International Perspectives on the Death Penalty: A Costly Isolation for the U.S.
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International Perspectives on the Death Penalty: A Costly Isolation for the U.S.by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center October 1999 Table of Contents
I. Efforts to Limit the Death Penalty Juvenile Offenders The Mentally Retarded Foreign Nationals Racial Bias and Arbitrariness Time on Death Row Conclusion II. World Trend Towards Abolition Abolition Countries International Executions
III. The Cost to the U.S.
The increasing use of the death penalty in the United States and in a number of other states is a matter of serious concern and runs counter to the international community's expressed desire for the abolition of the death penalty.
-Mary Robinson, U.N. High Commissioner for Human Rights
- The U.S. has become the most flagrant transgressor of the international ban on executing juvenile offenders. In 1999, Oklahoma executed Sean Sellers, who was 16 at the time of his crime. Texas has executed seven juvenile offenders since 1985.
- Twenty-six U.S. states allow the execution of mentally retarded defendants.
- Despite years of internal studies and international criticism, race continues to play a decisive role in who lives and who dies under capital punishment in the U.S. Almost nothing has been done to correct this injustice.
- Fourteen foreign nationals from eleven different countries have been executed, and another 82 remain on death rows in the U.S., despite a wholesale disregard of one of the most important treaties for U.S. citizens: the Vienna Convention on Consular Relations. U.S. law enforcement agencies have routinely failed to inform foreign nationals of their rights under the Vienna Convention. This violation alone has resulted in multiple adverse decisions from the International Court of Justice, in repeated criticism from our closest allies, and by apologies from our Secretary of State, even as the lethal injections take place.
International Perspectives on the Death Penalty: A Costly Isolation for the U.S.The increasing use of the death penalty in the United States and in a number of other states is a matter of serious concern and runs counter to the international community's expressed desire for the abolition of the death penalty. -Mary Robinson, U.N. High Commissioner for Human Rights1
International developments in the past decade have produced a clear and emphatic trend away from capital punishment as countries abandon its use, call upon the remaining death penalty states to sharply curtail its use, and formulate international agreements which express a strong preference for an end to all executions.
This report examines the sequence of recent events that has increasingly placed the death penalty in the international spotlight. Some of these events are direct challenges to the practice of capital punishment in the U.S. Others are changes in the balance of death penalty practices and attitudes around the world.
The report looks at the ways in which the international community has sought to limit the application of the death penalty, and the U.S.'s response to these initiatives. It also explores the world-wide trend towards complete abolition of the death penalty and the U.S. reaction. Although much of the official U.S. response to international criticism has been denial, the report looks at some local and unofficial actions, which indicate a different direction. Finally, the report notes the present and potential costs the U.S. is facing for adhering to the death penalty.
The international direction away from the death penalty raises serious questions for the U.S.: How likely is it that sanctions will be invoked against the U.S. if it continues to ignore the growing international consensus? What damage is being done to the U.S.'s leadership and credibility in the field of human rights? Are the rights of U.S. citizens abroad being endangered because the U.S. has failed to follow international treaties and the decisions of international courts? Are there intermediate steps that the U.S. could take to show its good faith and recognition of these international concerns? The answers to these questions may profoundly affect the U.S.'s standing and the course of human rights for years to come.
