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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.

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

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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?

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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. 

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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.

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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

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.

 

Execution in Arizona Takes 2 Hours

Execution in Arizona Takes 2 Hours

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“‘Joe Wood is dead, but it took him two hours to die,’” Troy Hayden of Phoenix’s KSAZ-TV and an eyewitness to the execution of Joe Wood was quoted as saying in a July 23 NPR story. “‘And to watch a man lay there for an hour and 40 minutes gulping air, I can liken it to, if you catch a fish and throw it on the shore, the way the fish opens and closes its mouth.’”

“The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m. ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood’s Eighth Amendment right to be executed in the absence of cruel and unusual punishment,” stated the emergency motion filed by Wood’s attorney to stay the execution on the grounds that it violated Woods’ constitutional rights. The motion called for reviving Woods, but he died within an hour of the papers being filed.

States’ experiments with new, untested lethal injection protocols are real-life — or real-death — demonstrations of what can go wrong when governments are allowed to execute people using untested and dubious execution methods. “The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” said Dale Baich, one of Wood’s attorney, in the NPR report. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes. We will renew our efforts to get information about the manufacturer of drugs as well as how Arizona came up with the experimental formula of drugs it used today.”

Read the full story from NPR News, “Arizona execution of inmate takes nearly 2 hours” (July 23, 2014).

Read more about the death penalty in the United States from The Advocates Post:

 Bring Back the Firing Squad (July 22, 2014)

End “Tinkering with the machinery of death”  (June 18, 2014)

Another Botched Execution (April 30, 2014)

Lives on the Line: Will Supreme Court Hold U.S. Accountable for the Death Penalty? (April 3, 2014)

“I did not want to live like an animal…,” death row exonoree tells U.S. Congress (February 28, 2014)

Dennis McGuire’s Execution: A Real-Life—or Real-Death—Example of Cruel and Inhuman Punishment (January 17, 2014)

Was Executed 14-Year-Old Innocent? (November 8, 2013)

Two Percent of U.S. Counties Responsible for Majority of Executions (October 14, 2013)


By: Ashley Monk, development & communications assistant at The Advocates for Human Rights

“Bring Back the Firing Squad”

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“If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all,” wrote Ninth Circuit Court of Appeals Federal Judge Alex Kozinski in a dissent released Monday. Kozinski dissented from a Ninth Circuit decision dismissing Arizona death row inmate Joseph Wood’s lawsuit seeking information about the drugs to be used in his execution. Kozinksi was quoted by Adam Serwer in his commentary, “Judge’s modest proposal: Bring back the firing squad,” posted on MSNBC’s website on July 22, 2014.
Read more about “mystery drugs” and the secrecy behind their use: