U.N. Experts: ​‘Almost Impossible’ for Countries to Administer Death Penalty without Violating Defendants’ Human Rights

Two lead­ing United Nations human rights experts have con­demned cap­i­tal pun­ish­ment as incom­pat­i­ble with inter­na­tion­al legal require­ments, say­ing the death penal­ty is ​“almost impos­si­ble” to admin­is­ter while respect­ing the human rights of the accused.

In a joint state­ment issued from Geneva, Switzerland on Oct. 10, 2022 in con­nec­tion with the obser­vance of the 20^th World Day Against the Death Penalty, Dr. Alice Jill Edwards, the U.N. Special Rapporteur on tor­ture and oth­er cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment, and Morris Tidball-Binz, the U.N. Special Rapporteur on extra­ju­di­cial, sum­ma­ry or arbi­trary exe­cu­tions called death-penal­ty abo­li­tion ​“the only viable path.” ​“Although the death penal­ty is per­mit­ted in very lim­it­ed cir­cum­stances under inter­na­tion­al law, the real­i­ty remains that in prac­tice it is almost impos­si­ble for States to impose cap­i­tal pun­ish­ment while meet­ing their oblig­a­tions to respect the human rights of those con­vict­ed,” they said.

The Special Rapporteurs crit­i­cized death-row con­di­tions, tor­tur­ous exe­cu­tion meth­ods, and the use of cap­i­tal pun­ish­ment against vul­ner­a­ble class­es of defen­dants and as an instru­ment of polit­i­cal oppres­sion. ​“A num­ber of states con­tin­ue to impose the death penal­ty for non-vio­lent crimes such as blas­phe­my, adul­tery and drug-relat­ed offences, which fail the ​‘most seri­ous crime’ stan­dard for the appli­ca­tion of cap­i­tal pun­ish­ment under inter­na­tion­al law. A grow­ing trend of impos­ing the death penal­ty on those exer­cis­ing their right to peace­ful polit­i­cal protest is deeply wor­ry­ing,” they wrote.

The Special Rapporteurs not­ed that the ​“death row phe­nom­e­non” — the dete­ri­o­ra­tion in prisoner’s men­tal health result­ing from extend­ed incar­cer­a­tion under threat of exe­cu­tion — ​“has long been char­ac­terised as a form of inhu­man treat­ment, as has the near total iso­la­tion of those con­vict­ed of cap­i­tal crimes and often held in unlaw­ful soli­tary con­fine­ment.” More than half of all U.S. death-row pris­on­ers have faced exe­cu­tion for more than two decades. Most have been incar­cer­at­ed in pro­longed iso­la­tion that vio­lates inter­na­tion­al human rights norms.

The state­ment, issued less than a month after the Special Rapporteurs received a human rights com­plaint filed in con­nec­tion with Alabama’s sched­uled exe­cu­tion of Alan Miller, also observed that meth­ods of exe­cu­tion increas­ing­ly ​“have been found to be incom­pat­i­ble with the oblig­a­tions to refrain from tor­ture and ill-treat­ment, for inflict­ing severe pain and suf­fer­ing.” The com­plaint, sub­mit­ted to the U.N. on September 12, 2022, argued based on the botched exe­cu­tion of Joe Nathan James, Jr., that there was ​“an intol­er­a­ble risk” that Miller would be sub­ject­ed to ​“tor­ture and an inhu­man form of pun­ish­ment” dur­ing his sched­uled September 22, 2022 exe­cu­tion. Alabama sub­se­quent­ly botched Miller’s exe­cu­tion, fail­ing to estab­lish an intra­venous exe­cu­tion line despite numer­ous attempts over a more than two-hour period.

The Special Rapporteurs also called on coun­tries that still retain cap­i­tal pun­ish­ment to ​“scrupu­lous­ly apply excep­tions for per­sons with intel­lec­tu­al dis­abil­i­ties” and oth­er vul­ner­a­ble groups. Eight U.S. states and the fed­er­al gov­ern­ment have exe­cut­ed at least 29 like­ly intel­lec­tu­al­ly dis­abled pris­on­ers this cen­tu­ry, even after the U.S. Supreme Court declared the prac­tice uncon­sti­tu­tion­al in Atkins v. Virginia in February 2002. 

Article 6 of the International Covenant on Civil and Political Rights (ICCPR) cod­i­fies ​“the inher­ent right to life” and pro­tects it against arbi­trary depri­va­tion. The Second Optional Protocol of the ICCPR declares that ​“abo­li­tion of the death penal­ty con­tributes to enhance­ment of human dig­ni­ty and pro­gres­sive devel­op­ment of human rights” and com­mits nations to end­ing cap­i­tal pun­ish­ment. Currently, nine­ty nations — includ­ing European democ­ra­cies, Canada, Australia, New Zealand, Mexico, and most Central and South American nations — are par­ties to the Second Optional Protocol and anoth­er 40 are sig­na­to­ries to the treaty. The United States has nei­ther signed nor rat­i­fied the protocol.

