The Death Penalty Has Been Seen as a Human Rights Issue

Human rights are viewed by many as rights that are held by everyone simply by virtue of being a human being. Their foundation stems from the view that all individuals are equal, and that there are certain rights that everyone should have. In any discussion on human rights, the Universal Declaration of Human Rights is of great importance. Its signing in 1948 by the United Nations (UN) marked the ‘true start of the international protection of human rights.’ The Declaration was a response to the atrocities committed during the Second World War. The Declaration set out fundamental rights; these included the right to life and freedom from torture. These two rights are of vital importance in relation to the death penalty. The problem though, is that the UN Declaration was not binding in law, it had to be ratified by a country for it to be binding. However, that country may exclude from ratification any Articles or Protocols with which it does not agree.

Amnesty International (A.I.) is strongly opposed to the death penalty; they feel it clearly violates fundamental human rights. Amnesty International is a non- governmental organization (NGO). NGO’s concentrate on making reports on specific countries, on specific issues and they also propose legislation and recommend international standards. A.I. has been campaigning for the abolition of the death penalty for many years. They

state that the death penalty constitutes torture, and that a government justifying ‘a punishment as cruel as death conflicts with the very concept of human rights.’ A.I. has the support of many, including Roger Hood , who has written reports for the UN on the death penalty around the world. Even though the death penalty has not been universally abolished, the concerns expressed and the human rights issue involved in relation to it, have led to many safeguards being implemented to, at least, protect the rights of those facing the death penalty, if they cannot protect the life per se. However, ‘defining the death penalty as a human rights issue is a critical first step’ , as countries frequently using it oppose this concept. Yet no matter how hard states try to ignore the human rights issues involved in the death penalty, the effectiveness of the safeguards in place for prisoners sentenced to death means that in the 21st century the human rights concerns can no longer by ignored.

The abolition movement began in the mid – nineteenth century. Yet by 1965, only 12 countries had completely abolished it and 11 other countries had abolished it for ordinary crimes in peacetime. This means that they retained the death penalty for the use of crimes committed in times of war for military crimes, and for crimes against the State. By 1995, 58 countries had abolished capital punishment; 46 of them absolutely, and 12 for ordinary crimes. The significant increase in abolition of the death penalty in those thirty years could be attributed to Protocol No.6 to the Convention for the Protection of Human Rights. Article 1 of Protocol 6 states clearly that the ‘death penalty shall be abolished.’ Seven years later, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Article 1 stated ‘ no-one within the jurisdiction of a state party to the present Optional Protocol shall be executed.’ Article 2 of both the Protocols provides for some reservation. Yet by mid- 1995, 18 countries had ratified the Sixth Protocol and 15 of

these countries were party to the Second Optional Protocol. Thus, by 1995 much of Western Europe had abolished the death penalty. However, this situation was not reflected in America. The only similar development in the USA was in 1990 when the General Assembly of the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. Article 1 called upon states to abstain from the use of the death penalty, but it did not impose an obligation on them to fully remove it from the statute book. Before this Protocol was adopted there had been hopes for major developments in the abolition of the death penalty in 1972. In Furman v. Georgia the U.S Supreme Court held that the death penalty was ‘cruel and unusual’ punishment, because it was being applied in an arbitrary, capricious, and discriminatory way, which was contrary to the Eighth Amendment of the Constitution of the United States. The Eighth Amendment banned cruel and unusual punishment. Nevertheless, this did not lead to the abolition of the death penalty in the USA, like many had hoped. The Eighth Amendment was not regarded as static but as deriving it’s meaning from evolving standards of decency over time. Due to the decision in Furman the retentionist states redrafted their statutes and four years later, the Supreme Court ruled the death penalty to be constitutional. As the death penalty was still being retained in the USA and other countries, safeguards were introduced to try and protect the human rights of those facing the death penalty.

