Ford Foundation Symposium
November 12, 1998
by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center
Introduction
The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted by the General Assembly of the United Nations on December 10, 19841 and ratified by the United States ten years later. In all, 176 countries have either ratified or signed the torture convention.
The thrust of this treaty is to forbid physical and psychological abuse of people in detention around the world. Whether the death penalty is implicated in this treaty depends on the definition of torture. Clearly, the U.S. was not about to sign a treaty which, on its face, outlawed capital punishment as a form of torture. But the application of the death penalty in the U.S. in specific instances may well be in violation of this convention.
Article 1 of the Torture Convention defines torture, in part, as:
any act by which severe pain or suffering … is intentionally inflicted on a person … by … a public official….2
The definition warns of some of the impermissible reasons for which torture is frequently inflicted, including coercing a confession, punishment, or for “discrimination of any kind.” The definition of torture “does not include pain or suffering arising only from … lawful sanctions.”3
There are three parts of this definition that deserve special note: First, there is an exemption for pain or suffering associated with lawful punishments. Thus, imprisonment may produce much pain and suffering like separation from loved ones, deprivation of freedom, etc. However, in so far as imprisonment is lawful, the normal suffering that results is not banned by the Torture Convention. Similarly, since the death penalty may still be considered a “lawful sanction,” the considerable pain and suffering which inevitably accompany an execution are not torture under this definition. But, the exempted sanctions have to be lawful in the first place.
Secondly, pain or suffering associated with a lawful punishment can be torture if it is not closely connected with that punishment. It must arise from, or be inherent in, or incidental to a lawful sanction. If certain forms of pain and suffering can easily be avoided without eliminating the basic punishment, then it is fair to ask whether that suffering is inextricably entwined with the punishment.
Finally, the definition of torture forbids the infliction of pain and suffering based on discrimination of any kind. There is considerable historical and statistical evidence that the death penalty in the United States has been applied in a racially discriminatory way. If that is true, then Article 2 of the Torture Convention requires States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture … .”4 As I will discuss later, this issue is also addressed in a general way by the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), also ratified by the U.S. in 1994.
I would now like to look into each of these three aspects of the definition of torture to see if the U.S. practice of capital punishment violates the Torture Convention.
“Lawful Sanctions”
Juveniles
Although the death penalty is generally tolerated under international law, the same cannot be said of the execution of juvenile offenders. The International Covenant on Civil and Political Rights requires that the death penalty only be imposed “for the most serious crimes,” and never upon those who were under 18 years of age at the time of their crime.5 Virtually all the countries of the world have signed or ratified this important treaty, including most recently, China. However, the United States is the only country with an outstanding reservation to the Article forbidding the execution of juvenile offenders.
Only seven other countries in the world are known to have carried out an execution of a juvenile in the last ten years6 and the U.S. may be the most flagrant violator with 3 more juvenile offenders executed just this year. Since 1976, there have been 12 executions of those who were under 18 at the time of their crime in the U.S., with 9 of the 12 occurring in the 1990s. Seventy-two additional juveniles are on death row awaiting execution. While some states and the federal law set 18 as the minimum age of eligibility for the death penalty, the majority of death penalty states allow 16 or 17 year-olds to receive this ultimate punishment.7And some government officials have been calling for a reduction of the minimum age, even to as low as 11.8
It is because of this history and practice that the U.S. took a specific reservation to the Civil and Political Rights Covenant essentially exempting itself from the ban on juvenile executions. The U.S. has also taken a reservation to the Torture Convention, stating that we understand “international law does not prohibit the death penalty, and does not consider this convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution … .” In other words, what the U.S. considers to be lawful punishment under the Torture Convention is what the U.S. courts, not the world community, consider lawful.
Reservations to treaties, including human rights agreements, are generally recognized in international law. However, reservations which contradict the “object and purpose” of the treaty are not allowed. Eleven countries formally protested the U.S.’s reservation to the Civil and Political Rights Convention regarding juvenile offenders, and the U.N. Committee on Human Rights has stated that such a reservation is invalid. The U.S. Senate responded to this challenge by threatening to withhold funds from U.S. participation in the work of the U.N. Committee on Human Rights.9
Other International Treaties and Juvenile Executions
The U.N. Convention on the Rights of the Child also specifically prohibits the use of the death penalty for juvenile offenders. This treaty goes even further and outlaws the sentence of life without possibility of parole for those under 18. Virtually every country in the world has ratified this treaty, except the U.S. The U.S. has signed the treaty, but not ratified it, in part because we foresee the conflict between our practice of executing juveniles and the treaty.10
Similarly, the U.S. has signed but not ratified the American Convention on Human Rights, which states: “capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age.”11 The major role of these treaties in international law and the near unanimous acceptance of their prohibition regarding juveniles leads to the conclusion that this is no longer a “lawful sanction.” In this sense, the U.S. violates the Torture Convention when it executes juvenile offenders because this grave infliction of pain and suffering is not associated with a lawful punishment.
