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.
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.
Today marks the formal end of the U.S. government’s second Universal Periodic Review of its human rights record at the Human Rights Council in Geneva. But on many important issues, it’s really just the beginning of many years of work to implement the United States’ human rights obligations.
During the interactive dialogue part of the UPR in May 2015, the U.S. government received 343 recommendations from countries around the world. Today the government formally responded to each of them, stating whether it accepted, accepted in part, or noted (diplomatic UN-speak for “rejected”) each one. At the Human Rights Council in Geneva this morning, Deputy Assistant Secretary of State Scott Busby acknowledged that the United States hasn’t “been perfect in our efforts, and we still have many challenges.”
Those lobbying efforts were successful. For example, 45 countries presented recommendations to the United States on the death penalty, and 23 offered recommendations on the rights of non-citizens. The Advocates lobbied nearly every country that made recommendations on those issues.
Here are some highlights from those 343 recommendations, and the U.S. government’s responses:
Transparency on lethal injection drugs
Some of the U.S. government’s responses were discouraging. Knowing that the government was not likely commit to abolishing the death penalty, The Advocates lobbied France and many other countries to highlight the issue of state laws and practices that keep secret the identity and sources of drugs used in lethal injections. Transparency regarding the types of drugs used and the sources of those drugs is increasingly important in light of the Supreme Court’s June 2015 decision in Glossip v. Gross, which places additional evidentiary burdens on individuals seeking to challenge the proposed method of their execution as a violation of the Eighth Amendment.
During the interactive dialogue in May, France took up our issue, recommending that the U.S. government “[c]ommit to full transparency on the combination of medicines used during executions by injection.” Today, however, the U.S. government formally “noted” that recommendation, providing no explanation other than its position that the death penalty comports with our country’s human rights obligations.
In explaining the government’s decision to reject calls from 37 countries around the world to abolish–or at least consider a moratorium on–the death penalty, Deputy Assistant Secretary of State Busby told the Human Rights Council:
I’d also note that we received numerous recommendations–including from Ecuador, Austria, Lithuania, Congo, Nepal, and many others–concerning our administration of capital punishment. Domestic civil society also raised capital punishment as an issue of concern. While we did not support the majority of the recommendations on this topic, we respect those who made them. Our continuing differences in this are a matter of policy, and not what the rules of international human rights law currently require.
Racial bias and wrongful convictions
The U.S. government made some important pledges concerning the death penalty today. For example, we lobbied Angola and Poland about racial bias in the administration of the death penalty and about wrongful convictions. The government accepted these recommendations:
Angola: Identify the root causes of ethnic disparities concerning especially those sentenced to capital punishment in order to find ways [to] eliminate ethnic discrimination in the criminal justice system.
France: Identify the factors of racial disparity in the use of the death penalty and develop strategies to end possible discriminatory practices.
Poland: Strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring, inter alia, effective legal representation for defendants in death penalty cases, including at the post-conviction stage.
We also lobbied on the issue of compensation for victims of wrongful convictions. The U.S. government accepted, in part, a recommendation from Belgium to “[t]ake measures in follow-up to the recommendations of the Human Rights Committee to the US in 2014 with regards to capital punishment such as measures to avoid racial bias, to avoid wrongful sentencing to death and to provide adequate compensation if wrongful sentencing happens.” In its formal response, the government stated that it “support[s] consideration of these recommendations, noting that we may not agree with all of them.”
The U.S. government made several pledges on the detention of migrants, accepting a recommendation from Brazil to “[c]onsider alternatives to the detention of migrants, particularly children.” The government accepted, in part, a recommendation from Sweden to “[h]alt the detention of immigrant families and children, seek alternatives to detention and end the use of detention for reason of deterrence.” In its response, the government punted on the controversial use of immigrant detention to deter future migrants, but added that it is “working to shorten detention families may face while their immigration proceedings are resolved.”
One issue we lobbied on was the lack of due process in immigration removal proceedings. Honduras was particularly receptive to these issues, recommending that the United States “[e]nsure due process for all immigrants in immigration proceedings, using the principle of the best interest, especially in the case of families and unaccompanied children.”
Honduras is one of the main countries of origin for the unaccompanied children and families coming to the United States to seek asylum, so it was rewarding to see that government’s interest in the plight of its nationals.
In responding to Honduras’ recommendation, however, the U.S. government glossed over its international human rights obligation to ensure due process, instead asserting that “[n]oncitizens in the U.S. facing removal receive significant procedural protections.”