In 1984, the UN Economics and Social Council (ECOSOC) adopted the Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty. There are nine safeguards in place, and these can be summarized as follows; capital punishment may be imposed 1) only for the most serious crimes, their scope should not go beyond international crimes; 2) only for a crime for which the death penalty is prescribed by law at the time of its commission i.e. it shall not have retroactive effect; 3) on persons below 18 years of age at the time of the crime shall not be sentenced to death, nor shall the death penalty be carried out on pregnant women, or on new mothers or on persons who have become insane. 4) when the guilt of the person charged is based upon clear and convincing evidence; 5) pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial; anyone sentenced to death shall have the right 6) to appeal to a court of higher jurisdiction; 7) to seek pardon, or commutation of sentence; 8) capital punishment shall not be carried out pending any appeal; 9) where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. As there are so many issues involved in each safeguard, this dissertation will only concentrate on three of the safeguards: the imposition of the death penalty on the young and the mentally ill, and the combined issue of a fair trial and protecting the innocent.

Safeguard three was strengthened in 1989, by establishing a minimum age below which a person may not be sentenced to death or executed, and by eliminating the death penalty for persons suffering from mental retardation or extremely limited mental competence. The initial reason behind excluding young offenders from the death penalty was that they are not fully mature. However, many countries, including the USA, do not prohibit the execution of persons who were under 18 at the time of the offence being committed. The only special protection provided in states where the lower age limit is 16 or 17 is the ruling in Eddings v. Oklahoma where it was held that age, emotional upbringing and childhood experiences should be considered as mitigating factors. However, this is not following the safeguard fully, as it clearly states that no one shall be executed who was under 18 at the time of the crime. In 1992 the USA ratified the ICCPR, and stated:

‘The United States reserves the right, subject to its constitutional restraints, to impose capital punishment on any person…duly convicted under the existing or future laws permitting the imposition of capital punishment, including crimes committed by persons below 18 years of age.’ Thus the USA has not accepted, in it’s ratification of the ICCPR, forbidding the execution of juvenile offenders. In fact, as of June 2000, 74 persons on Death Row were sentenced for crimes committed as juveniles. This is about 2% of the total Death Row population in the USA. Texas has the largest number of Death Row juvenile offenders; 26 out of the total of 74. Out of the 74 offenders, three- quarters involved were 17 year olds. Thus, it appears that the safeguard for juvenile offenders is not effective in protecting them from the death penalty. Though, the total number of persons under death sentences has increased by 206% over the past fifteen years, the number of juvenile offenders sentenced to death has risen more slowly. 33 juvenile offenders were under the death sentence at the end of 1983, compared to the 74 in 2000. It could be argued, then, that although the safeguard has not stopped the execution of young offenders, it has contributed to the decrease in the number of young offenders being sentenced to death. However, Streib suggests that some figures can be subject to confusion, as there may be inaccuracy due to the difference between being legally under a sentence of death and being physically on a prison’s Death Row. Thus, not all the above figures may be reliable.

The courts have not provided any guidance on this issue either. In Thompson v. Oklahoma the Supreme Court held that the executions of offenders aged fifteen or younger at the time of their crimes are prohibited by the Eighth Amendment to the US Constitution. However, the Supreme Court in Stanford v. Kentucky held that the Eighth Amendment did not prohibit the death penalty for crimes committed at the age of sixteen or seventeen regardless of state statutory provisions. Therefore, there appears to be some contradiction in the court’s view on this matter. This does not aid the safeguards, as even the courts seem to be unsure as to whether juvenile sentences to death are constitutional or not. If they find it to be constitutional then they are allowing the execution of offenders under the age of 18. This is contrary to the safeguard, and thus the safeguard is ineffective in protecting juvenile offenders. It could be argued that the ECOSOC’s safeguards have not been agreed to or ratified by the USA, and thus they do not have to be enforced. However, under the American Convention on Human Rights, Article 4 (5) states: ‘Capital punishment shall not be imposed upon persons who at the time the crime was committed, were under 18 years of age…shall not be applied to pregnant women.’ Therefore, a similar safeguard is stated in the USA’s own Convention, but the American Convention has been signed, not ratified. Thus, it may be upto the Supreme Court to establish the law in this area. Despite the ECOSOC’s safeguards, and the American Convention Article, at the end of 1996, in twenty states the minimum age at which commission of a capital crime could lead to a death sentence was 16, and in four others it was 17. Only fourteen states would not apply the death penalty to offenders aged less than 18 when the crime was committed. There has been substantial protest at the U.S’ continuing practice of imposing the death penalty on juveniles, and in 1987, the Inter- American Commission on Human Rights held that the U.S had violated the American Convention on Human Rights because of this practice. Yet, so broad is the acceptance of this ban that it is widely recognized internationally as customary i.e. ‘a principle so universally accepted that it supersedes specific laws and treaties.’ Therefore, even internationally there is conflict, as on the one hand, they strongly oppose it, but on the other hand, it is accepted simply because of its widespread practice. Thus, the fact remains that the safeguards in place for young offenders are most definitely proving to be ineffective in protecting young offenders facing the death penalty.

