Athina Ouranidou

Athina Ouranidou

 

AMERICAN LEGAL PRACTICE ALTERNATIVE ASSESSMENT 2012

Consider Justice Breyer’s dissent from denial of stay, in the United States Supreme Court’s decision in Valle v. Florida 2011 WL 4475201 (U.S. Fla), and also the Amicus Curiae Brief of the Bar Human Rights Committee of England and Wales, et al.

1)    Consider Justices Breyer’s observations on whether time spent on death row for 33 years constitutes either or both, “cruel” and “unusual” punishment in violation of the Eighth Amendment of the United States Constitution. To answer this you should widen your research to cover the Supreme Court’s jurisprudence of both aspects of the Eighth Amendment.

2)    To what extent does international and/or foreign domestic law, provide guidance for the assessment of whether a lengthy stay on death row is a violation of the Eighth Amendment? Use the amicus curiae brief to help inform your opinions, but also engage wider research of United Nations (including scholarship and Human Rights Committee judgments) and European perspectives (including scholarship and decisions of the European Court of Human Rights) .

 

Introduction

One of the most significant current discussions relating to the death sentence is whether prolonged stay on the death row constitutes cruel and unusual punishment violating the Eighth Amendment^[1]. This extended stay on the death row can last for decades^[2] and in the recent case of Valle v. Florida^[3] Justice Breyer, dissenting from denial of stay, emphasised that many years on the death row is a cruel and unusual punishment. This paper will discuss the origin of the Eighth Amendment and the meaning of cruel and unusual. In addition, case law, where the issue of lengthy time on the death row was examined under this Amendment, will be discussed. Mental problems caused to inmates after years on the death row will be examined along with the effects to them and to society as a whole. Next, the meaning of cruel and usual in relation to extended stay on the death row will be analysed under international law and foreign domestic law.    

Cruel and unusual punishment under the Eighth Amendment.

One of the most crucial legislation relating to death penalty cases is the Eighth Amendment^[4]. This legislation by prohibiting the infliction of “cruel and unusual punishments”^[5] gives the opportunity to death-penalty defendants and death-penalty inmates to challenge their sentence. Moral issues are in the heart of the Eighth Amendment^[6], which origin can be found in the Bill of Rights 1689^[7] and in the Magna Carta. The state will punish criminals; however civilized standards impose limits to their sentences^[8] so to proscribe torture and barbaric methods of punishment, according to the wish of the drafters^[9]. “Cruel and unusual” was never detailed by the Supreme Court but their meaning is being drawn “from the evolving standards of decency that mark the progress of a maturing society”^[10]. So, due to the Eighth Amendment not only are individuals protected from cruel and unusual punishments but they can challenge their sentence owing to “evolving standards of decency”^[11].

According to courts and academics alike there are five strands of the Eighth Amendment limitations on criminal punishments^[12]. These are 1) means of punishment, 2) proportionality, 3) power to criminalize, 4) prison conditions (conditions of confinement) and 5) procedural due process. Applying these types in a death penalty case, where the inmate is on the death row for many years, at least types 1, 2 and 4 are present. Relating to type 1, if an inmate is on the death row for a long time two deaths are inflicted to them^[13]. Regarding to type 2, by spending too much time on the death row and having the death sentence two sentences are imposed to them; hence, there is no proportion between the crime and the sentence. Finally, regarding to type 4 and the prison conditions, the prisons are “hell on earth”^[14]. On the basis of this five-type analysis, being on the death row for a long time is a cruel and unusual punishment.  

The meaning of “cruel” in relation to the time spent on the death row has been discussed in a number of cases from the early days of the Constitution. The first one was In re Kemmler^[15] where it was held that “punishments are cruel when they involve torture or a lingering death.”^[16] In following cases it was held that uncertainty while awaiting the execution is one of the most horrible feelings^[17], that mental pain is an inseparable part of the death sentence^[18] and that the death penalty is cruel because of the execution and the lengthy imprisonment^[19]. Although courts had been repeating that accumulation of time is not a constitutional violation^[20] in Lackey v. Texas^[21] Justice Stevens characterized such a claim “novel,” but “not without foundation”^[22] and that after 17 years on death row retribution was satisfied. Furthermore, Justice Breyer in Knight v. Florida^[23] found suffering “in a prolonged wait for execution”^[24] and in Elledge v. Florida^[25] he stated that 23 years on the death row is "especially cruel" punishment. Finally, in Jones v. State^[26] the death sentence was struck down due to a 12-year delay in holding an evidentiary hearing^[27]. So it has been stated several times in U.S. courts that long periods on the death row is a cruel punishment. 

