Featured

Dignity for All: World Day Against the Death Penalty highlights detention conditions on death row

“The best way to ensure someone does not leave prison is to make him into the person he was prosecuted as.” – Damon Thibodeaux, exoneree who spent 15 years on Louisiana’s death row

Imagine living in a 8 by 10 foot room with a steel or concrete slab for a bed.  The door is solid steel and the food tray slot at the bottom offers the only source of contact with the rest of the world. These are the kinds of conditions that many death row inmates in the United States endure for 23 hours a day. The Advocates highlighting the brutal living conditions for people on death row at a Continuing Legal Education event on October 10, the 16th annual World Day Against the Death Penalty. The event was hosted at the law firm of Fredrikson & Byron. During this talk, speakers contrasted current conditions in U.S. prisons with the minimum standards set by the Nelson Mandela Rules. Their presentations highlighted the physical and psychological consequences of those conditions on people sentenced to death in the United States.

The Nelson Mandela Rules, formerly known as the UN Standard Minimum Rules for the Treatment of Prisoners, outline prison standards with relation to disciplinary measures, legal representation, and medical treatment. Amy Bergquist, staff attorney at The Advocates and Vice- President of The World Coalition Against the Death Penalty, explained these rules and gave examples describing how they are seldom followed here in the United States and in other countries. For example, Rules 24-29 state that inmates have the right to access the same quality of healthcare that is available in the general community outside the prison. In many countries, including the U.S., healthcare for detained people is, however, grossly neglected in order to keep costs low. According to the Federal Bureau of Prisons’ chief psychiatrist, close to 40% of inmates have mental illness while only 3% of them are being treated regularly. These services are typically provided only to inmates who had been diagnosed and were receiving treatment prior to their arrest, while people who develop symptoms or are diagnosed in prison are often overlooked.

When combining the substandard health care system in prisons with solitary confinement, prisoners are set up to play a self-fulfilling prophecy. Damon Thibodeaux, an exoneree who survived 15 years on Louisiana’s death row, described this degrading treatment during the World Day event.  He stated, “It is meant to break you down morally, mentally, and physically. It is meant to tear you down so they can paint you as the inhuman animal.” He detailed the unbearable heat in his small, unairconditioned cell during Louisiana summers, when the only way to cool off was to strip down and lie on the floor. Thibodeaux also described the communicable diseases that spread through the prison because of overcrowding. He explained that these diseases would often go untreated because inmates had to pay to see a healthcare provider and often faced long delays before receiving treatment.

Also speaking at the event was Lisa Borden, Baker Donelson’s Pro Bono Shareholder and an attorney who represents indigent death row inmates. Borden also described the prison conditions she has witnessed in the Alabama state prison system. She is currently representing detained clients in a class action lawsuit against the Alabama Department of Corrections. The district court found the mental health care services provided to prisoners are “horrendously inadequate”. One of the key problems, as Borden explained, is the privatization of healthcare in the prison system. Since the private health care providers are allocated a set amount of funding per person, they have an incentive to keep their costs low by using fewer resources.

Borden also shared the extreme conditions that prisoners who are not in solitary confinement routinely face. “Most facilities house 150-200% of the number of people for which they are designed.” These overcrowded conditions are worsened by staffing shortages, with some prisons having less than 40% of the recommended prison staff.  In addition, prisons in Alabama are old, with dilapidated structures.  Borden shared an account where a prisoner died in his cell after his neighboring cellmate reported his unresponsiveness. Due to the prison’s malfunctioning electronic locking system, the officers were not able to reach him until 30 minutes after they were notified.

This event highlighted the human rights violations faced by people sentenced to death, as well as by other detained individuals, in the United States. To learn more about living conditions on death row around the world, see http://www.worldcoalition.org/worldday.html

By Elshaday Yilma, Lutheran Volunteer Corps member and The Advocates’ International Justice Program Assistant

United States General Assembly. (2016). United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Retrieved from https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf

United States Department of Justice. (2017). Review of the Federal Bureau of Prisons’ Use of Restrictive Housing for Inmates with Mental Illness. Retrieved from https://oig.justice.gov/reports/2017/e1705.pdf