The death penalty's] abolition has been envisaged for at least two centuries, and with the accelerating progress of the movement for abolition, the end of this dark tunnel is now in sight. -William Schabas, The Abolition of the Death Penalty in International Law (1997)2
Executions in the United States in 1999 will reach record numbers for the modern era, but around the world the movement is away from the death penalty and critical of the U.S.:
- In March, 1999, Pope John Paul II made perhaps his last visit to the U.S. and was greeted by hundreds of thousands of followers. His message to the U.S. was unequivocal: "I renew the appeal I made most recently at Christmas for a consensus to end the death penalty, which is both cruel and unnecessary."3
- In April, 1999, the U.N. Commission on Human Rights voted overwhelmingly in favor of a moratorium on the death penalty. For the first time, the resolution was introduced by the European Union. The U.S. was in the company of such human rights violators as China, Rwanda, and Sudan in opposing the resolution.4
- For the second time in less than a year, the U.S. contravened a unanimous order from the International Court of Justice to delay the execution of a foreign national who had not been informed of his rights to confer with his consulate under the Vienna Convention on Consular Rights. A German official called the 1999 Arizona execution of two German brothers "barbaric and unworthy of a state based on the rule of law."5
- In 1998, Paraguay successfully raised a similar claim in the International Court concerning the pending execution of its citizen, Angel Breard, in Virginia. The U.S. Supreme Court responded by citing procedural technicalities in justifying its rejection of the International Court's injunction. In considering Paraguay's claim, U.S. federal Judge John D. Butzner wrote: "United States citizens are scattered about the world. . . . Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example."6
- Canada's Minister of Foreign Affairs, Lloyd Axworthy, wrote to Gov. Bush of Texas that the Canadian government is "most disturbed" by Texas's breach of the Vienna Convention in the case of Canadian citizen Stanley Faulder.7 Secretary of State Madeleine Albright also appealed to Texas for a reprieve, saying, "I am deeply troubled by the failure of consular notification in this case." Nevertheless, Faulder was executed on June 17, 1999.8
- In April, 1998, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions issued a report on the death penalty in the U.S. at the meeting of the U.N. Commission on Human Rights. The report found a "significant degree of unfairness and arbitrariness" in the U.S. death penalty, and particularly faulted the execution of juvenile offenders and the mentally retarded.9
- Russian President Boris Yeltsin in 1999 commuted over 700 death sentences to life in a step toward ending that country's death penalty and paving the way for Russia's admission to the Council of Europe.10
- In voting to end its death penalty, Estonia epitomized the growing recognition of the death penalty as a human rights violation. Daimar Liiv, head of the parliament's legal committee, noted: "This is not 1956 and the evil empire, it's 1998 and we are striving to become one of the cultural nations of the world."11
- The President of Malawi recently announced a moratorium on all executions in his country and the commutation of all existing death sentences. He said: "Life is sacred. I believe a person can reform . . . I invite all heads of state in Africa, our common home, to abolish the death sentence . . . ."12
- The 40-nation Council of Europe meeting in Strasbourg called for a ban on the death penalty.
- Azerbaijian's parliament voted to abolish the death penalty.13
- Poland's new penal code eliminated the death penalty and replaced it with life sentences.14
- Lithuania abolished the death penalty by a parliamentary vote of 73-215
- Turkmenistan suspended the death penalty and said it would amend its constitution to exclude executions16
- Bulgaria announced a "choice of civilization" and voted to abolish capital punishment.17
Around the world, countries are abandoning capital punishment:
The advancement of any significant measure of human rights, such as the abolition of slavery or torture, or the recognition of the rights of women, is uneven. At certain moments, the world lurches ahead, even as some countries resist the change. The above sample of recent developments demonstrates that the world is in an era of profound change. As the new millennium approaches, the U.S. finds itself drifting into isolation on the issue of capital punishment. This presents a challenge and a unique opportunity to build on the spirit of human rights collaboration by gradually seeking alternatives to state killings. The other course is to be left behind.
The Commission on Human Rights, . . . urges all States that still maintain the death penalty:
- Not to impose it for crimes committed by a person below 18 years of age;
- Not to impose the death penalty on a person suffering from any form of mental disorder;
- Not to execute any person as long as any related legal procedure, at international or at national level, is pending; ¥
- Progressively to restrict the number of offenses for which the death penalty may be imposed;
- To establish a moratorium on executions, with a view to completely abolishing the death penalty;
-Resolution, U.N. Commission on Human Rights, April 28, 199918
The world community is keenly aware that the death penalty is firmly entrenched in some countries and is not likely to be abolished in those countries any time soon. Hence, much of the international focus has been on ways to limit the most egregious aspects of the death penalty. Increasing attention has been directed to the U.S. -- not because it is the worst violator of human rights, but because of its stated commitment to the same ideals which have led other countries to seriously question the death penalty.