A punishment will be determined as “unusual” violating the Eighth Amendment for various reasons^[28], including an uncommon delay between the imposition of the capital punishment and the execution. This is due to the excessive pain imposed and the requirement of proportionality in death sentence. The specific length of time that need to be reached so to occur an Eighth Amendment violation was never determined^[29] and in order to reach a conclusion the “evolving standards of decency that mark the progress of a maturing society”^[30] has to be applied in every individual case. In the mid 1700s the period spent on the death row was lasting a few days^[31] however, nowadays this period can last for decades due to continual changes in law and in technology. Indeed, in the past neither lengthy appeals, which are necessary for the procedural reliability^[32], or access to laboratories procedures, such as DNA examinations^[33], were available to death row inmates. Hence, the period on the death row was shorter. However, now after the necessary increase of the time length on the death row issues of constitutionality of the Eighth Amendment have been raised.

Although justice delayed is justice denied^[34], the courts are reluctant to hold that there had been an Eighth Amendment violation if an inmate has been a long time on the death row. Their reasoning is that the inmate is responsible for the delay owing to their lengthy appeals^[35]. They argue that if it was held that the delay is unconstitutional then inmates would delay in purpose and a prisoner would be in better position than another one who had not appealed[36], contrary to equal protection clause. However, inmates have the right to appeals and a delay in the procedure does not give the state the authority to violate the Eighth Amendment[37] especially when these delays are due to judicial system failure[38]. This unwillingness of the courts to find an Eighth Amendment violation is underlined in cases where the inmate has been on the death row for many decades.

Spending many years on the death row has a dramatic result on the inmates and insanity is not a rare phenomenon[39]. Moreover, death row inmates suffer from “death row syndrome”, a term describing the psychological effects due to prolonged stay on the death row in harsh conditions along with the stress of living under the sentence of death[40]. Inmates are “torn asunder from head to toe”[41] in post-apocalyptic holocaust buildings[42], suffering harassment by the prison staff[43] and other inmates. Fear and anger[44] dominate their lonely lives as they are confined in their cells up to twenty-three hours per day without access to rehabilitation programs[45]. According to a scientific study complete sensory deprivation can cause states of hallucination within 48 hours[46]. Death row inmates are kept in solitary for days even for months[47] suffering psychological torture[48] and when they lose the fight to maintain sanity ironically they are not executed[49]. So the denial of basic human comforts along with dehumanizing conditions “precipitate mental illness and even suicide”[50].     

For many death row inmates one consequence of living in such terrible conditions and being in such a state of mind is the decision to waive their rights for appeals and to become “volunteers”[51] so to avoid further delay. The Supreme Court have recognized this right[52] and according to statistics 10% of the people executed between 1976 and 2003 were volunteers[53].  However if the inmate has mental issues then they cannot waive their rights “knowingly and intelligently”[54]. In addition, the inmate by signing the waiver and not fighting for their life any more in a way they commit suicide. Parents, spouses, siblings, children and attorneys have standing to intervene in death row volunteer case[55]. However, it is not certain that any of them would bring an action in every case. Nevertheless, the main issue is that prolonged stay on the death row has as a result for many inmates to waive their rights for appeals and to give up their right to life, which is the supreme right.

Another way for death row inmates to give an end to their lives, is by committing suicide. The number of suicides among the death penalty inmates is the most significant evidence that prolonged stay on the death row is cruel. According to statistics the number of the death row inmates who commit suicide is 10 times higher than that in society[56]. Due to the conditions found on the death row they are living dead[57], satisfying the paradoxical Physics thought experiment Schrödinger's Cat where the cat of the certain experiment is alive and dead at the same time[58]. One justification for the cruel conditions is that the death row was designed for short term of confinement[59]. Nevertheless, it has been decades since inmates are spending prolonged periods of time on the death row; so the conditions could have been improved[60]. Another argument is that that imprisonment should be psychologically and physically unpleasant[61] as part of the punishment. However, there is no retribution in inflicting such pain to an inmate so to kill themselves. As long as death row inmates commit suicide the cruelty of the lengthy stay on the death row will be emphasized.

Death row inmates are not the only ones suffering because of the delays as their families and the families of the victims pay a huge emotional price[62] as well. The lives of their relatives are affected very much as they live in agony for decades knowing that their beloved ones suffer[63]. Furthermore, there have been cases that people close to death row inmates committed suicide themselves[64]. In addition, families of victims or even victims who survived they experience anxiety as they find such imposition of pain on the inmate purposeless. So not only is the delay of the execution cruel for the inmate but for many other members of the society too, turning this issue into a social one. As John Donne had stated “No man is an island entire of itself; every man is a piece of the continent, a part of the main... any man's death diminishes me, because I am involved in mankind”[65]. 

The cruelty of prolonged stay on the death row has a negative impact to the society as a whole, increasing the crime rates. Significant evidence that civilized societies are evolving is that they reject torture practices of the past. If a state is supporting barbaric punishments then apart from acting contrary to the evolving standard of decency and returning back to Middle Age, they promote cruelty. Although their intention is to use cruelty to fight the crime the result is exactly the opposite. Not only is there no retribution because there is no proportionality between the crime and the sentence but the crime rate is increased because the citizens become familiar with cruelty and soon they commit heinous crimes themselves. According to statistics 170 people out of 250 who were hang in England last century had previously attended one or more executions[66]  Vicious circles like this corrupt the society more and more every day and the ethical standards are becoming lower and lower.

