Professional Documents
Culture Documents
Roxanne Eberle
Law 600 Independent Study
1
Table of Contents
INTRODUCTION ........................................................................................................................................ 3
OVERVIEW – INTERNATIONAL PERSPECTIVES ON THE DEATH PENALTY ......................... 5
WORLDWIDE DEATH PENALTY TRENDS ..................................................................................................... 5
Abolitionist and Retentionist Countries................................................................................................. 5
Executions ............................................................................................................................................. 5
Death Row Population .......................................................................................................................... 6
Execution Methods and Punishable Offenses ........................................................................................ 7
Abolition Post World War II ................................................................................................................. 8
UNITED STATES DEATH PENALTY ............................................................................................................ 12
Current Trends .................................................................................................................................... 12
U.S. History of the Death Penalty ....................................................................................................... 13
Current U.S. Death Penalty Statistics ................................................................................................. 16
Deterrence and the Death Penalty in the United States ...................................................................... 16
Race and the Death Penalty in the United States ................................................................................ 18
INTERNATIONAL HUMAN RIGHTS AND THE DEATH PENALTY ............................................. 20
International Law ................................................................................................................................ 21
Customary International Law – ....................................................................................................................... 21
Jus Cogens –.................................................................................................................................................... 22
International Law’s Application to the Death Penalty ........................................................................ 23
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ............................................................... 23
Trial Counsel ....................................................................................................................................... 24
Post-Conviction Relief......................................................................................................................... 25
The Judiciary ....................................................................................................................................... 27
JUVENILE EXECUTIONS ............................................................................................................................. 28
Roper v. Simmons ................................................................................................................................ 28
Use of International Standards as a Measure of Society’s Evolution ................................................. 29
DEATH ROW PHENOMENON ...................................................................................................................... 32
DOMESTIC APPLICATION OF INTERNATIONAL TREATIES........................................................................... 36
The European Model ........................................................................................................................... 36
The United States Model ..................................................................................................................... 39
Self-Executing v. Non-self-executing treaties – ............................................................................................... 39
Vienna Convention on Consular Relations Cases – ........................................................................................ 40
Background – Vienna Convention Provisions ............................................................................................ 40
Background – The International Court of Justice ....................................................................................... 40
The Breard and LaGrande Cases ............................................................................................................... 42
The Avena Case .......................................................................................................................................... 42
The Medellin Case...................................................................................................................................... 43
CONCLUSION ........................................................................................................................................... 45
AUTHORITIES .......................................................................................................................................... 47
2
INTRODUCTION
The history of the death penalty in the United States begins in colonial times. Its
use and application have evolved since that time through case law decided by United
States Courts’ interpretation of the United States Constitution. The Eighth Amendment
to the Constitution prohibits the use of “cruel and unusual punishment.”1 Eighteenth
century standards determined whether punishment was “cruel and unusual” until the 1910
Supreme Court case of United States v. Weems.2 In its Weems opinion, the Supreme
Court held that interpretation of the Eighth Amendment "is not fastened to the obsolete,
but may acquire meaning as public opinion becomes enlightened by a humane justice."3
The Supreme Court reinforced the concept of using contemporary standards to interpret
the meaning of the prohibition against “cruel and unusual” punishment in the 1958 case
of Trop v. Dulles.4 In Trop, the Supreme Court held that "the evolving standards of
decency that mark the progress of a maturing society" should be used when considering
frequently contradict earlier decisions. For example, in 2002 the Court held the death
penalty inapplicable to the mentally retarded,6 even though the Court had ruled the
practice constitutional just twelve years earlier.7 Additionally, the Court ruled in 2005
1
United States Constitution, Amendment VIII.
2
United States v. Weems, 217 U.S. 349 (1910).
3
Id. at 378.
4
Trop v. Dulles, 356 U.S. 86 (1958).
5
Id. at 100.
6
Atkins v. Virginia, 536 U.S. 304 (2002).
7
Penry v. Lynaugh, 492 U.S. 302 (1989).
3
that the Eighth Amendment barred the execution of juveniles,8 overturning a 1989
decision that such executions were permitted.9 The significance of the Weems and Trop
cases to this discussion is that the death penalty in the United States is fluid and changing
Consistent with these evolving standards, the United States has signed and ratified
Human Rights, the Covenant on Civil and Political Rights and the International
guarantee such basic human rights as the inviolate right to life, the right to an adequate
legal defense in criminal cases and prohibitions against racial discrimination. Even
though the United States has entered reservations to preserve its right to use the death
penalty, its use violates other international laws to which the United States is a party.
Amendment violations provide an avenue for bringing the United States in step with the
This paper will compare the use and restrictions of the death penalty in the United
States and abroad in the context of international law. The first half is an examination of
death penalty trends, first abroad and then in the United States, including arguments
regarding deterrence and the correlation between race and the death penalty in the United
States. The second half of this paper discusses the United States’ practice of the death
penalty in the context of international law, using the International Covenant on Civil and
Political Rights, the prohibition against the execution of juvenile offenders, the “death
8
Roper v. Simmons, 543 U.S. 551 (2005).
9
Stanford v. Kentucky, 492 U.S. 361 (1989).
4
row phenomenon,” and a review of Vienna Convention on Consular Relation cases as a
The majority of United Nations member states have abolished the death penalty.
There are 192 United Nations member states. Of these, 125 countries do not practice the
death penalty. Ninety-two countries are de jure death penalty abolitionist, meaning their
laws prohibit its use for punishment of any crimes. These countries include all of Europe
International defines as having no executions within the last ten years. In many of these
countries, however, courts continue to sentence people to death and then later commute
those sentences. All ten South American countries are de facto abolitionist for “ordinary
crimes,” but retain the death penalty for wartime crimes such as treason. There are 69
retentionist nations, including the United States, Japan and most Middle Eastern
countries.10 The last member state to abolish the death penalty was Uzbekistan as of
January 1, 2008.11
Executions
In retentionist nations, the non-extrajudicial use of the death penalty has fallen in
the past two years for which statistics are available from Amnesty International. For
10
Amnesty International, Death Penalty: Abolitionist and Retentionist Countries, retrieved March
8, 2008 from http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries.
11
Amnesty International Australia, Uzbekistan 135th Country to Abolish the Death Penalty,
retrieved March 8, 2008 from http://action.amnesty.org.au/news/comments/7865/.
5
example, in 2005, there were 2,148 executions worldwide.12 In 2006, there were 1,591
executions. Of the 1,591 executions in 2006, over 90% of the executions were
concentrated in the following six nations, with the remaining 63 retentionist nations
Although there was roughly a 25% drop in executions worldwide from 2005 to
2006, the estimated worldwide death row population held steady. Amnesty International
estimated the worldwide death row population in 2005 to be between 19,474 and
phenomenon, despite decreasing use of the death penalty, include politically motivated
prosecutors seeking death sentences in jurisdictions reticent to carry them out and more
12
This figure does not include extrajudicial executions. Amnesty International, Death Sentences
and Executions in 2005, retrieved March 8, 2008 from
http://www.amnesty.org/en/library/asset/ACT50/002/2006/en/b0de7038-a2aa-11dc-8d74-
6f45f39984e5/act500022006en.html (hereinafter Amnesty 2005).
13
Amnesty International, Death Penalty Statistics in 2006, retrieved March 8, 2008 from
http://www.amnestyusa.org/document.php?lang=e&id=ENGACT500122007 (hereinafter
Amnesty 2006).
14
Although the reported number of executions in China for 2006 was 1,010, the actual figure is
estimated to be closer to 8,000. Id.
15
Amnesty 2005, supra note 12.
16
Amnesty 2006, supra note 13.
