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,
... 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 Indeed, it was repealed in South Africa after the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
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
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
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.