimination continues to infect the practice of the death penalty: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."12

    Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.

    How does racial bias creep into a system which the U.S., in its report on compliance with the Race Convention, claims to be protected by "heightened procedural safeguards?"13 One way is through the key decision-makers, who make the crucial decisions about which defendants will be pursued with the death penalty. A study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key prosecutors who choose to pursue death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American. If such a pattern of race disparity were found in the employment records of a major U.S. corporation, there would surely be an official outcry and swift changes would be made.

    Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. A report to the American Bar Association found that in 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.

    A most egregious example of this type of racial discrimination was revealed in a study of Kentucky's death row. In that state, there were over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.14

    Just yesterday, a study was released regarding Texas's use of the death penalty. Among other egregious examples of injustice, the pattern of racial bias stood out: Although almost a quarter of all Texas murder victims were black men, only 0.4% of those executed since the reinstatement of the death penalty were condemned for killing a black man. And Texas has never executed a white man for killing a black person.

    Perhaps most telling of all the studies on race and the death penalty was released last month by U.S. Department of Justice. Americans look to the federal government to be a model of equality and full due process. The regional biases which may distort local application of the law should be absent from a more centrally controlled federal government. The federal death penalty should not be clouded with the aura of racial discrimination.

    But the numbers revealed by the same government which reports that it finds no problem with race and the U.S. death penalty reveal a different story. By the government's own numbers, 80% of the nearly 700 cases submitted by U.S. Attorneys in the past 5 years for federal death penalty prosecution involved minority defendants. Over 70% of the capital prosecutions approved by Attorney General Janet Reno involved minority defendants. And 80% of those currently on the federal death row are minorities, including 2/3 who are African-American. That's a worse record than exists in any state death row around the country.

    The response of the Attorney General and the President of the United States to these embarrassing numbers is that they were "troubled." Perhaps even more studies will be conducted, but in the mean time, the first two federal executions in 37 years are scheduled to occur in the next two months, and there has been no acknowledgment that a moratorium is needed while such racial disparities are examined more closely. There has been no call for legislation to guarantee that statistical studies showing such patterns of racial bias be at least considered by courts reviewing them.15

    Without such remedial legislation, and despite this overwhelming evidence of discrimination, the response of the courts will be to deny relief. Such legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky.16 In its stead, Congress enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought,17 and eliminated all federal funding for the legal resource centers which had frequently raised these claims.

    The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.

    This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Race Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination in violation of the Race Convention and should be stopped.

    Endnotes

    1. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969), Article 5(a) (hereinafter Race Convention).

    2. Race Convention, Article 2(1) (emphasis added).

    3. See Furman v. Georgia, 408 U.S. 238 (1972) (especially concurrences of Marshall, Brennan, and Douglas, JJ.).

    4. See Gregg v. Georgia, 428 U.S. 153 (1976).

    5. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

    6. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (July, 2000).

    7. Id.

    8. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1998 293, Table 3.136 (1999).

    9. See Facts About the Death Penalty, Death Penalty Information Center (October 10, 2000).

    10. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.

    11. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (emphasis added).

    12. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dissenting from the denial of certiorari).

    13. Initial Report of the United States to the United Nations on the Elimination of Race Discrimination, Part II, C. Specific Articles, Article 5: Capital Punishment (Sept. 2000)

    14. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study).

    15. See McCleskey v. Kemp, 481 U.S. 279 (1987) (rejecting all such studies, but positing legislation requiring their use in appeals).

    16. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act, not passed in the Senate).

    17. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (calling the restrictions on habeas corpus "a monumental shift of power to the state courts from the Federal judiciary").

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    Dr. Sidney Wolfe's Letter to John Romine, M.D., urging the immediate suspension of Dr. Fred Pintz's license to practice medicine because of his involvement in an upcoming execution Dr. Wolfe's letter PUBLIC CITIZEN
    November 2, 2001
    Urgent: Immediate Attention

    John Romine, MD
    President, New Mexico State Board of Medical Examiners
    2nd Floor, Lamy Bldg.
    491 Old Santa Fe Trail
    Santa Fe, New Mexico 87501

    Dear Dr. Romine,

    I have learned from several sources that Dr. Fred Pintz, the Chief Medical Officer of the State of New Mexico, has flagrantly violated a principle implicit in the New Mexico Medical Practice Act by providing authorization for the acquisition and provision of the drugs to be used by the New Mexico Department of Corrections in the execution by lethal injection of Terry Clark, scheduled for next Tuesday, November 6th. Unless Dr. Pintz is willing to immediately revoke his order for providing these drugs and ensure that the drugs are returned to the pharmacy in the State Department of Health, I urge that there be an emergency suspension of his license to practice medicine with the plan to permanently revoke it.

    In 1992, the American Medical Association (AMA) articulated a position condemning the participation of physicians in state executions.^ A 1994 joint statement by the AMA, the American College of Physicians, the American Nurses Association and the American Public Health Association, Health Care Professional Participation in Capital Punishment: Statement from Professional Societies Regarding Disciplinary Action, recommended that "state professional licensure and discipline boards treat participation in executions as grounds for active disciplinary proceedings, including license revocation." The New Mexico Medical Practice Act has been interpreted to defer to the AMA's position on this issue, and thus, Dr. Pintz's participation in this planned execution clearly violates the ethical and legal principles governing the Board of Medical Examiners.