University of Texas School of Law Human Rights Clinic. (2017). Designed to Break You: Human Rights Violations on Texas’ Death Row. Retrieved from https://law.utexas.edu/wp-content/uploads/sites/11/2017/04/2017-HRC-DesignedToBreakYou-Report.pdf

Advertisements
Featured

Sri Lanka’s Evolving Stance on the Death Penalty

Sri Lanka photo 1 SL delegation
The delegation from Sri Lanka, led by H.E. Mr. Harsha De Silva, Deputy Minister of National Policies and Economic Affairs of Sri Lanka, at the November 15th, 2017 UPR of Sri Lanka. Source: http://webtv.un.org/meetings-events/human-rights-council/universal-periodic-review/watch/sri-lanka-review-28th-session-of-universal-periodic-review/5648383899001#

The Advocates for Human Rights serves on the Steering Committee of the World Coalition Against the Death Penalty. In that capacity, The Advocates often collaborates with the World Coalition to engage in advocacy at the United Nations when a UN body reviews the human rights record of a country that retains the death penalty.

One recent example is Sri Lanka. The Advocates, in collaboration with The World Coalition, submitted a stakeholder report about the death penalty in Sri Lanka for consideration during the country’s third Universal Periodic Review (UPR) at the UN Human Rights Council.

Sri Lanka acknowledges itself as a de facto abolitionist state and carried out its last execution in 1976. Yet Sri Lankan courts continue to sentence defendants to death and the country’s constitution still authorizes the use of the death penalty. According to Amnesty International, in 2016 Sri Lankan courts sentenced at least 79 people to death and an estimated 1,000 prisoners were under sentence of death.

During Sri Lanka’s second UPR in 2012, six countries made recommendations that called on Sri Lanka to abolish the death penalty or consider a formal moratorium. Sri Lanka rejected all six recommendations. Since then, President Sirisena and his government have made positive public statements suggesting they are working toward abolishing the death penalty. In a speech given at the 30th Session of the UN Human Rights Council in September 2015, the Minister of Foreign Affairs of Sri Lanka reinforced that the Sri Lankan Government was committed to maintaining the moratorium on the death penalty, with a view to its ultimate abolition. In December 2016, Sri Lanka voted with 116 Member States of the United Nations to support a universal moratorium on the death penalty.

The public statements made by Sri Lanka were reinforced by the country’s increased openness to UPR recommendations. During its latest UPR on November 15th, 2017, Sri Lanka accepted three of thirteen recommendations made on the death penalty.

In 2012, Sri Lanka rejected three recommendations that urged considering abolition of the death penalty: “Consider the definite abolishment of the death penalty in its internal legislation” (Argentina and Ecuador) and “Seriously consider the possibility to abolish capital punishment” (Italy). In 2017, Sri Lanka accepted two remarkably similar recommendations: “Consider to abolish the death penalty” (Italy) and “Consider abolishing the death penalty” (Timor-Leste). Sri Lanka’s willingness to accept such recommendations may indicate changing government attitudes toward the practice.

Sri Lanka pays particular attention to the specific wording of recommendations. Sri Lanka’s new-found willingness to accept death penalty recommendations extends only to accepting recommendations that don’t bind them to any decision — all three accepted recommendations begin with some form of the word “consider.” For example:

  • Sri Lanka accepted, “Consider ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty” (Uruguay) but rejected “Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty” (Montenegro, Spain).
  • Similarly, Sri Lanka accepted “Consider abolishing the death penalty” (Timor-Leste) but rejected “Abolish the death penalty” (Australia). Sri Lanka rejected seven comparable recommendations, even those that recommended “taking steps” towards abolition.
Sri Lanka photo 2 Timor Leste gives rec
Mr. Aurélio Barros, representative from Timor-Leste, delivers his country’s recommendations to Sri Lanka during the November 15th UPR. Source: http://webtv.un.org/meetings-events/human-rights-council/universal-periodic-review/watch/sri-lanka-review-28th-session-of-universal-periodic-review/5648383899001#

To be sure, a recommendation to “consider” abolition of the death penalty is not as strong as a recommendation to abolish the death penalty. The fact that some governments made weaker recommendations and some made stronger recommendations nevertheless gives us some insights into Sri Lanka’s evolving position on the death penalty. And we expect the Sri Lankan government to take concrete steps between now and its next UPR in 2022 to explore how abolition could be incorporated into the Penal Code and Constitution or to conduct public awareness surveys on the popularity of the practice. Perhaps by the time Sri Lanka is up for its fourth-cycle UPR, the country will have had enough opportunity for careful consideration to be able to definitely abolish the death penalty.