6
Execution Methods and Punishable Offenses
Of the retentionist countries, the table below lists the recent forms of the death
penalty.17 (For the United States, authorized methods are noted, even if not practiced):
Form Location
Firing squad 42 nations, including Belarus, China, Somalia, Taiwan, Uzbekistan18,
Vietnam and other countries, plus the states of Idaho, Oklahoma and
Utah19
Hanging Egypt, Iran, Japan, Jordan, Pakistan, Singapore, Iraq and other
countries, plus the states of New Hampshire and Washington20
Lethal injection China, Guatemala, Philippines, Thailand, plus 35 individual states
and the United States military and federal government21
Beheading Saudi Arabia (by sword), Iraq
Electrocution Nine individual states,22 with the last being in 2007 in Tennessee23
Stoning Afghanistan, Iraq, Iran, Nigeria24.
Gas Five individual states, all as an alternative method.25 Practically, not
used.26
Stabbing Somalia
17
Amnesty International, Facts and Figures on the Death Penalty, January 1, 2007, retrieved
March 17, 2008 from http://www.amnesty.org/en/library/asset/ACT50/002/2007/en/c5ebe9d0-
a2a8-11dc-8d74-6f45f39984e5/act500022007en.html (hereinafter Amnesty Facts 2007).
18
As stated previously, Uzbekistan abolished the death penalty for all crimes as of January 1,
2008.
19
Execution by firing squad is authorized as an alternate method in these three states (in Utah
only for those inmates who selected the method prior to its elimination). Death Penalty
Information Center, Methods of Execution, retrieved March 17, 2008 from
http://www.deathpenaltyinfo.org/article.php?did=245 (hereinafter DPIC Methods).
20
Hanging is authorized in New Hampshire if lethal injection “cannot be given” and in
Washington State if the inmate specifically requests this method. Id.
21
Id.
22
Each of these states provides for electrocution as an alternative or optional method. Id.
23
Death Penalty Information Center, Executions in the United States in 2007, retrieved March 17,
2008 from http://www.deathpenaltyinfo.org/article.php?did=1666.
24
Nigeria is a de facto abolitionist country.
25
Arizona, California, Maryland, Missouri and Wyoming. DPIC Methods, supra note 19.
26
The last use of the gas chamber in the United States was by the State of Arizona when it
executed German national Walter LeGrand in 1999. Death Penalty Information Center,
Executions in the United States in 1999, retrieved March 17, 2008 from
http://www.deathpenaltyinfo.org/article.php?scid=8&did=475.
7
(punishable by stoning, Iran and other Islamic nations).28 Crimes punishable by the death
offenses, embezzlement, running a brothel, and stealing cows, camels and horses.30 In
2007, following highly publicized problems with tainted products from China entering
the United States that threatened trade relations, China executed its State Food and Drug
chief.31
In 1977, only 16 nations had abolished the death penalty for all crimes. In the
past 30 years, that total has risen at a remarkable rate to 125 de jure and de facto
abolition of the death penalty has not always been the result of a shift in popular opinion
against its use. For example, when France formally abolished use of the death penalty for
27
Felony murder is defined as when a defendant has or should have a reasonable expectation (or
takes an unreasonable risk) that his actions could result in death.
28
Amnesty International, Iran: Amnesty International appalled at the spiraling numbers of
executions, September 5, 2007, retrieved March 17, 2008 from
http://www.amnesty.org/en/library/asset/MDE13/110/2007/en/c43e2fd6-a316-11dc-8d74-
6f45f39984e5/mde131102007en.html.
29
Amnesty International, China: Imminent execution or torture, October 7, 2005, retrieved
March 17, 2008 from http://www.amnesty.org/en/library/asset/ASA17/036/2005/en/30d4d8b7-
a2e8-11dc-8d74-6f45f39984e5/asa170362005en.html.
30
Hands Off Cain, A revised criminal procedure law came into force in January 1997, January 1,
2007, retrieved March 17, 2008 from
http://www.handsoffcain.info/news/index.php?iddocumento=9000882.
31
Alexa Olesen, China Ex-Food and Drug Chief Executed, The Washington Post, July 10, 2007,
retrieved March 17, 2008 from http://www.washingtonpost.com/wp-
dyn/content/article/2007/07/09/AR2007070900689_pf.html.
32
Amnesty International, Death Penalty Facts & Figures, retrieved March 17, 2008 from
http://www.amnesty.org/en/death-penalty#figures (hereinafter Amnesty Figures).
33
Andrew Moravcsik, The new abolitionism: Why does the U.S. practice the death penalty while
Europe does not?, Council for European Studies at Columbia University, retrieved March 17,
2008 from http://www.europanet.org/pub/Moravcsik_sep01.html.
8
Many people believe that World War II produced a change in support of the death
penalty by Europeans. However, with the exception of Italy, this is a romanticized view
Nazi war criminals who were being executed by the Allied powers proposed Article 102
of Germany’s Basic Law. Three months before the law went into effect, “a poll by the
population favored [the death penalty]” for ordinary criminals.34 The sole purpose of
Article 102 at the time it passed was to prevent what many Germans viewed as the
excesses of victors’ justice.35 Italy abolished the death penalty for the first time in 1889,
but Mussolini reintroduced it in 1926 and broadened its application in 1931. Following
Mussolini’s execution in 1947, the death penalty was abolished for punishment of
ordinary crimes, although it remained a part of Italy’s military penal code for use in
wartime until 1994.36 Unlike the rest of Europe, Italy’s abolition of the death penalty
appears to be an attempt to undo the evils of Mussolini’s fascist government and the
The rest of Europe was much slower in following Germany and Italy’s abolition
of the death penalty. Even though the discourse relating to the death penalty in Europe is
currently tied to human rights, as recently as thirty years ago, many European nations
viewed use of the death penalty as a sovereign right vested in the state and were reluctant
34
Charles Lane, The Paradoxes of a Death Penalty Stance, WASHINGTON POST, June 4, 2005, at
A17.
35
Id.
36
Eric Prokosch, Death Penalty Developments, published in Michael L. Radelet, William
Schabas, Andrew Rutherford, The International Sourcebook on Capital Punishment, Northeastern
University Press: 1997, page 66.
9
to relinquish this power.37 At the time that most European nations abolished the death
penalty, the conversation for human rights was absent from the debate. A study of the
debate regarding the death penalty found that “the issues on both sides of the debate were
the same after the war as before it.”38 In fact, the death penalty was so disconnected from
the human rights discourse that no one viewed executing Nazi war criminals for “crimes
Nations reported in 1960 that in the previous century there were twenty-seven
convictions and three executions of innocent persons, without mentioning the millions
executed by the German state during the Holocaust. He supported his position with the
legal argument that German law did not expressly authorize genocide of the gypsies and
Jews, and therefore those deaths could not be counted towards those innocents executed
by the government.39 The point here, though, is that death penalty abolitionists did not
use this report to further their cause. The death penalty and human rights were simply
unconnected at that time. Even when each European nation abolished the death penalty
within its borders, little attention was paid to extending “any principles or results from
[their] national death penalty policy beyond the borders of that nation.”40
Following abolition of the death penalty in the majority of European states, the
issue has shifted and been reframed as a fundamental human right to life. In the 1980s,
“the death penalty [quickly] became a focus for human rights activity in the Council of
37
Franklin E. Zimring, More than a Trend: Abolition in the Developed Nations, in THE
CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT 16-41 (2003), p. 17.
38
Id. at 26.
39
Id. at 32.
40
Id. at 25.
10
Europe.”41 Franklin Zimring calls this “consensus policy” the “orthodox position” on
2. For that reason, policy on the death penalty should not be governed by
national prerogatives but by adherence to international human rights
minimum standards.
organizations have become increasingly vocal critics of the use of the death penalty and
are unrestrained by diplomatic niceties of avoiding interference with the sovereign power
of other states. Indeed, when Texas executed its 400th person, every member state of the
keeping with a recent resurgence of disdain in the United States for international law and
“Texans long ago decided the death penalty is a just and appropriate
punishment for the most horrible crimes committed against our
citizens…Two hundred and thirty years ago, our forefathers fought a war
to throw off the yoke of a European monarch and gain the freedom of self-
determination. While we respect our friends in Europe, Texans are doing
just fine governing Texas.”43
41
Id. at 33.