    Since the Medical Officer of the Department of Corrections left New Mexico several months ago and because the company contracted by the state to provide prison health services refused to be involved in the execution of Terry Clark, the Governor asked the Secretary of Health, Alex Valdez, to facilitate the provision of the drugs for the lethal injection. Valdez asked a state pharmacist to obtain the drugs but the pharmacist allegedly refused unless so ordered by a physician. Thus, Dr. Pintz, the Chief Medical Officer of New Mexico, was asked to facilitate the acquisition of the drugs so they could be provided to the Department of Corrections.

    There have been 739 executions in the United States since 1976, including 574 by lethal injection. In most, if not all cases, physicians have been involved in one or more of the activities proscribed in the 1994 Joint Statement which include: .... "Prescribing, preparing, administering or supervising injection drugs ....prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure.... monitoring vital signs....determining the point at which the individual has actually died...."

    Such participation unequivocally contravenes the Oath of Hippocrates as well as the AMA Code of Ethics. Unless these important codes are acted upon, adherence to them will be dangerously low. The only way to accomplish this is to revoke the license of any physician who so participates in any way in the execution of a person. Dr. Pintz is the first such physician whose identity has come to my attention. Unless the New Mexico Board takes immediate action to suspend and revoke his license if he refuses to reverse the violent course of action which he has facilitated, the Board will have failed in its responsibility to uphold the legal and ethical principles under which it must operate.

    Sincerely,
    Sidney M. Wolfe, MD
    Director, Public Citizen's Health Research Group

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    Testimony, Resolutions, Statements, and Speeches on the Death Penalty

    Testimony, Resolutions, Statements, and Speeches on the Death Penalty News & Developments - Current Year

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    Terrorist Attacks Affirm Need for a Paradigm Shift Sr. Helen Statement after Terrorist Attacks Sister Helen Prejean, csj
    September 17, 2001

    I'm on a U.S. Airways plane - half-filled - on my way back to New Orleans after a week of cancelled speaking engagements. I've seen American flags everywhere - in shops, on people's suitcases, on the lapels of pilots and flight attendants. Everybody's been glued to the T.V. looking in disbelief at the sight of our own planes crashing into the World Trade Center and the Pentagon. Everybody's swapping stories of the horrors: a couple, holding hands, jumping to their deaths from 80 stories up; the man on one of the high jacked planes calling his wife on his cell phone, "We took a vote, we're going to overpower them, goodbye, I love you."

    We're all in shock. Some say the entire nation is experiencing Post Traumatic Stress Disorder. We're gathering to mourn our dead and to try to figure out how to respond to the terrible evil perpetrated on us. We're deeply puzzled that there could be people in the world who hate us so much. We've learned how vulnerable we are and that all the defense systems in the world can't protect us against such a terrorist attack. Nor do we know who the terrorists are - certainly Osama bin Laden, who is rumored to dwell in Afghanistan, and his cohorts are prime suspects - but who else? What other terrorists are out there ready to take bin Laden's place should we "terminate" him? The question is looming large: what do we do for protection when our usual military tactics do not suffice? No doubt, we have enough firepower to bomb a lot of cities and a lot of people. We could, as some are suggesting, "bomb Afghanistan back into the Stone Age." But we are hearing desperate pleas from the people of Afghanistan, "Please, don't kill us. We don't support the horrendous Taliban that has taken over and terrorizes our lives." It's going to take us some time to sort all this out. We're all frightened and vulnerable, which can cause us to seek easy scapegoats.

    Our immediate spiritual task, it seems, is to mourn the victims and to comfort those who have suffered unspeakable loss. John White, a friend of mine in New York knew 30 people who were killed in the World Trade Center. Other friends of mine in New York are spending their days visiting and praying with those who lost loved ones in the tragedy, including firefighters and police officers and their families. Our deepest and more difficult task is to reflect on why this tragedy happened to us and how we can prevent it from ever happening again. That's the hard part. Because when we've been hurt and are afraid, we tend to strike out at others from the surface of our souls where prejudice lies, not from the depths, where compassion lies.

    At The Moratorium Campaign we are meeting to realign and to redouble our efforts to educate the public about the death penalty in light of the September 11 assault. I seriously question whether the death penalty, which acts out the military paradigm of "search out and destroy," will serve us well against terrorists any more than it has served us well against those who commit violent crimes. During the 25 years the death penalty has been reactivated in this country, supposedly to deter crime, we have discovered that the state killing people doesn't deter anything - even the police chiefs across the country know this. I believe that giving state governments this kind of power to kill our own citizens is dragging us all down morally. The application of the death penalty is abysmal. Almost always poor people or the mentally ill are chosen for the gallows, and the whole business of state killing is riddled with racist selection from start to finish. Plus, there is such rampant injustice in its practice that now many ordinary citizens know about and are troubled by the large number of innocent people - almost 100 at this date - who have been sent to death row and some almost killed before they could prove their innocence. This past summer, Justice Sandra Day O'Connor remarked that she is troubled by the large number of innocent people who have been convicted at trials and later freed from death row. She worried out loud that the sheer "lottery" of such numbers almost assures that some innocent persons have already been executed.