Long stay on the death row under International Law.

From the early days of the U.S. as a nation it was recognised that there is a need to elicit the very best from all of humankind. As the Framers in Declaration of Independence stated there must be “a decent respect to the opinions of mankind”[67]. The Supreme Court has been affirming this statement ever since in many cases[68] and under the U.S. Constitution the Treaties are the supreme Law of the United States[69]. International human rights law promotes the protection of individual rights and liberties by treaty based obligations and customary international law such as jus cogens and opinion juris. The main human rights are identified on the United Nations Declaration of Human Rights 1948 (UNDHR) and the legal effect was through the International Covenant on Civil and Political Rights (ICCPR)[70], although some parts of it were through the International Covenant of Economic, Social and Cultural Rights (ICESCR). Relating to customary international law, the consent of the states is not necessary as they are binding without further procedures.

Prolonged stay on death row violates ICCPR Articles 6, 7, 10, 14. Under ICCPR Article 6 “Every human being has the inherent right to life”[71]. The death row inmates suffer psychological torture while waiting to be executed for many years. So there is a violation of Article 6. According to ICCPR Article 7 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Psychological punishment is considered to be torture[72]. Lengthy stay on the death row has tragic psychological effects on the inmates. Hence, this suffering of theirs amounts to torture violating ICCPR Article 7. In addition, the United Nations Human Rights Committee (Committee) has held that the death row phenomenon is a possible breach of ICCPR Article 7[73]. Under ICCPR Article 10 every prisoner has the right to humane treatment when deprived of liberty. Death row inmates are tortured psychological. Since they are not humanely treated, while in custody, there is a violation of ICCPR Article 10. Under ICCPR Article 14(3)(c) everyone is entitled to be tried without undue delay. States imposing the capital sentence must assure that it conforms to ICCPR Article 14 procedural requirements[74] which are strictly imposed[75]. A 45-month delay of death penalty appeal was found to violate the right to be tried without undue delay by the Committee[76]. Consequently, prolonged wait of appeals violate due process under ICCPR Article 14. 

Lengthy period on death row violates other safeguards adopted by the United Nations General Assembly and Commission on Human Rights too. Death penalty is not imposed to a person[77] suffering from a mental disorder, or with extremely limited capacity[78] or who have become insane[79]. Death row inmates become insane due to death row syndrome. So their executions violate all these resolutions. In addition, the capital punishment must inflict the minimum possible suffering[80], which has been stressed by the United Nations Economic and Social Council too[81]. While on the death row the inmates suffer so much due to the conditions there that they even get insane. Since they do not suffer the minimum possible there is a violation of these resolutions. Relating to conditions on the death row they can amount to cruel treatment alone if found that they are low[82] and the Committee has recognised that conditions and delay have an impact on the inmate[83]. So, lengthy stay on the death row constitutes violation under several UNHRC Articles and resolutions.  These cannot be enforced the way national law can in US, however, it is not less binding[84].     

Lengthy period of time on death row violates Article 3 of the European Convention on Human Rights (ECHR). ECHR, a regional development of the planetary human rights movement, which enforcement is based on adjudication by the European Court of Human Rights (EctHR), recognised the death row phenomenon as a violation of Article 3 of the ECHR[85]. Under Article 3 “no one shall be subjected to torture or to inhuman or degrading treatment or punishment” and in Soering v. United Kingdom[86], it was held that the conditions on death row along with the prolonged stay and the effects of the capital sentence constitute “inhuman or degrading treatment or punishment”[87]. Moreover, in Öcalan v. Turkey due to “international developments on the issue of the death row phenomenon, it appeared appropriate... to revisit the issue”[88] and it was held that if a trial where the death penalty was imposed did not meet the “strict standard of fairness” it amounts to inhuman treatment[89] contrary to Article 3. Not only were these decisions important for ECHR but they influenced other cases in international courts. 

The Judicial Committee of the Privy Council (JCPC), the highest Court of Appeals for many Caribbean States, has held that delay on the death row constitutes inhuman or degrading treatment. In a number of cases the JCPC had held that delay is not is not cruel and unusual punishment[90]; however, in Pratt & Morgan v. Attorney General for Jamaica[91], taking into consideration the death row phenomenon, it was held that a long extended period of time on the death row “is an inhuman act”[92]. Furthermore, in later cases it was held that the violation occurs after five years of delay[93]; however, this period of time does not “provide a limit, or a yardstick”[94] and the time starts both when the inmate is sentenced to death and in extreme pre-trial delays as well[95]. Pratt[96] was a significant decision because not only 150 sentences in Jamaica, 53 in Trinidad and Tobago and 9 in Barbados were commuted but it has implications for a range of countries such Malaysia, Nigeria, India and Pakistan[97]. Moreover, it is of great importance that this decision, proving that extended time is cruel and unusual punishment, comes straight from United Kingdom the country where the English Declaration of Rights of 1689 were drafted, which form the basis for the Eighth Amendment.