By Laura Dahl, a 2017 graduate of the University of Minnesota with a degree in Global Studies and Neuroscience. She is a Fall 2017 intern with The Advocates’ International Justice Program.

This post is the third in a series on The Advocates’ international advocacy.  The series highlights The Advocates work with partners to bring human rights issues in multiple countries to the attention of the United Nations Human Rights Council through the Universal Periodic Review mechanism. Additional post in the series include:

How The Advocates brings the stories of women and children fleeing violence to the international stage

The Advocates’ lobbying against the death penalty packs a big punch at the Universal Periodic Review of Japan

Ukraine delays decision on Universal Periodic Review recommendations on domestic violence

Featured

The Advocates’ lobbying against the death penalty packs a big punch at the Universal Periodic Review of Japan

death_penalty_countries_map
Map of the world based on countries’ death penalty status. Source: http://www.telegraph.co.uk/travel/maps-and-graphics/countries-that-still-have-the-death-penalty/

Japan is one out of the fifty eight countries (including the United States) where the death penalty is still legal and actively carried out. In Japan, crimes punishable by execution include murder, terrorism, arson, and treason. Based on reports from the Japan Innocence & Death Penalty Information Center, 106 people have been executed since 1993, and as of November 2017, 126 people are currently on death row.

Hanging is the main method of execution in Japan, and is carried out in an isolated penal institution. The Japanese Government severely restricts people on death row from having contact with the outside world. Within the detention center, the communication of people on death row is strictly limited; only lawyers and close relatives are allowed to visit death row inmates. Furthermore, people sentenced to death are informed of their impending execution only on the morning of the execution. The Japanese government insists that such last-minute notification inflicts less psychological pain on people sentenced to death.

After learning of the death penalty policies and practices in Japan, we wanted to see how advocacy against the death penalty from various sources (civil society, states, stakeholders, etc.) could make a tangible impact. These issues regarding Japan’s death penalty and prison conditions have prompted criticism from domestic and international human rights organizations. A systematic mechanism for the organizations to raise these concerns is the Universal Periodic Review (UPR) process at the United Nations’ Human Rights Council.

The Universal Periodic Review: What is it?

UPR_overview_sc
Japan’s Review during the 28th Session of the Universal Periodic Review, 14 November 2017 Source:http://webtv.un.org/search/japan-review-28th-session-of-universal-periodic-review/5644308605001/?term=japan&lan=english&cat=Human%20Rights%20Council&sort=date

Every four and a half years, countries are required to undergo a Universal Periodic Review by the Human Rights Council. All UN member states – 193 countries in total – are required to participate in the UPR process, whereby they are subjected to review by the United Nations and are given the opportunity to report their progress on human rights issues and to receive and respond to recommendations from other countries.

The UPR process is structured in a way that allows for feedback from the state under review, as well as from on-the-ground non-governmental organizations (NGOs). NGOs and National Human Rights Institutions (NHRIs) can submit stakeholder reports with firsthand accounts of the government’s failure to respect human rights. These stakeholder reports ensure that the Human Rights Council gets an accurate, well-rounded picture of the human rights situation in the state under review before the UPR’s “interactive dialogue.”

The Advocates’ UPR lobbying pays off

The Advocates for Human Rights works with other stakeholders to research and submit reports for consideration in the UPR process. Once the reports are submitted, The Advocates continues its efforts by contacting delegations of other UN member countries and lobbying them to make recommendations to the country under review. This lobbying can be done in person or via email. Oftentimes, these recommendations pertain to a single issue. The Advocates’ lobbying process for the November 2017 UPR of Japan provides a window into this type of UPR advocacy.

In preparation for the 28th Session of the Universal Periodic Review, The Advocates submitted a stakeholder report in conjunction with The Center for Prisoners’ Rights in Japan and The World Coalition Against the Death Penalty. (Readers can access the full report on The Advocates’ website.) After submitting the stakeholder report, The Advocates reached out to several country representatives to raise its concerns on the issue of the death penalty in Japan.