The international human rights community has identified its chief concerns about the death penalty in the U.S.:
- The execution of juvenile offenders
- The execution of those suffering from mental retardation or severe mental illness
- The execution of foreign nationals who were not informed of their rights under the Vienna Convention on Consular Relations
- The arbitrary application of the death penalty and the related problem of racial and economic bias
- The length of time that death row inmates spend in extreme isolation and deprivation between sentencing and execution.
Each of these areas will be explored more completely below, along with an examination of U.S. practice and response to international concerns.
Nowhere is the U.S. in such clear and direct conflict with the consensus of international law as with the execution of juvenile offenders. The practice of executing those who were under 18 at the time of their crime is directly prohibited by the International Covenant on Civil and Political Rights (ICCPR), by the U.N. Convention on the Rights of the Child, and the American Convention on Human Rights. So broad is the acceptance of this ban that it is widely recognized as a norm of customary international law,19 i.e., a principle so universally accepted that it supersedes specific laws and treaties.
The International Covenant on Civil and Political RightsThe ICCPR is perhaps the most important human rights treaty in existence. The U.S. State Department praised it as "the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II."20 The treaty was forged from the founding principle of the U.N.'s Universal Declaration of Human Rights, which states simply: "Everyone has the right to life, liberty and security of the person."21 Nowhere is the U.S. in such clear and direct conflict with the consensus of international law as with the execution of juvenile offenders
The International Covenant on Civil and Political Rights
The ICCPR is perhaps the most important human rights treaty in existence. The U.S. State Department praised it as "the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II."20 The treaty was forged from the founding principle of the U.N.'s Universal Declaration of Human Rights, which states simply: "Everyone has the right to life, liberty and security of the person."21
The ICCPR was adopted 18 years later and specifically addresses the death penalty and juvenile offenders in Article 6, which states, in part:
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.22
Today, the ICCPR has received almost universal endorsement, with 144 countries as parties to the treaty, including the U.S., which ratified the Covenant in 1992, but with reservations. Ratification of a treaty signals a country's willingness to be bound by the treaty. Reservations carve out some exception to the complete adherence by a country to a treaty. Substantive reservations, such as the one the U.S. took to the ICCPR to allow the continued execution of juveniles, are highly controversial.
"Reservations of this nature [allowing executions of juvenile offenders] contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties." -Sweden's Objection to U.S. Reservation to Art. 6, ICCPR
One measure of the ICCPR's effectiveness has been the virtual elimination of the execution of juvenile offenders around the world. Amnesty International reported that since 1998 the U.S. was the only exception to the rule, with four juvenile executions.23
Other Treaties and Juvenile Executions
The U.N. Convention on the Rights of the Child also specifically prohibits the use of the death penalty for juvenile offenders. Article 37(a) of this treaty states: "Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age."24 Every country in the world has ratified this treaty, except the U.S. and Somalia.25 President Clinton has signed the treaty, but the Senate is concerned with the conflict between the death penalty practice of many states in the U.S. regarding juveniles and Article 37(a).26
Similarly, the U.S. has signed but not ratified27 the American Convention on Human Rights. Twenty-five countries of the western hemisphere have ratified this treaty, which states: "[C]apital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age."28
The U.S.'s full participation in these important human rights treaties is stymied by its continued use of the death penalty against juveniles. It appears hypocritical for the U.S. to ask other countries to mend their human rights violations, when it refuses to join the mainstream on the important issue of juvenile offenders.
The U.S. Response
The official response of the U.S. to the international prohibition against executing juveniles has been to claim exemption from the relevant treaties and to continue with the executions.
The U.S. was one of only three countries which took reservations to Article 6 of the ICCPR in ratifying the Covenant. Norway's and Ireland's reservations became moot when they abolished the death penalty.29 The U.S. reservations remain in place and have been highly controversial in international forums.
The U.S. Reservation to Article 6 is quite broad and reads:
The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.30
The taking of reservations to fundamental parts of human rights treaties is controversial. In particular, reservations which contradict the "object and purpose" of the treaty are considered invalid.31 Eleven countries formally protested the U.S.'s reservation to Article 6 and have stated that this reservation should not be allowed.