According to Inter-American Court of Human Rights (IACHR), which was established after the adoption of the American Convention on Human Rights (Convention), prolonged stay on the death row violates Article 5 of the Convention. Under Article 5 of the Convention a prisoner has the right to human treatment and in Fermín Ramírez v. Guatemala[98] it was held that extended stay on the death row violates this right. This regional convention promotes human rights and ensures that its member states respect them[99]. Although during the years there have been high and low points in the progress of the IACHR overall there has been a development of human rights standards[100]. Since the U.S has ratified this Convention and they have a duty to ensure the free and full enjoyment of human rights[101]  they have to incorporate the decision of Fermín Ramírez v. Guatemala[102] into their legislation.

Apart from international law it is essential to discuss foreign domestic legislation which has examined the issue of prolonged stay on the death row.

First, the relative legislation of the United Kingdom will be discussed. As commented earlier the Eighth Amendment is derived from the English Declaration of Rights of 1689; so due to common legal heritage, the Supreme Court has been considering the English law in a number of cases[103]. Before the abolition of the capital punishment in United Kingdom[104], the time spent on the death row would not be more than four weeks in England[105] and in Scotland[106], something which was emphasized in Pratt & Morgan v. Attorney General for Jamaica[107]. Considering this interpretation of the English Declaration of Rights of 1689, the prolonged stay on the death row constitutes cruel and unusual punishment. Owing to the relationship between the U.S. and United Kingdom and applying legislation as it is applied in United Kingdom extended stay on the death row violates  the Eighth Amendment.

The issue of delayed execution has been examined in a number of cases in India[108]. Under Article 21 of Indian Constitution depriving a life must be “according to procedure established by law” and the right of protection against delayed execution is included[109]. Furthermore, the punishment becomes inhuman and degrading if there is a prolonged delay in executing it[110] and in such a case the sentence of death has to be vacated[111]. As  it was held in Rahendra Prasad v. State of Uttar Pradesh[112] a prisoner after many years on the death row is “more of a vegetable than a person and hanging a vegetable is not death penalty”. Furthermore, the death sentence of an inmate was  commuted and he was sentenced to life imprisonment after his petition for mercy had been pending for eight years[113].

Several states of Africa such as Kenya, Uganda and Zimbabwe held that prolonged stay on the death row is inhuman and degrading punishment. It is remarkable that 4,000 death sentences were commuted to life imprisonment by the President of Kenya Mwai Kibaki because “an extended stay on death row causes undue mental anguish and suffering, psychological trauma, anxiety, while it may as well constitute inhuman treatment”[114]. Furthermore, the Court of Appeal in Kenya held that more than three years on the death row constitutes violation[115]. The three year period on the death row constitutes inordinate delay in Uganda too violating their constitution[116]. Finally, the Supreme Court of Zimbabwe held that extended stay on the death row, such as five years violates Article 15(1) of the Zimbabwe Constitution[117]. It is worth mentioning that the Court also criticized the U.S. holding that their view on this issue is narrow and intolerant[118].  

Last but not least, Canada has recognised the death row phenomenon. While deciding Kindler v. Canada (Minister of Justice)[119] they cited Soering v. United Kingdom[120] and in United States v. Burns[121] it was held that lengthy period of time on the death row has as a result psychological trauma[122]. Two issues are important in these cases. The first is that Canada acknowledges the death row phenomenon. The second is that they applied a case from the ECtHR so to have a guidance in interpreting their Constitution. Similarly, U.S. could apply ECtHR decisions to interpreter their Constitution.

So under UNDHR, ECHR, JCPC, IACHR and legislation of United Kingdom, India, Kenya, Uganda, Zimbabwe and Canada prolonged stay on the death row is a violation. As there is a need to elicit the very best from all of humankind there should not be prolonged stay on the death row in U.S. anymore.  

Conclusion

International law and foreign domestic law has recognized that lengthy period of time on the death row is cruel and unusual punishment. However, in U.S. inmates still spend many years or even decades on the death row although the interpretation of Eighth Amendment, the death row phenomenon, the high number of the death row suicides and the negative impact that this practice has to the society as a whole emphasise the need for reform. Hopefully, in the near future prisoners will not spend prolonged time on the death row in the U.S. too,   turning this world into a little bit a better place, without statements like this one of Robert Butts, death row artist, which accompanies a drawing of his: “This drawing is titled the death penalty because of the cruel and unusual fate that this man faces. A lot of guys are sent to death row as young men but are tortured year after year before being murder as an old man...Many times the person has grown and matured into an entirely different person before he is executed; humiliated, it wouldn't matter if he cried a lake full of tears featuring remorse or regret he still must sit alone bound like an animal awaiting his destiny at the hands of mankind.”[123] 

              

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[1] U.S. CONST. amend. VIII.

