The Death Penalty

excerpted from the book

United States of America - Rights for All

Amnesty International

Amnesty International Publications, 1998

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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 rights.

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International trends

"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 court, 1995

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.

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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 Texas (1998).

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.

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"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".

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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."

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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 people.

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."

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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.

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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 countries.

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 they offer.

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.

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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.

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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.

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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.

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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 cruel treatment.

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.

Recommendations

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 law.

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.

United States of America - Rights for All

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