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

Ford Foundation Symposium
November 12, 1998

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

Introduction

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

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

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

any act by which severe pain or suf­fer­ing … is inten­tion­al­ly inflict­ed on a per­son … by … a pub­lic official.…2

The def­i­n­i­tion warns of some of the imper­mis­si­ble rea­sons for which tor­ture is fre­quent­ly inflict­ed, includ­ing coerc­ing a con­fes­sion, pun­ish­ment, or for ​“dis­crim­i­na­tion of any kind.” The def­i­n­i­tion of tor­ture ​“does not include pain or suf­fer­ing aris­ing only from … law­ful sanctions.“3

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

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

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

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

“Lawful Sanctions”

Juveniles

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

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

It is because of this his­to­ry and prac­tice that the U.S. took a spe­cif­ic reser­va­tion to the Civil and Political Rights Covenant essen­tial­ly exempt­ing itself from the ban on juve­nile exe­cu­tions. The U.S. has also tak­en a reser­va­tion to the Torture Convention, stat­ing that we under­stand ​“inter­na­tion­al law does not pro­hib­it the death penal­ty, and does not con­sid­er this con­ven­tion to restrict or pro­hib­it the United States from apply­ing the death penal­ty con­sis­tent with the Fifth, Eighth and/​or Fourteenth Amendments to the Constitution .…” In oth­er words, what the U.S. con­sid­ers to be law­ful pun­ish­ment under the Torture Convention is what the U.S. courts, not the world com­mu­ni­ty, consider lawful.

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

Other International Treaties and Juvenile Executions

The U.N. Convention on the Rights of the Child also specif­i­cal­ly pro­hibits the use of the death penal­ty for juve­nile offend­ers. This treaty goes even fur­ther and out­laws the sen­tence of life with­out pos­si­bil­i­ty of parole for those under 18. Virtually every coun­try in the world has rat­i­fied this treaty, except the U.S. The U.S. has signed the treaty, but not rat­i­fied it, in part because we fore­see the con­flict between our prac­tice of exe­cut­ing juve­niles and the treaty.10

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

The Mentally Retarded

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

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

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

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

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

Foreign Nationals

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

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

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

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

Paraguay attempt­ed to inter­vene on his behalf in the appeals process, claim­ing that if Breard had been giv­en the oppor­tu­ni­ty to dis­cuss the U.S. legal sys­tem with coun­selors from Paraguay he might have accept­ed the plea bar­gain and avoid­ed a death sen­tence, or at least he might have seen the pit­falls in tak­ing the stand. However, Paraguay’s efforts were barred by the Eleventh Amendment to the U.S. Constitution which for­bids suits by for­eign coun­tries against a state.19 While this mat­ter was being fur­ther appealed, Paraguay filed suit with the International Court of Justice at The Hague. In that forum, Paraguay asked for a rul­ing to pre­vent the immi­nent exe­cu­tion of Breard because of the U.S. vio­la­tion of the Vienna Convention. The International Court, rec­og­niz­ing that there was not suf­fi­cient time before the exe­cu­tion to ade­quate­ly hear both sides and ren­der a deci­sion, unan­i­mous­ly ruled that the exe­cu­tion should be delayed at least until the Court could ful­ly review the matter.20

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

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

Pain and Suffering Not Inherent to Death Penalty

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

Time on Death Row

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

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

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

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

Methods of Executions

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

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

Race Considerations

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

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

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

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

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

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

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

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

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

Despite over­whelm­ing evi­dence of dis­crim­i­na­tion, the response of the courts has been to deny relief.41 When the Supreme Court reject­ed race claims based on sta­tis­ti­cal evi­dence, it indi­cat­ed that the prob­lem might be addressed through legislation.42 Such reme­di­al leg­is­la­tion, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in var­i­ous states but it has only been passed by one state, Kentucky.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). 

3. Id.

4. Id., at Article 2. 

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

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

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

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

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

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

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

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

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

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

15. See Penry, 109 S. Ct., at 2954. 

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

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

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

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

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

21. Breard, 140 L.Ed. at ___. 

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

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

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

25. See id., at Appendix table 1. 

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

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

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

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

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

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

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

33. Id.

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

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

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

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

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

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

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

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

42. McCleskey, 481 U.S., at 319. 

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

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

45. Race Convention, Article 2(1).