Featured

The Rights of Children Whose Parents Are Sentenced to Death – The Case of Tunisia

Lisa Bronwyn Chokri.png
Lisa Borden (The Advocates for Human Rights), Bronwyn Dudley (World Coalition for Human Rights,and Choukri Latif (Coalition tunissiene contre la peine de mort)

As a longtime practicing attorney in the United States, I spent much of my professional career working on cases related to criminal justice, including prison conditions and the death penalty. My death penalty work brought me in contact with The Advocates for Human Rights several years ago, when I had the opportunity to write a report to the UN Human Rights Council about the death penalty in the United States. So began a volunteer relationship in which I was able to participate in The Advocates’ UN work to abolish the  death penalty and many other issues. It’s thanks to that relationship that I’m now studying International Humanitarian Law and Human Rights at the Geneva Academy in Switzerland, and hope to continue addressing criminal justice issues using different approaches after graduation.

While pursuing my studies, I am also still a volunteer for The Advocates in Geneva. Recently, I had the opportunity to participate in a pre-session meeting with the UN Committee on the Rights of the Child regarding Tunisia’s progress in implementing the Convention on the Rights of the Child. The pre-session meetings provide a chance for non-governmental organizations (NGOs) and other interested stakeholders to provide information to the Committee in a confidential setting. I joined Bronwyn Dudley of the World Coalition Against the Death Penalty, and Choukri Latif of the Coalition tunissiene contre la peine de mort (a Tunisian anti-death penalty NGO), to address the committee regarding Tunisia’s failure to implement the rights of children whose parents have been sentenced to death or were executed. The Advocates, the Tunisian Coalition, and the World Coalition highlighted these issues in a recent report to the Committee.

Children: Unseen victims of the death penalty

WDADP 2019 poster

This year’s World Day Against the Death Penalty, on October 10, 2019, will focus on how children around the world are affected by the death penalty, so meeting with the Committee on the Rights of the Child was a timely opportunity to apply this broader concern to a concrete situation. The World Coalition seeks to raise awareness of the severely damaging psychological trauma inflicted upon children whose parents are sentenced to death, at every stage of the process from arrest to incarceration to execution.

Punishing Tunisian Children for Their Parents’ Wrongdoing Violates the Convention

As in many retentionist countries, people sentenced to death in Tunisia typically spend many years in prison. Indeed, since Tunisia has thankfully been observing a moratorium on the death penalty since 1991, parents who are sentenced to death may spend decades in prison. As Choukri explained in his opening statement to the Committee, Tunisia is failing to protect the rights of those children to maintain meaningful relationships with their parents during their incarceration. Many of these parents are incarcerated far away from their families, and the prohibitive costs of transportation prevent children from exercising their visitation rights. Even for those who can do so, visits are limited to 30 minutes and, for younger children, direct physical contact with the parent is not permitted. Children of death-sentenced and executed parents are not provided with badly needed medical and mental health care to cope with the trauma they endure. Additionally, a new anti-terrorism law has expanded the potential application of the death penalty in Tunisia, including to children themselves, and is very unclear as to what conduct is covered.

Tunisia Must Reform Its Laws and Practices to Respect Children’s Rights

Several Committee members posed questions. The Committee’s questions provided me with an opportunity to offer some specifics about the failings of Tunisia’s laws, and how Tunisian authorities must address those failings to bring Tunisia into compliance with its human rights obligations. We also provided more information about the government’s purported justification for the anti-terrorism law and possible alternative measures.

Around the world, the death penalty in anti-terrorism laws is typically justified as a supposed deterrent to would be terrorists. But academic research reveals that there is no support for the notion that the death penalty is a deterrent to terrorism. In 2016, the UN Special Rapporteurs on summary executions, torture, and human rights while countering terrorism, respectively, specifically warned against using the death penalty in an effort to deter terrorism, stating:

“there is a lack of persuasive evidence that the death penalty could contribute more than any other punishment to eradicating terrorism. The death penalty is also an ineffective deterrent because terrorists who are executed may just gain in prestige, as may their cause.”

In other words, the death penalty, if it has any impact at all, may provide incentives to terrorists.