The U.S. has repeat­ed­ly been found to have vio­lat­ed inter­na­tion­al norms in the admin­is­tra­tion of cap­i­tal pun­ish­ment. While the U.S. Supreme Court has rec­og­nized that U.S. human rights treaties ​“con­sti­tute[ ] an inter­na­tion­al law oblig­a­tion on the part of the United States,” they do not ​“auto­mat­i­cal­ly con­sti­tute bind­ing fed­er­al law enforce­able in United States courts” and may be sub­ject to state-courts rules of pro­ce­dur­al default. In LaGrand (Germany v. United States, 1999) and Avena and Other Mexican Nationals (Mexico v. United States of America, 2003), the International Court of Justice (ICJ) held that the United States had vio­lat­ed the Vienna Convention on Consular Relations by fail­ing to pro­vide for­eign nation­als who were fac­ing the death penal­ty with access to consular assistance. 

In 2018, in the case of Russell Bucklew, the Inter-American Commission on Human Rights (IACHR) ruled that “[t]he very fact of spend­ing 20 years on death row is…excessive and inhu­man” pun­ish­ment, in vio­la­tion of the American Declaration of the Rights and Duties of Man (American Declaration). It also found that the United States Supreme Court’s require­ment that a death sen­tenced pris­on­er prove that a state has an avail­able alter­na­tive method to car­ry out the exe­cu­tion vio­lates human rights law. The Commission ruled, ​“the United States has the duty to abstain from car­ry­ing out an exe­cu­tion when there is sig­nif­i­cant risk that it would breach the pro­hi­bi­tion of cru­el and inhu­man treat­ment or tor­ture. Compliance with this duty can­not be con­di­tioned on the exis­tence of ​‘alter­na­tives.’”

On May 10, 2022, the IACHR issued ​“pre­cau­tion­ary mea­sures” — the inter­na­tion­al equiv­a­lent of an injunc­tion — in the case of Arizona death-row pris­on­er Clarence Dixon, a Navajo man with schiz­o­phre­nia who, his peti­tion alleged, was tried and per­mit­ted to rep­re­sent him­self while men­tal­ly incom­pe­tent and was denied mean­ing­ful judi­cial review of numer­ous vio­la­tions of his rights. As with numer­ous oth­er cas­es in which U.S. death-row pris­on­ers had alleged their human rights had been vio­lat­ed, Arizona ignored the IACHR rul­ing and exe­cute Dixon. In an unre­lat­ed Arizona case, Shinn v. Ramirez, the U.S. Supreme Court fur­ther lim­it­ed access to judi­cial review. Under the rul­ing, state pris­on­ers who were pro­vid­ed inef­fec­tive rep­re­sen­ta­tion at tri­al and in post-con­vic­tion pro­ceed­ings are per­mit­ted to argue that their coun­sel were inef­fec­tive but are barred from pre­sent­ing evi­dence of their inef­fec­tive­ness that com­pe­tent lawyers had dis­cov­ered once the case had reached fed­er­al court. Legal experts called the deci­sion ​“night­mar­ish,” and ​“an abom­i­na­tion.” Denial of com­pe­tent coun­sel and access to courts vio­lates human rights standards.

A Death Penalty Information Center report in June 2020 found that at least 1,300 pris­on­ers had been incar­cer­at­ed on U.S. death rows for more than two decades, in vio­la­tion of U.S. human rights oblig­a­tions. DPIC’s Death Penalty Census found that more than half of all U.S. death-row pris­on­ers as of January 1, 2021 had faced exe­cu­tion for more than two decades. Nearly 200 more con­demned pris­on­ers in the U.S. have been exe­cut­ed 20 or more years after hav­ing been sen­tenced to death, also in vio­la­tion of U.S. human rights oblig­a­tions. Eighteen of the 190 men and women exon­er­at­ed from wrong­ful cap­i­tal mur­der con­vic­tions since 1973 also had spent two decades or more on death row.

During the November 2020 U.N. Human Rights Council uni­ver­sal peri­od­ic review, which takes place about every four years and involves a review of the human rights record of UN mem­ber states, the United States faced crit­i­cism from numer­ous demo­c­ra­t­ic nations for its death penal­ty prac­tices. The release coin­cid­ed with the start of an unprece­dent­ed fed­er­al exe­cu­tion spree in which the U.S. refused to dis­close details of its exe­cu­tion process and exe­cut­ed pris­on­ers with intel­lec­tu­al dis­abil­i­ty, seri­ous men­tal ill­ness, and sig­nif­i­cant claims of inno­cence with­out pro­vid­ing them judi­cial review of their claims. In a state­ment issued in response to the review, then U.S. Secretary of State Mike Pompeo assert­ed that, ​“The United States has been, and always will be, a leader in trans­par­ent, rights-respect­ing gov­er­nance. … We don’t sim­ply dis­cuss human rights in the United States; we cher­ish and defend them.”