The Death Penalty
excerpted from the book
United States of America
- Rights for All
Amnesty International Publications,
THE DEATH PENALTY: Arbitrary, unfair and racially biased
More than 350 people have been executed
in the USA since 1990. The USA has the highest known death row
population on earth: over 3,300 people await their deaths at the
hands of US authorities.
International human rights standards seek
to restrict the scope of the death penalty. They forbid its use
against juvenile offenders, see it as an unacceptable punishment
for the mentally impaired, and demand the highest legal safeguards
for all capital trials. The USA fails to meet these minimum standards
on all counts.
Any justice system can be vulnerable to
the pressures of economics, politics or prejudice. In the USA
a defendant who cannot afford a competent lawyer is more likely
to be sentenced to death than someone with more money. Whether
or not a defendant is sentenced to death may be more influenced
by the fact that a prosecutor or judge is due for re-election
and wants to appear "tough on crime", than by the gravity
of the offence. The way the death penalty has been used in the
USA has consistently been shown to be racist. As the authorities
attempt to speed up the time between sentence and execution, the
risk of killing the innocent is increasing.
Many of the people on death row have been
responsible for brutal crimes with tragic ramifications for the
families and loved ones of the victims. As an organization dedicated
to the victims of human rights violations, Amnesty International
would never seek to excuse or belittle these crimes. But human
rights are the basic rights to which all human beings are entitled,
no matter who they are or what they may have done.
Amnesty International believes that the
US government and state authorities should take immediate steps
to abolish the death penalty as it violates fundamental human
"Every person shall have the right
to life. If not, the killer unwittingly achieves a final and perverse
moral victory by making the state a killer too, thus reducing
social abhorrence at the conscious extinction of human beings.
Justice Sachs, South African Constitutional
The South African Constitutional Court
unanimously ruled in 1995 that the death penalty for murder violated
the country's Constitution. In 1998 any such ruling in the USA
seems a distant hope. For since South Africa abandoned capital
punishment, the USA has joined the tiny group of nations responsible
for the vast majority of the world's judicial killings. In 1997
the USA carried out 74 executions-the highest number for four
decades. Only China, Saudi Arabia and Iran were known to have
executed more prisoners.
More than 100 countries have now abolished
the death penalty in law or practice. In April 1998 the UN Commission
on Human Rights adopted a resolution calling on all member states
which still use the death penalty to establish a moratorium on
executions, with a view to abolishing the death penalty altogether.
Against the global trend towards abolition, however, the USA has
relentlessly increased its rate of executions and the number of
crimes punishable by death.
The ramifications of the use of the death
penalty in a country as influential as the USA go far beyond its
borders. Officials in different countries have suggested that
it is either a factor in, or justification for, their own decision
to retain the punishment. In 1997 government officials from both
the Philippines and Guatemala reportedly inspected execution chambers
in the USA as part of their research into lethal injection as
a method for killing condemned prisoners. At least one Philippines
official was reported to have witnessed an execution in Texas
during his trip. Both Guatemala and the Philippines have since
adopted lethal injections.
In 1948 the USA played a leading role
in the adoption of the Universal Declaration of Human Rights,
which proclaims the right of every human being to life and freedom
from cruel, inhuman or degrading treatment or punishment. Yet
in 1998 most US political leaders do not even consider the death
penalty to be a human rights issue. So while it is unconstitutional
for the state of Florida to administer electricity to torture
a prisoner, it remains acceptable, even a vote winner, for it
to do so to cause death.
Justice Blackmun, US Supreme Court, 1994
"Twenty years have passed since this
Court declared that the death penalty must be imposed fairly,
and with reasonable consistency or not at all, and despite the
effort of the states and the courts to devise legal formulas and
procedural rules to meet this daunting challenge, the death penalty
remains fraught with arbitrariness, discrimination, caprice and
mistake... I feel morally and intellectually obligated simply
to concede that the death penalty experiment has failed. "
In 1972 the US Supreme Court struck down
the country's death penalty laws on the grounds that they were
being administered in an "arbitrary and capricious"
manner, violating the US Constitution. Several states subsequently
passed new laws, which in 1976 the Supreme Court ruled were constitutional
as they allowed the death penalty to be applied with "guided
discretion". By 1998, laws allowing for the use of the death
penalty existed in 38 states, and under federal and military law.