Tunisia Creates Unnecessary Barriers to Children’s Rights

With regard to the need to continue reviewing and revising laws, I offered the laws affecting children of death-sentenced parents as an example showing that Tunisia’s laws are not yet compatible with the Convention and continue to be in need of reform. The Tunisian Constitution of 2014 expressly recognizes the rights of children and the government’s obligation to act in their best interests, and the law on Special Regulations for Prisons expressly provides that children are entitled to visit their detained parents. But these laws are vague and do not give Tunisian authorities direction about how to account for the recognized rights and obligations. In law and in practice, Tunisia continues to violate children’s rights through arbitrary interference (30 minute visit limitations and lack of physical contact), and failure of the government to make any provision to address the financial barriers associated with transportation to far-flung prison facilities. The latter failure constitutes a de facto denial of the right to visit, but Tunisia does nothing to take this right into account when deciding where a parent will be incarcerated. In fact, Tunisian authorities often deliberately place parents far from their families, considering such isolation to be part of the parent’s punishment. Such punishment obviously violates the rights of the child, just as expressly denying visits would.

I was also able, thanks to the detailed research Bronwyn conducted before the meeting, to point the Committee to two of its own previous recommendations that supported our position that Tunisia has a positive obligation to take the child’s interests into account during criminal proceedings related to the parent.

To learn more about The Advocates’ work on the Death Penalty, click here. For ideas of things you can do to take action for World Day Against the Death Penalty, click here.

By: Lisa Borden, a volunteer with The Advocates for Human Rights, currently based in Geneva, Switzerland.

Featured

The Fight Against the Death Penalty Continues

Brunei
Brunei Darussalam’s delegation at the UN Human Rights Council 

In May 2019, the United Nations Human Rights Council held its 33rd session of the Universal Periodic Review (UPR), as part of the third cycle of the review process. The UPR examines the status and progress of human rights in all 193 member countries of the United Nations. (For more information about the UPR, check out Chapter 9 of Human Rights Tool for a Changing World here.) Among other countries, both the Democratic Republic of Congo (DRC) and Brunei Darussalam received recommendations to further their progress toward abolishing the death penalty.

Both countries have a de facto moratorium on the death penalty. Brunei has had no reported executions since 1957, and the DRC has had the moratorium since 2003. But neither country has ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights to officially move toward abolition of the death penalty. Even though international human rights standards mandate that countries retaining the death penalty must reserve it for only the most serious crimes, Brunei continues to sentence people by hanging for far less.

Under the Syariah Penal Code, adultery, sodomy, rape, apostasy, blasphemy, and insulting Islam are all punishable by death by stoning in Brunei. In the DRC, the administration of the death penalty lacks transparency. Just last year, the government handed down 41 death sentences.

At the Universal Periodic Review

Due to these issues, at the UPR in May both countries faced increasing pressure to abolish the death penalty. Brunei Darussalam received 96 recommendations on the death penalty from 50 countries–38.6% of all recommendations the country received, and a 336% increase from Brunei’s second cycle UPR. The recommendations ranged from ratification of the Convention against Torture to repealing problematic provisions in the Penal Code. The DRC received death penalty recommendations from 17 countries, an increase of 13.3% from the second cycle.

The Advocates, together with the World Coalition Against the Death Penalty, pushed for these recommendations behind the scenes. The two organizations submitted joint stakeholder reports on both countries. (To read the full reports, visit: Brunei and the DRC). Through both emails and in-person meetings, The Advocates lobbied 48 of the 50 countries that made death penalty recommendations to Brunei Darussalam, and 16 out of the 17 countries that made death penalty recommendations to the DRC.

A Lack of Progress?

After taking months to examine the recommendations from May, last month both Brunei Darussalam and the DRC “noted” all the recommendations relevant to the death penalty. In the language of the UN, noted means rejected. Both countries cited their respective sovereignty over the issue as the reason for rejecting the recommendations. Brunei Darussalam used the country’s religious background to justify the current use the death penalty in the Penal Code. Many countries and organizations, including Belgium and the UK, urged the government of Brunei to reconsider its decision. Similarly, a representative of the government of the DRC told the Human Rights Council that the nation’s own parliament should make the final decision on the death penalty. A delegate from Germany, however, urged the DRC to ratify the Second Protocol.

Despite noting these recommendations in the official meeting, the Brunei government took a small step forward. On May 6, the Brunei government announced that it would extend its moratorium on capital punishment to the crimes of homosexuality and adultery. Under laws that had taken effect in April, the two crimes would otherwise have been eligible for the death sentence of stoning. Furthermore, a representative from the government of Brunei told the Human Rights Council that the government had been making progress toward ratifying the Convention Against Torture. Many governments and non-governmental organizations welcomed this move.

The fight persists

This small victory, however, should not overshadow the larger picture. Despite overall progress toward abolition of the death penalty, many countries’ practices are far removed from international human rights standards. The cases of Brunei Darussalam and the DRC signal the difficulty ahead. The Advocates will continue to fight for a humane justice system on an international level.