42
Id. at 27.
43
David Charter, Texas rejects plea by EU to stop 400th execution, The Times, August 23, 207,
retrieved March 8, 2008 from
http://www.timesonline.co.uk/tol/news/world/us_and_americas/article2310651.ece.
11
Other examples of anti-death penalty activism by European nations are the
United States insistence on seeking the death penalty, although the two countries
ultimately worked out an agreement.44 Additionally, the City of Rome lights up the
Colosseum with gold lights at night whenever a person condemned to death anywhere in
the world has their sentence commuted or is released from death row.45 European
Current Trends
The “modern era” of the death penalty in the United States began in 1976,
following the Supreme Court case of Gregg v. Georgia,46 which overturned Furman v.
Georgia47 and reinstated the death penalty following a four-year moratorium. Currently,
36 states retain the death penalty,48 with New Jersey being the last to abolish the practice
44
Lane, supra note 34.
45
Gayle Young, On Italy’s passionate opposition to the death penalty, CNN, February 24, 2000,
retrieved March 8, 2008 from
http://edition.cnn.com/SPECIALS/views/y/2000/02/young.italydeath.feb24/.
46
Gregg v. Georgia, 428 U.S. 153 (1976).
47
Furman v. Georgia, 408 U.S. 238 (1972).
48
Death Penalty Information Center, Facts about the death penalty, March 1, 2008, retrieved
March 17, 2008 from http://www.deathpenaltyinfo.org/FactSheet.pdf.
49
Jeremy W. Peters, New Jersey Moves to Abolish Death Penalty, New York Times, December
11, 2007, retrieved March 17, 2008 from http://www.nytimes.com/2007/12/11/nyregion/11cnd-
death.html?ex=1355029200&en=fa710b003980b24e&ei=5088&partner=rssnyt&emc=rss.
12
Recent trends reflect declining support for the death penalty in the United
persons sentenced to death. The Innocence Project has spread the use of DNA in post-
from rape to murder. Of these 214, six acquittals won by the Innocence Project were of
men on death row.51 All total, there have been 123 persons exonerated from death row
percent of overturned convictions.53 Jury verdicts reflect this change as American juries
become less willing to sentence people to death. In 1996, juries handed down 323 death
sentences. Ten years later, jury imposed death sentences dropped to 115 sentences in
2006.54
In Colonial times, the death penalty was imposed for a wide range of crimes,
including sodomy, rape and bestiality.55 From 1608 to 1989, there were 16,000
executions in the United States. Throughout that time, use of the death penalty has been
closely associated with race. For example, of the nearly 16,000 executions until 1989,
50
Death Penalty Information Center, A Crisis of Confidence: Americans' Doubts About the Death
Penalty, 2007, retrieved March 17, 2008 from http://www.deathpenaltyinfo.org/CoC.pdf.
51
Innocence Project, Facts on Post-Conviction DNA Exonerations, retrieved March 17, 2008
from http://www.innocenceproject.org/Content/351.php#.
52
Amnesty Facts 2007, supra note 17.
53
Innocence Project, supra note 47.
54
Bureau of Justice Statistics, Capital Punishment 2006, retrieved March 17, 2008 from
http://www.ojp.usdoj.gov/bjs/pub/html/cp/2006/cp06st.htm.
55
Kathryn Preyer, Penal Measures in the American Colonies: An Overview, The American
Journal of Legal History, Vol. 26, No. 4 (Oct. 1982), pp. 326-353.
13
only 30 were of a white person who killed a black person.56 During slavery, Georgia
imposed an automatic death penalty for a black person who killed a white person. In fact,
the death penalty sometimes was imposed simply for striking a white person. Until 1854,
the killing of another man’s slaves was considered a property crime against the slave’s
owner, not murder. Following the abolition of slavery, southern states argued that the
From 1908 to 1949, no white man was executed for rape in Virginia. A
conviction of rape by a black defendant carried a mandatory death sentence. At the same
time, a conviction of rape by a white defendant with a white victim carried a sentence of
two to twenty years, and a white man found to have raped a black woman was simply
fined, if anything. This contrasts sharply against the punishment meted out by the State
of Virginia to the “Martinsville Seven.” In 1951, the State of Virginia executed the last
Furman v. Georgia
jurisprudence in the United States. In the years leading up to Furman, many states had
mandatory death penalties for some crimes. As a result, there was a lot of jury
nullification of otherwise bone fide convictions. In response, many states modified their
56
Michael L. Radelet, Execution of Whites for Crimes against Blacks: Exceptions to the Rule?,
The Sociology Quarterly, Vol. 30, No. 4 (Winter, 1989), pp. 529-544.
57
A. Higginbotham, In the Matter of Color: Race in the American Legal Process, 256 (1978).
58
The post-Gregg v. Georgia Supreme Court ruled the death penalty for rape convictions
“excessive” in 1977, without acknowledging the racial disparity that the defendant in Coker was a
white man (although represented by attorneys from the NAACP). Coker v. Georgia, 433 U.S.
584 (1977).
59
Eric W. Rise, The Case of the Martinsville Seven, 1949-1951, The Journal of Southern History,
Vol. 58, No. 3 (Aug. 1992), pp. 461-490.
60
Furman v. Georgia, supra note 47.
14
laws to give juries wide discretion in considering the death penalty. This discretion
resulted in the arbitrary application of the death penalty, which Justice Stewart described
as cruel and unusual as being “struck by lightening.”61 States then lost no time in
Gregg v. Georgia
reign in any unconstitutional arbitrariness of the death penalty. The Georgia legislature
passed laws allowing for the death penalty in two categories of crimes. The first category
made the death penalty mandatory for certain narrow offenses. In the second category,
the jury was given guidance on factors to consider in imposing the death penalty:
In the Gregg v. Georgia62 challenge to these new laws, the Supreme Court struck
down the mandatory death sentence provisions as being unconstitutional because they did
not allow for a jury’s consideration of the defendant’s frailties and individual moral
culpability. However, the court said the guidelines on mitigating and aggravating factors
were sufficient. Georgia and other retentionist states got their death machinery up and
61
Id. at 309.
62
Gregg v. Georgia, supra note 46.
15
Current U.S. Death Penalty Statistics
As of 2006, there were 3,228 prisoners on death row in the United States. This
number has declined for six consecutive years.63 Many states, mostly southern, remain
committed to use of the death penalty. However, executions in the United States have
declined dramatically since with 1999. In 1999, there were 98 executions carried out.
Proponents argue that the death penalty is necessary to deter potential offenders
from committing the most violent crimes. A 2003 analysis of states that have imposed a
moratorium on the death penalty appears to support this analysis. The study shows that
each execution results in an average of 18 fewer murders (plus or minus an error rate of
10 murders per execution).65 These results seem to indicate that the death penalty is an
However, studies have also concluded that there are a number of social, economic
and legal factors that contribute to higher murder rates, including poverty and lack of
opportunity,66 drug use67 and lack of police presence.68 Until those factors are stabilized
and uniform throughout the United States, including in each state, county and city, it
63
Bureau of Justice Statistics, Capital Punishment Statistics, retrieved March 17, 2008 from
http://www.ojp.usdoj.gov/bjs/cp.htm.
64
Id.
65
Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepard, Does Capital Punishment Have a
Deterrent Effect? New Evidence from Postmoratorium Panel Data, American Law and
Economics Review 5, no. 2 (Fall 2003): 334-376.
66
Eric Neumayer, Good Policy can Lower Violent Crime: Evidence from a Cross-National Panel
of Homicide Rates, 1980-97, Journal of Peace Research, Oslo 40, no. 6 (Nov. 2003): 619.
67
Jeff Grogger and Michael Willis, The Emergence of Crack Cocaine and the Rise in Urban
Crime Rates, The Review of Economic & Statistics 82, no. 4 (2000): 519-529.