France's objection criticized the U.S.'s reservation as: "incompatible with the object and purpose of the Convention."32"Reservations of this nature [allowing executions of juvenile offenders] contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties." -Sweden's Objection to U.S. Reservation to Art. 6, ICCPR Sweden objected because: "Reservations of this nature contribute to undermining the basis of international treaty law. All parties share a common interest in the respect for the object and purpose of the treaty to which they have chosen to become parties."33
The other countries objecting to the U.S. reservation were among the U.S.'s closest allies: Belgium, Denmark, Finland, Germany, Italy, Netherlands, Norway, Portugal, and Spain.
When the U.N. body established to oversee the ICCPR (the Human Rights Committee) voted that the U.S.'s reservation to Article 6 was invalid, the U.S. Senate retaliated by threatening to withhold funds slated for U.S. participation in the work of Committee.34
When the U.N. body established to oversee the ICCPR (the Human Rights Committee) voted that the U.S.'s reservation to Article 6 was invalid, the U.S. Senate retaliated by threatening to withhold funds slated for U.S. participation in the work of Committee.34
The Fate of Juvenile Offenders in the U.S.
The U.S. has a long history of executing juvenile offenders. Since the founding of this country, approximately 355 juveniles have been executed.35 Twenty-three states presently either have no age restriction on the use of the death penalty, or specifically allow it for those who committed their crime while under the age of 18. (See Appendix for Age Restrictions by State.)
The Supreme Court has ruled that it is not a cruel and unusual punishment to apply the death penalty to those who were 16 or 17 years-old at the time of their crime.36 In so doing, the Court rejected international norms as a measure of the "evolving standards of decency," and instead looked to various state standards.
The Supreme Court first recognized evolving standards of decency in the interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause in Trop v. Dulles.37 In doing so, it looked to the international standards. The Court held that denying Albert Trop his citizenship for desertion in time of war was cruel and unusual. The Court cited world-wide opinion, stating: "The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime."38
But when considering the cruelty of executing juvenile offenders, that international perspective was lost. Justice Scalia, in the opinion upholding the death penalty for juvenile offenders, explicitly rejected the notion that world-wide perceptions of decency were relevant to the Court's consideration.39 By contrast, Justice Brennan, in dissent, harkened back to the Court's precedent in Trop: "Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved."40
With the Supreme Court's approval, the execution of juvenile offenders has gone forward. Since 1973, states in the U.S. have sentenced over 180 juvenile offenders to death and have carried out 13 executions. Ten of the 13 executions have occurred in the 1990s, including 7 in Texas.
Although the most recent jurisdictions to adopt the death penalty (Kansas, New York, and the federal government) have excluded those under 18 from the death penalty, there have been frequent calls by politicians to lower the age of death eligibility, even to as low as eleven.41 The U.S. reservation to the ICCPR is so broad that it would not (by itself) preclude even such shocking executions.
Death sentences for individual juveniles in the U.S. have drawn considerable criticism and legal challenges from other countries. While Paula Cooper was on death row in Indiana for a murder committed at age 15, over a million signatures were gathered in Italy protesting the sentence, and the Pope also sought to intervene.42 Her death sentence was later reduced to a life term. In 1987, the Inter-American Commission on Human Rights held that the U.S. had violated the American Convention on Human Rights because of the execution of juvenile offenders.43Countries like the U.S., which are members of the Organization of the American States but have not ratified the American Convention on Human Rights, are nevertheless subject to the petition procedure before the Inter-American Commission on Human Rights.44 One such petition involved the execution of two juvenile offenders, Terry Roach from South Carolina and Jay Pinkerton from Texas. The Commission requested that their executions be delayed while the issues raised in their petition were considered.45 This request was denied, and both were executed in 1986. "Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved...." -Justice William Brennan
Most recently, the U.S. crossed another barrier when Sean Sellers became the first 16-year-old offender executed in over 40 years. Despite pleas from Archbishop Desmond Tutu, the American Bar Association, and other religious and human rights leaders, and despite his documented mental illness, Sellers was executed in Oklahoma in 1999.46
Around the world, the execution of juvenile offenders is very rare. Although records on such executions are incomplete, only five other countries are known to have executed juvenile offenders since 1990: Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen.47 The U.S. executed ten juvenile offenders in that time, more than any other country. With the near universal acceptance of the Convention on the Rights of the Child and the ICCPR, the U.S. is moving in the opposite direction from the entire world in this critical area of human rights.