The Advocates sent emails lobbying against the death penalty in Japan to 26 countries. Of the 26 countries contacted, 21 countries made recommendations at Japan’s UPR dialogue (the other five were not present at Japan’s UPR). Twenty of these countries made recommendations in line with The Advocates’ lobbying. These recommendation included the following:

  • Immediately impose an official moratorium on the use of the death penalty (Australia, Belgium, Finland, Italy, Germany, Netherlands, Norway, Switzerland)
  • Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at abolishing the death penalty (Argentina, Slovenia, Spain, Turkey, Uruguay)
  • Amend the Act on Penal Detention Facilities and Treatment of Inmates to ensure detention conditions meet international standards (Netherlands)
  • Open up a public debate and take concrete steps toward ending the death penalty (Belgium, France, Mexico, Norway, Rwanda, UK)

Beyond these twenty states, other representatives also made recommendations about the death penalty, echoing one or more of The Advocates’ recommendations. In total, 42 out of the 105 country representatives – a whopping 40% – participating in Japan’s UPR addressed the death penalty, demonstrating the strong international pressure for change in the country’s legal system. 

country_rep_sc
Country representatives of those who strongly recommended an end to the death penalty in Japan. Top row (from left to right): Mr. Suresh Adhikari, Nepal; Mr. Charles Kent, UK; and Ms. Laura Aubry, Switzerland. Middle row: Ms. Katarina Andric, Croatia; Mr. Curtis Peters, Canada; and Ms. Herborg F. Alvsaaker, Norway. Bottom row: Ms. Veronika Bard, Sweden; Ms. Lone Thorup, Denmark; and Ms. Monique T.G. Van Daalen, the Netherlands. Source:http://webtv.un.org/search/japan-review-28th-session-of-universal-periodic-review/5644308605001/?term=japan&lan=english&cat=Human%20Rights%20Council&sort=date

Japan’s Response

In a closing statement at the UPR session, Mr. Yoshifumi Okamura and other representatives from the Japanese Government responded to the recommendations offered by other UN member countries. The Japanese delegates asserted the use of the death penalty in Japan is “unavoidable” and an immediate moratorium on the death penalty would be “inhumane” to the prisoners currently on death row, because such an act would arouse their hopes for abolition of the death penalty. The delegation rejected recommendations to convert death sentences to life imprisonment, asserting that a life sentence is a “very harsh punishment” and expressing great concern that the “character of the inmate will be destroyed due to prolonged confinement.”

Perhaps the most puzzling response from the Japanese Government was on the issue of notifying death row inmates of their execution on the morning on the execution. Government representatives asserted that an “inmate’s mental and psychological stability could be undermined and pain could be inflicted upon [them] if [they] were to inform about execution before the day of the execution.” As The Advocates’ noted in its report, the daily stress of not knowing the date of an impending execution certainly does even more to undermine the inmate’s mental and psychological stability.

After viewing the entire UPR session, we see that Japan is making strides in many areas of its human rights practices and policies. But progress in some areas does not erase the injustice of the continued practice of the death penalty and poor detention conditions. At the adoption of the Universal Periodic Review Working Group report, Mr. Yoshifumi Okamura stated: “There is no end to the promotion and protection of human rights.” The death penalty violates the most fundamental human right: the right to one’s own life. We hope Japan and the fifty seven other countries that actively the death penalty soon realize that this right is fundamental and act accordingly.

JAP_UPR_Yoshifumi_sc
Mr. Yoshifumi Okamura (front row, second from the left), the Representative of the Government of Japan and Ambassador Extraordinary and Plenipotentiary of Human Rights. Source: http://webtv.un.org/search/japan-review-28th-session-of-universal-periodic-review/5644308605001/?term=japan&lan=english&cat=Human%20Rights%20Council&sort=date

By Emma Lind and Xuemeng Yao.

Emma Lind is a 2017 graduate of St. Olaf College in Northfield, Minnesota with degrees in International Human Rights and Psychology. She is a 2017 fall intern with The Advocates’ International Justice Program.

