Capital Deficit: A Submission on the Death Penalty to the UN Human Rights Committee

Report
September 1, 2013

Capital Deficit: A Submission on the Death Penalty to the UN Human Rights Committee

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From an international perspective, the death penalty is on the wane. Today 140 countries are abolitionist in law or practice. A small number of countries account for the bulk of the global judicial death toll each year. One of them is the USA.

As illustrated in Appendix 2 of this report, dozens of countries have abolished the death penalty since 1976, a period during which the USA has killed more than 1,300 people in its execution chambers and sent thousands of others to death row.

An opportunity for scrutiny of the application of th death penalty in the USA comes in October 2013, when the USA's human rights record will be reviewed by the United Nations (UN) Human Rights Committee (Human Rights Committee or Committee), the expert body established under the International Covenant on Civil and Political Rights (ICCPR) to oversee implementation of this treaty. The USA ratified the ICCPR in 1992, albeit with reservations that sought to protect its death penalty from international constraint. Amnesty International submitted this supplementary report in advance of the examination on 18 to 21 October 2013 in Geneva, where a US delegation will respond to the Committee's questions in relation to the USA's Fourth Periodic Report.

After scrutinizing the USA's Initial Report in 1995, the Committee called on the USA to work towards abolition of the death penalty (as well as to withdraw its reservations to the treaty). It repeated this call in 2006 after reviewing the USA's combined Second and Third Periodic reports. In what might seem to be a nod of recognition that the route a country should take under the ICCPR is towards abolition, the USA's Fourth Periodic Report indicates that "the number of [US] states that have the death penalty and the size of the population on death row have all declined in the last decade". While a number of states have indeed recently abolished the death penalty, and death sentences in the USA have declined since peaking in the 1990s, this is no thanks to the federal government. Along with those state and local officials who have failed to work towards abolition since the USA ratified the ICCPR, the federal authorities have equally failed to do so and have indeed assisted states in their pursuit of judicial killing.

As outlined in this report, the administration has been somewhat economical with what it has reported to the Human Rights Committee about the death penalty in the USA and the federal government's role in a punishment largely conducted at local and state level. It has, for example, not come clean about how the federal government has over the years supported states in litigation and legislation aimed at facilitating executions. Neither has the USA told the Committee how federal prosecutors have, on occasion, taken over state cases so that the death penalty remains an option when the state in question has run into problems with its capital law. In July 2013, the Obama administration obtained a jury vote for a federal death sentence in such a case in the recently abolitionist New York State, and this death sentence was formally imposed by the judge on 10 September 2013.

While it has noted that the death row population has "declined in the last decade", the administration has not pointed out that federal death row has grown by some 600 per cent since 1995 when the Committee first called on the USA to work for abolition. Nor does it explain why the federal government has failed to do anything about the expansionist federal death penalty law passed in 1994 and condemned in 1995 by the Committee. The administration mentions the Department of Justice's 2000 report that revealed widespread geographic and racial disparities that mark the federal death penalty (as at state level), but is silent about how federal prosecutors continue to litigate to keep such disparities from blocking pursuit of more death sentences. The administration has also failed to inform the Committee of its ongoing efforts to obtain death sentences against six detainees at Guantánamo Bay under a military commission system that does not meet international fair trial standards.