Unofficial Response More Positive
Although the official U.S. position on juvenile executions has been one of intransigence, there has been some movement on the state level. Since the Supreme Court allowed the execution of 16- and 17-year-olds, no state which had an age limit of 18 has lowered their age. New states which recently adopted the death penalty have barred the death penalty for juvenile offenders. The states of Washington and Montana recently raised their age to 18, and Florida's Supreme Court raised that state's eligibility age from 16 to 17. A majority of U.S. states now either forbids executions all together, or at least bars juvenile executions.
The Clinton Administration has a unique opportunity to directly affect U.S. policy on this issue. The U..S. Supreme Court has asked for the government's position on the effect of the ICCPR on juvenile executions in the U.S.48 It is not yet known whether the Solicitor General will defend or renounce such executions.50
The U.N.'s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, following his visit to the United States in 1997, also called for a halt to the use of the death penalty on the mentally retarded, stating that such executions were "in contravention of relevant international standards."51 Individual cases in the U.S. have evoked pleas for mercy from the Pope and other world leaders, usually to no avail."The rights to life and dignity are the most important of all human rights . . . . And this must be demonstrated by the State in everything that it does, including the way it punishes criminals." -Justice Chaskalson, South African Constitutional Court, 199549
The U.S. Response
The overall U.S. response to this criticism has been to ignore it. The Supreme Court upheld the execution of those with mental retardation in 1987, but said it should be considered a mitigating factor.52
At least 34 individuals with identified mental retardation have been executed since the death penalty was reinstated in 1976 (about 6% of all executions), though not everyone is tested. Psychological testing of all the inmates on Mississippi's death row revealed that 27% were "within the range of potential mental retardation."53
The number of those suffering from mental illness represents an additional concern. A recent report from the Department of Justice revealed that 16% of inmates in the nation's prisons suffer from mental illness.54
U.S. law prohibits the execution of the insane,55 but that is a very high and rarely met standard. In 1992, then Presidential candidate and Governor Bill Clinton returned to Arkansas to preside over the execution of Rickey Ray Rector, a man whose brain had been lobotomized and who believed he could return to his cell for dessert after his execution.56 In 1998, Horace Kelly in California was found sane enough to be executed, despite wallowing in his own waste, not bathing or combing his hair. Two psychiatrists and the prison warden raised concerns about his sanity, but a hearing found him fit for execution.57
Varnall Weeks in Alabama was executed in 1995 despite the fact that psychologists testifying both for Weeks and the State agreed that he suffered from pervasive and bizarre religious delusions causing him to believe he was God, that his execution was part of a millennial religious scheme to destroy mankind, and that he would not die but rather would be transformed into a tortoise and reign over the universe.58
Pernell Ford in Alabama faced execution in 1999 despite a long history of mental illness. Allowed to defend himself at trial, he appeared in a bed sheet and towel, and asked that the murder victims be brought to court so that they could be raised from the dead.59
Meanwhile, some progress has been made in this area. Since 1986, twelve states and the federal government have voted to ban the execution of the mentally retarded. Calvin Swann's death sentence in Virginia was commuted to life in 1999 because of concerns about his severe mental illness.60 Theodore Kaczynski, charged with the Unabomber killings, was permitted to enter a plea which avoided the death penalty because of his profound mental illness.61 Roosevelt Pollard was removed from Missouri's death row this year because of similar concerns.62 And two inmates were removed from Nebraska's death row after the state voted to exclude the mentally retarded from the death penalty.63
"[Mr. Breard's execution] could be seen as a denial by the United States of the significance of international law and the Court [of Justice]'s processes in its international relations and thereby limit our ability to insure that Americans are protected when living or traveling abroad." -Letter from U.S. Secretary of State to Virginia's Governor requesting a stay for Angel Breard64
"[T]he State of Virginia would be harmed by an order preventing it from carrying out its lawfully entered judgment of execution in a timely fashion, despite the fact that ... the arguments presented in these cases about the Vienna Convention provide no basis for relief." -Brief of the U.S. Solicitor General to the U.S. Supreme Court arguing against a stay of execution for Angel Breard65
The most direct way in which the U.S. has been alienating its allies is the execution of foreign nationals, especially when they have not been accorded their rights under the Vienna Convention on Consular Relations.66 The U.S., along with almost all of the other countries of the world, has long been a party to the Vienna Convention. Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to confer with the consular officials of their home country.67 This provision, which is binding on all states under the U.S. Constitution, has been systematically ignored.