On the issue of the rights of children in immigration proceedings, the government ignored the fact that unaccompanied children have no right to a government-provided attorney, offering merely that “[t]he best interest of a child is one factor in determinations by immigration judges. [The Department of Health and Human Services] provides care and placement for children who enter the U.S. without an adult guardian, considering the best interests of the child in all placement decisions.”
Rights of migrants
Our lobbying and advocacy on the rights of migrants highlighted many of the findings in The Advocates’ groundbreaking report, Moving from Exclusion to Belonging: Immigrant Rights in Minnesota Today. One of the issues we highlighted was discrimination against and profiling of non-citizens. Iran, Mexico, and Nicaragua called for an end to discrimination and violence against migrants and non-citizens, among other targeted groups. In partially accepting these recommendations, however, the U.S. government glossed over migrants, describing efforts “to counter intolerance, violence, and discrimination against members of all minority groups, including African-Americans, Muslims, Arabs, and indigenous persons.”
Another issue we highlighted is excessive use of force by officials on our country’s southern border. Mexico called on the United States to “[i]nvestigate cases of deaths of migrants by customs and border patrols, particularly those where there have been indications of an excessive use of force, and ensure accountability and adequate reparation to the families of the victims.” The government accepted the recommendation in part, adding that it “cannot support parts of this recommendation concerning reparations.”
The U.S. government expressed its support for recommendations to “[r]eview in depth migration policy” (Congo), to “[f]urther improve the rights of immigrants” (Senegal), to give “special attention . . . to protecting migrant workers from exploitative working conditions, specifically in the agricultural sector” (Portugal), and to “[e]nsure the rights of migrant workers, especially in the sector of agriculture where the use of child laborers is a common practice” (Holy See).
But in responding to Algeria’s call to “[t]ake necessary measures to combat discriminatory practices against . . . migrant workers in the labor market,” the U.S. government ignored the obstacles immigrant workers face in combating discrimination. As we explained in our stakeholder report,
“immigrants who experience discrimination often do not complain, either because they are unaware of their rights under the law, because it is easier to leave the employer than to pursue a complaint, or, for undocumented workers, because fear of deportation keeps them silent.”
The U.S. government, in responding to Algeria’s recommendation, ignored these complexities, stating simply that “U.S. federal labor and employment laws generally apply to all workers, regardless of immigration status.”
The U.S. government may be breathing a sigh of relief that the UPR is finally over, but The Advocates and other members of civil society know that today is just the beginning. Now we begin the process of working with the government to implement the recommendations the government accepted. And we haven’t lost hope for those “noted” recommendations–surprisingly, research shows that governments often implement, at least in part, UPR recommendations that they formally reject.
Oklahoma botched last night’s execution of Clayton Lockett by using a new, untested lethal injection protocol. While execution officials had pronounced Lockett unconscious, he was awake minutes later, writhing and breathing heavily. In apparent pain, he fought the restraints that locked him to the gurney. As he continued to twitch and call out “Man” and “Something’s wrong,” officials closed the shutters to block viewers from witnessing an execution gone horribly wrong.
Officials halted the execution. Lockett died of a heart attack within the hour.
The latest bungled execution is a tragic reiteration of Ohio’s execution of Dennis McGuire, who was put to death in January with a new two-drug combination that had never been tested. What McGuire’s attorneys had argued prior to his execution came true: the drug combination caused their client to experience “air hunger” in his struggle to breathe. “Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” McGuire’s daughter, Amber McGuire, is reported to have said. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.
Oklahoma and Ohio’s experiments with new, untested lethal injection protocols are real-life — or real-death — demonstrations of what can go wrong when states are allowed to execute people using untested and dubious execution methods.
The majority of the 32 death penalty states in the U.S. and the U.S. federal government use lethal injection as the primary means to execute prisoners. Governments have traditionally used a three-drug combination to put people to death. But now, they are resorting to new combinations because the drugs needed for the three-drug injection are difficult to obtain. The drugs’ sources are drying up, caused by foreign government regulations, European Union restrictions placed on the supply, and drug corporations’ positions.
As these drugs have become increasingly harder to obtain, states have begun using other drugs to administer a lethal dose. In turn, pharmaceutical companies have refused to supply these drugs for execution purposes in the U.S.
