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THE DEATH PENALTY:

BRINGING THE U.S. INTO STEP WITH INTERNATIONAL STANDARDS

Roxanne Eberle
Law 600 Independent Study

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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

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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

whether a punishment is “cruel and unusual.”5

Because contemporary standards evolve over time, Supreme Court decisions

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).

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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

based on society’s evolving standards of conduct and treatment of its citizens.

Consistent with these evolving standards, the United States has signed and ratified

several international human rights treaties, including the International Declaration of

Human Rights, the Covenant on Civil and Political Rights and the International

Convention on the Elimination of All Forms of Racial Discrimination. These treaties

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.

These obligations coupled with the “contemporary standards” measure of Eighth

Amendment violations provide an avenue for bringing the United States in step with the

majority of nations who have disavowed use of the death penalty.

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).

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row phenomenon,” and a review of Vienna Convention on Consular Relation cases as a

basis for discussion.

OVERVIEW – INTERNATIONAL PERSPECTIVES ON THE DEATH PENALTY

Worldwide Death Penalty Trends

Abolitionist and Retentionist Countries

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

(except Belarus). There are 33 de facto abolitionist countries, which Amnesty

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/.

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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

carrying out the remaining 39 executions:13

Rank Country Executions


1. China14 1,010
2. Iran 177
3. Pakistan 82
4. Iraq 65
5. Sudan 65
6. United States 53
TOTAL 1,452

Death Row Population

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

24,546.15 As of 2006, Amnesty International estimated the worldwide death row

population to be between 19,185 and 24,646.16 Possible factors contributing to this

phenomenon, despite decreasing use of the death penalty, include politically motivated

prosecutors seeking death sentences in jurisdictions reticent to carry them out and more

strict post conviction scrutiny of the sentences themselves.

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.

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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

Typical offenses punishable by the death penalty worldwide include treason,

murder, rape, felony murder,27 espionage, homosexuality / sexual abuse or adultery

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.

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(punishable by stoning, Iran and other Islamic nations).28 Crimes punishable by the death

penalty in China include tax or financial fraud, smuggling, counterfeiting,29 drug

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

Abolition Post World War II

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

abolitionist nations.32 Contrary to popular belief, even in Western democracies, the

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

ordinary crimes in 1981, 62% of the French favored it.33

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.

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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

of Europe’s abolition history. In Germany, a right-wing politician sympathetic to the

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

Allensbach Institute in February 1949 showed that 77 percent of West Germany’s

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

damage done to its society during World War II.

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.

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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

against humanity” as contradictory. Additionally, a German correspondent to the United

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.

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Europe.”41 Franklin Zimring calls this “consensus policy” the “orthodox position” on

capital punishment, which has three elements:

1. The question of capital punishment is fundamentally a matter of


human rights, not an isolated issue of criminal justice policy.

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.

3. Since there is no case where capital punishment can be justified under


the international human rights standard, European citizens,
organizations and governments are fully justified in demanding the
end of all executions by all governments.42

In keeping with the “orthodox position,” European governments and

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

European Union signed a communication to the governor denouncing the event. In

keeping with a recent resurgence of disdain in the United States for international law and

organizations, Texas governor, Rick Perry, replied:

“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

The prisoner was executed shortly thereafter.

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.

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Other examples of anti-death penalty activism by European nations are the

reluctance of Germany to assist in the prosecution of Zacharias Moussaoui because of 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

governments and organizations continue to be active proponents of abolition, coming

from the framework of international human rights.

United States Death Penalty

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

and the first to do so legislatively in the modern era.49

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.

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Recent trends reflect declining support for the death penalty in the United

States.50 Much of this declining support is attributed to repeated exonerations of innocent

persons sentenced to death. The Innocence Project has spread the use of DNA in post-

conviction cases, resulting in 214 exonerations of people wrongfully convicted of crimes

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

by evidence of innocence.52 These cases have shown that eyewitness identification,

which used to be considered infallible, is very unreliable and is a factor in nearly 77

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

U.S. History of the Death Penalty

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.