[2]  A recent case is the execution of Michael Selsor after 36 years on the death row. See Death Penalty Iformation Center, MULTIMEDIA: Interview with Michael Selsor-Served Longest Time Between Conviction and Execution http://www.deathpenaltyinfo.org/multimedia-interview-michael-selsor-served-longest-time-between-conviction-and-execution (last visited: 21/05/2012).

[3] Citation

[4] U.S. CONST. amend. VIII.

[5] U.S. CONST. amend. VIII.

[6] U.S. CONST. amend. VIII.

[7] English Declaration of Rights. However, its roots can be traced in Bible as in Exodus 21:22-25; Deuteronomy 19:19-21 and Leviticus 24:17-21 it is written that the punishments must be proportional.

[8] People v. Anderson, 493 P.2d 880 (Cal. 1972).

[9] Estelle v. Gamble, 429 U.S. 97, 102 (1976) (Marshall J., dissenting) (quoting Anthony F. Granucci,  Nor Cruel and Unusual Punishment Inflicted: The Original Meaning, 57 Cal. L. Rev. 839, 842 (1969)). See also Gilmore v. Utah, 429 U.S. 1012 (1976) at 1019 (Marshall, J., dissenting).

[10] Trop v Dulles 356 US 86 (1958) See also Furman v. Georgia, 408 U.S. 238 (1972) at 256 (quoting Trop v. Dulles) (Douglas, J., concurring); id. at 309-10 (Stewart, J., concurring); id. at 313 (White, J., concurring);  Gregg v. Georgia, 428 U.S. 153 (1976) at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).

[11] Trop v Dulles 356 US 86 (1958)

[12] Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319, 329 (1997).

[13] As Albert Camus stated: “As a general rule, a man is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worse than the second.” Albert Camus, Reflections on the Guillotine, in Reflexions sur la Peine Capitale (1957).

[14] David McCord, Imagining a Retributivist Alternative to Capital Punishment, 50 Fla. L. Rev. 1, 57 (1998).

[15] 136 U.S. 436 (1890).

[16] Id. at 447.

[17] In re Medley, 134 U.S. 160 (1890) at 172.

[18] Furman v. Georgia, 408 U.S. 238 (1972) at 288.

[19] People v. Anderson, 493 P.2d 880 (Cal. 1972) at 894. However, this case was overruled by constitutional amendment as stated in People v. Hill, 839 P.2d 984 (Cal. 1992) at 984.

[20] Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1991) at 1491.

[21] 115 S. Ct. 1421 (1995).

[22] Id.

[23] 120 S. Ct. 459 (1999) at 461 (mem.)(Breyer, J., dissenting).

[24] Id. at 462 (Breyer, J., dissenting).

[25] 1998 WL 440561 (U.S. Fla.) (Breyer, J., dissenting from a denial of cert.)

[26] 24 Fla. Law W. S 290 (Fla. June 17, 1999).

[27] According to Judge Charles Wells "I cannot accept any excuse or have any tolerance for the state placing a person on death row and allowing a person to linger there for the period of time, or even near the period of time, that has occurred in this case."

[28] For example destroying  the political existence of a person Trop v. Dulles, 356 U.S. 86 (1958); If the punishment is unusual in its character  Weems v. United States, 217 U.S. 349 (1909);  if the punishment is not regularly or customarily employed Harmelin v. Michigan, 501 U.S. 957 (1990) at  976.

[29] However, there is a constitutional issue if the inmate has been on the death row twice as long as the national average as it is excessive and since “Excessive bail shall not be required” then there is a violation of the Eighth Amendment. See, Black's Law Dictionary  (1990) at 561 defining excessive as “(g)reater than what is usual or proper” and William Statsky, West's Legal Thesaurus/Dictionary: (1986) at 292 “(g)reater than what is usual or proper”. 

[30] Trop v. Dulles, 356 U.S. 86 (1958) at 101.

[31] See generally David Rossman, “Were There No Appeal”: The History of Review in American Criminal Courts, 81 J. Crim. L. & Criminology 518 (1990); see also Kathleen M. Flynn, The “Agony of Suspense”: How Protracted Death Row Confinement Gives Rise to an Eighth Amendment Claim of Cruel and Unusual Punishment, 54 Wash. & Lee L. Rev. 291, 300 n.48 (1997)

[32] Statistics show that 68% of all death sentences during 1973-1995 were overturned on appeal; 7% of the death row inmates were acquitted and 82% of them received a sentence less than death. See James S. Liebman et. al, A Broken System: Error Rates in Capital Cases, 1973-1995, at 5 (2000).