Now, states like Oklahoma and Ohio are turning to questionable sources—including compounding pharmacies selling drugs that are not FDA-approved—to get the drugs they need to execute people. Obtaining execution drugs that are outside of federal regulation increases the risk of tampering and reduced drug efficacy; this increases the probability of cruel or inhuman treatment or punishment during an execution, a violation of the U.S. Constitution’s Eighth Amendment.
Moreover, several states have passed secrecy laws to conceal the identities of their drug suppliers, thus allowing states to withhold critical information from detainees and their families who seek assurances about the drugs’ quality and effectiveness. The attorney for Charles Warner, a second man to be executed by Oklahoma last night, had criticized the suppression of information earlier on Tuesday. “Because the issue of secrecy in lethal injection has not been substantively addressed by the courts, Clayton Lockett and Charles Warner will be executed without basic information about the experimental combination of drugs used in their deaths,” attorney Madeline Cohen said in a statement, according to the Washington Post. “Despite repeated requests by counsel, the state has refused, again, and again, to provide information about the source, purity, testing and efficacy of the drugs to be used.”
U.S. states have faced challenges with lethal injection because of the clamp down on the drug supply. Lethal injection in the U.S. has now turned into a cat-and-mouse game, with states attempting to procure execution drugs from an international community determined to keep the drugs out of the states’ possession, leading states to turn to untested and uncharted drug protocols as alternatives.
Regardless of whether a three-drug injection or a two-drug injection is used, there is much concern that these injections cause cruel and inhuman punishment. The gruesome deaths of Lockett and McGuire are visible, horrific testimonials that lethal injection violates the Eighth Amendment. “No one should die the way my dad did, no matter the circumstances,” said McGuire’s daughter, according to reports.
Hours after McGuire’s execution, Terry Collins, who served as the Director of the Ohio Department of Rehabilitation and Corrections from 2006 to 2010 and oversaw 33 executions, said that the suffocation execution of McGuire shines the spotlight on the unworkable nature of the problems in the death house. “The experiment has failed and that is plainly obvious,” he said.
The Advocates for Human Rights submitted a shadow report to the United Nations Human Rights Committee, detailing how the death penalty in the U.S. violates basic human rights, including the right to be free from cruel, inhuman, or degrading treatment or punishment. The Advocates was there, at the Committee’s 100th session in Geneva, Switzerland in March, when the Committee took the U.S. to task on the death penalty and other issues. In its concluding observations, the Committee urged that measures be taken to ensure that the death penalty is not carried out in a racially biased or erroneous manner and that lethal injection drugs come from legitimate sources.
By: Attorney Rosalyn Park, The Advocates for Human Rights’ director of research, represents The Advocates on the World Coalition Against the Death Penalty steering committee. She chairs the Working Group for World Day Against the Death Penalty and is active on several other working groups. Before beginning work with The Advocates, Rosalyn interned with Anti-Slavery International in London as an Upper Midwest International Human Rights Fellow.
Video excerpting questions about the administration of the death penalty in the United States from the United Nations Human Rights Committee, as well as the responses from the United States delegation.
We were particularly excited when the U.S. State Department announced the delegation, because it included Mississippi Attorney General Jim Hood. This is the first time a U.S. delegation for a treaty-body review has included representatives from state and local governments. They are an important piece of the accountability puzzle because many of our country’s human rights obligations need to be implemented at the state and local level.
Mississippi retains the death penalty, and Attorney General Hood had just asked the Mississippi Supreme Court to schedule two back-to-back executions for March 26 and 27–for Charles Ray Crawford and Michelle Byrom. We knew that two lives were on the line.
Committee highlights key death penalty issues
The Committee’s examination of the United States on March 13-14 and its Concluding Observations mirror some of the issues we raised in our shadow reports. They devote much attention to the death penalty, including the associated issues of exonoree compensation, racial disparities, and sourcing of drugs used for executions.
While welcoming the overall decline in the number of executions and the increasing number of states that have abolished the death penalty, the Committee shares The Advocates’ concerns about its continued use. The Committee is concerned by the high number of people wrongly sentenced to death, despite existing safeguards, and it is concerned about the racial disparities in the death penalty’s imposition—disparities that disproportionately affect African Americans and that are exacerbated by the rule that discrimination has to be proven case-by-case.
As I discuss below, just this week there have been some developments on the issue of wrongful convictions.