68
Rafael Di Tella and Ernest Schargrodsky, Do Police Reduce Crime? Estimates Using the
Allocation of Police Forces After a Terrorist Attack, The American Economic Review 94, no. 1
(Mar. 2004): 115.
16
cannot be determined whether the death penalty is a true deterrent. Another compelling
piece of evidence against the death penalty’s deterrent value is that Canada’s rate of
aggravated murder dropped and continued to decline following abolition of that country’s
death penalty. In 1975, the last year Canada’s death penalty was in force, there were 3.02
homicides per 100,000 people. In 1995, Canada’s homicide rate was 1.98 per 100,000
International reports that Canada’s homicide rate has fallen 40 percent since abolition.70
The death penalty may not be an effective deterrent because it is not uniformly
applied in homicide cases. Only approximately one percent of murderers are sentenced
to death.71 Death penalty abolitionist scholar Hugo Adam Bedau provides many reasons
for this low percentage. For example, one third of all murderers are never arrested; one
third of those arrested are never convicted; most receive sentences less than death; and
many who do receive death sentences have their sentences overturned on appeal.72 One
may think that the heinousness of the offence is a major factor in the decision to seek the
death penalty in a case. However, one of the factors that come into play is politics.
Politicians use the death penalty as a way to forward their careers by showing the public
that they are “hard on crime.” The death penalty becomes a way to manipulate the public
and boost their popularity.73 As a result, the death penalty is more likely to be imposed in
notorious cases rather than when the public has real need of protection from an offender.
69
Holly Johnson and Roger Boe, Violent Crime Trends in Canada Since 1983, accessed February
19, 2008 from: http://www.csc-scc.gc.ca/text/pblct/forum/e092/e092a.pdf
70
Amnesty Figures, supra note 32.
71
Helen Prejean, CSJ, Dead Man Walking: An Eyewitness Account of the Death Penalty in the
United States (New York: Vintage Books, 1994), 252.
72
Id.
73
Glenn L Pierce and Michael L. Radelet, The Role and Consequences of the Death Penalty in
American Politics, New York University Review of Law & Social Change 18, (1990-1991) 711.
17
(The Scott Peterson case in California is an example). Using the death of a human being
for personal gain is offensive. It is also doubtful that a sentence imposed so infrequently
All Forms of Racial Discrimination (CERD). Article 5(a) of the CERD states that
everyone has “the right to equal treatment before the tribunals and all other organs
A review of statistics regarding race in death penalty cases raises yet another concern
regarding the legality of the death penalty under this specific human rights law to which
the United States is obligated. Interestingly, while race of the defendant plays a
significant role, the race of the victim is the most predominant racial factor in death
penalty cases. A 1990 General Accounting Report analyzing many studies on the effect
of race in capital sentencing found that, “nationwide, 82% of those put to death have been
convicted of murdering a white person even though people of color are the victims in
74
The doubtfulness of the value of deterrence has led other courts to reject the death penalty on
these grounds. “A punishment as extreme and as irrevocable as death cannot be predicated upon
speculation as to what the deterrent effect might be…” State v. Makwanyane, Constitutional
Court of the Republic of South Africa, 1995, Case No. CCT/3/94, [1995] 1 LRC 269, paragraph
numbered 127.
75
United Nations, International Convention on the Elimination of All Forms of Racial
Discrimination, Article V (a).
76
U.S. General Accounting Office, Report GGD-90-57, Death Penalty Sentencing: Research
Indicates Pattern of Racial Disparities, February 26, 1990, at p. 5
18
In a study of death penalty cases, controlled for 230 variables,77 prosecutors
In cases where a court or jury imposed a death sentence, the following table
Overall, a defendant is eleven times more likely to get the death penalty if the
victim is white.80 Some have argued that this discrepancy violates the 14th Amendment
equal protection clause and the 8th Amendment prohibition against arbitrary and
Kemp,81 the Supreme Court, in an opinion delivered by Justice Powell, rejected this
argument in a 5-4 decision. The Supreme Court held that a defendant must prove
discrimination to him or her personally, not through statistics, and that “discriminatory
intent” was not enough to show a “discriminatory effect.” Even though not
unconstitutional according to the Supreme Court, this very strong correlation between
77
David D. Baldus, George Woodworth and Charles A. Pulaski, Jr., Equal Justice and the Death
Penalty: A Legal and Empirical Analysis, Boston, MA: Northeastern University Press, 1990,
cited in McCleskey v. Kemp, 481 U.S. 279.
78
McCleskey, at 287.
79
Id. at 286.
80
Id. at 353.
81
Id.
19
race and a death sentence contradicts the rights set forth in the Convention on the
The framing of the death penalty in the context of a fundamental human right to
life, with associated governmental activism towards abolition of the practice in other
states, is the most significant difference between other first-world nations and the United
States and Japan.82 This is not to say that all dialogue regarding human rights is absent
from American discussion of the death penalty. However, whenever a court discusses
human rights, these references typically falls into non-binding concurring or dissenting
opinion dicta. For example, in his concurring opinion in Furman v. Georgia, Justice
Brennan wrote,
“The basic concept underlying the [cruel and unusual clause] is nothing less than
“At bottom, then, the Cruel and Unusual Punishments Clause prohibits the
infliction of uncivilized and inhumane punishments. The State, even as it punishes, must
treat its members with respect for their intrinsic worth as human beings. A punishment is
“cruel and unusual,” therefore, if it does not comport with human dignity.”84
“The true significance of these punishments [the rack, the thumbscrew, the iron
boot, etc.] is that they treat members of the human race as nonhumans, as objects to be
toyed with and discarded. They are inconsistent with the fundamental premise of the
82
Although Japan only executed two persons by hanging in 2004 compared to 59 U.S.
executions, when adjusted for population, Japan is as likely as Texas and Virginia to execute its
citizens. Charles Lane, Why Japan still has the death penalty, Washington Post, January 16,
2005, p. B01.
83
Furman, at 270, citing Trop v. Dulles, 356 U.S. 86 (1958), at 100.
84
Furman, at 270.
20
Clause that even the vilest criminal remains a human being possessed of common human
dignity.”85
European courts routinely use the language of international human rights, treaties
and obligations as the primary support for their decisions instead of, as the Supreme
law.
International Law
comprised of three bodies of law: (1) treaties and international agreements; (2)
international norms that rise to the level of customary international law; and (3)
international norms that rise to the level of jus cogens prohibitions. The first is clear, but
customary international law or jus cogens norms were applicable to the execution of
juveniles):
85
Furman, at 272.
86
Dominguez v. United States, Report No. 62/02, Merits, Case 12.285 (Inter-Am. Comm. H.R.
Oct. 22, 2002).
21
a) a concordant practice by a number of states with
reference to a type of situation falling within the domain of
international relations;
Jus Cogens –
In contrast, norms of jus cogens “derive their status from fundamental values held
considered to shock the conscience of humankind and therefore bind the international
cogens norms include prohibitions against genocide, torture and slavery. States are
bound by these norms, even if not signatories to a treaty, and cannot derogate, even if
87
Id. at paragraph numbered 46.
88
Id. at paragraph numbered 48.
89
Id. at paragraph numbered 49.
22
International Law’s Application to the Death Penalty
International courts have held that prohibition of the death penalty against adults
does not rise to the level of a customary international law nor jus cogens.90 However, as
society” so do these norms. Given the worldwide death penalty trends discussed above, it
is foreseeable that prohibitions against the death penalty will rise to these levels at some
point in the future. Even without these norms, there are international treaties and
agreements entered into by the United States that apply to the practice of capital
punishment.
Political Rights (ICPPR), 91 which in part guarantees an inviolate right to life to all human
beings.92 However, when signing the treaty the United States specifically reserved the
right “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.”93 This reservation exempts the United States from treaty provisions that directly
90
State v. Makwanyane, supra note 74, at paragraph numbered 36.