[33] Nicholas Yarris and Curtis McCarty were exonerated after 21 years on the death row thanks to DNA testing and  Charles Irvin Fain was exonerated after 17 years on the death row thanks to DNA testing, to mention a few. For more information about exonerated death row inmates thanks to DNA testing see: The Innocence Project, The Innocent and the Death Penalty http://www.innocenceproject.org/Content/The_Innocent_and_the_Death_Penalty.php (last visited 20/05/2012 )

[34] William Gladstone, Prime Minister, Speech Addressed to British Parliament Regarding Disestablishment of Irish Church (1868) “[I]f we be just men, we shall go forward in the name of truth and right, bearing this in mind, that when the case is proved and the hour is come, justice delayed is justice denied.”

[35] People v. Chessman, 341 P.2d 679 (Cal. 1959) at 699; Andrews v. Shlusen, 600 F. Supp. 408 (D. Utah 1984) at 431;Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995) at 928; White v. Johnson, 79 F.3d 432 (5th Cir. 1996) at 439; Stafford v. Ward, 59 F.3d 1025 (10th Cir. 1995) at 1028; People v. Simms, No. 86200, 2000 WL 1131823 (Ill. Aug. 10, 2000) at 46; Free v. Peters, 50 F 3d 1362 (7th Cir. 1995).

[36] Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990)

[37] Gomez v. United States, 503 U.S. 653 (1991) at 659 (Stevens, J., dissenting).

[38] As it was emphasised by the Privy Council in  Guerra v. Baptiste (1996) AC 397; (1995) 3 WLR 891; (1995) a All ER 583.

[39] Solesbee v. Balkcom, 339 U.S. 9 (1950) at 14 (Frankfurter, J., dissenting).

[40]  Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering For Execution, 17 B.U. Pub. Int. L.J. 237, 238 (2008). See also William A. Schabas, The Death Penalty as Cruel Treatment and Torture 96-156 (1996).

[41] Jessica Feldman, A Death Row Incarceration Calculus: When Prolonged Death Row Imprisonment Becomes Unconstitutional, 40 Santa Clara L. Rev. 187, 202, (1999).

[42] Jim Hogshire, You Are Going to Prison (1994) at 62.

[43] Robert Johnson, Under Sentence of Death: The Psychology of Death Row Confinement, 5 Law & Psychol. Rev. 141, 142-43 (1979).

[44] Pete Earley, The Hot House: Life Inside Leavenworth Prison (1992).

[45] Jane L. McClellan, Stopping the Rush to the Death House: Third Party Volunteer. Cases, Standing In Death-Row, 26 Ariz. St. L.J. 201, 213, (1994).

[46] Time Magazine, “The Paradox of Supermax” 5 February 2007 at 52-53.

[47] Amnesty International, United States of America: Killing Hope – The Imminent Execution of Sean Sellers Dec. 1, 19 at: http://www.amnesty.org/en/library/info/AMR51/108/1998 (last visited: 21/5/2012).

[48] Lackey v. Texas 514 U.S. 1045 (1995) at 1046 (quoting People v. Anderson, 493 P.2d 880, 894 (Cal. 1972)).

[49] Under Ford v. Wainwright, 477 U.S. 399 (1986) at 409-10, the execution of an insane person violates the Eighth Amendment because executing the insane has no retributive value, the dignity of society is damaged and the insane cannot “prepare for death.

[50] People v. Simms, No. 86200, 2000 WL 1131823 (Ill. Aug. 10, 2000) at 49 (Harrison, C.J., dissenting).

[51] In the capital defence community and the academic literature alike “volunteer” is the death-row inmate who waives their appeals.

[52] Gilmore v. Utah, 429 U.S. 1012 (1976) at 1013. 

[53] Stephen Blank, Killing Time: The Process of Waiving Appeal The Michael Ross Death Penalty Cases, 14 J. L. & POL'Y 735, 737 (2006).

[54] The waiver must have been made knowingly and intelligently by the inmate Godinez v. Moran, 509 U.S. 389 (1993) at 399-401; Faretta, 422 U.S. at 835; Brady v. United States, 397 U.S. 742 (1970) at 748; Carnley v. Cochran, 369 U.S. 506 (1962) at 516; Johnson, 304 U.S. at 463-64 (1938).

[55] Evans v. Bennett, 440 U.S. 1301 (Rehnquist, Circuit Justice 1979) at 1302 relating to parents, Davis v. Austin, 492 F. Supp. 273, 275 (N.D. Ga. 1980) at 275 regarding to close relatives and Lenhard v. Wolff, 443 U.S. 1306, (1979) at 1308, 1310 (Rehnquist, Circuit Justice) relating to public defenders.

[56] David Lester et. Al,  Suicide on Death Row, 47 J Forensic Sci. 1108, 1111 (2002).

[57] Richard C. Dieter, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo. J. Legal Ethics 799, 801 (1990).