Although the Supreme Court's 1976 ruling
specified that guided discretion must be applied in the imposition
of the death penalty, many states have undermined this ruling
by greatly expanding their original death penalty statutes. For
example, Illinois reintroduced the death penalty in 1977 with
six categories of capital murder. By 1998 this had increased to
17. Likewise, Pennsylvania has expanded its capital murder categories
from eight in 1978 to 17 in 1998.
In reality the death penalty is administered
in the USA today in much the same way as it was in 1972. Amnesty
International has consistently found its application to be racist,
arbitrary and unfair. These findings have been demonstrated in
more than 25 Amnesty International reports since 1987 alone, including
USA: The Death Penalty (1987) and studies on Georgia (1995) and
In 1994, Amnesty International called
for a presidential commission to examine and report on the use
of the death penalty in the USA, to allow informed discussion
outside the highly charged political and emotional climate which
has characterized the death penalty debate. No such commission
has been forthcoming.
"Even under the most sophisticated
death penalty statutes, race continues to play a major role in
determining who shall live and who shall die."
Justice Backmun, US Supreme Court, 1994
The history of the death penalty in the
USA shows that it has been applied in a racist manner and that
any criminal justice system can be vulnerable to personal or social
prejudice. In Virginia, for example, between 1908 and 1962, all
those executed for rape were black, although only 55 per cent
of those imprisoned for rape were black. Race continues to play
a prominent role in virtually all aspects of the application of
the death penalty in the USA.
The race of the murder victim appears
to be a major factor in determining who is sentenced to death.
Blacks and whites in the USA are the victims of murder in almost
equal numbers, yet 82 per cent of prisoners executed since 1977
were convicted of the murder of a white person. In Kentucky, for
example, every death sentence up to March 1996 was for the murder
of a white victim, despite over 1,000 homicide victims in the
state being black. 'Nationwide, studies have consistently found
that aggravating factors, such as the severity of the crime and
the background of the defendant, cannot explain such disparities.
The race of the defendant is also a factor.
A recent study, made public in June 1998, found that in Philadelphia
the likelihood of receiving a death sentence is nearly four times
higher if the defendant is black, after taking into account aggravating
factors. In effect, the study found that being black could in
itself act as an aggravating factor in determining a sentence.
Since Pennsylvania reintroduced the death penalty in 1978, the
authorities in Philadelphia have sentenced to death more than
eight times as many blacks as whites.
Nationwide, blacks are disproportionately
represented on death row at both state and federal level. Blacks
make up just 12 per cent of the country's population, but 42 per
cent of the nation's condemned prisoners. In early 1998, of the
26 people under federal sentence of death (military and civilian),
only five prisoners were white.
The overwhelming majority of district
attorneys and other officials who make the decision as to whether
to seek the death penalty are white. In 1998, of the 1,838 such
officials in states with the death penalty, 22 were black, and
22 were Latino. The remainder were white.
In many counties, black prospective jurors
are disproportionately removed from the jury pool by prosecutors
during jury selection. In Georgia, six of the 12 black prisoners
executed since 1983 were convicted and sentenced by all-white
juries after all black nominees had been removed. William Henry
Hance was sentenced to death in 1984 by a jury where all but one
black juror had been excluded by the prosecutor. Days before his
execution in March 1994, that juror came forward to say that she
had not voted for death but had been too intimidated to protest
when her co-jurors said that the jury was unanimous. Another juror
stated that several jurors had made racially derogatory comments
about William Hance, referring to him as "one more sorry
nigger that no one would miss".
During the trial of William Andrews in
Utah in 1974, a note was found among the all-white jury depicting
a hanging with the caption "Hang the Nigger's" (sic).
Despite the fact that there was never any inquiry into how many
of the jurors had seen or been involved in the drawing of the
note, and what its impact was on their deliberations, William
Andrews was executed in 1992. The Inter-American Commission on
Human Rights concluded in 1996 that the USA had violated international
standards on grounds including racial bias in the case.
A 1986 Supreme Court ruling that jurors
could only be removed for "race neutral" reasons has
failed to eliminate racial bias from jury selection. In 1987 the
Assistant District Attorney for Philadelphia made a training video
for the city's prosecutors. In the video he describes how to select
a jury more likely to convict: "Let's face it, the blacks
from low-income areas are less likely to convict. There's a resentment
to law enforcement... You don't want those people on your jury...
If you get a white teacher teaching in a black school who's sick
of these guys, that may be the one to accept." The video
also instructed trainee prosecutors on how to hide the racial
motivation for their rejection of potential jurors. The tape did
not become public until 1997.