To learn more about the death penalty, please visit our website here. Also, October 10 is the 2019 World Day against the Death Penalty, and encourage you to get involved.

To watch the full videos of the September 2019 meetings of the Human Rights Council adopting the outcomes of the UPRs of Brunei and the DRC, please visit the links below:

Brunei Darussalam

The Democratic Republic of Congo

By: Yunze Wang, an intern with the International Justice Program at The Advocates for Human Rights and a student at Macalester College.

Featured

Turkey in Danger of Returning to the Death Penalty

flag of turkey
Photo by Engin Akyurt on Pexels.com

On the heels of the July 2016 attempted coup, Turkish officials expressed their intention to reinstate the death penalty for “child killers” and terrorists. The Deputy of the ruling Justice and Development Party (AKP) threatened that the government would introduce a bill calling for the execution of rebel soldiers involved in the coup. President Erdogan stated that he would approve any legislation brought forth by the government to restore the death penalty. The following month, far-right leader of the Great Unity Party, Mustafa Destici, announced that a proposal to reinstate the death penalty would be introduced to Turkey’s parliament in October of that year.

Turkey abolished the death penalty in 2004 and made abolition permanent in March 2006 when it ratified the 2nd Optional Protocol to the International Covenant on Civil and Political Rights (OP2-ICCPR). The Protocol states that “[n]o one within the jurisdiction of a State Party to the present Protocol shall be executed” and “[e]ach State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.” OP2-ICCPR does not authorize a State Party to subsequently withdraw ratification.

Reinstating the death penalty contradicts Turkey’s obligation to abolish capital punishment as a State Party to OP2-ICCPR. What’s deeply troubling is not just that Turkey would renege on its international human rights obligations and resume the use of a cruel and dehumanizing penalty, but that the Turkish government has major motivation to do so in an effort to silence its political opposition and marginalized groups.

Remember how Turkish officials pushed to assign the death penalty specifically to “terrorists” in the wake of the attempted coup in 2016? Terrorist, in this context, seems to be code for dissident. Since 2016, the Turkish Government has used counter-terrorism efforts as a means of cracking down on political opposition. Charges of “terrorism,” “terrorist sympathy,” and “terrorist propaganda” are levied against journalists, academics, and activists who oppose the Turkish Government’s actions and policies. In addition to stifling opposition voices, the government regularly uses charges of terrorism to further persecute the already vulnerable Kurdish community. The Turkish government has historically targeted the Kurdish people; Turkish nationalism promotes both the assimilation and the elimination of non-Turkish minority groups, such as Kurds and Armenians.

In the defense of human rights, it is critical that we say the quiet part out loud: if Turkey reinstates the death penalty under the pretext of using it as a means to combat vaguely defined “terrorism,” Turkish authorities will wield it unjustly to permanently rid Turkish authorities of political opponents. As Turkey’s government institutions are characterized by weak separation of powers, compromising the independence of the judiciary, reinstatement of the death penalty would place even more power in the hands of the executive branch. Reinstatement of the death penalty is a threat not only to journalists and human rights defenders, but also to the Kurdish community, which already faces ethnically motivated persecution and violence at the hands of the Turkish state.

The Advocates for Human Rights frequently collaborates with the World Coalition Against the Death Penalty, serving on its Steering Committee and leading the Coalition’s advocacy at the United Nations. The UN Human Rights Council’s Universal Periodic Review (UPR) is a mechanism during which each nation reports on the state of human rights within its jurisdiction and receives recommendations from its peers—other nations around the world. It is an opportunity for The Advocates and other civil society organizations to lobby UN member states on issues like the death penalty. Often we urge governments to adopt best practices and ratify treaties, usually in response to reports of human rights violations.

Turkey’s third UPR is scheduled for January 28, 2020. Turkey has signed and ratified the relevant treaties, the death penalty has been struck from the law. To defend the Turkish people’s right to life, freedom of opinion, and freedom of expression, The Advocates will lobby governments to press the Turkish Government to make further commitments to uphold the country’s international human rights obligations.

As an intern in the International Justice Program at The Advocates for Human Rights, my work focuses on preparing for and evaluating the success of our lobbying efforts at the UN. Researching the death penalty in Turkey feels like a departure from the norm; past lobbying efforts have been successful and the death penalty was abolished officially, and yet the threat remains. In instances like these, The Advocates and its partners recognize how vital it is to act and advocate proactively to prevent future human rights violations. It is a reminder that even in countries and regions where we can celebrate progress, the protection and maintenance of human rights is ongoing and critical work, whether across the globe or in our own backyards.