    The life-changing tragedy of September 11 only reinforces my conviction that it's time for our country to go beyond the military paradigm of "search and destroy" as a way to deal with problems of violence in our society. It's time for a new paradigm, and The Moratorium Campaign on the death penalty is needed more than ever to help build that new paradigm. In responding to terrorist acts the new paradigm calls us to reflect deeper than simply labeling the perpetrators fanatics or evil incarnate and blindly trying to destroy them. Such a response is opaque and blind and can only fuel more violence. We have to draw on our spiritual wisdom and go deep enough in our reflection to discover and build a road of peaceful relationships with the Arabic and other developing nations of the world.

    What are the root causes of violence in our country, and is the use of violence by government powers -the execution of criminals - the only solution we know to contain and prevent that violence? The Catholic bishops of this country have given us a good spiritual motto: "If we want peace we must work for justice." That's a new paradigm worth thinking about and praying about. The old military paradigm of searching out and destroying enemies has had its day. It is time to begin building the new paradigm, no small part of which is the elimination of the death penalty in our society.
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    Statement of the Honorable William D. Delahunt in support of the Delahunt-Scott Amendment to The Terrorist Bombings Convention Implementation Act of 2001 Statement:Delahunt-Scott Amendment to Title 1 of H.R. 3275

    U.S. House of Representatives, Committee on the Judiciary
    Statement of the Honorable William D. Delahunt of Massachusetts

    In Support of the Delahunt-Scott Amendment to Title 1 of H.R. 3275, The Terrorist Bombings Convention Implementation Act of 2001

    November 15, 2001

    Mr. Chairman, I have an amendment at the desk.

    Mr. Chairman, this amendment, in which I am joined by my good friend, the ranking member of the Crime Subcommittee (Mr. Scott), would delete the language authorizing the imposition of the death penalty for the offenses set forth under section 102.

    Yesterday, at our subcommittee hearing, the Administration witnesses acknowledged that this provision is not required by the international convention we are seeking to implement. In fact, Mr. Chairman, not only is it not required by the convention, but it could actually impair the fight against international terrorism - by making it harder for the Justice Department to secure extradition in these kinds of cases.

    Our continued use of the death penalty has brought condemnation from civilized nations across the globe. Even some of our closest allies - such as Canada - have begun to refuse extradition requests by the United States unless their courts can be assured that the defendants will not face execution. Given that situation, how can it serve our national interests to enact additional provisions that further marginalize us within the family of nations?

    The only answer I have heard is that this new death penalty provision merely tracks current law with respect to comparable domestic crimes. That may well be. But the fact that current law presents an obstacle to our law enforcement objectives is hardly a persuasive argument for compounding the problem.

    The fact is that no persuasive argument can be made. People will continue to disagree about whether the death penalty acts as a deterrent to certain categories of crimes. But with respect to the type of crime we are addressing in this legislation, is there anyone who seriously believes that the prospect of the death penalty will deter terrorists from committing the kinds of atrocities our nation experienced on September 11?

    No, Mr. Chairman. Let us implement these conventions with all due speed. But let us do so in a way that advances our national objectives. I urge support for the amendment and yield back the balance of my time.


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    Historic Illinois Hearings Address Innocence and the Death Penalty

    Following a series of celebrated releases of innocent defendants from its death row, Illinois's House of Representatives held hearings to address the state's system of capital punishment on September 15 & 16, 1999. Among those who testified were Sister Helen Prejean, author of Dead Man Walking; Mike Farrell, actor and human rights activist; Renny Cushing, Director of Murder Victims Families for Reconciliation; Bryan Stevenson, Director of Equal Justice Initiative; Professor Lawrence Marshall, Northwestern University School of Law; Richard Dieter, Executive Director of Death Penalty Information Center

    ***********

    Illinois House of Representatives

    Testimony of Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center Washington, DC

    September 15, 1999

    Good afternoon. My name is Richard Dieter. I am an attorney and the Executive Director of the Death Penalty Information Center in Washington, DC, a position I have held since 1992.

    I want to thank the members of this committee for your recognition of the importance of this issue and for affording myself and others the opportunity of offering a variety of perspectives on how the death penalty is being administered around the country.

    The Death Penalty Information Center is a non-profit organization which seeks to educate the public about the practice of capital punishment through objective information and analysis. We are funded primarily through foundation grants. In our analysis of the death penalty, we examine questions of fairness and the possibility of mistake, and in this we have been critical of the death penalty. Nevertheless, the Death Penalty Information Center does not have a position on the death penalty per se.

    When it comes to the issue of innocent defendants being sentenced to death, I believe we have a special expertise to offer. In 1993, Representative Don Edwards, who was then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, asked us to prepare a report on the dangers of executing innocent people. Our analysis of this issue included a discussion of 48 cases in the prior twenty years where people had been freed from death row after evidence demonstrated their innocence.