In 1987, after reviewing a detailed statistical
study which showed that those who killed white victims in Georgia
were four times more likely to be sentenced to death than other
groups, and black defendants charged with killing white victims
were the most likely group of all to receive the death penalty,
the Supreme Court concluded that "apparent disparities in
sentencing are an inevitable part of the criminal justice system"
and that any system for determining guilt or punishment "has
its weaknesses and potential for misuse".
Article 6(5), International Covenant on Civil and Political Rights
"Sentence of death shall not be imposed
for crimes committed by persons below eighteen years of age."
Whether a capital defendant lives or dies often depends more on
their lawyer than their crime. Many defendants have been represented
in court by attorneys lacking the skills, experience, resources
or commitment to handle such complex cases. In contrast, they
face prosecutors in an adversarial system who are often very experienced
and highly motivated in their pursuit of a capital conviction.
International standards require states
to ensure that all defendants who cannot afford to employ the
lawyer of their choice "have a lawyer of experience and competence
commensurate with the nature of the offence assigned to them in
order to provide effective legal assistance, without payment by
them if they lack sufficient means to pay for such services."
Governments must provide sufficient funding and other resources
to provide legal counsel for the poor and other disadvantaged
In 1984, the Supreme Court ruled that
errors by lawyers would not merit the reversal of the conviction
or sentence unless the defendant could prove that such errors
had prejudiced the outcome of the case, a standard of proof that
is very difficult to meet. The Court stated that "the government
is not responsible for, and hence not able to prevent, attorney
errors". The result of this ruling has been that prisoners
may have been executed as a result of mistakes by their lawyers."
Amnesty International has documented numerous other cases of inadequate
legal representation for capital defendants. This problem has
been exacerbated by two recent federal initiatives. In 1995 Congress
voted to eliminate the federal funding for Post-Conviction Defender
Organizations (PCDOs), which it had established in 1988 to provide
legal aid to indigent death-row prisoners. In 1996, President
Clinton signed the Anti-Terrorism and Effective Death Penalty
Act into law. The Act, designed to reduce the time between sentence
and execution, severely limits the appeals available to death
row inmates in federal courts. Amnesty International believes
that the Act dramatically increases the risk of wrongly convicted
prisoners being executed.
DOUBLE STANDARDS: The USA and international human rights protection
The international system of human rights
protection built over the past 50 years is based on the understanding
not only that human rights are universal, but that they transcend
the sovereignty of individual states. Despite the USA's leading
role in establishing this system, it has been reluctant to submit
itself to international human rights law and to accept the same
minimum standards for its own conduct that it demands from other
The USA has avoided scrutiny by UN and
InterAmerican bodies set up to protect human rights by refusing
to recognize their right to hear complaints from people in the
USA. It has been slow to agree to international human rights standards
and has still not ratified several important treaties. When it
has ratified human rights treaties, it has reserved the right
to ignore some of their provisions, undermining the protection
Amnesty International believes that all
countries, including the USA, should accept the primacy of international
law. The USA should adjust its legislation to conform with international
human rights standards. It should ratify without reservations
all human rights treaties and withdraw existing reservations that
undermine its international commitments and the effectiveness
of international human rights law.
A troubled history
The USA played a fundamental role in the
creation of the UN and the drafting of the Universal Declaration
of Human Rights. Within the UN it holds a privileged position,
being one of five permanent members of the Security Council with
the right of veto, giving it the power to block decisions. Over
the decades, the IJSA has participated in numerous conferences
and forums where international human rights standards have been
drafted and adopted by the world's governments.
The USA played an equally important role
in the establishment ~f regional organizations such as the Organization
of American States (OAS), the Organization for Security and Co-operation
in Europe (OSCE), the North Atlantic Treaty Organization (NATO)
and the Asia - Pacific Economic Co-operation (APEC). Apart from
APEC, these organizations emerged during the Cold War in response
to the perceived threat from the Soviet bloc. Over the past 15
years the geopolitical landscape has been transformed and some
of these organizations have substantially developed the human
rights dimension of their work.
At the UN and within regional bodies,
the USA has repeatedly stressed the importance of the principles
of international law and human rights. However, its relationship
with intergovernmental organizations such as the UN has been marked
by deep distrust and a lack of practical cooperation. This can
be seen in the USA's failure to pay its dues to the UN, building
up arrears of over a billion dollars. It is also reflected in
the USA's position in intergovernmental efforts to create a permanent
International Criminal Court to try perpetrators of crimes against
humanity when states are unwilling or unable to do so. The USA
has advocated positions that would threaten the independence of
the court and undermine its effectiveness and credibility.