[58] According to this experiment a cat is locked in a box with a radioactive source, a Geiger counter, which detects radiation, a bottle of poison, a hammer. If the Geiger counter detects radiation then the hammer brakes the bottle of poison and the cat dies. However, until the box is opened it cannot be determined whether the cat is alive or dead. So the cat is alive and dead the same time. See Hermann Wimmel, Quantum physics & observed reality: a critical interpretation of quantum mechanics (1992) at 2. 

[59] Richard G. Strafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Execution, 74 J. Crim. L. & Criminology, 860, 869-70 (1983)

[60] Recently Thomas Whitaker, a death row inmate in Texas sued Governor Rick Perry, Senator John Whitmire, and the Texas Department of Criminal Justice “for the inhumane and unconstitutional conditions under which the men on death row must live”. See http://deathpenaltynews.blogspot.com/2012/05/death-row-inmates-sue-texas-governor.html (last visited: 21/05/2012).

[61] Robert Blecker, Killing Them Softly: Meditations on a Painful Punishment of Death, 35 Fordham Urb. L.J. 969, 970 (2008).

[62] See general Murder Victims' Families for Human Rights Site: http://www.mvfhr.org/ (last visited 19/05/2012); see also: http://artistsvsdeathpenalty.blogspot.com/2012/01/dan-noyes.html (last visited 22/05/2012).

[63] The life of Stanley changed completely when he was a child after his two eldest brothers were sentenced to death in Texas. For more information about him visit: http://www.mvfhr.org/mvfhr-board-directors (last visited 19/05/2012).

[64] Strafer, supra note 65 at 911 n.221 (1983). The fiancé of Gilmore (Gilmore v. Utah 429 U.S. 1012 (1976)) tried to commit suicide while Gilmore was on the death row Dieter supra note 63 at 813.

[65] John Donne, Meditation WVII.

[66] Albert Camus, Reflections on the Guillotine, in RESISTANCE, REBELLION AND DEATH 189 (Alfred A. Knoff, 1961)

[67] Declaration of Independence, para. 1 (U.S. 1776).

[68] In Ware v. Hylton, 3 U.S. (3 Dall.) (1796) at 199, 281Wilson, J. stated that “[w]hen the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.” In The Nereide, 13 U.S. (9 Cranch) (1815) at 388, 423 Chief Justice John Marshall stated “the [Supreme Court] is bound by the law of nations, which is part of the law of the land.” In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, at 452 n.14 it was held that the Court has further indicated its regard for customary international law by holding that a statute “ought never to be construed to violate the law of nations if any other possible construction remains.”                                                                                                                                                                                                           Other cases where the need of incorporating international law into the U.S. legislation were: Trop v. Dulles, 356 U.S. 86 (1958); Coker v. Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982); Thompson v. Oklahoma, 487 U.S. 815 (1988); Lawrence v. Texas, 539 U.S. 558 (2003); Atkins v. Virginia, 536 U.S. 304 (2002); Grutter v. Bollinger, 539 U.S. 306 (2003) and Roper v. Simmons, 543 U.S. 551 (2005).

[69] U.S. CONST. art. VI, § 1, cl. 2 “[a]nd all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

[70] The U.S. ratified the ICCPR  on June 8, 1992.

[71] Report of the Special Rappateur on  Extraudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3., para. 11 and 18.

[72] Convention Against Torture, Art. 1(1).

[73] Pratt and Morgan v Jamaica nos 210/1986 and 225/1987, UN doc A/44/40/ 222 (1989); Kindler v Canada Redux (No. 470/1991) UN Doc. CCPR/C/48/D/470/1991 (1992); Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995). See also  Concluding Observations of the Human Rights Committee: United States of America (3 Oct. 1995), U.N. Doc. CCPR/C/79/Add.50,  at para 281.

[74] U.N. Human Rights Commission resolution 2005/59 of 20 April 2005 at para.7, resolution 2004/67 of 21 April 2004 at para.4(e).

[75] U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003 and Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Ms. Janhangir of 9 Jan. 2002 at E/CN.4/2002/74 at para 96.

[76] Pratt and Morgan v. Jamaica, (Nos. 210/1986 and 225/1987), UN Doc A/44/40 222 (1989).

[77] U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003.

[78] Extrajudicial, summary or arbitrary executions - Report of the special rapporteur of 25 Jan. 2000 E/CN.4/2000/3.  Under resolution 1989/64 of the Economic and Social Council (endorsed by General Assembly resolution 39/118 and affirmed by the Human Rights Committee resolution 2005/59)

[79] Extrajudicial, summary or arbitrary executions - Report of the special rapporteur of 25 Jan. 2000 E/CN.4/2000/3.

[80] U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, para.4(i). See also Human Rights Committee General Comment 20, Article 7 (Forty-fourth session, 1992), U.N. Doc. HR1/GEN/1/Rev.1 at 30 (1994), at para 16.