To begin with, international law, even when ratified by the U.S., is often disdained, particularly by state governments. As one spokesman for the California Attorney General's office said, "Californians elect their legislators and their governor to write the laws . . . and they should not have to abdicate that authority to foreign treaties approved by someone in Washington."68
Furthermore, there is a pervasive lack of knowledge about law enforcement's obligations under the Vienna Convention. Police routinely fail to notify foreign nationals of their rights, partly because they are unaware of the law. Gerald Arenberg, executive director of the Association of Retired Police Chiefs noted: "In my 47 years in law enforcement, I have never seen anything from the State Department or FBI about this" duty to inform arrestees.69
And New York Police Commissioner Howard Safir, when asked about the Vienna Convention, first said he had never heard of it, and then, after a brief explanation, remarked: "Oh, right, that treaty we're not enforcing."70
Even when they are aware of the treaty, law enforcement officals may believe it is inapplicable. Joe Owmby, a prosecutor in Texas, argued at a capital trial that the Vienna Convention was irrelevant because it was not a Texas law. "If you pick up the criminal code," he said afterwards, "it doesn't say anything about the Geneva [sic] Convention."71
Execution of Foreign Nationals
Although nearly 100 foreign nationals have been sentenced to death since capital punishment was reinstated in 1976, none was executed until Carlos Santana of the Dominican Republic in Texas in 1993. Two days later, Ramon Montoya of Mexico was also executed in Texas. Montoya's execution was met with outrage and street protests in Mexico, which strongly opposes the death penalty.72 Mexico then began to try to intervene at earlier stages of death penalty cases. A fundamental problem became clear: neither Mexico nor the many defendants of Mexican citizenship had been notified at the time of arrest of their rights under the Vienna Convention. Research revealed at least 38 Mexican citizens on death rows across the U.S., and that a similar number of citizens from other countries, had also been sentenced to death without proper consular notification.73The issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in 1998. Like most of the other foreign nationals on death row, Breard was not informed of his consular rights when arrested for murder in 1992. Breard was a citizen of Paraguay who had come to the U.S. in 1986.
At trial, he had rejected the advice of his appointed American lawyers, refusing a plea agreement offered by the state and insisting on testifying in his own defense. Breard admitted his involvement in the crime, but claimed he was compelled by a satanic curse placed on him by his father-in-law.74 While such an admission may have garnered leniency in a Paraguayan court, here it sealed his fate. Advice from his consulate about these distinctions might have made a critical difference. Instead, he was found guilty and sentenced to death in 1993."The Court, unanimously indicates the following measures: The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order." -International Court of Justice, 1998
Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had received early advice from his government, he would have avoided the mistakes he made at trial. However, intervention was barred by the Eleventh Amendment to the U.S. Constitution, which forbids suits by foreign countries against a state.75 While this matter was being further appealed, Paraguay filed suit in the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear from both sides and render a decision, unanimously ruled that the execution should be delayed, at least until the court could fully review the matter.76
The U.S. Response
U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court, on the eve of the scheduled execution, considered the various petitions that had been presented to lower courts by Paraguay and by Angel Breard himself.
Paradoxically, while the Secretary of State was pleading with Virginia's governor to halt the execution, the U.S. Justice Department was arguing in the U.S. Supreme Court that Virginia would suffer harm if it was not allowed to carry out the "execution in a timely fashion."77
The court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner.78 This procedural bar, the court held, not only precluded Breard's individual claim, but also any influence of the International Court of Justice. The decision by the highest international court was summarily rejected because of U.S. procedural rules that speed up executions.