91
United Nations, Office of the High Commissioner for Human Rights, International Covenant
on Civil and Political Rights, Article VI, December 16, 1966.
92
ICCPR, Article 6(1).
93
United Nations Treaty Collection, Declarations and Reservations, retrieved March 8, 2008
from http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.
23
One could validly argue that the United States’ use of the death penalty does not
violate the human rights law to which it is bound because of this reservation.94 However,
even if one were to concede that the United States is legally exempt from those
provisions of the covenant, the death penalty still specifically violates articles not
reserved by the United States. Article 14 of the ICCPR guarantees a defendant the right
to a fair hearing by a competent tribunal, an adequate defense and the right to appeal.
Contrary to this right, the standards of a “competent tribunal, an “adequate defense” and
“the right to appeal” in the United States fall very short of what most people would deem
Trial Counsel
For example, a 1990 study in the National Law Review cited several examples of
ineffective counsel that fail to meet the rights guaranteed by Article 14: In an affidavit, a
defense attorney’s investigator stated that he witnessed his boss shoot up with cocaine
during trial recesses and used other drugs after court sessions. The trial judge and later
appellate courts ruled that counsel was not ineffective despite his drug use.95 His client
was executed on December 4, 1995.96 In 1989, the Fifth Circuit Court of Appeals refused
94
However, it should be noted that “this reservation provoked condemnation within the
international community and prompted eleven European Parties to file objections declaring the
reservations to be invalid, a majority on the basis that it was inconsistent with the aims and
purposes of the ICCPR as provided by Article 19(c) of the Vienna Convention on the Laws of
Treaties. Moreover, in 1995 the U.N. Human Rights Committee declared the reservation to be
contrary to the object and purpose of the ICCPR and recommended that the United States
withdraw it.” Dominguez, supra note 86, at paragraph numbered 62. The United States has
ignored this recommendation and continues to rely on the reservation.
95
Prejean, 249-250, citing: Marcia Coyle, Fred Strasser and Marianne Lavelle, “Fatal Defense:
Trial and Error in the Nation’s Death Belt,” The National Law Journal 12, no. 40 (June 11,
1990): pp. 30-44.
96
The Associated Press, “Florida has Executed 57 Inmates since Death Penalty Reinstated in
1976,” September 3, 2003, retrieved March 8, 2008 from http://www.fadp.org/news/tbo-
20030903.htm.
24
to deem inadequate counsel’s 29-word defense of his client.97 His client was executed in
Texas in 1992.98 In Lee County, Alabama a judge granted a defense attorney, who had
just admitted that he was unprepared and had not “even read the statute,” a 13 ½ hour
overnight trial delay until the next morning, when his client was sentenced to death. His
client died of liver failure on death row in April 2000.99 Moreover, it is the burden of the
defendant to show that the outcome of the trial would have been different had their
counsel acted differently (been sober or better prepared), which is an almost impossible
standard of proof to achieve.100 These are examples of inadequate defense at the trial
level.
Post-Conviction Relief
Even more shocking than an inadequate defense at the trial level is the lack of
representation in post-conviction relief. In the United States, once a state trial court has
imposed a criminal sentence, a convicted person may appeal the decision to state
appellate courts (direct appeal). If the state appellate courts deny relief on the initial
appeal, the convicted person may bring other appealable issues to state appellate courts
(collateral appeal) or appeal the appellate court decisions to federal court. This is deemed
Political Rights guarantees a right to an adequate defense, as does the Sixth Amendment
of the United States Constitution.101 Despite these guarantees under the law, in the case
97
Prejean, 250.
98
Amnesty International, USA, Amnesty International’s Secretary General to Meet Condemned
Prisoners In Texas, Oct. 8, 1997, retrieved March 8, 2008 from
http://web.amnesty.org/library/Index/ENGAMR510591997?open&of=ENG-USA.
99
Sarah Rimer, Questions of Death Row Justice for Poor People in Alabama, New York Times,
sec. A, May 1, 2000, final edition.
100
Strickland v. Washington, 466 U.S. 668 (1984).
101
United States Constitution, Amendment VI.
25
of Pennsylvania v. Finley, the United States Supreme Court held that the right to counsel
only applies at the state trial level and not at the federal appellate level.102 In the case of
Amendment “evolving standards of decency” for a death sentence to be carried out while
their argument and held that it is not a violation of the Eighth Amendment or the due
process clause of the Fourteenth Amendment for death row prisoners specifically to be
poor and often illiterate convicts must find their own way through a vast maze of post-
conviction legal and procedural red tape in order to fight for their lives while begging
The importance of competent counsel at both the trial level and during post-
conviction relief cannot be overstated. Sister Helen Prejean, a leading death penalty
This means that issues not raised at the trial level cannot be raised on appeal. As such, if
innocence at trial, the objections or evidence cannot be introduced at the appellate level.
It is conceivable that a person can be put to death despite evidence of innocence if that
evidence becomes known after trial. Indeed, the Supreme Court has opined that a
showing of “actual innocence” is not itself a basis for overturning a death sentence.105
Within the last 100 years, the United States wrongly convicted 417 innocent people of
102
Pennsylvania v. Finley, 481 U.S. 551 (1987).
103
Murray v. Giarratano, 492 U.S. 1 (1989).
104
Prejean, 45.
105
Herrera v. Collins, 506 U.S. 390 (1993).
26
capital offenses and executed 23 of them106 - executions which themselves fall within the
The Judiciary
Lack of competent defense counsel is not the only factor contributing to the
amount of wrongfully convicted and executed people. Another factor is the standards to
which we hold the judiciary. ICCPR Article 14 guarantees a person the right to trial “by
a competent judiciary.” However, the amount of reversible error found in capital cases
indicates this right is regularly violated in the United States. A 2000 study found that
nearly 70 percent of all capital cases between 1973 and 1995 had serious error,
necessitating a new trial on guilt and/or sentencing. Of those remanded cases, 82 percent
were sentenced to something less than death when retried. An additional 7 percent were
found innocent at retrial.107 This means that for every 100 people sentenced to death in
original trials, only 37 will be re-sentenced to death after retrial and then will begin again
a new round of appeals. Overall, only 5.4 percent of those sentenced to death during the
study period were executed. (When one considers that this 5.4% executed is from the 1%
of all murders who are actually sentenced to death, one can see how the death penalty is
not an effective deterrent to aggravated murder.) An error rate this high indicates that the
United States does not provide the “competent judiciary” guaranteed by Article 14.
Based on the above failures to provide counsel, access to appeal and a competent
judiciary, the United States’ criminal justice system violates human rights law in the
106
Michael L. Radelet, Hugo A. Bedau, and Constance Putnam, In Spite of Innocence:
Erroneous Convictions in Capital Cases, Boston: Northeastern University Press, 1992.
107
James S. Liebman, Jeffrey Fagan and Valerie West, A Broken System: Error Rates in Capital
Cases, 1973-1995, Cambridge: Peacework 27, no. 311 (December 2000/January 2001):11.
27
International Covenant on Civil and Political Rights to which the United States is a party
Juvenile Executions
Roper v. Simmons
the 1988 case of Thompson v. Oklahoma109 and the 1989 case of Stanford v. Kentucky.110
Thompson held that states were precluded from executing anyone who was under the age
of sixteen at the time of their offense. Stanford clarified that it was constitutional to
execute persons over the age of sixteen, but under the age of eighteen. Roper
unequivocally ruled unconstitutional the execution of any person who was under the age
In Roper, the court engaged in an analysis similar to the one it performed in the
2002 case of Atkins v. Virginia.111 The Atkins case overturned the 1989 case of Penry v.
Lynaugh,112 and ruled unconstitutional the execution of the mentally retarded. In Atkins,
the Court examined the number of states within the U.S. with de jure and de facto
abolition of the execution of the mentally retarded. From their analysis, the court
determined that a “national consensus” against the practice of executing the mentally
retarded had developed since their Penry decision. Therefore, under this “evolving
standard of decency,” the practice was unconstitutional under the Eighth Amendment.