    That report was released as a Staff Report of the Subcommittee and the list of cases became a basis for an ongoing concern about innocence and the death penalty. The Subcommittee released an updated version of this report in 1994 and we released a further update in 1997. Our 1997 Report contained a total of 69 cases where innocent people had been released from death row. By the time of the national conference on innocence held here in Chicago in November of last year, that number had risen to 74 cases, and today it stands at 82.

    Clearly, the risks of executing innocent people that this large and growing number of cases represents, and the terrible costs to the lives of these 82 people, call for some radical changes in our system of justice. I commend the members of this committee and the Illinois House of Representatives for the courage to address this issue head-on. The problem is not one which is unique to Illinois. (In fact, more innocent people have been released from Florida's death row than from Illinois's.) And I have no doubt that many more such innocent people remain on death row today -- some in states that provide little or no representation for post-conviction review, or which resist releasing innocent inmates, even when the evidence of mistake is overwhelming.

    What can be done? On one level, this is a simple problem: if life imprisonment were substituted for the death penalty, there would be zero danger of executing the innocent. But I'm aware that this committee needs to hear concrete suggestions for changing the system without necessarily abandoning the death penalty. I will leave to those more familiar with the intricacies of Illinois's laws and procedures to suggest where practical changes could be made to ameliorate this problem. I would like to propose some broader areas of change:

    Racial Bias
    The issue of racial bias in the death penalty system is a different one than the issue of innocence. But they overlap. Ten out of the twelve people who have been released from Illinois's death row are members of a minority. Most are African-American. That doesn't prove racial bias, but it should raise concerns. Illinois's death row is made up of approximately 156 individuals, 97 of whom are black -- that's 62% in a state where the black population is less than 15%. Again, those figures do not prove any racial bias, but such a glaring disproportion is evidence that something is wrong at some level of society. If race is playing a role in who is sentenced to death, then it can also be playing a role in who is wrongly convicted. In any case, no one should be satisfied with racial bias in death sentencing, even if everyone charged is guilty.

    Around the country, there is overwhelming statistical evidence that race does play a significant role in the death penalty. The U.S. General Accounting Office was asked by Congress to review the race data that had been collected in the U.S. by 1990 and found that: the "race of [the] victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those murdering blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."1

    Award-winning researcher David Baldus of the University of Iowa Law School recently made a more recent review of death penalty race studies data in the U.S. for the American Bar Association. He 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) -- and that included studies in Illinois.2 Unfortunately, the Illinois's studies are somewhat dated and new research needs to be conducted.

    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. In Illinois, at the time of this study in 1998, 100% of Illinois chief prosecutors were white -- there was not a single black or Hispanic among the 102 people who decide who is to face the death penalty in this state.3

    In 1990 and again in 1994, the U.S. House of Representatives passed a bill called the Racial Justice Act. It simply allowed those facing execution to challenge their sentences on the basis of patterns of racial disparities, just as such data are used in housing or employment discrimination suits. However, the bill was defeated in the Senate. Just this past year, a similar bill became law in Kentucky, the first state to adopt it. A Racial Justice Act would not end the death penalty. But it would limit it in a way that would make it fairer and more accurate.

    Mental Retardation

    Allowing those afflicted with mental retardation to be subject to the death penalty also results in a less reliable death sentencing process. Defendants with mental retardation are more likely to be inappropriately compliant with the police, less able to assist in their own defense, behave at trial in ways that the jury may misconstrue as flippant, unremorseful, or even dangerous. In 1987, the U.S. Supreme Court looked at the question of mental retardation and the death penalty. At that time, they found only one state, Georgia, that forbid the execution of the retarded. Today, 12 states and the federal government exclude those with mental retardation from the death penalty, with more states likely to follow. Illinois is not yet among those states.

    Lingering Doubt

    I would like to suggest one other change which would limit the death penalty in Illinois. One of the problems with capital punishment in the United States is that there is vast discretion among nearly 2,000 district attorneys to seek the death penalty. The result can only be described as arbitrary and unpredictable. We have the largest death row in our history and probably the largest in the world -- and it is getting larger. Such a method of punishment is incredibly burdensome to the taxpayers, the criminal justice system, and the judicial system. Illinois is a good example. In 25 years, Illinois has had 12 executions and 156 people remain on death row. At that rate, it would take 300 years to execute just those on death row today. Even assuming Illinois executed 2 people per year, which is it's more recent pace, it would still take 75 years to empty death row, provided no one else was sentenced to death.

    One limitation on this process would be to try to eliminate from death sentence consideration those cases where there is some doubt about the person's guilt. When states reinstated the death penalty after the Supreme Court's Furman decision in 1972, they looked to the Model Penal Code for language which might be acceptable to the Supreme Court. They largely followed the proposed statutes in the Model Code, except for one recommendation: an instruction on lingering doubt in death cases. The American Law Institute, the writers of the Code, suggested the following instruction. When a defendant is found guilty of murder, the Court shall impose a non-death sentence if it is satisfied that: (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.4 The American Law Institute explained the need for such a provision in its Commentary to this subsection:
    [This section] is an accommodation to the irrevocability of the capital sanction. Where doubt of guilt remains, the opportunity to reverse a conviction on the basis of new evidence must be preserved, and a sentence of death is obviously inconsistent with that goal.5 Unfortunately, although many states employed a list of aggravating and mitigating circumstances for capital cases similar to the Model Penal Code's suggestions, no state or federal jurisdiction has adopted this protection against the execution of the innocent. In light of the heightened danger of error in capital cases, it is vital to at least amend existing statutes in line with the Model Code's recommendations. An additional revision would be needed to allow appellate courts to take similar action when evidence of innocence does not emerge until well after the trial.

    Besides the critically important goal of saving innocent lives, such legislative changes could quickly eliminate from the lengthy death penalty appeals process some of the most troubling and time-consuming cases, i.e., those approaching execution with a legitimate claim of innocence. This would save the criminal justice system both time and money.

    Conclusion
    I would like to close with one additional observation: Reform of the death penalty may be a futile task. Some of the best legal minds of our era have concluded, after close observation, that the death penalty is irredeemable within our constitutional framework and should simply be ended. This was not only the conclusion of Justice Thurgood Marshall (who actually represented people facing execution) and Justice William Brennan, but of Justice Lewis Powell and Justice Harry Blackmun, both of whom supported the constitutionality of the death penalty in the key Supreme Court decisions of 1972 and 1976.

    Certainly, there is no way that reform can completely eliminate the possibility of executing the innocent. But that is not to say that further reform should not be tried. The rest of the world is becoming increasingly critical of the U.S.'s use of the death penalty. Pope John Paul II and the U.S. Catholic Bishops, the United Nations Commission on Human Rights, the American Bar Association, the major human rights and civil rights organizations, the religious leaders of most of the major denominations in the U.S., family members of murder victims, and many, many others are saying that at least a moratorium should be placed on executions until this system can be more closely examined. It would be foolhardy for us not to make some positive response.

    Thank you. I would be happy to answer any questions from members of the committee.

    ________________________ .

    1. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990), at 5.

    2. 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).

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

    4. See Model Penal Code (Proposed Official Draft 1962), American Law Institute, at section 210.6(1) (emphasis added).

    5. Id., commentary (1980).

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    The US Death Penalty and International Law: US Compliance with the Torture and Race Conventions  

     

    Ford Foundation Symposium
    November 12, 1998

    by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center

    Introduction

    The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted by the General Assembly of the United Nations on December 10, 19841 and ratified by the United States ten years later. In all, 176 countries have either ratified or signed the torture convention.

    The thrust of this treaty is to forbid physical and psychological abuse of people in detention around the world. Whether the death penalty is implicated in this treaty depends on the definition of torture. Clearly, the U.S. was not about to sign a treaty which, on its face, outlawed capital punishment as a form of torture. But the application of the death penalty in the U.S. in specific instances may well be in violation of this convention.

    Article 1 of the Torture Convention defines torture, in part, as:

    any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . by . . . a public official....2
      The definition warns of some of the impermissible reasons for which torture is frequently inflicted, including coercing a confession, punishment, or for "discrimination of any kind." The definition of torture "does not include pain or suffering arising only from . . . lawful sanctions."3

      There are three parts of this definition that deserve special note: First, there is an exemption for pain or suffering associated with lawful punishments. Thus, imprisonment may produce much pain and suffering like separation from loved ones, deprivation of freedom, etc. However, in so far as imprisonment is lawful, the normal suffering that results is not banned by the Torture Convention. Similarly, since the death penalty may still be considered a "lawful sanction," the considerable pain and suffering which inevitably accompany an execution are not torture under this definition. But, the exempted sanctions have to be lawful in the first place.

      Secondly, pain or suffering associated with a lawful punishment can be torture if it is not closely connected with that punishment. It must arise from, or be inherent in, or incidental to a lawful sanction. If certain forms of pain and suffering can easily be avoided without eliminating the basic punishment, then it is fair to ask whether that suffering is inextricably entwined with the punishment.

      Finally, the definition of torture forbids the infliction of pain and suffering based on discrimination of any kind. There is considerable historical and statistical evidence that the death penalty in the United States has been applied in a racially discriminatory way. If that is true, then Article 2 of the Torture Convention requires States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture . . . ."4 As I will discuss later, this issue is also addressed in a general way by the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), also ratified by the U.S. in 1994.

      I would now like to look into each of these three aspects of the definition of torture to see if the U.S. practice of capital punishment violates the Torture Convention.

      "Lawful Sanctions"

      Juveniles

      Although the death penalty is generally tolerated under international law, the same cannot be said of the execution of juvenile offenders. The International Covenant on Civil and Political Rights requires that the death penalty only be imposed "for the most serious crimes," and never upon those who were under 18 years of age at the time of their crime.5 Virtually all the countries of the world have signed or ratified this important treaty, including most recently, China. However, the United States is the only country with an outstanding reservation to the Article forbidding the execution of juvenile offenders.