Committee urges federal and state governments to ensure fair compensation for people who are wrongfully convicted and sentenced to death
The Committee also notes, as we observed in our shadow report, that 16 states retaining the death penalty do not provide compensation for people who are wrongfully convicted; other states provide insufficient compensation or impose barriers to obtaining it. Consider Glenn Ford. Wrongfully convicted in Louisiana, Ford spent almost 30 years on death row for a crime he didn’t commit. As Committee expert Professor Walter Kaelin noted during the review, he was exonerated and released just days before the Committee’s review. He would have been about 34 years old when he entered death row, and was 64 when he was released. Louisiana’s compensation law allows him to collect only a maximum $330,000 for the three decades he spent on death row for a crime he didn’t commit.
The Committee also notes with concern reports that states administer untested, unregulated drugs to execute prisoners, and that state authorities withhold information about the drugs from those to be executed. There have been some late-breaking developments around the country on these drug-sourcing issues.
Committee hits hard on Mississippi’s sourcing of lethal drugs
We were really fortunate that Mississippi Attorney General Hood was part of the U.S. delegation in Geneva. I was there on the ground, so my colleagues at The Advocates and I were able to quickly collect facts about the upcoming executions of Crawford and Byrom that Hood had requested and fed hard-hitting questions about Mississippi’s lethal injection policies directly to the Committee experts.
Mississippi was just one week away from executing Crawford and Byrom with drugs from a compounding pharmacy. As our shadow report explains, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, and Mississippi’s drugs had likely expired. These kinds of drugs carry a high risk of causing excruciating pain; one of the more recent executions to use compounded drugs resulted in the prisoner crying out during his execution, “I feel my whole body burning.”
Drug-sourcing has become a problem for states seeking to execute inmates, because many European drug manufacturers have stopped selling drugs like pentobarbital to the United States, fearing they will be used in executions. States are therefore scrambling to come up with alternative ways to concoct their execution drugs.
It was instructive that an official from a state government was part of the U.S. delegation—a first—because state governments conduct the overwhelming majority of executions. And the Committee experts repeatedly pressed Attorney General Hood on the sources of Mississippi’s lethal drugs.
You can see the questioning in the 17-minute video at the top of this post, which excerpts the relevant questions on the death penalty from the Committee and responses from the U.S. delegation.
Due Process revived: Michelle Byrom granted new trial; Charles Ray Crawford’s appeal to proceed
Seemingly oblivious to his own role in nearly executing someone the court determined was entitled to a new trial, and to the extraordinary nature of the court’s decision, Hood responded, “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.” And rather than accepting the court’s decision, a motion from Hood’s office complained that “[e]ach and every claim that Byrom presented to this Court had been addressed on the merits either by this Court or the federal courts on habeas corpus review,” and asked for the court to explain its decision.
But some clever detective work by Byrom and Crawford’s legal team uncovered the source–a compounding pharmacy called Brister Brothers in Grenada, Mississippi. Judging from Brister Brother’s facebook page, the outfit specializes in “herbal dietary supplements,” including a “specially formulated men’s tonic” called “Man Up.”
Brister Brothers co-owner Ward Brister says the company is a “third-party supplier” and did not compound the pentobarbital. According to an NBC report, “Byrom’s legal team presumes Brister purchased the raw ingredients for the drug and that the state intends to have it compounded for the executions.”
The lawsuit alleges that the State of Mississippi will secretly compound the drugs at an unknown time and place, by people with unknown training and credentials. The danger, a lawyer for Byrom and Crawford explains, is that “[i]f the state’s pentobarbital is contaminated or sub-potent, prisoners will be conscious when the second and third drugs are administered, and they will experience a torturous death by suffocation and cardiac arrest.”
Committee issues strong recommendations on lethal drug sourcing
In its Concluding Observations released last week, the UN Human Rights Committee urges the United States to
“ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution.”
If the Supreme Court grants cert. in the Louisiana case, it will be the first body of the U.S. government to take action consistent with the UN Human Rights Committee’s recommendations issued last week, upholding our country’s human rights treaty obligations. It would be a great start to the long process of working on implementation of the Committee’s recommendations.
Committee issues further recommendations on the death penalty
The Committee also recommends that the United States consider establishing a moratorium on the death penalty at the federal level, and, on the 25th anniversary of the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty, consider acceding to the Protocol.
In summary, the Committee recommends that in addition to establishing a moratorium, acceding to the Protocol, and ensuring that legal drugs come from transparent, regulated sources, the United States:
1. take measures to effectively ensure that the death penalty is not imposed as a result of racial bias;
2. strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage;
3. ensure that retentionist states provide adequate compensation for the wrongfully convicted; and
4. engage with retentionist states with a view to achieving a nationwide moratorium.