You have the power to take action in the face of human rights violations. Learn what you can do to assist The Advocates for Human Rights in our work here. Learn more about our work to end the death penalty here.

By Grace Curtiss, rising junior at the University of Minnesota and summer 2019 intern with The Advocates’ International Justice Program. 

Featured

Capital punishment: victims and their families deserve better

WDADP 2019 posterIn announcing the Justice Department’s decision to resume executions for people sentenced to death under federal law last Thursday, Attorney General William Barr said, “We owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Barr’s words reflect a common misunderstanding about justice and the interests of family members of people who have been killed in horrific crimes.

People often assume that after execution, family members will be able to “move on” or achieve some kind of “closure.” But not all family members share those sentiments. Research confirms that often after the execution family members realize that state-sanctioned killing did not bring them peace. In fact, prosecutors and officials like Barr who want to seem “tough on crime” too often use victims and their family members as pawns.

Tsarnaev jurors kept in the dark about family members’ wishes

One of the people most recently sentenced to death under federal law was Dzhokhar Tsarnaev, who was convicted of crimes related to the Boston Marathon bombing. Bill and Denise Richard, whose 8-year-old son Martin was one of three people killed near the finish line, had urged federal authorities not to pursue the death penalty for Tsarnaev:

We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives. We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.

For us, the story of Marathon Monday 2013 should not be defined by the actions or beliefs of the defendant, but by the resiliency of the human spirit and the rallying cries of this great city. We can never replace what was taken from us, but we can continue to get up every morning and fight another day. As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.

The sister of police officer Sean Collier, another person Tsarnaev and his brother killed, also spoke out against the death penalty, as did two people who lost limbs in the bombing.

Yet despite these sentiments, prosecutors kept the Tsarnaev jury in the dark. When Bill Richard delivered his victim impact statement to the jury, he was not allowed to disclose his opposition to the death penalty.

Prosecutors not only benefit from but also perpetuate the misplaced assumption that all family members of victims want the death penalty. At least one juror in the Tsarnaev trial, Kevan Fagan, said knowing the Richards’ views probably would have changed his vote at the sentencing phase.

Victims’ families are organizing against the death penalty

Victims’ family members like Bill and Denise Richard who oppose the death penalty are often marginalized and mistreated in the criminal justice system. Renny Cushing, who opposed the death penalty long before his father’s murder, recognized that the structures that are designed to benefit victims and survivors are often reserved for people who support capital punishment:

These hard-won benefits are too often unavailable to victims if they oppose the death penalty. Whether this is because victim’s advocacy offices operate under the auspices of the prosecutor or because an assumption exists among advocates that all family members of murder victims will want the perpetrator executed, the result is the same. Too often, family members who oppose the death penalty are silenced, marginalized, and abandoned, even by the people who are theoretically charged with helping them.

(Earlier this year Cushing, who now serves in the New Hampshire legislature, successfully pushed for that state’s repeal of the death penalty.)

Several organizations organized by and for the families of murder victims are speaking out against the death penalty. Murder Victims’ Families for Human Rights, an organization of victims’ family members who oppose the death penalty, has a mission to challenge the assumption that all families of murder victims support the death penalty. MVFHR plays an important role in educating the public and amplifying the voices of victims’ family members who oppose the death penalty, and its website includes a gallery of stories from victims’ family members who oppose the death penalty. Similarly, murder victim family members lead an organization called Journey of Hope . . . From Violence to Healing, a group that conducts public education speaking tours to address alternatives to the death penalty.  They testify side by side with family members of people on death row, family members of people who have been executed, and people who have been exonerated from death row.

Victims’ family members are better off without the death penalty

The President of Journey of Hope, Bill Pelke, co-founded the organization after four teenage girls murdered his grandmother. Pelke originally supported the death penalty for Paula Cooper, who was characterized as the girls’ ring-leader. But he “went through a spiritual transformation in 1986 after praying for love and compassion for Paula Cooper and her family.” He then championed an international crusade and ultimately helped get Cooper’s sentence commuted from death to sixty years in prison. In Pelke’s words, “The death penalty has absolutely nothing to do with healing. [It] just continues the cycle of violence and creates more murder victims family members. We become what we hate.  We become killers.” Research backs up his words.