      Only seven other countries in the world are known to have carried out an execution of a juvenile in the last ten years6 and the U.S. may be the most flagrant violator with 3 more juvenile offenders executed just this year. Since 1976, there have been 12 executions of those who were under 18 at the time of their crime in the U.S., with 9 of the 12 occurring in the 1990s. Seventy-two additional juveniles are on death row awaiting execution. While some states and the federal law set 18 as the minimum age of eligibility for the death penalty, the majority of death penalty states allow 16 or 17 year-olds to receive this ultimate punishment.7And some government officials have been calling for a reduction of the minimum age, even to as low as 11.8

      It is because of this history and practice that the U.S. took a specific reservation to the Civil and Political Rights Covenant essentially exempting itself from the ban on juvenile executions. The U.S. has also taken a reservation to the Torture Convention, stating that we understand "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 . . . ." In other words, what the U.S. considers to be lawful punishment under the Torture Convention is what the U.S. courts, not the world community, consider lawful.

      Reservations to treaties, including human rights agreements, are generally recognized in international law. However, reservations which contradict the "object and purpose" of the treaty are not allowed. Eleven countries formally protested the U.S.'s reservation to the Civil and Political Rights Convention regarding juvenile offenders, and the U.N. Committee on Human Rights has stated that such a reservation is invalid. The U.S. Senate responded to this challenge by threatening to withhold funds from U.S. participation in the work of the U.N. Committee on Human Rights.9

      Other International 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. This treaty goes even further and outlaws the sentence of life without possibility of parole for those under 18. Virtually every country in the world has ratified this treaty, except the U.S. The U.S. has signed the treaty, but not ratified it, in part because we foresee the conflict between our practice of executing juveniles and the treaty.10

      Similarly, the U.S. has signed but not ratified the American Convention on Human Rights, which states: "capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age."11 The major role of these treaties in international law and the near unanimous acceptance of their prohibition regarding juveniles leads to the conclusion that this is no longer a "lawful sanction." In this sense, the U.S. violates the Torture Convention when it executes juvenile offenders because this grave infliction of pain and suffering is not associated with a lawful punishment.

      The Mentally Retarded

      A similar argument can be made that the execution of defendants suffering from mental retardation is unlawful in international law and hence is torture when applied to them. The treaties mentioned above are less clear when it comes to execution of the mentally retarded.

      Persons with mental retardation fall into the bottom two to three percent of the population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old.12 Those who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. In this sense, they are comparable to juvenile offenders. If it is wrong to execute those under age 18 at the time of their crime, it would also be wrong to execute someone whose mental age was considerably under 18.

      The Civil and Political Rights Covenant states that the death penalty should be restricted to the "most serious crimes." The standard of what is most serious includes not only the gruesome facts of the crime, but also the culpability of the person charged. Less than 2 percent of those who commit murder receive the death penalty in the U.S. It seems absurd to maintain that the mentally retarded, who are in the lowest 2 percent in terms of intellectual functioning, are somehow among the highest 2 percent in culpability.

      Moreover, Article 16 of the Torture Convention requires states to prohibit any official cruel, degrading or inhuman treatment, even if it does not fall under the strict definition of torture. Again, what is degrading or cruel may be in eyes of the beholder, but even in the U.S., 24 states and the federal government do not allow the execution of a mentally retarded defendant. Justice William Brennan, in dissenting from the Supreme Court's decision which permitted such executions, wrote that "the execution of mentally retarded individuals is 'nothing more than the purposeless and needless imposition of pain and suffering . . . .'"13

      Thirty-three defendants with mental retardation have been executed in the U.S. since 1976.14 There has been some legislative movement towards stopping these executions. When the U.S. Supreme Court in 1989 upheld the constitutionality of the death penalty for those with mental retardation, it did so at a time when only one state forbade this practice.15 Today, 12 states and the federal government have a specific exemption for those with mental retardation.

      Foreign Nationals

      Another area in which the legality of the death penalty has been called into question is the execution of foreign nationals in the U.S. The U.S., along with almost all the other countries of the world, has long been a party to the Vienna Convention on Consular Relations.16Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to consult with the embassy of their home country.17 It is clear that this provision, which is binding in all states under U.S. law, has been consistently ignored.

      There are at least 72 foreign nationals on death row in the U.S. Virtually none of these defendants were informed of their consular rights under the Vienna Convention. Beginning with Carlos Santana from the Dominican Republic, who was executed in Texas in 1993, there have been 8 executions of foreign nationals in the U.S. since the death penalty was reinstated.

      Given that there are many defendants facing execution who were not informed of their consular rights in violation of both international and U.S. law, what should be the remedy ? This issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in April of this year. Breard was a citizen of Paraguay and had come to the U.S. in 1986. He was not informed of his consular rights when arrested for murder in 1992.

      At trial, he rejected the advice of his appointed American lawyers, refused a plea agreement offered by the state and insisted on testifying in his own defense. On the stand, Breard claimed he was compelled by a satanic curse placed on him by his father-in-law.18 He was found guilty and sentenced to death in 1993.

      Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had been given the opportunity to discuss the U.S. legal system with counselors from Paraguay he might have accepted the plea bargain and avoided a death sentence, or at least he might have seen the pitfalls in taking the stand. However, Paraguay's efforts were barred by the Eleventh Amendment to the U.S. Constitution which forbids suits by foreign countries against a state.19 While this matter was being further appealed, Paraguay filed suit with 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 both sides and render a decision, unanimously ruled that the execution should be delayed at least until the Court could fully review the matter.20

      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 refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner.21 The Court held that this procedural bar not only precluded Breard's individual claim, but also negated any influence of the International Court of Justice. The decision by the highest court in the world was summarily rejected because of U.S. procedural rules designed to speed up executions.