The Mentally Retarded
A similar argument can be made that the execution of defendants suffering from mental retardation is unlawful in international law and hence is torture when applied to them. The treaties mentioned above are less clear when it comes to execution of the mentally retarded.
Persons with mental retardation fall into the bottom two to three percent of the population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old.12 Those who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. In this sense, they are comparable to juvenile offenders. If it is wrong to execute those under age 18 at the time of their crime, it would also be wrong to execute someone whose mental age was considerably under 18.
The Civil and Political Rights Covenant states that the death penalty should be restricted to the “most serious crimes.” The standard of what is most serious includes not only the gruesome facts of the crime, but also the culpability of the person charged. Less than 2 percent of those who commit murder receive the death penalty in the U.S. It seems absurd to maintain that the mentally retarded, who are in the lowest 2 percent in terms of intellectual functioning, are somehow among the highest 2 percent in culpability.
Moreover, Article 16 of the Torture Convention requires states to prohibit any official cruel, degrading or inhuman treatment, even if it does not fall under the strict definition of torture. Again, what is degrading or cruel may be in eyes of the beholder, but even in the U.S., 24 states and the federal government do not allow the execution of a mentally retarded defendant. Justice William Brennan, in dissenting from the Supreme Court’s decision which permitted such executions, wrote that “the execution of mentally retarded individuals is ‘nothing more than the purposeless and needless imposition of pain and suffering … .‘“13
Thirty-three defendants with mental retardation have been executed in the U.S. since 1976.14 There has been some legislative movement towards stopping these executions. When the U.S. Supreme Court in 1989 upheld the constitutionality of the death penalty for those with mental retardation, it did so at a time when only one state forbade this practice.15 Today, 12 states and the federal government have a specific exemption for those with mental retardation.
Foreign Nationals
Another area in which the legality of the death penalty has been called into question is the execution of foreign nationals in the U.S. The U.S., along with almost all the other countries of the world, has long been a party to the Vienna Convention on Consular Relations.16Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to consult with the embassy of their home country.17 It is clear that this provision, which is binding in all states under U.S. law, has been consistently ignored.
There are at least 72 foreign nationals on death row in the U.S. Virtually none of these defendants were informed of their consular rights under the Vienna Convention. Beginning with Carlos Santana from the Dominican Republic, who was executed in Texas in 1993, there have been 8 executions of foreign nationals in the U.S. since the death penalty was reinstated.
Given that there are many defendants facing execution who were not informed of their consular rights in violation of both international and U.S. law, what should be the remedy ? This issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in April of this year. Breard was a citizen of Paraguay and had come to the U.S. in 1986. He was not informed of his consular rights when arrested for murder in 1992.
At trial, he rejected the advice of his appointed American lawyers, refused a plea agreement offered by the state and insisted on testifying in his own defense. On the stand, Breard claimed he was compelled by a satanic curse placed on him by his father-in-law.18 He was found guilty and sentenced to death in 1993.
Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had been given the opportunity to discuss the U.S. legal system with counselors from Paraguay he might have accepted the plea bargain and avoided a death sentence, or at least he might have seen the pitfalls in taking the stand. However, Paraguay’s efforts were barred by the Eleventh Amendment to the U.S. Constitution which forbids suits by foreign countries against a state.19 While this matter was being further appealed, Paraguay filed suit with the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear both sides and render a decision, unanimously ruled that the execution should be delayed at least until the Court could fully review the matter.20
U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner.21 The Court held that this procedural bar not only precluded Breard’s individual claim, but also negated any influence of the International Court of Justice. The decision by the highest court in the world was summarily rejected because of U.S. procedural rules designed to speed up executions.
Interestingly, while the U.S. Secretary of State was pleading with Governor Gilmore to halt the execution, the U.S. Justice Department was arguing that Virginia would suffer harm if it was not allowed to carry out the “execution in a timely fashion.”22 Breard was executed on April 14, 1998, shortly after the Supreme Court rendered its decision. Outside of those who have volunteered for execution and waived their appeals, Breard’s case was one of the fastest to go through the appeals process since the death penalty was reinstated. Even though Breard was executed, the case that Paraguay brought to the World Court continues. An opinion by the World Court that such executions would be illegal would also imply that the U.S. is in violation of the Torture Convention.
Pain and Suffering Not Inherent to Death Penalty
Although much of what is painful about the death penalty is inextricably linked to the ultimate execution, there is some suffering which is peripheral to executions and hence may constitute a form of torture. The length of time that people spend on death row in the U.S. is quite long and not an essential or an intended part of the punishment. Also, the methods of execution used in some states is gratuitously violent and torturous.