Dr. Marilyn Armour at the University of Texas and Dr. Mark Umbreit at the University of Minnesota conducted research comparing outcomes for family members of murder victims in Minnesota (which does not have the death penalty) and Texas (which does). Their interviews with family members of murder victims demonstrated that the death penalty results in more negative outcomes:

Although the [death penalty] is promulgated as the ultimate justice, this Study found that the critical dynamic was the control survivors felt they had over the process of getting to the end. In Minnesota, survivors had greater control, likely because the appeals process was successful, predictable, and completed within two years after conviction; whereas, the finality of the appeals process in Texas was drawn out, elusive, delayed, and unpredictable. It generated layers of injustice, powerlessness, and in some instances, despair. Although the grief and sorrow remained high for Minnesotans, no longer having to deal with the murderer, his outcome, or the criminal justice system allowed survivors’ control and energy to be put into the present to be used for personal healing.

These conclusions echo and reinforce the reasons the Richards gave in asking that prosecutors not seek the death penalty for Tsarnaev.

A University of Minnesota study found that just 2.5% of family members reported achieving closure after the execution of the perpetrator, while 20.1% said the execution did not help them heal. Lula Redmond, a therapist who works with victims’ family members in Florida, observed: “More often than not, families of murder victims do not experience the relief they expected to feel at the execution. Taking a life doesn’t fill that void, but it’s generally not until after the execution that families realize this.”

Family members of murder victims deserve support and assistance.

As studies confirm, capital punishment is no panacea to “heal” family members of murder victims. Rather, true healing comes through support, assistance, and restorative justice. Instead of plowing scarce federal and state funds into costly death penalty cases, we would better spend our dollars on improving the scope and quality of victim services. Victoria Coward, whose son Tyler was murdered in 2007, remarked:

If we are serious about helping surviving victims — all of us — we need to see the bigger picture. The bigger picture is that the death penalty is given in fewer than 1 percent of cases, yet it sucks up millions and millions of dollars that could be put toward crime prevention or victims’ services. What I wouldn’t give for a tiny slice of those millions to give my grieving daughters some professional help to process the death of their brother.

Take action

On July 25, the same day as Barr’s announcement, Representative Ayanna Pressley introduced H.R. 4052, a bill to prohibit imposition of the death penalty for any violation of federal law. The bill currently has 12 cosponsors, including independent Rep. Justin Amash.

In introducing the bill, Rep. Pressley said, “It was wrong then and it’s wrong now and I am proud to introduce a bill that completely abolishes the use of capital punishment as a punitive measure. The cruelty is the point – this is by design.”

Encourage your Representative in Washington to cosponsor H.R. 4052 and contact your Senators and ask them to sponsor a companion bill in the Senate. If you live in a state that still has the death penalty, invite speakers from MVFHR, Journey of Hope, or Witness to Innocence to meet with your state elected officials.

The Advocates for Human Rights is proud to join with Journey of Hope, MVFHR, and Witness to Innocence as a member of the World Coalition Against the Death Penalty. Learn more about our work to abolish the death penalty here.

By Amy Bergquist. Amy is a Senior Staff Attorney with the International Justice Program at The Advocates for Human Rights and she currently serves as Vice President of the World Coalition Against the Death Penalty.

Featured

Egypt: The Fight to End Their Excused Executions

During my time as an International Justice Program intern at The Advocates for Human Rights, I have used my Lebanese background and Arabic language skills to dig deep into the lesser-known human rights violations occurring in the Middle East. More specifically, I have focused my research on Egypt and its increased use of the death penalty. Despite the United Nations interventions and the reports produced by international journalists on the issue, the violations have continued on, placing Egypt as the sixth highest nation for total number of people executed.

“Every Tuesday is execution day in Egypt, a trend established late last year [2018] with 23 killed since the end of December,” said ABC News correspondent Farid Farid.

2019 has been a big year for executions in Egypt. 15 people were executed in February alone. According to the Death Penalty Worldwide Organization, at least 22 people were executed in 2015, at least 44 in 2016, at least 35 in 2017, and 12 in 2018. All of these executions have been administered through hanging, for reasons including: terrorism, premeditated murder, crimes committed abroad that are harmful to state security, abduction of a female, threatening any member of Parliament, etc. The Egyptian Penal Code stipulates that the death penalty must be carried out in the presence of a prison guard, a public prosecutor, an official from the Ministry of Interior, the prison director general and doctor, as well as an additional doctor ordered by the Public Prosecution.

On February 20, 2019, the day I started researching this topic, 9 individuals were executed in Egypt for their involvement with the 2015 killing of Egypt’s General Prosecutor, Hisham Barakat. On February 13, 2019, 3 individuals were hanged for killing a police officer in 2013, and an additional 3 individuals were hanged on February 7, 2019 for their connection with the murder of an Egyptian judge’s son in 2017.  Prior to being executed, the individuals are held in detention centers under harsh conditions. The large number of arrests and the increased use of pretrial detention have resulted in extreme overcrowding, less access to resources, and a rising number of deaths in prisons.