      Interestingly, while the U.S. Secretary of State was pleading with Governor Gilmore to halt the execution, the U.S. Justice Department was arguing that Virginia would suffer harm if it was not allowed to carry out the "execution in a timely fashion."22 Breard was executed on April 14, 1998, shortly after the Supreme Court rendered its decision. Outside of those who have volunteered for execution and waived their appeals, Breard's case was one of the fastest to go through the appeals process since the death penalty was reinstated. Even though Breard was executed, the case that Paraguay brought to the World Court continues. An opinion by the World Court that such executions would be illegal would also imply that the U.S. is in violation of the Torture Convention.

      Pain and Suffering Not Inherent to Death Penalty

      Although much of what is painful about the death penalty is inextricably linked to the ultimate execution, there is some suffering which is peripheral to executions and hence may constitute a form of torture. The length of time that people spend on death row in the U.S. is quite long and not an essential or an intended part of the punishment. Also, the methods of execution used in some states is gratuitously violent and torturous.

      Time on Death Row

      Death row inmates are subjected to years of uncertainty under dismal physical conditions not knowing when they will be executed. Albert Camus noted that "[t]he devastating, degrading fear that is imposed on the condemned for months or years is a punishment more terrible than death."23

      The average time between sentencing and execution in the U.S. is eight and a half years. There are over 3,500 inmates on death row and many have been there for 10 or even 15 years.24 Every year, many inmates give up legitimate appeals and ask that their executions go forward as quickly as possible. While the delay might seem to favor those who want to avoid their execution, it works against those who have been wrongly convicted or sentenced in that their relief is delayed. Over 35 percent of death sentences are overturned on appeal.25

      The time spent on death row is not inherent to the death penalty. It is the product of a number of factors. To begin with, in many cases incompetent attorneys are assigned to death cases and they frequently make fundamental mistakes in their representation. These cases may result in retrials and considerable delay. Another independent factor is the backlog of cases of all types which appellate judges have to consider. Appeals submitted by defense attorneys or prosecutors sometimes take years before a decision is rendered. Because of the high stakes in a death case, both sides typically appeal every adverse ruling. Only a part of the resultant delay is the responsibility of the defendant. In some cases, the state delays for years before even assigning an attorney to handle a death penalty appeal. The typical wait in California for the appointment of an attorney to just start the appeals process is three to four years.

      The attention of courts around the world have been drawn to the torment of the prisoner in this situation. In Pratt v. Attorney General of Jamaica, the highest court in the United Kingdom unanimously ruled that a 14-year delay between the trial and execution rendered the pending execution to be "cruel" and "inhumane."26 The British Privy Council ruled that such an inordinate delay would never have been permitted under English common law and commuted the sentence to life imprisonment. In considering a case involving a 17-year delay in U.S. courts, Justice Stevens of the Supreme Court called for consideration of this "important" issue by intermediate courts and hinted that the issue may become ripe for the Supreme Court in the future.27

      Methods of Executions

      In addition to the actual killing of a human being and the years of psychological torment leading up to this act, the methods of execution employed in the U.S. have resulted in the infliction of additional pain. At least 20 executions since 1976 involved mistakes in the process which led to prolonged and painful executions, such as an inmate's head catching fire during an electrocution and the torturous 45-minute search for a suitable vein to carry out a lethal injection.28 Four states use electrocution for execution with no alternative possible. Outside of the death penalty, the applying of powerful electric currents to the human body would unhesitatingly be called torture.

      Other states allow the inmates, many of whom are suffering from mental illness, to choose equally grisly forms of execution such as hanging, the firing squad or the gas chamber. At least some of the pain and suffering which these methods cause is gratuitous and could be avoided. To insist on the worst methods of execution, as recently exhibited in Florida, despite evidence of the severe pain inflicted and repeated mistakes in application, is a violation of the Torture Convention and of basic respect for human rights.

      Race Considerations

      As was mentioned above, the Torture Convention forbids the infliction of pain and suffering "based on discrimination of any kind." The death penalty in the United States has a long history of racial discrimination,29and is therefore suspect under the Torture Convention.

      The fact that race played a significant role in the imposition of the death penalty contributed to the United States Supreme Court's finding that the death penalty was being unconstitutionally applied in 1972.30 Subsequent revision of state laws convinced a majority of the Supreme Court that the arbitrary and capricious quality of capital punishment laws could be remedied and executions were allowed to continue.31

      The problem of racial disparities in the application of the death penalty has not, however, been eliminated. African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole.32 Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-three percent of the executions carried out since 1976 have involved the murder of a white victim,33 even though whites are victims in less than 50 percent of the murders committed in the U.S.34 When both race of defendant and race of victim figures are examined, the statistics are even more glaring. Since 1976, 117 black defendants have been executed for the murder of a white victim, but only 8 white defendants have been executed for the murder of a black victim.35 Indeed, in the entire history of the U.S., there have only been approximately 38 whites executed for murdering a black person.36

      In 1990, the U.S. General Accounting Office conducted a review of such studies and concluded that reliable studies showed: "those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks." 37

      Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, recently concluded that racial discrimination continues to infect the practice of the death penalty: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."38

      Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.