Xuemeng Yao is a junior at Macalester College with a major in Sociology. She is a 2017 fall intern with The Advocates’ International Justice Program.

This post is the first in a series on The Advocates’ international advocacy.  The series highlights The Advocates’ work with partners to bring human rights issues in multiple countries to the attention of the United Nations Human Rights Council through the Universal Periodic Review mechanism. Additional post in the series include:

How The Advocates brings the stories of women and children fleeing violence to the international stage

Sri Lanka’s Evolving Stance on the Death Penalty

Ukraine delays decision on Universal Periodic Review recommendations on domestic violence

Featured

Young artists share their vision for a world without the death penalty

IMG_5437
Masongezi, a student from the DRC, with his poster. It reads “No to the death penalty”.

Today, October 10, is the World Day Against the Death Penalty.   I am thinking back to a conference I attended in Kinshasa, Democratic Republic of the Congo, just a few weeks ago, on strategies for abolishing the death penalty. The conference, in partnership with Together Against the Death Penalty (ECPM), included two full days of presentations, discussions, and exhibitions. ECPM invited me to lead workshops on the Human Rights Council’s Universal Periodic Review and on conducting fact-finding to document conditions on death row in the DRC.

I found one part of the conference to be particularly powerful. As part of ECPM’s “Draw Me the Abolition” project, students around the world submitted illustrations of their conceptions of the death penalty. Four Congolese finalists were awarded diplomas at the conference and we were able to see all of the winning artwork on display. Their illustrations serve as a powerful testament to the harsh realities of the death penalty.

Below are some of the Congolese finalists and their extraordinary artwork, along with other winning posters. The illustrations, rife with pain, are indicative of the injustice of the death penalty.

IMG_5410
Mr. Nicolas Perron, Program Director of the ECPM, presents a diploma to one of the artists.

 

IMG_5430
Artwork on display by students from the DRC. “Non a la piene de mort” translates to “No to the death penalty”.

 

IMG_5433
A visual representation of the five countries with the largest number of executions in 2016. China, Iran, Pakistan, Saudi Arabia, and the United States topped the list.
IMG_5434.JPG
“The death penalty- a suffering for the family of the condemned.” This image depicts the ripple effect the death penalty has upon the people close to those executed.
IMG_5438
Mbuyi, a student from the DRC, with his artwork.
IMG_5439
Monungu, from the DRC, displays his poster which translates to “Why kill? No! To the death penalty”.
IMG_5445
“Together to cut the ropes and the death penalty” drawn by a Tunisian student.
IMG_5446
Artwork on display by Pakistani students.
IMG_5448
Posters by German finalists.
IMG_5450
Artwork by Mexican and Taiwanese students. The red poster reads, “We are not the god of death, we should not deprive people’s lives.”
IMG_5456
French student artwork. The second poster from the left reads, “To execute is to break a family.” The second poster from the right reads, “In 12 countries of the world, people are executed for homosexuality.”

Take action

  • Which posters do you find most compelling? Share this blog post to spread the word
  • Attend the upcoming screening of The Penalty at the Twin Cities Film Fest (Wednesday, Oct. 25, 7:20 pm) and stay for the post-film discussion, including The Advocates’ Executive Director Robin Phillips
  • Follow The Advocates for Human Rights and The World Coalition Against the Death Penalty on social media
  • Share why you oppose the death penalty on social media, using the hashtag #NoDeathPenalty
  • Organize an event in your community
  • Write to a prisoner on death row
  • Call on the federal government to impose a moratorium on the use of the death penalty
  • If you live in a state that still has the death penalty, call on your elected officials to end the death penalty and call on prosecutors to stop seeking the death penalty

By Amy Bergquist, The Advocates’ International Justice Program staff attorney.

Featured

Uncovering hidden obstacles to the rights of persons with disabilities in Iran

IMG_3551The Advocates for Human Rights offers volunteers a remarkable and rewarding breadth of opportunities to effect change around the world. As an example, I recently had a chance to advocate for the rights of Iranians with disabilities when I traveled to Geneva, Switzerland with The Advocates to lobby the United Nations Human Rights Council on a variety of human rights issues.

A Persian Proverb says “A blind person who sees is better than a seeing person who is blind”:  Uncovering hidden obstacles to the rights of persons with disabilities in Iran.

