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

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

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

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

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

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

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

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

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

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

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

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

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

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

The International Covenant on Civil and Political Rights

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

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

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

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

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

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

Other Treaties and Juvenile Executions

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

The Fate of Juvenile Offenders in the U.S.

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

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

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

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

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

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

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

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

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

Unofficial Response More Positive

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

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Execution of Foreign Nationals

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The U.S. Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. International Treaties

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

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

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

D. Convention on the Rights of the Child — excerpts

E. American Convention on Human Rights — excerpts

F. Vienna Convention on Consular Rights — excerpts

II. Execution of Juvenile Offenders

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

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

C. Execution of Juvenile Offenders Worldwide

I. International Human Rights Treaties

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

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

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

Article 6

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

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

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

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

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

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

UNITED STATES OF AMERICA

Reservations:

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

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

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

Article 1

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

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

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

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

Article 2

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

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

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

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

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

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

Article 5

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

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

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

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

General Assembly res­o­lu­tion 39/​46 of December 1984

Article 1

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

Article 2

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

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

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

UNITED STATES OF AMERICA, Upon ratification:

Reservations:

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

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

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

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

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

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

General Assembly res­o­lu­tion 44/​25 of December 12, 1989

Article 1

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

Article 6

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

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

Article 37

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

Article 51

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

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

1144 UNTS 123, OASTS 36, November 22, 1969

PART I. STATE OBLIGATIONS AND RIGHTS PROTECTED

CHAPTER I. GENERAL OBLIGATIONS

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

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

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

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

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

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

F. Vienna Convention on Consular Relations (Excerpts)

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

596 U.N.T.S. 261, April 24, 1967

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

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

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

II. Execution of Juvenile Offenders

A. Minimum Death Penalty Ages by American Jurisdiction

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

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

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

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

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

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

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

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

C. Executions of Juvenile Offenders Worldwide

Country

Name of Offender Age at Execution Date of Execution

Bangladesh

Mohammed Sleim 17 Feb.27, 1986

Iran

Kazem Shirafkan

3 unnamed males 17

16, 17, 17 1990

Sept. 29, 1992

Iraq

5 Kurdish males

8 Kurdish males 15 to 17

14 to 17 Nov-Dec, 1987

Dec. 30 – 31, 1987

Nigeria

Matthew Anu 18 Feb. 26, 1989

Pakistan

1 male 17 Nov.15, 1992

Saudi Arabia

Sadeq Mal-Allah 17 Sept. 2, 1992

Yemen

Nasser Munir Nasser alÕKirbi 13 July 21, 1993

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