      Another study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key decision-makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

      These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years.39 Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.

      A most egregious example of this type of racial discrimination was revealed recently in Kentucky. In that state, there have been over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.40

      Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief.41 When the Supreme Court rejected race claims based on statistical evidence, it indicated that the problem might be addressed through legislation.42 Such remedial legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky.43 Instead, Congress recently enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought,44 and eliminated all federal funding for the legal resource centers which had frequently raised these claims.

      The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.

      This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Torture Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination and should be stopped.

      The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has also signed and ratified, is implicated by a discriminatory death penalty, as well. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ."45 The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination. This is precisely what a Racial Justice Act would do, but this proposed legislation has been rejected as too potent a threat to the whole death penalty.

      Conclusion

      The United States has ratified the Torture and Race Conventions with certain reservations because of the death penalty. However, while the death penalty itself may not constitute a violation of these conventions, specific applications of this punishment may be contrary to the law of these treaties.

      Punishments which may be unlawful in international law, such as the execution of juveniles, the mentally retarded, and those foreign nationals who were not informed of their consular rights, are not exempted from the Torture Convention. Pain and suffering which are peripheral to lawful punishments, such as the years of isolation on death row and the unnecessary infliction of pain through gratuitously cruel forms of execution, are also banned by the Torture Convention. Finally, the arbitrary and discriminatory use of any punishment is forbidden by both the Race and Torture Conventions. To the extent the death penalty is racially discriminatory, the U.S. is bound to take corrective measures to stop this discrimination. Instead of enacting legislation to prevent racial discrimination, the U.S. has expanded the death penalty to new offenses and reduced the opportunity and resources for appeal. Such actions defy not just the spirit but the letter of these important international treaties.

      Endnotes:

      1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN General Assembly, Thirty-ninth Sess., Agenda item 99, A/Res/39/46 (Dec. 17, 1984).

      2. Id., at Article 1 (emphasis added).

      3. Id.

      4. Id., at Article 2.

      5. International Covenant on Civil and Political Rights, Article 6, adopted Dec. 16, 1966, entered into force March 23, 1976, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No.16) 52, U.N. Doc. a/6316 (1966).

      6. Amnesty International, Juveniles and the Death Penalty: Executions Worldwide Since 1985, at 8-9 (Aug. 1995).

      7. See V. Streib, The Juvenile Death Penalty Today (April 12, 1996) (available from Cleveland-Marshall College of Law).

      8. See Governor Favors Death Penalty for Kids as Young as 13, Lubbock-Avalanche-Journal, Jan. 16, 1996 (Gov. Gary Johnson of New Mexico).

      9. W. Schabas, The Abolition of the Death Penalty in International Law 90 (2d edit 1997).

      10. 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.

      11. Amer. Conv. on HR, Article 4(5).

      12. See E. Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation 14 (1993).

      13. Penry v. Lynaugh, 109 S. Ct. 2934, 2963 (1989) (Brennan, J., dissenting).

      14. See D. Keyes, et al, People With Mental Retardation Are Dying Legally, Mental Retardation, Feb. 1997, at 60, with recent updates from Death Penalty Information Center.

      15. See Penry, 109 S. Ct., at 2954.

      16. 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).

      17. Id., at Article 36(1)(b).

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

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

      20. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) No. 99 (International Court of Justice, April 9, 1998).

      21. Breard, 140 L.Ed. at ___.

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

      23. A. Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 173, 200 (1961).

      24. See Bureau of Justice Statistics, Capital Punishment 1994 (1996)), at table 11 and Appendix table 1.

      25. See id., at Appendix table 1.

      26. 4 All E.R. 769, 783 (P.C. 1993) (also collecting decisions by other courts).

      27. See Lackey v. Texas, Slip opin. U.S. No. 94-8262 (Mar. 27, 1995) (Stevens, J., respecting the denial of certiorari).

      28. See M. Radelet, Post-Furman Botched Executions, (May 1995) (on file with the Death Penalty Information Center).

      29. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

      30. See Furman v. Georgia, 408 U.S. 238 (1972) (especially concurrences of Marshall, Brennan, and Douglas, JJ.).

      31. See Gregg v. Georgia, 428 U.S. 153 (1976).

      32. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (Oct., 1998).

      33. Id.

      34. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1994 338, Table 3.114 (1995).

      35. See Facts About the Death Penalty, Death Penalty Information Center (April 22, 1996).

      36. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.

      37. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (emphasis added).

      38. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dissenting from the denial of certiorari).

      39. See, e.g., Bright, supra note 5, at 435 n.15 (listing comparable studies).

      40. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study).

      41. McCleskey v. Kemp, 481 U.S. 279 (1987).

      42. McCleskey, 481 U.S., at 319.

      43. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act).

      44. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (calling the restrictions on habeas corpus "a monumental shift of power to the state courts from the Federal judiciary").

      45. Race Convention, Article 2(1).

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