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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

death penalty was necessary to restrain the former slaves. 57

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

of seven defendants for the rape58 of the same white woman.59

Furman v. Georgia

The case of Furman v. Georgia60 marked a profound shift in death penalty

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.

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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

enacting new statutes in an attempt to comply with Furman’s guidelines.

Gregg v. Georgia

Following Furman, Georgia, as exemplary of many states, modified their laws to

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:

(a) mitigating factors such as mental illness; and

(b) aggravating factors such as a prior recidivist, the violence or heinousness of

the offense, or whether the offence was unusually cruel or depraved.

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

running in short order.

61
Id. at 309.
62
Gregg v. Georgia, supra note 46.

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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.

That number dropped nearly in half to 53 executions in 2006 and 42 in 2007.64

Deterrence and the Death Penalty in the United States

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

effective deterrent of crime.

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.

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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

people, which is a 35 percent reduction in homicide rates.69 In 2008, Amnesty

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

has any deterrent effect on someone intent on committing murder.74

Race and the Death Penalty in the United States

The United States is a party to the International Convention on the Elimination of

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

administering justice” without distinction as to race, color, or national or ethnic origin.75

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

more than half of all homicides.”76

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

sought the death penalty as follows:78

Defendant / Victim Percentage of cases where death penalty sought


Black / White 70%
White / White 32%
White / Black 19%
Black / Black 15%

In cases where a court or jury imposed a death sentence, the following table

shows the defendant / victim racial breakdown:79

Defendant / Victim Percentage who receive a death sentence


Black / White 21%
White / White 8%
Black / Black 1%
White / Black 3%

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

capricious (cruel and unusual) punishment. However, in the case of McCleskey v.

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

Elimination of Racial Discrimination.

INTERNATIONAL HUMAN RIGHTS AND THE DEATH PENALTY

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

the dignity of man.”83

“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

Court does, secondary support underneath an already-forgone conclusion based on U.S.

law.

International Law

By way of background, it is important to understand that international law is

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

expansion on the meaning of the second two bodies is necessary.

Customary International Law –

The Inter-American Commission on Human Rights distinguished customary

international law in its decision in Dominguez v. United States86 (determining whether

customary international law or jus cogens norms were applicable to the execution of

juveniles):

With respect to the rules of customary international law in particular,


while these rules are of an inherently changeable nature and therefore
cannot be the subject of a definitive or exhaustive enumeration, there
nevertheless exists a broad consensus in respect to the component
elements required to establish a norm of customary international law.
These include:

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;

b) a continuation or repetition of the practice over a


considerable period of time;

c) a conception that the practice is required by or consistent


with prevailing international law;

d) general acquiescence in the practice of other states.87

“Once established, a norm of international customary law binds all states


with the exception of only those states that have persistently rejected the
practice prior to its becoming law. While a certain practice does not
require universal acceptance to become a norm of customary international
law, a norm which has been accepted by the majority of States has no
binding effect upon a State which has persistently rejected the practice
upon which the norm is based.88

Jus Cogens –

In contrast, norms of jus cogens “derive their status from fundamental values held

by the international legal community, as violations of such preemptory norms are

considered to shock the conscience of humankind and therefore bind the international

community as a whole, irrespective of protest, recognition or acquiescence.”89 Jus

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

they have persistently objected to the norm.

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

with Eighth Amendment interpretations changing with “evolving standards of a modern

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.

International Covenant on Civil and Political Rights

The United States is a signatory to the International Covenant on Civil and

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

restrict the right to impose the death penalty.

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

reasonable and competent.

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

“post-conviction relief.” As stated above, Article 14 of the Covenant on Civil and

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

Murray v. Giarratano, the petitioners argued that it was a violation of Eighth

Amendment “evolving standards of decency” for a death sentence to be carried out while

a prisoner is unrepresented by counsel.103 However, the Supreme Court disagreed with

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

without state-appointed counsel in post-conviction appellate proceedings. Therefore,

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

attorneys to take their complicated appeal cases pro bono.