Time on Death Row
Death row inmates are subjected to years of uncertainty under dismal physical conditions not knowing when they will be executed. Albert Camus noted that “[t]he devastating, degrading fear that is imposed on the condemned for months or years is a punishment more terrible than death.”23
The average time between sentencing and execution in the U.S. is eight and a half years. There are over 3,500 inmates on death row and many have been there for 10 or even 15 years.24 Every year, many inmates give up legitimate appeals and ask that their executions go forward as quickly as possible. While the delay might seem to favor those who want to avoid their execution, it works against those who have been wrongly convicted or sentenced in that their relief is delayed. Over 35 percent of death sentences are overturned on appeal.25
The time spent on death row is not inherent to the death penalty. It is the product of a number of factors. To begin with, in many cases incompetent attorneys are assigned to death cases and they frequently make fundamental mistakes in their representation. These cases may result in retrials and considerable delay. Another independent factor is the backlog of cases of all types which appellate judges have to consider. Appeals submitted by defense attorneys or prosecutors sometimes take years before a decision is rendered. Because of the high stakes in a death case, both sides typically appeal every adverse ruling. Only a part of the resultant delay is the responsibility of the defendant. In some cases, the state delays for years before even assigning an attorney to handle a death penalty appeal. The typical wait in California for the appointment of an attorney to just start the appeals process is three to four years.
The attention of courts around the world have been drawn to the torment of the prisoner in this situation. In Pratt v. Attorney General of Jamaica, the highest court in the United Kingdom unanimously ruled that a 14-year delay between the trial and execution rendered the pending execution to be “cruel” and “inhumane.”26 The British Privy Council ruled that such an inordinate delay would never have been permitted under English common law and commuted the sentence to life imprisonment. In considering a case involving a 17-year delay in U.S. courts, Justice Stevens of the Supreme Court called for consideration of this “important” issue by intermediate courts and hinted that the issue may become ripe for the Supreme Court in the future.27
Methods of Executions
In addition to the actual killing of a human being and the years of psychological torment leading up to this act, the methods of execution employed in the U.S. have resulted in the infliction of additional pain. At least 20 executions since 1976 involved mistakes in the process which led to prolonged and painful executions, such as an inmate’s head catching fire during an electrocution and the torturous 45-minute search for a suitable vein to carry out a lethal injection.28 Four states use electrocution for execution with no alternative possible. Outside of the death penalty, the applying of powerful electric currents to the human body would unhesitatingly be called torture.
Other states allow the inmates, many of whom are suffering from mental illness, to choose equally grisly forms of execution such as hanging, the firing squad or the gas chamber. At least some of the pain and suffering which these methods cause is gratuitous and could be avoided. To insist on the worst methods of execution, as recently exhibited in Florida, despite evidence of the severe pain inflicted and repeated mistakes in application, is a violation of the Torture Convention and of basic respect for human rights.
Race Considerations
As was mentioned above, the Torture Convention forbids the infliction of pain and suffering “based on discrimination of any kind.” The death penalty in the United States has a long history of racial discrimination,29and is therefore suspect under the Torture Convention.
The fact that race played a significant role in the imposition of the death penalty contributed to the United States Supreme Court’s finding that the death penalty was being unconstitutionally applied in 1972.30 Subsequent revision of state laws convinced a majority of the Supreme Court that the arbitrary and capricious quality of capital punishment laws could be remedied and executions were allowed to continue.31
The problem of racial disparities in the application of the death penalty has not, however, been eliminated. African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole.32 Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-three percent of the executions carried out since 1976 have involved the murder of a white victim,33 even though whites are victims in less than 50 percent of the murders committed in the U.S.34 When both race of defendant and race of victim figures are examined, the statistics are even more glaring. Since 1976, 117 black defendants have been executed for the murder of a white victim, but only 8 white defendants have been executed for the murder of a black victim.35 Indeed, in the entire history of the U.S., there have only been approximately 38 whites executed for murdering a black person.36
In 1990, the U.S. General Accounting Office conducted a review of such studies and concluded that reliable studies showed: “those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.” 37
Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, recently concluded that racial discrimination continues to infect the practice of the death penalty: “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”38
Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.
Another study by Professor Jeffrey Pokorak of St. Mary’s University Law School in Texas found that the key decision-makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.
These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years.39 Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.
A most egregious example of this type of racial discrimination was revealed recently in Kentucky. In that state, there have been over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky’s death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.40
Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief.41 When the Supreme Court rejected race claims based on statistical evidence, it indicated that the problem might be addressed through legislation.42 Such remedial legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky.43Instead, Congress recently enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought,44 and eliminated all federal funding for the legal resource centers which had frequently raised these claims.
The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.
This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.’s compliance with the Torture Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination and should be stopped.