There is some overlap between the mentally retarded offender and juvenile offenders, as can be seen in the safeguard, as they are dealt with together. However, both are very important issues in their own right. One example of this is the case of Robert Carter , who was 17 when he received the death sentence. He was brain -damaged, and his IQ score defined him as semi- retarded. None of this evidence was presented at trial, and he was sentenced to death for robbery and murder. Thus, two safeguards failed to protect this juvenile. The reason for wanting to offer protection to the mentally ill is that they are incapable of fully comprehending either the nature of their crime or the nature of their punishment. Apparently, U.S law prohibits the execution of individuals deemed to be legally insane. In many states defendants cannot be held responsible if they reacted to an ‘irresistible impulse’ or were incapable of acting responsibly by reason of mental or emotional disability. Yet, as with juvenile offenders, the U.S is still executing the mentally ill. At least 34 individuals with mental illnesses have been executed since 1976, though not everyone was tested, so the number could be greater than this. It is also estimated by some experts that as many as 10% of 3,000 people on Death Row are mental retarded. The U.S argues that many people with mental disabilities are not legally insane. This is a problem, as on the one hand, you can argue someone is mentally ill and so should not be executed, but on the other hand, it can be said that someone is mentally ill, but not legally insane, and so can then stand trial and be sentenced to death.

The standard for proving legal insanity is very high, and rarely met. So, although, the U.S seemingly opposes the execution of the legally insane, the standard of proof is so high, that many mentally ill people who should be spared the death penalty are in fact being executed. The execution of Rickey Rector went ahead in 1992, despite the fact that his brain had been lobotomized and he believed he would return to his cell for dessert after his execution. In 1998, Horace Kelly was found to be sane enough for execution, despite wallowing in his own waste, and not bathing or combing his hair. Two psychiatrists and the prison warden raised concerns about his sanity, but he was found fit for execution. Thus, again, it would appear that the mentally ill safeguard is not effective in protecting those who need to be protected by it. Yet some progress has been made in this area. Since 1986, 13 States and the Federal government have voted to ban the execution of the mentally retarded. The effects of this can be seen in recent cases; Calvin Swann’s death sentence in Virginia was commuted to life in1999 because of concerns about his severe mental illness. There is also a case at present that is pending a decision by the Supreme Court. John Paul Penry has a mental age of 7 but is a grown man. The state of Texas wants to execute to him for murdering a woman with a pair of scissors. The Court is still concerned about whether the Texas sentencing jury considered the mitigating evidence, and the Supreme Court has ruled that his rights were violated because the jury did not properly take into account his mental capacity. A ruling in the case is expected in July 2001. This could be a very significant case in the protection of mentally ill offenders facing the death penalty. It could set out stricter guidelines, involving the consideration juries give to mental illness as a mitigating factor. Thus, it appears that the protection for the mentally retarded may be improving; only 34 mentally ill people have been executed over the past 25 years, and the level of proof required for legal insanity seems to be decreasing. Therefore, although, the safeguard has not effectively prevented the insane from being executed, it may be influencing future policies in this area, and Penry’s case may be a significant turning point.

