Execution of Persons Who Did Not Kill
Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) provides that the death penalty may only be imposed for the “most serious crimes.” T he United Nations (UN) Human Rights Committee, which interprets the ICCPR’s provisions, has observed that this provision must be “read restrictively to mean that the death penalty should be a quite exceptional measure.” Human Rights Committee, General Comment 6, Art. 6 (Sixteenth session, 1982) ¶ 7; Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994). In a death penalty case from Zambia, where the prisoner received a death sentence for participating in an armed robbery, the committee held that the sentence was not compatible with Article 6(2) because the petitioner’s use of firearms did not cause death or injury to any person.
The UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the UN Economic and Social Council in 1984, defines “ most serious crimes” as “intentional crimes with lethal or other extremely grave consequences.” Referring to those safeguards, the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions has concluded that the term “intentional” should be “equated to premeditation and should be understood as deliberate intention to kill.” United Nations, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions , U.N. Doc. CCPR/C/79/Add.85, 19 Nov. 1997, ¶ 13.
Yet in the United States, several states authorize the death penalty for persons who are “major participants” in a felony, such as burglary or robbery, even if they never killed, intended to kill, or even contemplated that someone would be killed while committing the crime. In California and Georgia, persons may be sentenced to death for accidental killings during a felony or attempted felony.
Moreover, Texas, South Carolina, Georgia, Louisiana, Oklahoma, and North Carolina allow for the imposition of a death sentence in some cases for the rape of a minor, even if the victim did not die. These laws will be subject to strong legal challenges in coming years, although this will not be an easy battle, as demonstrated by the recent Louisiana supreme court decision upholding a death sentence against an offender who was convicted of raping a child. Louisiana v. Kennedy, No. 05-KA-1981 ( La. May 22, 2007).
Available data indicate that prosecutors rarely seek the death penalty against “non-triggermen,” and executions of these persons are few and far between. These two factors alone indicate that the imposition of the death penalty on persons who have committed nonlethal crimes may be ripe for challenge. In the event that the Supreme Court examines the issue, it is highly likely it will consider international practice. In Enmund v. Florida, 458 U.S. 782 (1982), a case involving a defendant sentenced to death under the felony-murder rule, the Court noted that international norms were “not irrelevant” to its analysis, observing that the doctrine of felony murder had been abolished in England and India, severely restricted in Canada and a number of other Commonwealth of Nations countries, and was unknown in continental Europe.
Execution of the Severely Mentally Ill
Although the Supreme Court has held that the Eighth Amendment prohibits the execution of the mentally incompetent, state and federal courts have routinely concluded that severely mentally ill prisoners are sufficiently competent that they may lawfully be executed. Consequently, dozens of prisoners suffering from schizophrenia, bipolar disorder, and other incapacitating mental illnesses have been executed in the United States during the last ten years. In June 2007, however, the Court overturned a decision by the U.S. Court of Appeals for the Fifth Circuit, holding that the court had used an overly restrictive definition of incompetence. Panetti v. Quarterman, 127 S. Ct. 2842 (2007). This decision may encourage state and federal courts to take greater care in evaluating the mental status of those facing imminent execution, but it does not prohibit courts from sentencing severely mentally ill prisoners to death, nor does it guarantee that severely mentally ill prisoners will not be executed in the future.
In Atkins v. Virginia, 536 U.S. 304 (2002), in which the Court struck down the execution of the mentally retarded, the Court cited an amicus curiae brief submitted by the European Union (EU) as evidence that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Id. at 316 (citing in n.21 Brief for European Union as Amicus Curiae at 4). The current Court likely would be open to considering similar amicus briefs in a future case challenging the execution of the severely mentally ill.
A substantial body of international precedent exists regarding the execution of the severely mentally ill. The UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty prohibit imposing the death penalty “on persons who have become insane.” In 1989, the UN Economic and Social Council expanded this protection to cover “persons suffering from . . . extremely limited mental competence, whether at the stage of sentence or execution.” United Nations Economic & Social Council, Implementation of the Safeguards Guaranteeing Protection of Rights of those Facing the Death Penalty, E.S.C. Res. 1989/64, U.N. Doc. E/1989/91 (1989), at 51, ¶ 1(d).The UN Commission on Human Rights has urged countries not to impose the death penalty on persons suffering from any form of mental disabilities. And the EU has consistently asserted that executions of persons suffering from severe mental disorders “are contrary to internationally recognized human rights norms and neglect the dignity and worth of the human person.” EU Memorandum on the Death Penalty (Feb. 25, 2000).
Racial and Geographic Disparities
Arbitrariness in capital sentencing was one of the factors that led the Supreme Court to strike down existing state death penalty laws in Furman v. Georgia, 408 U.S. 238 (1972). Four years later, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court’s decision to uphold the newly revised laws was based on its determination that the statutes minimized the risk of arbitrary sentencing by channeling the discretion of capital juries. But thirty years later, factors such as race and geography continue to lead to great disparities in capital sentencing. These disparities have led to a different sort of arbitrariness, one that may not be consistent with international norms.
Studies have repeatedly shown that race matters when determining who is sentenced to death. It has been said that, as a statistical matter, race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. In Philadelphia, the odds that an offender will receive a death sentence are nearly four times higher when the defendant is black. A 2006 study confirmed that defendants’ skin color and facial features play a critical role in capital sentencing. And over the last twenty years, social scientists have repeatedly observed that capital defendants are much more likely to be sentenced to death for homicides involving white victims.
Enormous geographical disparities arise as well. This derives, in part, from the lack of uniform standards to guide the discretion of state prosecutors in seeking the death penalty. Prosecutors are almost always elected officials, and their support or opposition to the death penalty in a given case is often influenced by the level of popular support for capital punishment within a given community. In San Francisco, for example, the local prosecutor never seeks the death penalty because she is morally opposed to it. In Tulare County, located in California’s conservative Central Valley, the chief prosecutor is a zealous advocate of capital punishment. As a result, two persons who commit the same crime, and who are ostensibly prosecuted under the same penal code, may be subject to two radically different punishments.
Article 6(1) of the ICCPR provides that nations may not “arbitrarily” take life. The term is not defined in the text of the treaty, nor has the UN Human Rights Committee had an opportunity to elaborate on its meaning in the context of an otherwise lawfully imposed capital sentence. In evaluating “arbitrary arrest and detention,” however, that committee concluded that arbitrariness encompasses elements of inappropriateness, injustice, and lack of predictability. The Inter-American Commission on Human Rights, a human rights body of the Organization of American States, has found that geographic disparities in the application of the death penalty in the United States can result in a “pattern of legislative arbitrariness” whereby an offender’s death sentence depends not on the crime committed but on the location where it was committed. In Roach and Pinkerton v. United States, Case 9647, Annual Report of the IAHCR 1986–87, the Inter-American Commission concluded that such geographic disparities constituted an arbitrary deprivation of the right to life and subjected the petitioners to unequal treatment before the law in contravention of the American Declaration of the Rights and Duties of Man.
These sources are generally considered to be nonbinding. But that does not mean that they are not persuasive. Five justices of the Supreme Court—like many judges throughout the world—find it a worthwhile endeavor to consider international norms in evaluating whether the application of the death penalty comports with basic human dignity, whether it constitutes cruel and unusual punishment, and whether it is consistent with contemporary standards of decency. As the community of nations continues to debate the pros and cons of capital punishment, the United States should take a seat at the table, listen, and learn.