The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has also signed and ratified, is implicated by a discriminatory death penalty, as well. Although the Race Convention does not specifically address capital punishment, it binds all state parties to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms… .”45 The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination. This is precisely what a Racial Justice Act would do, but this proposed legislation has been rejected as too potent a threat to the whole death penalty.
Conclusion
The United States has ratified the Torture and Race Conventions with certain reservations because of the death penalty. However, while the death penalty itself may not constitute a violation of these conventions, specific applications of this punishment may be contrary to the law of these treaties.
Punishments which may be unlawful in international law, such as the execution of juveniles, the mentally retarded, and those foreign nationals who were not informed of their consular rights, are not exempted from the Torture Convention. Pain and suffering which are peripheral to lawful punishments, such as the years of isolation on death row and the unnecessary infliction of pain through gratuitously cruel forms of execution, are also banned by the Torture Convention. Finally, the arbitrary and discriminatory use of any punishment is forbidden by both the Race and Torture Conventions. To the extent the death penalty is racially discriminatory, the U.S. is bound to take corrective measures to stop this discrimination. Instead of enacting legislation to prevent racial discrimination, the U.S. has expanded the death penalty to new offenses and reduced the opportunity and resources for appeal. Such actions defy not just the spirit but the letter of these important international treaties.
Endnotes:
1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN General Assembly, Thirty-ninth Sess., Agenda item 99, A/Res/39/46 (Dec. 17, 1984).
2. Id., at Article 1 (emphasis added).
5. International Covenant on Civil and Political Rights, Article 6, adopted Dec. 16, 1966, entered into force March 23, 1976, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No.16) 52, U.N. Doc. a/6316 (1966).
6. Amnesty International, Juveniles and the Death Penalty: Executions Worldwide Since 1985, at 8-9 (Aug. 1995).
7. See V. Streib, The Juvenile Death Penalty Today (April 12, 1996) (available from Cleveland-Marshall College of Law).
8. See Governor Favors Death Penalty for Kids as Young as 13, Lubbock-Avalanche-Journal, Jan. 16, 1996 (Gov. Gary Johnson of New Mexico).
9. W. Schabas, The Abolition of the Death Penalty in International Law 90 (2d edit 1997).
10. Indeed, President Bush refused to even sign this accord because “it is contrary to some state laws, because it prohibits certain criminal punishment, including the death penalty, for children under age eighteen.” T. McNulty, U.S. Out in Cold, Won’t Sign Pact on Children, Chicago Tribune, Sept. 30, 1990, at 4.
11. Amer. Conv. on HR, Article 4(5).
12. See E. Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation 14 (1993).
13. Penry v. Lynaugh, 109 S. Ct. 2934, 2963 (1989) (Brennan, J., dissenting).
14. See D. Keyes, et al, People With Mental Retardation Are Dying Legally, Mental Retardation, Feb. 1997, at 60, with recent updates from Death Penalty Information Center.
15. See Penry, 109 S. Ct., at 2954.
16. Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 (April 24, 1963) (ratified by the U.S. in 1969).
18. See B. Masters, World Court Tells U.S. To Halt Va. Execution, Wash. Post, April 10, 1998, at C1.
19. See Breard v. Greene, 140 L.Ed.2d 529, ___ (1998) (per curiam).
20. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) No. 99 (International Court of Justice, April 9, 1998).
22. L. Greenhouse, Court Weighs Execution of Foreigner, N.Y. Times, April 14, 1998, at A14 (quoting the Solicitor General’s brief).
23. A. Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 173, 200 (1961).
24. See Bureau of Justice Statistics, Capital Punishment 1994 (1996)), at table 11 and Appendix table 1.
25. See id., at Appendix table 1.
26. 4 All E.R. 769, 783 (P.C. 1993) (also collecting decisions by other courts).
27. See Lackey v. Texas, Slip opin. U.S. No. 94-8262 (Mar. 27, 1995) (Stevens, J., respecting the denial of certiorari).
28. See M. Radelet, Post-Furman Botched Executions, (May 1995) (on file with the Death Penalty Information Center).
29. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).
30. See Furman v. Georgia, 408 U.S. 238 (1972) (especially concurrences of Marshall, Brennan, and Douglas, JJ.).
31. See Gregg v. Georgia, 428 U.S. 153 (1976).
32. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (Oct., 1998).
34. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1994 338, Table 3.114 (1995).
35. See Facts About the Death Penalty, Death Penalty Information Center (April 22, 1996).
36. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.
37. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (emphasis added).
38. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dissenting from the denial of certiorari).
39. See, e.g., Bright, supra note 5, at 435 n.15 (listing comparable studies).
40. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study).
41. McCleskey v. Kemp, 481 U.S. 279 (1987).
42. McCleskey, 481 U.S., at 319.
43. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act).
44. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (calling the restrictions on habeas corpus “a monumental shift of power to the state courts from the Federal judiciary”).