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

abolitionist, explained the legal system clearly as a system of “one-way turnstiles.”104

This means that issues not raised at the trial level cannot be raised on appeal. As such, if

one’s defense counsel failed to object to evidence at trial or to introduce evidence of

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

legal definition of murder.

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

when carrying out the death penalty.

Juvenile Executions

Roper v. Simmons

As stated previously, the Supreme Court case of Roper v. Simmons108 overturned

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

of eighteen at the time of their crime.

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,

which would now be unconstitutional under the Eighth Amendment.

Use of International Standards as a Measure of Society’s Evolution

Contrary to Justice Scalia’s footnote in Stanford v. Kentucky, declaring

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

executive, legislative or judicial branches. It is a settled point of international law that

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.

However, prohibitions against the executions of juveniles do rise to the level of

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,

inhuman or degrading treatment or punishment. Neither capital punishment nor life

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

historical analysis of the U.S. position regarding execution of juveniles is unnecessary

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

law to be applicable to the Eighth Amendment.

Nonetheless, as discussed earlier, the Weems and Trop cases set the standards

used to determine whether the death penalty violates the Eighth Amendment as

“contemporary” standards. Therefore, the question exists as to whether the applicable

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

Eighth Amendment must comply.

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

of the decision to a discussion of international practices. The Court specifically

acknowledged the importance of international practices:

Our determination that the death penalty is disproportionate punishment


for offenders under 18 finds confirmation in the stark reality that the
United States is the only country in the world that continues to give
official sanction to the juvenile death penalty. This reality does not
become controlling, for the task of interpreting the Eighth Amendment
remains our responsibility. Yet at least from the time of the Court’s
decision in Trop, the Court has referred to the laws of other countries and
to international authorities as instructive for its interpretation of the Eighth
Amendment’s prohibition of “cruel and unusual punishments.”

In addition, the court stated,

It is proper that we acknowledge the overwhelming weight of international


opinion against the juvenile death penalty, resting in large part on the
understanding that the instability and emotional imbalance of young
people may often be a factor in the crime. See Brief for Human Rights
Committee of the Bar of England and Wales et al. as Amici Curiae 10–11.
The opinion of the world community, while not controlling our outcome,
does provide respected and significant confirmation for our own
conclusions.

In this opinion, the Court acknowledges the importance of the global

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

norms are “not controlling [to the] outcome.”

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:

In the United States,…persons sentenced to death are allowed wide rights


of appeal and review. This attempt to ensure the utmost procedural
fairness has itself led to problems. The most notorious is the “death row
phenomenon” in which prisoners cling to life, exhausting every possible
avenue and understandable hope that there will be a reprieve from the
Courts or the executive. It is common for prisoners in the United States to
remain on death row for many years, and this dragging out process has
been characterized as being cruel and degrading. The difficulty of
implementing a system of capital punishment which on the one hand
avoids arbitrariness by insisting on a high standard of procedural fairness,
and on the other hand avoids delays that in themselves are the cause of
impermissible cruelty and inhumanity, is apparent.122

Additionally, the Jamaican Court of Appeals, in Pratt and Morgan v. Atty. Gen. of

Jamaica, stated (emphasis added):

• 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

beyond the limits set by Article 3.129

However, no U.S. court has accepted the line of reasoning that long-term

incarceration under penalty of death constitutes cruel, inhumane or degrading treatment.

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

well as his disdain for international law and non-American tribunals:

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

particularly strong one.”131 In addition, Justice Breyer addresses Justice Thomas’

contempt for the use of foreign jurisprudence in domestic cases:

[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-

conviction proceedings as follows:

(1) The length of time an accused spends on death row violates Eighth

Amendment protections against “cruel and unusual” treatment;

(2) The length of time an accused spends on death row violates Article 7 of the

Convention against Torture, prohibiting “cruel, inhumane and degrading”

treatment; and

(3) The length of time an accused spends on death row violates customary

international law. In addition, because the customary international law

131
Id., at page 993.
132
Id., at page 997.

35
violated involves prohibitions defined in the Convention against Torture, these

approach the level of a jus cogens prohibition on the state.133

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

phenomena in human rights terms sometime in the not-to-distant future.