[81] U.N. Economic and Social Council resolution 1996/15 of 22 Feb. 1996.

[82] 2006 Commission on Human Rights Mission to Mongolia at  Concluding observations of the Committee against Torture: Zambia, U.N. Doc. CAT/C/ZMB/CO/2(26 May 2008), at para 19.

[83] Francis v. Jamaica, Communication No. 606/1994 (25 July 1995), U.N. Doc. CCPR/C/54/D/606/1994 (1995) at para 9.1.

[84] Joanna Harrington, Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection, 48 McGill L.J. 55, 55, (2003).

[85] European Convention on Human Rights art. 3, 4 Nov. 1950, E.T.S. No. 11, 213 U.N.T.S. 222.

[86]  161 Eur. Ct. H.R. (1989).

[87]   Id. at 154.

[88]  Jon Yorke, Europe's Judicial Inquiry in Extradition Cases: Closing the Door on The Death Penalty, Eur. L. Rev. 546, 552 (2004).

[89] Öcalan v. Turkey, Application No. 46221/99, (Grand Chamber Judgment of 12 May 2005), at para174-75.

[90] de Freitas v. Benny [1976] AC 239 at 243; Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342 at 1348; Riley v. Attorney-General of Jamaica [1982] 3 WLR 557 at 561.

[91]   [1994] 2 AC 1 (PC), 35. at 19.

[92]  Id at 787.

[93] Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] AC 527

[94] Guerra v. Baptiste [1996] AC 397 at 414.

[95] Fisher v.  Minister of Public Safety and Immigration (No. 1) [1998] AC 673

[96] [1993] 4 All ER 769.

[97] Richard B. Lillich, Harmonizing Human Rights Law Nationally and Internationally: The Death Row Phenomenon As A Case Study, 40 St. Louis U. L.J. 699, 710-11 (1996).

[98] Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser.C), No.126 (June 20, 2005).

[99] Velásquez-Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser.C) No. 4, PP174-179 (July29, 1988).

[100] Diego García-Sayán, The Inter-American Court and constitutionalism in Latin America, 89 Tex. L. Rev. 1835, 1835, (2011).

[101] Velásquez-Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser.C) No. 4, PP174-179 (July29, 1988)

[102] Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser.C), No.126 (June 20, 2005).

[103] Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) at 273, Ferguson v. Georgia, 365 U.S. 570 (1961) at 581-82, United States v. Lee, 106 U.S. 196 (1882) at  205.

[104]  Murder(Abolition of Death Penalty) Act 1965

[105] Royal Commission on Capital Punishment 1949-53 (1953) (Cmd 8932).

[106] section 2 of the Criminal Law(Scotland) Act 1830, 11 Geo. 4 & 1 Will. 4, c.37.

[107]  [1993] 4 All ER 769.  [1994] 2 AC 1 (PC), 35. at 19.

[108] Vatheeswaran v. State of Tamil Nadu, (1983) 2 S.C.R. 348 (India); Sher Singh v. State of Punjab, (1983) 2 S.C.R. 582 (India); Mullin v. The Administrator, Union Territory of Delhi and Others AIR, 1993 SC 746;

[109] Mullin v. The Administrator, Union Territory of Delhi and Others AIR, 1993 SC 746;  Umni Krishnan v. State of Andhra Pradesh and Others AIR, 1993 SC 217.

[110] Sher Singh v. State of Punjab, (1983) 2 S.C.R. 582 (India)

[111] Vatheeswaran v. State of Tamil Nadu, (1983) 2 S.C.R. 348 (India) at 359-360; Treveniben v. State of Gujarat, [1989] 1 SCJ 383, 410.

[112]  (1979) 3 SCR 78 (India).

[113] Mehta v. Union of India, (1989) 3 S.C.R. 774 (India) at 777.

[114] Amnesty International, 4000 Kenyans on Death Row Get Life, August 5, 2009 http:// http://www.amnesty.org/en/news-and-updates/goodnews/4000-kenyans-death-row-get-life-20090805 (last visited: 10/05/2012)

[115] Mutiso v Republic, [2010] eKLR, Crim. App. No. 17 of 2008, at para 18.

[116]  Attorney General v. Susan Kigula & 417 Ors (Constitutional Appeal No. 03 of 2006), [2009] UGSC 6 (21 January 2009), at 47-49.

[117] Catholic Commission for Justice & Peace v. Attorney General, [1993] 4 SA 239 (ZSC).

[118] Id  at 334.

[119] [1991] 2 S.C.R. 779 (Can.).

[120]  161 Eur. Ct. H.R. (1989).

[121]  2001 SCC 7.

[122] Id. at para 122.

[123] Artists vs Death Penalty, Robert Butts http://artistsvsdeathpenalty.blogspot.com/2011/08/robert-butts-death-row-artist.html, (last visited 22/05/2012) 

 

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