The Roper court also examined the number of states with de jure and de facto
108
Roper v. Simmons, 543 U.S. 551 (2005).
109
Thompson v. Oklahoma, 487 U.S. 815 (1988).
110
Stanford v. Kentucky, 492 U.S. 361 (1989).
111
Atkins v. Virginia, 536 U.S. 304 (2002).
112
Penry v. Lynaugh, 492 U.S. 302 (1989).
28
prohibitions against the execution of juveniles. In a 5-4 decision,113 the Supreme Court
concluded that a national consensus existed against the practice of executing minors,
international law irrelevant,114 international law has long been a part of American
jurisprudence. Indeed, decisions about whether the United States is bound by customary
international law and jus cogens restrictions are not at the option of the American
States are bound by these restrictions. However, valid disagreements may exist as to
whether norms rise to the level of customary international law and jus cogens
prohibitions.
customary international law.115 Of 192 United Nations member states, all except two (the
United States116 and Somalia) have ratified the Convention on the Rights of the Child
(CRC).117 CRC Article 27(a) states, “No child shall be subjected to torture or other cruel,
113
The majority included Justices Stevens, Souter, Ginsberg, Breyer, and Kennedy. Dissenting
were Justices O’Connor, Scalia, Thomas, and Rehnquist.
114
In regards to these contemporary standards, Justice Scalia stated, “We emphasize that it is
American conceptions of decency that are dispositive, rejecting the contention of petitioners and
their various amici (accepted by the dissent, see post, at 389-390) that the sentencing practices of
other countries are relevant…they cannot serve to establish the first Eighth Amendment
prerequisite, that the practice is accepted among our people.” (emphasis original.) Stanford v.
Kentucky, at 11, fn. 1.
115
Dominguez, supra note 86, at paragraph numbered 84. The Dominguez court also ruled that
execution of juvenile offenders violated jus cogens norms.
116
The U.S. signed, but did not ratify the CRC.
117
United Nations, Office of the High Commissioner for Human Rights, Convention on the
Rights of the Child, entered into force September 2, 1990.
29
imprisonment without possibility of release118 shall be imposed for offences committed
by persons below eighteen years of age.”119 The General Assembly adopted the CRC in
November 1989. The CRC garnered enough signatures and entered into force in
September 1990, too late for the Supreme Court’s consideration in either the Thompson
or Stanford decisions. However, by the time of the 2004 Roper decision, this provision
of the Convention of the Rights of the Child had arguably risen to the level of customary
international law. Of course, the United States might have been considered a “persistent
objector” to this norm and thereby excepted from any obligation to comply.120 A
here though. This is because the “contemporary norms” produced from “society’s
evolving standards of decency” do not need to rise to the level of customary international
Nonetheless, as discussed earlier, the Weems and Trop cases set the standards
used to determine whether the death penalty violates the Eighth Amendment as
standards are those within our own borders or those of the global community to which we
belong. The Supreme Court’s decisions in Atkins and Roper recognize the role of
118
Only three countries have life without parole for juvenile offenders: United States, Israel and
South Africa.
119
Interestingly, although Germany provides for life imprisonment for an adult’s murder
conviction, if the offender is between the ages of 18 and 21, the judge must apply penalties set
forth for a juvenile’s murder conviction if “the overall assessment of the offender’s personality,
having regard also for the circumstances of his environment, reveals that, according to his moral
and mental development, he was still equal to a juvenile at the time of committing the offense.”
Juvenile Court Act (s.105(1)).
120
The Dominguez court also opined that a State’s signature to a treaty, even without ratification,
could eliminate their persistent objector status. This would be troubling to the United States if
judicially binding as the United States has signed, but not ratified many treaties, including the
Convention on the Rights of the Child; the American Convention on Human Rights; the Rome
Statute creating the International Criminal Court, among others.
30
international standards in judging the “evolving standards of decency” to which the
In Atkins, Justice Stevens supports the majority opinion that a consensus against
the death penalty existed in a footnote, citing the world community and European Union
amicus briefs against the practice. The Roper court was bolder. Instead of relegating the
discussion of international laws and norms to a footnote, it devoted the entire second half
communities’ opinions regarding the use of the death penalty in juvenile cases, and one
does not need to argue whether the court is legally correct in concluding that international
31
Death Row Phenomenon
Another area where the United States’ practice derogates from standard
international practice is the length of time that death row inmates spend on death row
during their appeals, which can routinely extend beyond a decade. In the international
context, the “death row phenomenon” is defined as five years of more on death row.121
Other societies view this delay as a violation of prohibitions against “cruel, unusual or
degrading” treatment. For example, the South African Constitutional Court, in State v.
Makwanyane, stated:
Additionally, the Jamaican Court of Appeals, in Pratt and Morgan v. Atty. Gen. of
• The statement of these bare facts is sufficient to bring home to the mind of
any person of normal sensitivity and compassion the agony of mind that
these men must have suffered as they have alternated between hope and
despair in the 14 years that they have been in prison facing the gallows.
• The death penalty in the United Kingdom has always been carried out
expeditiously after sentence, within a matter of weeks or in the event of an
appeal even to the House of Lords within a matter of months. Delays in
terms of years are unheard of.
121
Pratt and Morgan v. Atty. Gen. of Jamaica, [1994] 2 A.C. 1, (en banc).
122
State v. Makwanyane, supra note 74, at paragraph 55.
32
• There is an instinctive revulsion against the prospect of hanging a man
after he has been held under sentence of death for many years. What gives
rise to this instinctive revulsion? The answer can only be our humanity;
we regard it as an inhuman act to keep a man facing the agony of
execution over a long period of time.123
Even though some of the delay in carrying out a death sentence after appeal can
be attributed to a defendant’s own delays in filing pleadings, etc., much of the delay in
the United States is attributable to a lack of court resources and the length of time that
passes before hearings can be held or judgments rendered.124 In Pratt and Morgan, the
Privy Council opined, “Be the cause for delay, the time necessary for appeal and
consideration of reprieve or some other cause for which the accused himself may be
responsible, it would not alter the dehumanizing character of the delay.” Further, the
court stated, “If the appellate procedure enables the prisoner to prolong the appellate
hearings over a period of years, the fault is to be attributed to the appellate system that
permits such a delay and not to the prisoner who takes advantage of it.”125
European courts have accepted this line of reasoning as illustrated by the 1989
case of Soering v. United Kingdom126 before the European Court of Human Rights. In
the Soering case, the applicant was a German national being held by the United Kingdom
pending extradition to the United States to face murder charges in Virginia. Soering
argued that his extradition by the United Kingdom would be a violation of Article 3 of
the European Convention on Human Rights, which provides “No one shall be subject to
torture or inhuman or degrading treatment or punishment.”127 Soering did not argue that
123
Pratt and Morgan v. Atty. Gen. of Jamaica, supra note 121.
124
Knight v. Florida and Moore v. Nebraska, 528 U.S. 990, 993-995 (1999), dissenting opinion
by Breyer.
125
Pratt and Morgan v. Atty. Gen. of Jamaica, supra note 121.
126
Soering v. United Kingdom, (1989) 11 EHRR 439, [1989] ECHR 14038/88.
127
European Convention on Human Rights, Article 3.