The problem with the death sentence is the finality of it’s result. If a person is sentenced to death, and found innocent on later evidence, it can, in some cases, be too late. Ensuring a fair trial can prove problematic, and one of the main problems is the representation offered to offenders. Many states do not provide adequate funding for appointed lawyers. Therefore, lawyers on a minimal wage are protecting offenders and in some cases the lawyer may be inexperienced. This means that people facing the death penalty may not be properly represented, as there is no incentive for the poorly -paid lawyer to spend a lot of time on the case, as he/she will not be adequately compensated for his/her time. Because of this serious problem, the American Bar Association (ABA) created the Death Penalty Representation Project in 1986. It’s aims were to better inform the Bar and the public about the lack of representation available to Death Row prisons. It also aimed to ensure that those facing the death penalty were represented at all stages, by qualified, adequately compensated counsel. There is also the problem of the ‘death qualified’ juror. Attorney’s can question the jurors and select the people they want. Many prosecutors choose jurors who agree with the death penalty. This means that from the outset, an offender standing trial for a crime that can result in the death sentence, will almost definitely face the death penalty if found guilty by a ‘death qualified’ jury. This type of jury would be unlikely to impose life imprisonment instead. A court can use discretionary powers to accept a plea bargain to a lesser offence or to imprison a defendant who pleas guilty. If this occurs though, it means that a person has to plea guilty to a crime, they may not have committed, in order to avoid the death penalty. Many juries are also unrepresentative, especially of women and blacks. Yet many offenders facing the death penalty are in fact black. It is estimated that approximately half of all Death Row inmates over the past 20 years have been members of minority groups. There is also the suggestion that blacks who kill whites are more likely to be given the death sentence, but the same is not true in the reverse situation. Thus, many facing the death penalty can be discriminated against, and so a fair trial may not always be guaranteed. Yet, there have been three human rights treaties which the U.S has ratified to prevent such discrimination. The ICCPR forbids any arbitrary use of the death penalty. The UN Convention Against Torture and Other Cruel 1984, Inhuman or Degrading Treatment or Punishment, which forbids any torture and the infliction of severe pain or suffering “based on discrimination of any kind.” The International Convention on the Elimination of All Forms of Racial Discrimination requires parties to “guarantee the right of everyone, without distinction as to race…equality before the law” and tribunals of justice. Yet despite the ratification of these treaties, the Inter- American Commission on Human Rights found the U.S in violation of international law for the execution of William Andrews in Utah . Evidence of racial discrimination by the jury was found; a note was discovered saying, “Hang the Niggers,” yet the Utah court refused to hold an investigation. It proceeded with the trial and the death sentencing. The U.S Supreme court upheld this decision. Thus, the safeguard to ensure a fair trial seems to be failing the minority groups of America, despite all the treaties America has ratified. In this situation, then, it appears that the safeguard and the human rights treaties are failing to ensure fair trials of those facing the death penalty.

In addition to this failure to provide a fair trial, there have also been many problems with protecting the innocent. It has been suggested that one in seven people sent to Death Row are innocent. One of the main reasons for opposing the death penalty is that a miscarriage of justice can sometimes occur. According to a new study, “A Broken System: Error rates in Capital Cases,” the death penalty in the U.S is ‘persistently and systematically fraught with serious error.’ The study continues to say that there is a high error rate across the country, and that it takes on average nine years to find the error. It has been estimated that 23 innocent people have been executed in the U.S alone this century. Also ‘at least 48 people have been released from prison after serving time on Death Row since 1973 with significant evidence of their innocence. 48 wrongly accused people is quite a significant number and they have to suffer on Death Row, whilst awaiting appeal. The system, then, is failing the innocent, and the safeguard in place to protect them seems to be offering little more protection. However, there has been a recent development in this area. The introduction of the Innocence Protection Act 2001 offers a range of approaches to prevent wrongful convictions. The centerpiece of the Act are the strong measures requiring states to provide qualified and experienced lawyers to all defendants facing the death sentence. The Act also provides greater access to DNA testing. The impact this Act has on protecting the innocent will not be known for a while, as it has just been passed. However, the fact that it had to be passed in the first place implies that the ECOSCOs safeguard was not effective.

In conclusion, it can be seen that the safeguards discussed have failed to be effective in practice. The safeguard to protect juvenile offenders seems to be completely ineffective; the safeguard protecting the mentally insane seems to fail in practice but appears to be improving, and the waiting appeal of Penry may greatly change the situation; the safeguards to ensure a fair trial and to protect the innocent seem to, taken on their own, be ineffective in practice. However, due to some revisions in American domestic law there may be significant changes that will lead to less error. Yet, it should be noted that we have only considered three of the safeguards in detail; any of the other six safeguards may be effective in practice.