Iran Under Review by the Committee on the Rights of Persons with Disabilities

The Committee on the Rights of Persons with Disabilities (CRPD) was considering the  initial report submitted by Iran since its adoption of the Convention on the Rights of Persons with Disabilities in 2008. In its report, and its opening remarks to the Committee, Iran painted a rosy picture of its progress in removing obstacles and providing greater equality and support for persons with disabilities.

Even without digging beneath the surface, though, the language of those documents displayed a continuing view that persons with disabilities are lesser beings. The State reported as an accomplishment, for example, that premarital genetic testing is required for all couples in Iran “in order to prevent the birth of children with disabilities.”

It is difficult to assess thoroughly the status of human rights in Iran because of the lack of independent civil society or non-governmental organizations (NGOs, like The Advocates) working on the ground there. Instead, Iran has what are called “GONGOs,” for “government-organized non-governmental organizations.” GONGOs often purport to act as watchdogs, but in reality they are mechanisms of the State. Members of our group were actively pursued and questioned by an Iranian GONGO whose representatives were very interested in finding out what we planned to tell the CRPD.

 Persons with Disabilities and the Death Penalty 

Despite the difficulties, The Advocates were able to identify and report on several specific areas of concern.  They presented to the CRPD a shadow report that addressed issues related to the justice system. Iran provides no procedural safeguards in its death penalty process for individuals with intellectual or psychosocial disabilities. Those familiar with U.S. death penalty law know that there is a significant body of case law addressing the execution of defendants with such disabilities, including a number of Supreme Court decisions. The Advocates urged the CRPD to recommend that Iran suspend its death penalty for people with these disabilities, and take steps to ensure proper safeguards in future cases. While opposing the death penalty in all instances, The Advocates sought a recommendation that the law not provide lesser punishments for crimes against victims with disabilities.

Private Briefings and Public Hearings

I attended an interesting private briefing, during which The Advocates’ Amy Bergquist provided members of the CRPD with details on Iran’s use of amputation as a punishment for certain crimes, such as theft.  Examples were given of the amputation of fingers, hands or feet, and the use of chemical blinding.  The defendant may not have any disabilities when the sentence is given, but is left afterward with a disability imposed by the government. Since defendants are often poor and lack education, this likely leaves them with little ability to find work.  The stigma associated with this visible disability and its well-understood origin put the individual at a severe disadvantage for life.

I was also able to attend public hearings at which Iran’s delegation responded to a list of issues and concerns raised by the CRPD. Some of the questions touched on issues discussed at our earlier private briefing. Most of the answers were vague and circular, providing little in the way of actual facts and data, despite specific requests for these, or evidence of progress.  There was a great deal of talk about meetings, trainings, brochures and pamphlets, and more meetings, but seemingly little in the way of concrete results. Some CRPD members pointedly remarked on the lack of answers.

Outcomes and Lessons Learned

The outcomes of the process, the CRPD’s “concluding observations”  were published in April. I was pleased to see that the CRPD included concerns and recommendations on issues that had been raised by The Advocates, as well as on LGBT rights.  The CRPD’s stated concerns included “the enforcement of mutilation as a form of criminal sentence, and the stigmatization against persons who have impairment as a consequence of such punishment,” as raised in our private briefing.

The CRPD also noted that “persons with disabilities, particularly persons with psychosocial and/or intellectual disabilities may be at risk of facing a greater risk of death penalty due to lack of procedural accommodations, in criminal proceedings,” as addressed in The Advocates’ shadow report.

The CRPD also expressed concern about “discrimination against persons perceived to have a disability, including on the grounds of gender identity and sexual orientation, being forced to undergo medical treatment.”

One of the lessons of this work has been the need for and value of patience. UN treaty bodies like the CRPD can’t simply order a country to change its conduct. The language of international diplomacy sometimes seems, to a newcomer like me, less strong than it ought to be. But participants in the process understand expressions of “concern” to indicate that the requirements of the convention are, in the CRPD’s opinion, not being upheld. Accompanying recommendations for resolving these concerns will be the subject of thorough review in the future, and Iran will be required to account for its implementation of, or failure to implement them.