Successive US administrations have challenged the primacy of international
human rights law, in effect arguing that the human rights standards
used to measure other countries' conduct do not apply to the USA.
One argument put forward is that the US
legal system already contains an unsurpassable system of guarantees
based on the Constitution and the decisions of the Supreme Court.
The additional protection offered by international standards is
regarded as superfluous. Certainly the Bill of Rights was a remarkable
breakthrough in establishing fundamental rights and freedoms,
a breakthrough which the US judicial system has elaborated and
defended. However, human rights standards have evolved, and today
the level of human rights protection recognized in US law falls
short of some of the minimum standards set down in human rights
treaties. Important internationally recognized rights and standards
are not always reflected in domestic US law-such as the ban on
using the death penalty against juvenile offenders.
Another argument is that under the US
legal system international treaties are inferior in status to
the Constitution. The system puts international treaties on a
par with federal laws, and in case of conflict between the two
sources of law, the most recent prevails. According to this position,
the USA could invoke domestic law to justify noncompliance with
international obligations-a breach of international legal principles.
The principle that states may not invoke internal laws to avoid
complying with their commitments under international treaties
is expressly provided by the Vienna Convention on the Law of Treaties.
(The USA signed the Vienna Convention on the Law of Treaties in
1970, but has not yet ratified it.)
In a direct challenge to the status of
international law, the USA has on several occasions claimed that
the American Declaration on the Rights and Duties of Man is not
binding on the USA, even though the Inter-American Court of Human
Rights and the Inter-American Commission on Human Rights have
considered the Declaration part of customary law binding on all
member states of the OAS.
The USA's reaction within intergovernmental organizations such
as the UN to human rights violations by other governments has
been selective and partial. Officials have criticized countries
considered hostile, but have been unwilling to take appropriate
action when abuses are committed by US allies or when action would
run counter to the USA's political or economic interests. The
USA is, of course, not alone in this selective approach, but its
actions seem to suggest that international law and inter-governmental
systems are instruments for advancing its own interests, willingly
taken up when they serve to legitimize or implement its foreign
policy but discarded and even condemned when seen as an obstacle
or as irrelevant to these interests.
Examples include the US government's long-standing
refusal to criticize blatant human rights violations by Israel
against the Palestinian population; its passivity in the face
of gross human rights violations in Saudi Arabia; and its willingness
to ignore for many crucial months in 1996 and 1997 massive human
rights abuses committed against civilians and refugees by the
armed opposition in Zaire, now the Democratic Republic of the
Congo (DRC). Until recently the USA failed to effectively oppose
the obstruction of UN investigation missions by the DRC authorities.
US government officials have denied, ignored or played down massacres
of unarmed civilians in Rwanda by members of the army since 1994.
One of the clearest examples of the USA's
changing attitude to human rights violations in different circumstances
is that of Iraq. During the 1980s Iraqi forces committed gross
and widespread abuses, including repeated massacres of Kurdish
civilians, many of them children, sometimes using chemical weapons.
Amnesty International repeatedly appealed for action, yet neither
the US authorities nor the UN responded. However, after Iraq invaded
Kuwait in August 1990, the US attitude changed dramatically. The
USA repeatedly cited the Iraqi government's appalling human rights
record to gather support for UN military intervention in the Gulf.
There are only two countries in the world that have not ratified
the Convention on the Rights of the Child. One is the collapsed
state of Somalia which has no recognized government-the other
is the USA. Despite the strength and achievements of the US women's
movement, the USA is also one of only a handful of countries that
have not ratified the Convention on the Elimination of All Forms
of Discrimination against Women.
The USA's resistance to international
human rights commitments is demonstrated by its delays in ratifying
human rights treaties and its use of reservations to undermine
a treaty's full protection.
The first UN human rights treaty ratified
by the USA was the Convention on the Prevention and Punishment
of the Crime of Genocide. It ratified the Convention in 1988,
40 years after signing it and after 97 other states had already
ratified it. The USA took 28 years to ratify the International
Convention on the Elimination of All Forms of Racial Discrimination',
after 133 other states had already ratified it. At least 71 other
states ratified the Convention against Torture before the USA.
It was only in 1992, after 109 other states,
that the USA ratified the International Covenant on Civil and
Political Rights (ICCPR), 26 years after its adoption by the UN
General Assembly. The ICCPR is one of two principal treaties protecting
human rights as enshrined in the Universal Declaration of Human
Rights. The other-the International Covenant on Economic, Social
and Cultural Rights-has still not been ratified by the USA, although
it signed it in 1977.