33
the death penalty itself violated Article 3, but rather that being subjected to the “death
row phenomenon” constituted violations of Article 3.128 The European Court of Human
Rights found, in consideration of Soering’s age (18) and mental state at the time of the
offense, “the very long period of time on death row in such extreme conditions, with the
ever present and mounting anguish of awaiting execution of the death penalty,” would go
However, no U.S. court has accepted the line of reasoning that long-term
The view that prevails in the United States is that it cannot be inhuman or degrading to
allow an accused every opportunity to appeal his case, no matter how long the eventual
delay between sentence and execution. In a concurring opinion denying a petition for
certiorari (normally a one-sentence long opinion), Justice Thomas set forth this view as
I write only to point out that I am unaware of any support in the American
constitutional tradition or in this Court’s precedent for the proposition that
a defendant can avail himself of the panoply of appellate and collateral
procedures and then complain when his execution is delayed. Indeed,
were there any such support in our own jurisprudence, it would be
unnecessary for proponents of the claim to rely on the European Court of
Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of
India, or the Privy Council….[T]hose who accept our death penalty
jurisprudence as a given also accept the lengthy delay between sentencing
and execution as a necessary consequence.130
However, in a dissenting opinion in the same case, Justice Breyer opined that
“[w]here a delay, measured in decades, reflects the State’s own failure to comply with the
128
Soering, supra note 124, at paragraph 101. (However, Amnesty International submitted
written comments arguing, “the evolving standards in Western Europe regarding the existence
and use of the death penalty required that the death penalty should now be considered as
inhumane and degrading punishment within the meaning of Article 3.”)
129
Id., at paragraph 111.
130
Knight v. Florida, supra note 124, at page 990 and 992.
34
Constitution’s demands, the claim that time has rendered the execution inhumane is a
[T]his court has long considered as relevant and informative the way in
which foreign courts have applied standards roughly comparable to our
own constitutional standards in roughly comparable circumstances. In
doing so, the Court has found particularly instructive opinions of former
Commonwealth nations insofar as those opinions reflect a legal tradition
that also underlies our own Eighth Amendment. [Citations omitted.]
Willingness to consider foreign judicial views in comparable cases is not
surprising in a Nation that from its birth has given a “decent respect to the
opinions of mankind.”132
Even though there does not appear to be an opening, at least in the majority, to
argue that the length of time a person spends on death row violates Eighth Amendment
prohibitions against cruel and unusual punishment, leading death penalty defense
attorneys stress that trial and appellate counsel should continue to argue this point in post-
(1) The length of time an accused spends on death row violates Eighth
(2) The length of time an accused spends on death row violates Article 7 of the
treatment; and
(3) The length of time an accused spends on death row violates customary
131
Id., at page 993.
132
Id., at page 997.
35
violated involves prohibitions defined in the Convention against Torture, these
Although the current courts may not be open to these arguments, attorneys
making this argument may be able successfully to frame the issue of death row
enforce individual rights is another area where the United States and Europe differ.
Europeans have multiple layers of protection in the event of human rights abuses by their
have no direct judicial remedy for violations of international law by the U.S. government
Over a half-century ago, the nations of the world came together to create the
United Nations with the purpose of ensuring global peace following a second devastating
World War in two generations. In order to get nations to agree to this international
governmental body, its charter was “based on the principle of the sovereign equality of
all its members.”134 By virtue of this charter, the United Nations maintains a never-
ending struggle between states’ claims of sovereignty and states’ obligations under
international law. However, in the half-century since the creation of the United Nations,
more and more nations have been willing to enter into multi-lateral treaties and create
36
The European Union is a perfect example of this trend. The EU is a supranational
organization designed to promote the well-being of Europe and peace among member
states. In return, member states forgo a certain amount of sovereignty. This is, in
essence, a re-structuring of the “social contract” – shifting the model from an agreement
between citizens and their state toward a social contract between states and the
supranational organization. The European Union, through the European Court of Justice,
has provided their citizens with a direct right and access to redress in the event they
Very early on in its history, the European Court of Justice broadened the rights of
the individual by setting forth the Doctrine of Direct Effect.135 In Van Gend en Loos, the
court held that an individual may invoke European Community treaty provisions that are
“clear” and “unconditional.” Using this doctrine, individuals may bring a cause of action
against their own State or another EU State (this is termed “vertical direct effect”), but
not against another private individual or company (this is termed “horizontal direct
effect”).136 In its ruling, the European Court of Justice specifically acknowledged that
EU States willingly relinquished a certain amount of their sovereignty for the benefits of
being a member of the Community. However, because direct effect applies only to
“clear” and “unconditional” treaty provisions, it does not apply to Community directives.
Community directives, as distinguished from Community treaties, set forth general policy
135
Van Gend en Loos v. Nederlandse Aministratie Der Belastingen, Case 26/62, [1963] ECR 1.
136
Hinton, Eric F. “Strengthening the Effectiveness of Community Law: Direct Effect, Article 5
EC, and the European Court of Justice,” 31 N.Y.U.J. Int’l L. & Pol. 307, 318 (1999).
37
However, the European Court of Justice has used a circuitous method to apply the
doctrine of direct effect to Community Directives. The European Court of justice has
used Article 5 EC to “fill gaps in the doctrine of direct effect in order to increase the
[1] Member States shall take all appropriate measures, whether general or
particular, to ensure fulfillment of the obligations arising out of this Treaty
or resulting from action taken by the institutions of the Community. They
shall facilitate the achievement of the Community’s tasks.
[2] They shall abstain from any measure which could jeopardize the
attainment of the objectives of the treaty.138
affirmative duty of member states to cooperate with Community tasks and to refrain from
implementing laws or rendering decisions that undermine Community goals.139 This use
interprétation conformé.”140 In its decisions in the cases of Van Colson & Kamann v.
Alimentación, the European Court of Justice stated that a state’s national courts must
directives.141 Because the judiciary in any state is required to enforce national laws in
compliance with Community laws or directives, the doctrine of direct effect is effectively
137
Id. at p. 308.
138
Id. at p. 319.
139
Id. at p. 320.
140
Id. at p. 323.
141
Id. at p. 324-326.
38
The United States Model
The European Union model contrasts sharply to the ability of individuals in the
United States to enforce or invoke international law domestically. Even for rights that
the United States seems to support, such as those within the International Covenant on
Civil and Political Rights, Congress makes many treaties non-self-executing upon
whether persons in the United States can invoke treaty provisions in domestic courts.
The Supremacy Clause of the Tenth Amendment to the United States Constitution
provides that “treaties…shall be the supreme law of the land.” Despite this, states do not
need to comply with all treaties, even if the treaty constitutes an international obligation
on the part of the United States.142 Whether states must comply with an international
domestically enforceable federal law. Whether such a treaty has domestic effect depends
Much case law has been devoted to whether or not a treaty is self-executing at
which only requires that treaty provisions themselves be “clear” and “unconditional,”
142
Medellin v. Texas, 128 S. Ct. 1346 (2008), at page 1356.
143
Id., at fn. 2.
39
treaty (whether or not “clear” and “unconditional”) apply domestically absent additional
implementing legislation.
In 1969, the United States senate ratified the Vienna Convention on Consular
Relations. This treaty provides that if a state detains a foreign national, whose state is
also party to the convention, the “‘competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State of such detention, and
‘inform the [detainee] of his righ[t]’ to request assistance from the consul of his own
state.”144 Congress also ratified the Optional Protocol Concerning the Compulsory
Optional Protocol provides that any disputes between states-party to the convention
“shall lie within the compulsory jurisdiction of the International Court of Justice.”145
As part of the creation of the United Nations, the International Court of Justice
(also known as the World Court) was established as a successor to the League of Nations’
Permanent Court of Justice. The International Court of Justice has jurisdiction over many
144
Id., at page 1353, citing Vienna Convention on Consular Relations, 21 U.S.T. 77, T.I.A.S. No.
6820 (1970).
145
Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna
Convention, 21 U.S.T. 325, T.I.A.S. No. 6820 (1970)
40
international agreements, either through states consenting to general jurisdiction146 of the
court or through states specifically opting for International Court of Justice jurisdiction to
resolve disputes under certain treaties. Once a case is under the International Court of
Justice’s jurisdiction, Article 94 of the United Nations charter mandates that each
member state “undertakes to comply with the decision of the International Court of
Justice in any case to which it is a party.”147 The court’s decisions are final and without
appeal, but have no binding force except between the parties in relation to the particular
dispute being adjudicated,148 which contrasts sharply from the United States doctrine of
stare decisis, giving judicial decisions precedential value. The statute giving the court
authority specifically mandates the court to consider international law in its decisions in
1. International conventions;
the law.150
146
“General jurisdiction” means a state has consented to have “any question arising under a treaty
or general international law” sent to the International Court of Justice. Medellin, supra note 148,
at page 1353-1354, citing the Statute of the International Court of Justice, Article36, 59 Stat.