“According to domestic and international nongovernmental NGO observers, prison cells were overcrowded, and prisoners lacked adequate access to medical care, proper sanitation and ventilation, food, and potable water,” stated in the US State Department Human Rights Report.

 As of 2014, there are 57 detention centers in Egypt. There is no limit on prison sentence length, which can also factor into the over-crowdedness of the facilities. There have been cases where prisoners detained for politically motivated charges have been held in solitary confinement for several years – which in and of itself is torture. Amnesty International has documented 36 cases of prisoners held in prolonged solitary confinements in Egypt since 2013.  Due to the extreme amounts of torture, 9 detainees have died while in custody, according to Human Rights Watch.

Despite Egypt’s support for the death penalty, they do have their restrictions on the conditions for when and how it can take place. According to the Penal Code, executions may not be administered on official holidays, including religious holidays of the convict’s faith. Although this has not been followed through entirely, the convict’s family is only allowed to visit them the day before they are executed. In addition, the Egyptian government is responsible to pay the expenses for the burial, unless the family has other wishes, and the burial must not have a ceremony.

After reading countless of stories about executions in Egypt and various countries, I am more aware and driven to continue to spread awareness on this issue. More than 160 countries have abolished the death penalty or refuse to practice it, but the fight to end it worldwide is not done yet. Whether it is administered for cultural, religious, or traditional reasons, the death penalty is a human rights violation that should not be tolerated.

 “The death penalty has no place in the 21st century,” stated on the United nations Human Rights Office of the High Commissioner website.

Egypt’s use of the death penalty doesn’t seem to have an end date in the near future unless the international community proceeds with the fight for its abolishment. The Advocates for Human Rights continues to work at putting a stop to this human rights violation through their international advocacy as a steering committee member of the World Coalition Against the Death Penalty, as a chair of the World Day Against the Death penalty, and through their submissions to the United Nations human rights bodies. Regardless of if it’s China, Iraq, Iran, Egypt, or any of the other countries that continue to practice such torturous methods, the death penalty should not be administered and should cease to exist worldwide.

Celine Ammash is a rising University of Minnesota senior majoring in Global Studies.  She was a spring 2019 intern with The Advocates’ International Justice Program through the University’s Human Rights Internship class.

 

Featured

Death Penalty Moratorium Brings California Closer to International Human Rights Norms

CA death chamber
Photo: Office of the Governor of California  https://www.sfgate.com/bayarea/article/Striking-photos-show-San-Quentin-execution-13686251.php#photo-17066014

In March 2019, California Governor Gavin Newsom announced the state’s moratorium on the death penalty. His executive order gave the more than 700 inmates on death row reprieve from future execution (although they are still under sentence of death), closed the execution chamber in San Quentin Prison, and withdrew California’s lethal injection protocol. Governor Newsom’s order is a strong stance against the death penalty in California and the United States. The moratorium in my home state of California coincided with my internship here at The Advocates, where I have both worked on and learned about issues globally and domestically related to the death penalty.

The United States’ use of the death penalty and the conditions on death row are gross violations of global human rights norms. As of 2013, there were 3,000 prisoners on death row across 35 states . In Texas, inmates on death row are held in solitary confinement and spend all but 1-2 hours a day in isolation. When they receive visitors they are barred from having physical contact, including with their children Across the country, 93% of states with the death penalty lock up death row inmates for 22 or more hours a day and 67% of states mandate no-contact visitation for death row inmates. Additionally, 62% of states do not offer religious services to death row inmates. This practice violates the Constitution’s First Amendment, the Religious Freedom Restoration Act (for federal and DC prisons), the Religious Land Use and Institutionalized Persons Act, as well as the International Covenant on Civil and Political Rights

Being held in solitary confinement, sometimes for decades, has disastrous impacts on the mental health of death row inmates. Craig Haney, a psychologist at University of California Santa Cruz, conducted a 2003 study of inmates in solitary confinement. He found that two-thirds of inmates talked to themselves and nearly half had “perception disorders, hallucinations, or suicidal thoughts” and Stuart Grassian, who interviewed hundreds of inmates in solitary confinement, found that one-third developed severe mental illness. It is not an exaggeration to say that the treatment of death row inmates in solitary confinement amounts to torture. Techniques of social isolation of detainees in Iraq and Afghanistan were some of the most common of the United States’ so-called “enhanced interrogation” techniques. The United Nations Human Rights Council’s Special Rapporteur on Torture, Nils Melzer, has argued these interrogation methods amount to torture. 