International scrutiny, and international pressure, can change the course of a country’s conduct as the flow of water erodes rock and changes a river’s course. The change is incremental, but real and lasting.

By Lisa Borden, Birmingham-based Pro Bono Shareholder at Baker Donelson where her own pro bono legal work focuses on representation of indigent death row inmates in post-conviction proceedings.  Ms. Borden volunteers with The Advocates for Human Rights’ International Justice Program and traveled to the United Nations in Geneva with The Advocates’ team in March 2017 and March 2015.

Death Penalty Under Scrutiny: Is State-Sanctioned Murder Constitutional?

U.S. Supreme Court (image courtesy Wikimedia Commons)
U.S. Supreme Court (image courtesy Wikimedia Commons)

On Monday, October 10, the 14th World Day Against the Death Penalty will raise awareness of the application of the death penalty for terrorism-related offenses with the goal of reducing the use of the death penalty. The United States and 64 other countries allow people to be sentenced to death for terrorism-related offenses.

The Advocates for Human Rights, with the assistance of pro bono attorneys, collaborates with members of the World Coalition Against the Death Penalty to bring death penalty issues to the attention of the United Nations to advocate for change.

Jury selection began last week in the case of Dylann Roof, the self-identified white supremacist accused of murdering nine black worshippers at Emanuel A.M.E. Church in South Carolina last year. Roof was recently denied the opportunity to plead guilty and serve a life sentence for his crimes; the Department of Justice will instead seek the death penalty. In response, Roof’s lawyers have chosen to challenge the constitutionality of capital punishment head-on. Their decision to oppose the death penalty in court, citing the punishment as “a legally prohibited, arbitrary, cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” follows the lead of similar influential cases that have taken place across the country in the past several years.

In the United States, the federal government has not carried out a death sentence in over a decade. The Death Penalty Information Center reports 2015 as having the lowest recorded number of executions in 25 years (28 people), as well as the lowest number of death sentence convictions in over 40 years (49 people). At the same time, public opposition to the death penalty is at the highest level it has been in several decades, marking steady progress toward abolition of the death penalty.

From the grass roots to the U.S. Supreme Court, individuals have increasingly vocalized disdain for the death penalty. The Black Lives Matter movement has recognized diminished public support for capital punishment and in its policy platform is demanding immediate action toward complete abolition. In response to the U.S. Supreme Court’s decision allowing states to continue to use the drug midazolam in executions, Justice Stephen G. Breyer authored a 46-page dissent, arguing that “it is highly likely that the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment].” The drug itself is linked to causing severe pain in the process of an execution, a point which prompted some Justices to question the constitutionality of the death sentence. In his dissent, Justice Breyer noted several flaws in the system of administering capital punishment: the execution of innocent people; frequently exonerations of individuals on death row; and the negative influence of politics and discrimination on the imposition of the death penalty in the criminal justice system.

Seven states have abolished the death penalty since 2007, bringing the current total to 20. (Californians will vote on November 8 to determine whether that state will join the list.) The most recent is Delaware, when its Supreme Court ruled that the state’s statute allowing judges to overrule a jury’s decision for a life sentence was a direct violation of the Sixth Amendment of the Constitution (the right to an impartial jury). In January of this year, the Supreme Court ruled similarly on Florida’s death penalty law. State by state, courts are ruling that major faults in our system of justice are in direct violation of basic rights recognized in the U.S. Constitution.

This recent trend of questioning the constitutionality of the death penalty reflects a growing awareness of defects within the criminal justice system. The system that exists today puts people with mentally illness to death, disproportionately executes black individuals convicted of murdering whites, and kills the innocent. Execution methods present a real risk of subjecting individuals to torture or cruel, inhuman, or degrading punishment. Moreover, research demonstrates that the death penalty does not deter future murders. In the words of Delaware’s Governor Markell: “the use of capital punishment is an instrument of imperfect justice that doesn’t make us any safer.”

dp-by-the-numbersSource: The Nation

Capital punishment endures because many still assume that it is appropriate or effective. But here is what the death penalty doesn’t do:

  • preserve the constitutional rights to life and freedom from cruel and unusual punishment
  • promote a belief in rehabilitation and reconciliation
  • punish equitably, without discrimination based on race, socioeconomic status, or disability
  • punish fairly, by ensuring that no innocent person is executed and by ensuring that all defendants can fully exercise their due process rights
  • make progress toward addressing the root causes of crime in order to prevent heinous murders
  • address the ideologies and beliefs that motivate hate crimes (such Dylann Roof’s)
  • bring back victims of the crime

Dylann Roof must answer for his shocking crimes, and for the permanent damage he has inflicted on his victims and their families. We must recognize the powerful racial dynamics at work, acknowledging Roof’s racially based murders and his privileged status as a young white male in today’s criminal justice system. Yet, we should also recognize the significance of Roof’s lawyers challenging the constitutionality of the death penalty on a federal level. If the court decides that the death penalty violates the Constitution, not only will it mark significant progress toward ending state-sponsored murder, but our country may also find the motivation and political will to reform of a criminal justice system in desperate need of justice, and to bring that system in line with international human rights standards.

By Maggie Poulos, a student at Macalester College in Saint Paul, Minnesota, majoring in International Studies with a minor in political science. During the summer of 2016, she was an intern with The Advocates’ International Justice Program. She is interning with The Advocates’ Refugee & Immigrant Program during the academic year.

Click here to learn more about The Advocates for Human Rights’ work against the death penalty.

 

Ban on mandatory life-without-parole applies to all who were sentenced when juveniles, Supreme Court rules

Handcuffed hands

The Supreme Court issued a decision today in a 6-3 opinion that states must retroactively apply the ban on mandatory life-without-parole sentences for juveniles. The ruling comes from the case of 69-year-old Henry Montgomery, imprisoned since he was 17 for a crime he committed in 1963.

When Montgomery was sentenced at age 17, life without parole was automatic. Neither the court nor the jury was allowed to consider his age, maturity, potential for rehabilitation, or other characteristics in determining his sentence. As a result, he has spent his entire adult life in prison and has been ineligible for parole.

In his petition to the Court, Montgomery discussed “his evolution from a troubled, misguided youth to a model member of the prison community.” According to the Court, he offers advice and serves as a role model to other inmates. He helped establish an inmate boxing team, serving as a trainer and coach.

In 2012, the Supreme Court ruled in Miller v. Alabama that a juvenile convicted of a homicide offense must not be sentenced to life in prison without parole unless the court considers the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing. At the time, it wasn’t clear whether this ruling would apply to juvenile offenders like Montgomery, whose sentences were already final at the time of the 2012 decision.

Today, the Court ruled that this 2012 ruling applies not only to juvenile offenders whose cases were still pending in 2012, but to all juvenile offenders who had been automatically sentenced to life without parole. This includes Montgomery.

Similar to the U.S. Constitution’s Eighth Amendment, international human rights standards prohibit cruel, inhuman, or degrading treatment or punishment. As such, those standards require that punishments be individualized and proportionate to the facts and circumstances of the offender and the offense. Today’s ruling brings juvenile sentencing practices in the United States into closer compliance with those international standards, requiring courts to conduct an individualized assessment of each juvenile offender in determining the appropriate sentence for the offender. As the Court recognized today, “Before Miller, every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller, it will be the rare juvenile offender who can receive that same sentence.”

Now, with Montgomery, states must ensure that juvenile homicide offenders are considered for parole. As Justice Anthony Kennedy wrote for the majority:

“Henry Montgomery has spent each day of the past 46 years knowing he was condemned to die in prison. Perhaps it can be established that, due to exceptional circumstances, this fate was a just and proportionate punishment for the crime he committed as a 17-year-old boy. In light of what this Court has said . . . about how children are constitutionally different form adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their home for some years of life outside prison walls must be restored.”

The UN Human Rights Committee has pressed the United States even further, urging it to fully comply with its international human rights obligations by entirely abolishing the sentence of life imprisonment without parole for juveniles. Today’s ruling is an important step in that direction.

By: Amy Bergquist, staff attorney with The Advocates for Human Rights’ International Justice Program, leads The Advocates’ work against the death penalty. She sits on the steering committee of the World Coalition Against the Death Penalty Steering Committee, an alliance of more than 150 NGOs, bar associations, local authorities, and unions from around the globe.

Read the complete opinion.