Virginia rejected Secretary of State Albright's request and denied clemency. Breard was then executed on April 14, 1998. Breard's case was one of the fastest to go through the appeals process since the death penalty was reinstated.
The implications of Breard's execution and of other similar cases are broad. U.S. citizens travel frequently around the world. If arrested, they often depend on help from the U.S. Embassy in understanding and defending against charges from a variety of legal systems quite different from their own. Now the U.S. has taken the position that even when long-established international norms of justice are violated by the arresting state, the punishment can be carried out, so long as the arresting country's legal procedures were followed."I am deeply troubled by the failure of consular notification in this case. Texas has conceded that the (Vienna Convention's) requirement of consular notification was violated. . . It is clear that, but for these failures, Canadian consular officials would have visited Mr. Faulder in prison and offered him assistance before his second trial and direct appeals had been completed, when such assistance would have been critical . . . ." -U.S. Secretary of State81 The President of the European Union, in challenging a similar case of Stanley Faulder, a Canadian national denied his consular rights in Texas, raised the specter of broader disregard of important international law: "The EU (European Union) is seriously concerned that this disregard of Texan Authorities in a case where someone is under prosecution for a capital crime may lead to erosion of international consular protection."79
Faulder was executed in Texas in 1999, as were a Thai citizen in California, and two Germans in Arizona, despite pleas and legal challenges from all of these countries. The State Department offered apologies to some of the countries involved, while the law enforcement branch pushed hard for the executions.80
On a broader scale, the U.S.'s actions have has diminished the power of the International Court of Justice in international affairs. If the U.S. refuses to delay an execution notwithstanding a ruling from the highest international court, then other nations may act exempt, as well.
The U.S. is constantly in need of international cooperation on such matters as defense, drug enforcement, economics, and human rights. Its refusal to defer for even a short time to the ICJ's decision to review the Breard issue may make it harder for it to secure cooperation from other countries when needed.Ironically, the U.S. was the first country to appeal to the International Court of Justice to enforce the Vienna Convention. When Iran seized the U.S. Embassy and held Americans hostage in 1979, the U.S. sought and secured a ruling from the International Court condemning Iran's action.82 But with a ruling adverse to the its position, the U.S. has chosen not to comply.
It should be noted that the State Department has now, belatedly, undertaken an information campaign to alert law enforcement officers about their duties under the Vienna Convention.84 Also, a few appellate courts have recognized a defendant's rights under this treaty and granted some relief.85
But no one on death row has been granted relief under the Vienna Convention, despite the fact that consular assistance at the sentencing level might have made a critical difference. Foreign nationals from 29 countries are facing execution in the U.S., so this crisis will surely grow."I think domestic courts should faithfully recognize the obligations imposed by international law. The Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and our status as a free nation demands faithful compliance with the law of free nations." -Justice Sandra Day O'Connor83
Three of the key human rights treaties which the U.S. has ratified condemn punishments meted out in an arbitrary or discriminatory way. The ICCPR forbids any arbitrary use of the death penalty.86 The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the U.N. General Assembly in 198487, signed by President Ronald Reagan in 1988, and ratified by the United States in 1994, forbids torture and the infliction of severe pain or suffering "based on discrimination of any kind."88 And the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), signed by the U.S. in 1966 and ratified in 1994, requires parties to "guarantee the right of everyone, without distinction as to race, . . . equality before the law" and all tribunals of justice.89
The U.N.'s Special Rapporteur and the International Commission of Jurists, following their visits to the U.S. in 1997 and 1996 respectively, decried the evident racial bias in the use of the death penalty. The Jurists particularly singled out the racial disparities and due process violations evident in the use of the death penalty in the U.S.:
"The Mission is of the opinion that . . . the administration of capital punishment in the United States continues to be discriminatory and unjust -- and hence 'arbitrary' --, and thus not in consonance with Articles 6 and 14 of the Political Covenant (ICCPR) and Article 2(c) of the Race Convention."90
More recently, the Inter-American Commission on Human Rights found the U.S. in violation of international law for the 1992 execution of William Andrews in Utah. Despite evidence of racial discrimination on the part of the jury at Andrews's trial in the form of a note found saying, "Hang the Niggers," the Utah court declined to hold an investigatory hearing and proceeded with the trial and death sentencing. U.S. courts upheld the sentence. The Commission's ruling advised the U.S. to pay adequate compensation to Mr. Andrews' next of kin for this injustice.91 No such compensation has been provided.
