According to a recent Inter-American Commission on Human Rights report on the death penalty in the Americas, the United States stands out as an outlier in a region that has come close to abolishing the death penalty. This report will be officially launched at a public event next Monday at the American Bar Association, moderated by the ACLU.
What is most striking about the report is not its human rights analysis or the revelation that the U.S. death penalty system has been a failed legal experiment, but rather the human rights body’s persistence in addressing not only systemic failures to uphold due process and fundamental fair trial protections, but also individual cases of death row inmates, most of whom have been executed. The commission mentions at least 36 cases in which precautionary measures – equivalent to a court injunction – were issued and yet, in the vast majority of cases, the U.S. went ahead and executed the individuals. The commission report also details over a dozen merit decisions issued against the United States in the past 15 years.
The commission report additionally highlights major developments in the region, including in the United States, where momentum is building towards abolishing the death penalty. As we stated in our recent submission to the U.N. High Commissioner for Human Rights:
In the last decade the U.S. Supreme Court has outlawed the execution of juveniles, the intellectually disabled, and those who did not commit homicides. The number of new death sentences has dropped dramatically – from a peak of 315 in 1996 to 78 in 2012. New York, New Jersey, New Mexico, Illinois, and Connecticut have recently repealed the death penalty. In November 2012 California also came close to repealing, with 47% of voters supporting the ballot measure that would have replaced the death penalty with a life sentence. On March 15, 2013 the Maryland legislature approved a bill that would make Maryland the sixth state in six years to repeal capital punishment. On March 26, 2013 Delaware's Senate passed a bill to repeal the death penalty. The Delaware House of Representatives is expected to consider the bill in April 2013.
North Carolina passed the Racial Justice Act in August 2009, requiring courts to enter a life sentence for any death row defendant who proves that race was a factor in the imposition of his sentence. In a landmark April 2012 ruling based on that Act, a judge found intentional and systemic racial discrimination in the case of Marcus Robinson, and commuted his death sentence to life without parole. Three more death sentences were set aside under the Racial Justice Act in December 2012.
Increasingly, judges, prosecutors, law enforcement officials, and other former supporters of the death penalty acknowledge that its problems are too legion and the consequences of error too severe.
But people are still being executed. According to the Death Penalty Information Center, as of December 2012, 1,320 people have been executed since the death penalty was restored in 1976. Yet international scrutiny is mounting and the U.S. is left in the sorry company of countries like China, Iran, Iraq, Saudi Arabia, and Yemen as top imposers of the death penalty.
While the death penalty is practiced primarily at the state level, the federal government continues to retain the penalty and fails to do its share to rid the country of this reviled punishment. For example, the federal government could issue a moratorium on all federal executions. It could also take interim actions to minimize the widespread problems in the imposition of the penalty, especially with regard to access to effective counsel and racial disparities in the system. The latter is something the U.S. has committed to do as part of the 2010 Universal Periodic Review of the United States’ human rights record by the U.N. Human Rights Council. Other concrete steps the U.S. could take to abolish the federal death penalty have been identified by the ACLU and other groups. Unfortunately, not only does the Obama administration seem unwilling to issue a moratorium on federal executions, it has sought to impose the federal death penalty even in jurisdictions that have long outlawed the penalty, like the Commonwealth of Puerto Rico.
On the bright side, the U.S. federal government has in the past utilized the IACHR in efforts to limit the imposition of the death penalty. For instance, the commission report highlights the attempt to halt the execution of Leal Garcia in 2011, in which the U.S. government submitted an amicus brief to the Supreme Court and sent communications from the IACHR to state authorities in charge of the execution. Although the application for a stay of execution was ultimately denied, this is a positive example of ways the federal government can play a role in at least limiting the use of the death penalty.
The commission’s concerns about the U.S. death penalty system are shared by close U.S. allies, particularly in Europe, who are taking a more aggressive stand against the use of the death penalty in the United States. European nations regularly condemn individual states for continuing to execute people (see here and here). France has initiated an international campaign to abolish the death penalty, and the European Union regular condemns the practice as contrary to human dignity. Earlier this month, the U.N. Human Rights Committee sent the U.S. detailed questions regarding the government’s compliance with the International Covenant on Civil and Political Rights (ICCPR).
Despite the pressure from our allies, the U.S. continues to defend the death penalty, claiming it has not been outlawed under international law and meets the human rights requirements and safeguards outlined in the ICCPR and other human rights instruments. (Article 6 of the ICCPR provides that the death penalty may not be imposed arbitrarily and may be utilized only for the most serious crimes.)
However, as the IACHR report concludes, the U.S. position is untenable. The U.S. death penalty system does not meet the rigid requirements of international human rights law: as we note in our statement, the penalty is applied in an arbitrary and discriminatory manner without affording vital due process rights such as access to effective counsel and the right to remedy to halt executions - not to mention that methods of execution and death row conditions have been condemned as cruel, inhuman, or degrading.
The U.S. cannot continue to bury its head in the sand and ignore the evolving international consensus against the death penalty, or discount sound jurisprudence from around the world, which clearly shakes the legal and moral foundation of the penalty.
The ACLU is committed to remaining vigilant in the fight against this penalty at home and will continue to inform the international human rights community about the flaws in the system and progress made toward abolition. International advocacy by the NAACP in the1940s garnered global support against racial segregation and Jim Crow policies, which hurt U.S. standing and interests abroad during the beginning of the cold war era. Similarly, the death penalty and other domestic human rights abuses should be a great concern to international civil society and governments with proven commitments to universal human rights.