The United States’ treatment of death row inmates violates the United Nations’ Standard Minimum Rules of the Treatment of Prisoners, also known as the Nelson Mandela Rules. While the rules are not legally binding, they do set minimum expectations for the treatment of prisoners. The denial of religious services and resources violates two of these rules: rule 4, which states that prisons should offer education and and vocational training and other forms of recreation and assistance, including spiritual assistance, and rule 104, which requires that inmates be provided with religious instruction. With regard to the use of solitary confinement, rule 43 specifically prohibits “prolonged or indefinite solitary confinement.” Rule 45 goes on to prohibit solitary confinement as a condition of a prisoner’s sentence. The routine confinement of death row inmates to solitary confinement for the duration of their incarceration, particularly when mandated by state law, violates these rules.  

The Advocates is actively working to combat the death penalty in the United States and globally. The Advocates is on the Steering Committee of the World Coalition Against the Death Penalty. As part of our human rights advocacy at the UN we advocate against the death penalty by issuing reports and lobbying on the use of the death penalty on minors, inhumane detention conditions, lack of adequate legal representation, and other human rights concerns surrounding the death penalty. As part of this work The Advocates has collaborated not only with the World Coalition Against the Death Penalty but also with local organizations and activists on reporting and advocating against the death penalty around the world. Combating the death penalty is a central piece of The Advocates’ work in international justice, and I am glad to have had the opportunity to be a part of this work.

By Hannah Maycock, a Fall 2018/Spring 2019 International Justice Intern at The Advocates. She graduated with a degree in Political Science from Macalester College May 2019.  

Featured

Puerto Rico and the Federal Death Penalty: A Legacy of Colonial Paternalism

90th anniverario

Today marks the 90th anniversary of the abolition of the death penalty in Puerto Rico. Following significant human rights progress in the nineteenth and twentieth century driven by Latin American abolitionist movements, Puerto Rico’s legislature abolished the death penalty on April 26, 1929.

A history of opposition

In 1952 the Puerto Rican Constitution further secured abolition by declaring: “The death penalty shall not exist.”

The Puerto Rican Constitution has a unique history. The Congress of the United States adopted a law in 1950 authorizing Puerto Rico to draft its own constitution. After several months of deliberation, the Constitutional Convention of Puerto Rico produced a draft Constitution. In 1952 the electorate in Puerto Rico approved that document, with support of nearly 82% of voters. After the referendum, the U.S. Congress amended the draft constitution, but did not amend the provision prohibiting the death penalty. After those amendments, the Constitutional Convention reconvened and approved a resolution accepting the congressional amendments. And in November 1952, the Puerto Rican electorate approved the amended constitution.

Commemorating 90 years of abolition

The legislature of Puerto Rico is commemorating the historic milestone of abolition of the death penalty with a joint resolution that explicitly reaffirms abolition of the death penalty and rejects the application of capital punishment as a “failed mechanism” which is implemented in an “arbitrary and discriminatory manner.”

Federal authorities have stepped up efforts to seek the death penalty in Puerto Rico

Despite Congress explicitly accepting and endorsing Puerto Rico’s Constitution, the federal government has continued to seek death sentences in Puerto Rico, ignoring strong local opposition. In this sense, today’s resolution, and the anniversary more generally, also highlight the complex colonial history of capital punishment in Puerto Rico.

Puerto Rico’s continuing commitment to fighting the death penalty reflects not only the collective, cultural opposition of its citizens to capital punishment, but also a world view that recognizes the fundamental incompatibility of the death penalty with human rights. At a time when there may be ominous backsliding on these issues at the federal level, Puerto Rico is leading by example.

The Juan Pedro Vidal case sheds light on these tensions

When the federal government seeks the death penalty in Puerto Rico, it is violating not only the right of all persons to be protected from cruel and inhuman punishment, but also the right of self-determination of the people of Puerto Rico.

Today’s joint resolution by the Puerto Rican legislature highlights a decision issued earlier this month by Judge Gustavo A. Gelpi of the U.S. District Court for the District of Puerto Rico. In that decision, Judge Gelpi rejected Juan Pedro Vidal’s argument that the Federal Death Penalty Act does not apply to Puerto Rico.