The U.S. Response
The official U.S. response to this criticism has again been denial, despite an extensive array of conclusive studies pointing to racial discrimination in the death penalty. In a recent overview of research on the subject of race and the death penalty in the U.S. published in the Cornell Law Review, researchers found relevant race data in 29 of the death penalty states. In 90% (26/29) of these states, there was evidence of race-of-victim disparities (i.e., under otherwise similar circumstances, a defendant was more likely to receive a death sentence if the victim was white than if the victim was black).92 These results were consistent with the conclusion of a 1990 General Accounting Office review finding similar patterns of racial bias across the country in the death penalty.93
Another recent study found that nearly 98% of the country's district attorneys responsible for the decision to seek the death penalty are white. Only 1% are black.94 Such persistent and pervasive reports cry out for remedial action, but almost nothing has been done.
The U.S. Supreme Court held in 1987 by a 5-4 vote that to establish a federal constitutional violation, discrimination must be proven on an individual case basis, not with statistical patterns of bias.95 But the Court said that legislative bodies could provide statutory remedies relying on statisical evidence. However, the U.S. Congress has failed to pass the Racial Justice Act, which would allow broad challenges to the racially discriminatory application of the death penalty. Instead, Congress has recently curtailed the appeals process and withdrawn federal funds from the organizations best equipped to bring challenges to discriminatory death sentences.96
The typical death row inmate spends nine years in a 6 by 9 foot isolated cell, with little chance for exercise, visitors, or contact with other human beings. From day to day, he does not know when his death sentence will be carried out. Such physical and psychological mistreatment has been likened to torture.97Texas Death Row Cell, photo © Ken Light98 A series of decisions in international courts has found such prolonged confinement on death row to be cruel and inhuman punishment. One of the leading cases in this vein was decided by the European Court of Human Rights, involving what has come to be called "the death row phenomenon," that is, the additional suffering inflicted through years of often solitary confinement under a sentence of death.
In the case of Jens Soering, a German national who committed murder in Virginia and then fled to England, the European Court, which was considering his extradition appeal, held that his extradition to the U.S. would be a breach of Article 3 of the European Convention on Human Rights forbidding inhuman and degrading treatment. Despite the fact that some of the delay on death row might be due to the defendant's own appeals, such treatment was deemed unacceptable:
However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death.99
Soering was eventually returned to the U.S. after Virginia agreed not to seek the death penalty. The European Court's ruling on extradition was based on other factors in his case, as well as the death row phenomenon. Hence, it was not clear if extensive confinement under threat of execution alone was enough to render a death sentence a human rights' violation. In a subsequent case, Pratt and Morgan, involving Jamaican citizens, a British court ruled that it was.
Earl Pratt and Ivan Morgan were arrested for the crime of murder in Jamaica in 1977 and sentenced to death two years later. After a lengthy period of incarceration on death row and appeals to various courts, they were finally granted relief in 1993 by the Judicial Committee of the Privy Council, a British court with final jurisdiction for 16 countries of the British Commonwealth. The Privy Council held that the prolonged detention on death row constituted cruel, inhuman and degrading treatment, in violation of Jamaica's Constitution. The death sentences were commuted to life.100
The decision of the Privy Council in Pratt and Morgan held that confinement for longer than five years on death row is inhuman punishment and reduced the death sentences to life. Hundreds of prisoners in many of the countries subject to the Privy Council were affected.101
The U.S. Response
The issue of extremely long and torturous time on death row as being a cruel and unusual punishment was presented to the U.S. Supreme Court in a case from Texas. C