1060, hereinafter “ICJ Statute”.
147
United Nations Charter, Article 94(1).
148
ICJ Statute, supra note 152, Article 59.
149
It is important to note that having international custom and general principles as binding
authority is not specific to the International Court of Justice. Many nations’ constitutions make
their domestic laws subordinate to international law, including: The Philippine Constitution of
1987; The Russian Constitution of 1993; The German Constitution of 1949; The Italian
Constitution of 1959; The Greek Constitution of 1975; The Slovenia Constitution of 1997; as
well as the Irish, Japanese and Hungarian Constitutions.
150
ICJ Statute, supra note 152, Article 38.
41
The Breard and LaGrande Cases
In 1998, Paraguay filed suit against the United States and in 2000 Germany filed
suit against the United States in the International Court of Justice, claiming that the
United States had failed to comply with the Vienna Convention concerning Paraguay’s
national, Breard, being held in Virginia, and Germany’s nationals, the LaGrande brothers,
being held in Arizona. The International Court of Justice issued an emergency order
staying the executions of the parties. However, the Virginia and Arizona ignored the
provisional measure and executed the men. Paraguay dropped their lawsuit following the
execution of their national, but Germany pursued their case nonetheless. The
International Court of Justice held that the LaGrande brothers were entitled to review and
consideration of their convictions (even though they were already dead) and that state
procedural default rules could not be used to avoid review.151 Domestic U.S.
applicability of this International Court of Justice decision was never tested because the
United States Supreme Court can only hear active “cases or controversies,”152 and the
Breard and LaGrande cases were moot from the moment of their execution.
In 2003, Mexico filed a lawsuit against the United States at the International
Court of Justice under the Optional Protocol, claiming that the United States failed to
151
German Law Journal,, “The LaGrand Brothers Case: Germany vs. the United States in the
International Court of Justice”, Vol 1 No. 4, December 2000, retrieved May 26, 2008 from:
http://www.germanlawjournal.com/article.php?id=25.
152
United States Constitution, Article III, Section 2.
42
nationals.153 The International Court of Justice ruled that the United States had violated
the treaty and that the Mexican nationals named in the Avena case were entitled to review
and reconsideration of their state court convictions. The International Court of Justice
stated that they were entitled to review even if the convicted persons were procedurally
barred for failing to individually raise the issue of their Vienna Convention rights.
dictating, “The United States would ‘discharge its international obligations’ under Avena
‘by having State courts give effect to the decision.’”154 Jose Medellin, a Mexican
national named in the Avena decision, then filed an appeal in the State of Texas seeking
review of his conviction, citing both the Avena decision and President Bush’s
memorandum. The Texas Court of Appeals refused to hear the case because Medellin
failed to raise his Vienna Convention claim in a timely manner under Texas law.155
Medellin appealed to the Fifth Circuit Court of Appeals, which stated that it was bound
by its own precedent, not the International Court of Justice opinion.156 Medellin then
In its 2008 Medellin decision, the Supreme Court held that United States treaty
153
Case Concerning Avena and Other Mexican Nationals (Mex v. U.S.), 2004 I.C.J. 12.
Hereinafter, “Avena.”
154
Medellin, supra note 148, at Page 1353.
155
Id. By contrast, the Oklahoma governor and the Oklahoma Court of Appeals, in the case of
Osvaldo Torres, said that the State of Oklahoma must comply with the ICJ decision. The Court
of Appeals granted an indefinite stay of execution on May 13, 2004, and the governor commuted
his sentence to life imprisonment on that same date. Torres v. Oklahoma, No. PCD-04-442 (May
13, 2004, 43 I.L.M. 1227 and International Justice Project, “Osvaldo Torres”, retrieved May 26,
2008 from http://www.internationaljusticeproject.org/nationalsOTorres.cfm#news.
156
Medellin v. Dretke, 371 F.3d 270 (2004).
43
not mean that domestic courts were bound by International Court of Justice decisions
where congress has not specifically authorized them to be such. In addition, the Supreme
Court held that treaty provisions are not directly enforceable in domestic courts by
individuals not a party to the treaty, even if they are beneficiaries of treaty provisions,
without specific Congressional legislation authorizing such action. This is the case even
has had his Vienna Convention rights violated by the United States, and has an
International Court of Justice decision ordering his case be reviewed in light of the
protect his rights. His execution has been scheduled for August 5, 2008.158
In the United States, Medellin is unable to enforce his rights under two
international treaties (the Vienna Convention and the International Court of Justice
statute). However, using the European Model, under the European Court of Justice’s
doctrine of direct effect, Medellin would be able to enforce directly treaty provisions,
which are “clear” and “unconditional,” even though he is not a party to the treaties. In
addition, by virtue of the European Court of Justice’s use of Article 5 EC, the State of
provisions. In this case, the Texas would be precluded from applying domestic
157
Medellin, supra note 148, at page 1367 and 1359.
158
The Associated Press, “Texas: Execution Date Set for Mexican,” May 6, 2008, retrieved May
26, 2008 from: http://www.nytimes.com/2008/05/06/us/06brfs-
001.html?_r=1&scp=1&sq=medellin+texas&st=nyt&oref=slogin
44
It is clear that the United States places far less weight on enforcing international
treaties or protecting individual’s rights under those treaties, than it does in protecting
sovereignty. Of course, historically, the United States has been less willing than
European Union member states to exchange its sovereignty for the benefits of
international cooperation, probably because of the 72 million people who died in World
War II, “only” 418,500 were Americans. If the United States had first-hand experience
of the devastation that governments can cause to each other and their citizens, Americans
CONCLUSION
The United States has a long way to go towards respecting its citizens’
fundamental human rights. Justice Marshall declared a premature victory for human
In striking down capital punishment, this Court does not malign our
system of government. On the contrary, it pays homage to it. Only in a
free society could right triumph in difficult times, and could civilization
record its magnificent advancement. In recognizing the humanity of our
fellow beings, we pay ourselves the highest tribute. We achieve ‘a major
milestone in the long road from barbarism’ and join the approximately 70
other jurisdictions in the world which celebrate their regard for civilization
and humanity by shunning capital punishment.159
Even so, the prospect for recognition of human rights is not hopeless. As more
and more Americans become educated about the death penalty and the associated failures
of process, fairness, racial disparities and expense,160 the practice continues to lose public
159
Furman, at 426.
160
This paper has not explored the cost of lifetime imprisonment over capital punishment.
However, as Justice Marshall noted in his concurring opinion in Furman, “the costs of executing
a capital offender exceed the costs of imprisoning him for life…” Furman, at 363.
45
support. The declining domestic support for the death penalty, coupled with growing
international disdain for the death penalty for adults, provides an avenue by which the
United States can be brought in step with other industrialized nations with similar
societies have been the target of governmental oppression that protection from their own
governments’ actions are as vital as protection by their government against other threats
to their security. The South African Constitutional Court expressed this view in its
opinion abolishing the death penalty, “Those who are entitled to claim [judicial
protection of rights that cannot be adequately protected through the democratic process]
include the social outcasts and marginalized people of our society. It is only if there is a
willingness to protect the worst and weakest among us, that all of us can be secure that
our own rights will be protected.”161 It is for this reason that activists should continue to
join the practical arguments against the death penalty with the conversation for human
rights. Then one day, it is possible that the Supreme Court will advance the cause of both
After all, the world has shown this as the true "evolving standard of decency that marks
161
State v. Makwanyane, supra note 74, at paragraph 88.
46
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51