Going It Alone

The rest of the civilized world has abolished the death penalty.
Will the United States follow suit?

by Connie De La Vega

The American Prospect magazine, July 2004

... a large majority of countries in the world have abolished the death penalty. In order to join the European Union, for example, countries have to become parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and specifically to Protocol 6, which explicitly abolishes the death penalty. Thus, capital punishment has been eradicated in all of western Europe and most of eastern and central Europe. Most of the countries of the Americas have also abolished the death penalty. Indeed, it was repealed in South Africa after the end of apartheid, where it clearly had been one of the tools of repression used by whites against the black majority. (Countries still using the death penalty include China, Japan, and many Muslim nations.)

The United States, therefore, finds itself at odds on this issue with its European counterparts, with its neighbors in the Americas, and with nearly all democracies-a great many of the countries it has traditionally allied itself with on addressing human-rights problems globally. This failure to follow the trend toward abolition has begun to affect America's influence in the international arena.

Nowhere is this clearer than with respect to the execution of persons who committed their crimes when they were under the age of 18. The United States is arguably the sole violator of the international prohibition of such executions. Numerous treaties and pronouncements by international bodies denounce the practice. Of the six countries besides the United States where juveniles have been executed since 1990-Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen-the laws recently have been changed or the governments have denied that executions continue to take place. Amnesty International reported that a juvenile offender was executed in China in 2003, but allegedly there had been problems verifying his age. China raised its death-penalty eligibility age to 18 in 1997. And in Iran, the parliament passed a bill in December of 2003 removing the provisions for executions of juveniles. If Iran's Guardian Council ratifies the measure, as many predict, the United States will achieve a highly dubious distinction as the world's only country to openly execute juvenile offenders.

That fact continues to embarrass the United States at the international level. It was one of half a dozen countries specifically named as a violator in a resolution passed in 1999 by the United Nations Sub-Commission on Promotion and Protection of Human Rights. The United States was singled out as the country that accounted for 10 of the 19 juvenile executions occurring in the preceding 10 years. It may be the only time that this nation was mentioned in any human rights resolution by a body of the United Nations. Perhaps still more embarrassing was an attempt last year by the United States to delete language condemning the execution of juvenile offenders from a resolution on the Rights of the Child supported by the UN Commission on Human Rights. The effort to strip the language failed by a vote Of 5 1-t0-1 (with the United States the lone dissenter), and prompted sharp criticism from several commission members, among them close U.S. allies in Europe and Latin America.

Other events suggest that the United States will increasingly be called to task for its own failure to implement human-rights norms, especially in relation to the death penalty. In 2001, the United States was voted off the Commission on Human Rights for the first time in that body's 54-year history. That action may be blamed on many factors, but America's record on the death penalty was at least one point of contention among the nations that failed to support America's renewal.

Similarly, our nation's embrace of the death penalty has jeopardized our status at the Council of Europe, a political organization representing 45 nations across the European continent. In 2001, the council's parliamentary assembly passed a resolution requiring Japan and the United States to impose an immediate moratorium on executions and to take steps to abolish the death penalty in order to maintain their nonvoting observer status. In 2003, the Inter-American Commission on Human Rights, the main human-rights body of the Organization of American States, rejected the sole U.S. candidate for membership, leaving the United States without a seat on the seven-member commission for the first time since it was created in 1959. That vote, too, has been blamed on a number of factors, but it surely hasn't helped that the United States had several commission decisions issued against it with respect to the juvenile death penalty, and has refused to take any steps to implement them.

International adjudicatory bodies are increasingly rendering decisions against the United States with regard to other violations of international treaties and standards related to the death penalty. Most recently, the International Court of justice (ICJ) has issued opinions that the United States is bound by the provisions of the Vienna Convention on Consular Relations in cases brought against the United States by several of its allies. That treaty provides that persons arrested in a foreign country are supposed to be notified about their right to contact their consulate for assistance. In the wake of repeated violations of the treaty by a number of U.S. states, Paraguay, Germany, and Mexico brought claims against the United States on behalf of their nationals on death row here. The order by the ICJ in the case brought by Mexico affects more than 50 Mexican citizens, 31 of whom are on California's death row at San Quentin.

Prior to the ICJ case, the Inter-American Court on Human Rights had issued an advisory opinion regarding the application of the Vienna Convention to death-penalty cases. Interestingly, the first court to address the ICJ opinion regarding the condemned Mexican nationals was the Oklahoma Court of Criminal Appeals, that state's highest court for criminal matters. Basing its ruling on the ICJ opinion, the appeals court in May ordered a new hearing for Osbaldo Torres, a Mexican convicted of the 1993 murder of an Oklahoma couple during a burglary of their home. , Within a few hours of the ruling, the governor commuted Torres' sentence to life without parole, referring to the United States' obligations under the Vienna Convention and the fact that the State Department had urged him to consider that commitment. As this case demonstrates, the federal government does-and must-play a role in urging the states to comply with U.S. treaty obligations.

Individuals charged with capital crimes have also been using international forums to fight their extraditions to the United States. In one case, a young German national named Jens Soering was accused of murdering his girlfriend's parents in Virginia.

After he was arrested in England, the U.S. government requested his extradition to stand trial for the killings, for which he faced the possibility of the death penalty. The European Court of Human Rights ruled that prolonged detention on death row violates the prohibition against inhuman and degrading treatment, and that the United Kingdom would violate the European Convention if it extradited Soering to Virginia because he would suffer from what it termed the "death-row phenomenon." Eventually, Soering was extradited-but only after Virginia agreed not to seek capital punishment in his case.

To date, the U.S. Supreme Court has refused to grant certiorari in other cases that have invoked the death-row phenomenon-shorthand for the mental anguish that persons awaiting execution suffer from-despite the various international bodies that have ruled it to be a human-rights violation. Perhaps it is cause for some optimism, at least, that justices John Paul Stevens and Stephen Breyer, in the more recent case of Texas death-row inmate Clarence Lackey, wrote that state and federal courts should study whether long execution delays could constitute "cruel and unusual punishment" in violation of the Eighth Amendment.

In another extradition case, Charles Chitat Ng, a former U.S. Marine wanted for a string of grisly murders in California, fought his extradition from Canada on the grounds that he faced execution by asphyxiation-a punishment, he argued, that would violate his rights under the International Covenant on Civil and Political Rights (ICCPR). He filed a complaint against Canada before the Human Rights Committee, the body that oversees enforcement of the ICCPR. The committee found that execution by gas asphyxiation would indeed result in prolonged suffering, constituting cruel and inhuman treatment in violation of the ICCPR, and that Canada had violated the treaty by permitting Ng's extradition. (The 9th U.S. Circuit Court of Appeals subsequently upheld a lower court's ruling that execution by gas asphyxiation violates the Eighth Amendment.) Since that decision, Canada has developed its own jurisprudence on this topic. Along with the European countries, it now also refuses to extradite persons who may be subject to the death penalty in the United States following an opinion by its supreme court based on its own constitutional guarantees of the right to life and liberty.

As these examples illustrate, other countries seem increasingly willing to find ways to pressure the United States with respect to its continued use of the death penalty. Moreover, America's efforts to combat terrorism will be made more difficult because friendly countries will not extradite suspects if they face the death penalty. Together, they point to an inescapable conclusion: If the United States wants to regain its role as promoter and protector of human rights around the world, it first needs to address its own violations of internationally recognized standards..

CONNIE DE LA VEGA is a professor at the University of San Francisco School of Law.

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