The USA's reluctance to support international
human rights protection mechanisms is even more marked in the
inter-American system. The USA has long been a leading member
of the OAS. It participated in the Ninth International Conference
of American States in Bogota, Colombia, in 1948, at which the
OAS Charter was adopted, and helped construct the inter-American
system, in particular its political-diplomatic and military components.
Yet the USA has refused to recognize any
regional human rights treaties: it has not ratified the American
Convention on Human Rights, adopted by the OAS in 1969, and has
not even signed the InterAmerican Convention to Prevent and Punish
Torture, the InterAmerican Convention on Forced Disappearance
of Persons and the Inter-American Convention to Prevent, Punish
and Eradicate Violence against Women.
When it has ratified human rights treaties, the USA has consistently
diluted their force by making reservations, interpretations and
statements which have limited the protection they offer.
The USA has declared that it will apply
the ICCPR and the Convention against Torture only to the extent
that domestic law allows, effectively rendering the treaties meaningless
as a means of strengthening human rights protection.
The USA has made numerous reservations
to the ICCPR (particularly Articles 6 and 7), some of which are
contrary to the object and aims of the treaty. For example, Article
6.5 of the Covenant prohibits passing a death sentence on anyone
aged less than 18 at the time of the crime. This is deemed such
a fundamental safeguard that it may never be suspended, even in
times of war or internal conflict. Yet the USA has entered a reservation
insisting on its right to execute juvenile offenders.
Another example is a reservation to the
right to freedom from cruel, inhuman or degrading treatment or
punishment in the ICCPR. The USA allows the continued use of corporal
punishment in schools and the imposition of certain conditions
of detention (such as prolonged solitary confinement) considered
in international human rights practice as forms of torture or
The Human Rights Committee, the UN body
of experts that monitors states' compliance with the ICCPR, has
stated that several of these reservations are incompatible with
international law. In 1995 it recommended that the USA consider
withdrawing them, in particular those relating to the death penalty
and to the right not to be tortured.
There are other areas where reservations
deny people in the USA the protection to which they should be
entitled. These include allowing male guards to staff women's
prisons; interference in the private lives of people in those
states which consider sexual relations between consenting adults
of the same sex to be a crime; the nomination system in some states
for judges, affecting the right to an independent and impartial
tribunal, and the indefinite detention and lack of procedural
safeguards for foreign nationals facing expulsion or extradition.
Despite its role in developing international
human rights law, the USA has sometimes stood in the way of developing
new standards, for example with regard to child soldiers, the
International Criminal Court and landmines. The USA has repeatedly
blocked the adoption of an Optional Protocol to the Convention
on the Rights of the Child, which would prohibit the recruitment
of people under the age of 18 into armed forces and their participation
in hostilities. The US position is ironic given that the protocol
could only be ratified by states which are party to the Convention
on the Rights of the Child (which the USA is not), and, moreover,
would be optional.
In order to live up to its stated commitment
to universal human rights the USA should:
1. Ratify, without reservations, human
rights treaties that it has not yet ratified, in particular the
Convention on the Rights of the Child, the Convention on the Elimination
of All Forms of Discrimination against Women, the International
Covenant on Economic, Social and Cultural Rights, the Convention
relating to the status of refugees, the American Convention on
Human Rights and other Inter-American human rights treaties.
. Withdraw its reservations to the International
Covenant on Civil and Political Rights and the Convention Against
Torture, in particular those that restrict the implementation
of Articles 6 and 7 of the International Covenant on Civil and
Political Rights and Articles 1, 3 and 16 of the Convention against
Torture. It should also withdraw reservations that restrict the
USA's fulfilment of international obligations in its domestic
3. Ratify the (first) Optional Protocol
to the International Covenant on Civil and Political Rights (allowing
the right of individual petition to the Human Rights Committee)
and recognize the competence of the Committee against Torture
to receive and act on individual cases; on ratification of the
American Convention on Human Rights, recognize the competence
of the Inter-American Court of Human Rights.
4. Submit to the Committee against Torture
the USA's initial report on its implementation of the Convention
against Torture, which was due in November 1995.
5. Support an Optional Protocol to the
Convention on the Rights of the Child which prohibits the recruitment
of people under 18 years of age into governmental or non-governmental
armed forces and their participation in hostilities.
States of America - Rights for All