Vidal argued that U.S. citizens who reside in Puerto Rico should not be subject to federal civil and criminal laws that are crafted by representatives for whom they did not vote, particularly in light of the history of Puerto Rico’s decision to abolish the death penalty and the formal act of the U.S. Congress approving that decision.

In a four-page opinion, Judge Gelpi rejected Vidal’s arguments, asserting that capital punishment falls into a category of federal laws that apply equally to all citizens, independent of questions of geography. The court stated that the issue of disenfranchisement of U.S. citizens living in Puerto Rico presented a question to be resolved through the political process, not the court. Moreover, the court reasoned, even though the Puerto Rican Constitution prohibits capital punishment, federal law preempts state law for federal crimes, as would be true in any other state.

The principle of consent of the governed

The court’s order ignores Puerto Rico’s unique status and history which place the people of Puerto Rico in a “democratic void,” unable to seek adequate political or legal recourse. Today’s joint resolution noted this dissonance, emphasizing that U.S. citizens in Puerto Rico have no say in the federal government policy that can take their lives.

Steven Potolsky, who represented Pedro Vidal and specializes in death penalty defense, argued that it was precisely due to this lack of representation that judicial action was necessary. Potolsky emphasized that because the U.S. Congress had originally accepted Puerto Rico’s constitutional prohibition of the death penalty, retroactive application of federal capital punishment was unreasonable and excessive, especially in light of the fact that U.S. citizens living in Puerto Rico have no democratic mechanism to voice their opposition at the federal level.

Federal judge’s arguments place Puerto Ricans in a double-bind

Although Judge Gelpi acknowledged that the lack of representation was undemocratic, he said that it was not unconstitutional, and that it was left to “the hands of Congress” to fix the problem.

The court never explains how to determine when something that is undemocratic is also unconstitutional, or why exactly the courts should not intervene. The court’s analysis drew on other opinions applying federal law to colonial territories, but ignored Puerto Rico’s distinct and unique history. The opinion seems to place Puerto Ricans in a political-legal double bind.

The court also ignores Puerto Ricans’ longstanding opposition to the death penalty. As the joint resolution highlights, no jury in Puerto Rico has ever sentenced a person to death under federal law, even after those juries have reached guilty verdicts.

Worrying trends under the Trump Administration

The court’s logic is even more worrying when framed within the broader of the death penalty in the United States since 2016. Amnesty International has documented an increase in the number of executions and death sentences since 2009 for two years in a row.

Although these numbers still remain at historical lows, the trend points to an ominous political and legal climate under the Trump presidency. They call on us to be vigilant and to combat backsliding.

In the context of Puerto Rico, the joint resolution noted that even though Puerto Ricans account for just 1% of the U.S. population, Puerto Rico accounted for 20% of all federal death penalty cases between 2012 and 2014. With these trends in mind, the federal courts should pay more careful attention to their role in safeguarding the rights of people in territories like Puerto Rico.

Continuing local, national, and international efforts to fight the death penalty

The Vidal decision has further galvanized the Puerto Rican fight against the death penalty. Kevin Miguel Rivera-Medina, President of the World Coalition Against the Death Penalty and of the Puerto Rican Bar Association, expressed frustration at the hearing before Judge Gelpi. Attorneys for the federal government—both white and not Puerto Rican—asserted that Puerto Ricans were not traditionally opposed to the death penalty. The argued that the death penalty was used during the 19th century and in the early 20th century. But as Rivera-Medina pointed out, they ignored the fact that during that time Puerto Rico had been under the Spanish colonial regime and then was a U.S. colonial territory.

In celebration of the 90th anniversary of Puerto Rico’s abolition of the death penalty, universities and high schools are holding round tables on the topic and the Puerto Rican Coalition Against the Death Penalty is welcoming Witness to Innocence—an organization created by and for death row exonerees—to the Puerto Rican legislature.

The Advocates for Human Rights is preparing to bring these issues to the international stage

In May 2020, the United States will participate in its third Universal Periodic Review at the U.N. Human Rights Council. During the last UPR, The Advocates raised the issue of the death penalty in Puerto Rico in a joint stakeholder report coauthored with the Puerto Rican Coalition Against the Death Penalty and the Greater Caribbean for Life We are busy preparing an updated report that will identify some of the recent developments in Puerto Rico and throughout the United States that warrant the world’s attention. For more information about using the United Nations to promote human rights, see Chapter 9 of Human Rights Tools for a Changing World. To read more about the death penalty in the United States and other countries, consult our online library of UN submissions.

By Shubhankar Dharmadhikari, an intern with the International Justice Program at The Advocates for Human Rights. He is a student at the University of Minnesota.

pena de meurte