Domestic Application of International Treaties

The ability of individual citizens to use a state’s international treaty obligations to

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

governments, which include a direct right of judicial review. Americans, by contrast,

have no direct judicial remedy for violations of international law by the U.S. government

except under very specific conditions.

The European Model

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

supranational organizations with real enforcement power.


133
Sandra Babcock, International Law and the Death Penalty, Lecture July 30, 2007.
134
United Nations Charter, Chapter 1, Article 2.

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

cannot obtain relief for wrongs by their government.

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

objectives or goals of the EU Community, but leave the specific manner of

implementation to the member states.

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

effectiveness of Community law.”137 Article 5 states:

[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

In essence, the European Court of Justice has interpreted Article 5 to create an

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

of Article 5 to enable an individual to enforce Community directives or to attempt

enforcement of “horizontal direct effect” is termed the doctrine of “indirect effect or

interprétation conformé.”140 In its decisions in the cases of Van Colson & Kamann v.

Land Nordrhein-Westfalen and Marleasing v. La Comercial Internacional de

Alimentación, the European Court of Justice stated that a state’s national courts must

interpret their national laws in a manner consistent with Community treaties or

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

expanded to individuals wishing to enforce Community directives against their

government or bring an action against a private entity.

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

ratification. This distinction of self-execution is important, as this is what determines

whether persons in the United States can invoke treaty provisions in domestic courts.

Self-Executing v. Non-self-executing treaties –

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

treaty depends on whether the treaty is deemed“self-executing or “non-self-executing.”

Self-executing treaties have “automatic domestic effect as federal law upon

ratification…[N]on-self-executing treat[ies] [do] not by [themselves] give rise to

domestically enforceable federal law. Whether such a treaty has domestic effect depends

upon implementing legislation passed by Congress.”143

Much case law has been devoted to whether or not a treaty is self-executing at

ratification. In contrast to the European Court of Justice’s Doctrine of Direct Effect,

which only requires that treaty provisions themselves be “clear” and “unconditional,”

whether a treaty is self-executing is dependant on whether Congress intended that the

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.

Several cases, involving the Vienna Convention on Consular Relations

(hereinafter “Vienna Convention”), provide a good case-study of the way that

international law is treated domestically.

Vienna Convention on Consular Relations Cases –

Background – Vienna Convention Provisions

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

Settlement of Disputes to the Vienna Convention (hereinafter, “Optional Protocol”). The

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

Background – The International Court of Justice

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

the following hierarchy:

1. International conventions;

2. International custom, as evidenced of a general practice accepted as law;

3. The general principles of law recognized by civilized nations; 149

4. Judicial decisions and teachings, as subsidiary means for the determination of

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.

The Avena Case

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

comply with the requirements of the Vienna Convention concerning 51 Mexican

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.

The Medellin Case

Following the Avena decision, President Bush issued a presidential memorandum

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

appealed to the United States Supreme Court.

In its 2008 Medellin decision, the Supreme Court held that United States treaty

obligations to “undertak[e] to comply” with International Court of Justice decisions did

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

if a treaty is deemed self-executing at ratification.157 Therefore, even though Medellin

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

United States failure to comply, there is nothing he can do on an individual level to

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

Texas would be prohibited from implementing domestic law contrary to treaty

provisions. In this case, the Texas would be precluded from applying domestic

procedural appellate bars to prevent review of Medellin’s case contrary to the

International Court of Justice’s Avena decision.

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

would probably be more willing, as Europeans appear to be, to cooperate on the

international stage regarding domestic human rights issues.

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

rights proponents in his concurring opinion in Furman when he stated,

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

democratic governments and societal values.

It is true that Americans lack a certain consciousness possessed by others whose

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

by adopting international human rights law in domestic courts as primary authority.

After all, the world has shown this as the true "evolving standard of decency that marks

the progress of a maturing society.”

161
State v. Makwanyane, supra note 74, at paragraph 88.

46
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50
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