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Aclu Cap Pun in the Us 2008

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DATE: May 30, 2008
CONTACT:
Jamil Dakwar,
Director
ACLU Human Rights Program
+1-212-519-7850
jdakwar@aclu.org
www.aclu.org/humanrights

Christopher Hill,
State Strategies Coordinator
ACLU Capital Punishment Project
+1-919-682-5625
chill@aclu.org
www.aclu.org/capital

Capital Punishment in the United States
Submission to the Office of the United Nations High Commissioner for Human
Rights following UN General Assembly resolution 62/149 entitled “Moratorium on
the use of the death penalty” adopted in December 2007

Introduction
Beginning in September 2007, the United States experienced a de facto moratorium on its
use of the death penalty when the U.S. Supreme Court granted certiorari in the case of
Baze v. Rees. In Baze, the Court was concerned with whether Kentucky's lethal injection
protocol and procedures created a substantive risk of unnecessary pain in violation of the
Eighth Amendment of the U.S. Constitution.
On April 16, 2008, the Supreme Court held that Kentucky's system was constitutional,
but allowed challenges to lethal injection methods in other states to proceed. The
moratorium ended on May 6, 2008, when Georgia executed William Earl Lynd. As of
the date of the writing of this report, twenty-two prisoners are scheduled for execution.
During the moratorium’s seven months, evidence continued to mount that the United
States’ capital punishment system is broken. We continued to see innocent prisoners
released from death row. Race, class, and geography continued to determine who was
charged with capital murder and sentenced to death. People continued to be sentenced to
death because of ineffective assistance of counsel. Funding for public defender systems
lawyers remained anemic. The costs of the penalty remained extraordinary. Conditions
on death rows throughout the country continued to be deplorable. New Jersey, Maryland,

and California recognized that capital punishment needs to be ended or examined to
understand why the capital punishment system is such a failure.
Innocence
During the moratorium, five innocent men were released from death row. Four of the
five were black and all of them were indigent. As of this report, 129 death row prisoners
have been exonerated in the past 35 years.
Race
Racial biases and disparities continue to plague the U.S.’s death penalty system. Among
other problems, African Americans charged with capital murder often must face all-white
or virtually all-white juries, because prosecutors strike blacks from their juries. This
occurs despite Supreme Court decisions banning this discriminatory practice. In Snyder
v. Louisiana, a decision released on March 19, 2008, the Supreme Court reiterated that
this practice violates the Constitution, holding that a trial judge impermissibly allowed a
prosecutor to strike a black juror from the jury of a black defendant.
Troy Davis, an African American man, is probably innocent of the 1989 murder of a
white police officer. Several of the witnesses who testified at his trial have recanted and
assert they were coerced by the police to say that they saw Davis commit the crime. No
murder weapon has been found and there is no physical evidence linking Davis to the
murder. Nevertheless, the Georgia Supreme Court voted 4-3 against Troy Davis’ request
for a new trial. Davis remains on death row.
A November 2007 study of death sentences in Connecticut found that the decision to seek
the death penalty was more often related to the race of the victim and the defendant, and
not to the severity of the crime. Minorities who are alleged to have killed white victims
are most likely to be charged capitally. “Racial Disparities in the Capital of Capital
Punishment,” as reported in the New York Times on April 29, 2008, is another recent
study of race and the death penalty that focused on capital cases from Harris County,
Texas. This study found that there is “a robust relationship between race and the
likelihood of being sentenced to death even after the race of the victim and other factors
were held constant.” (NYT Sidebar by Adam Liptak, April 29, 2008.)
Indigent defense
The American Bar Association, on October 29, 2007, released a new report renewing its
1997 call for a moratorium on the use of capital punishment and citing its three-year
study of capital punishment in eight states. Among other things, the report cites racial
disparities and inadequate counsel as problems that need to be addressed.
Georgia’s indigent defense system has come under scrutiny because the attorneys
representing Brian Nichols are not getting paid and are unable to provide the vigorous

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defense a capital defendant requires. The Georgia Public Defender Standards Council
has run out of money.
In a potentially far reaching ruling, a trial judge in New Mexico barred the state from
seeking the death penalty because the legislature failed to provide adequate funding for
defense representation. The court held that the inadequate funding of the attorneys
violated defendant’s Sixth Amendment right to counsel. The state’s Attorney General,
Gary King, agreed that the capital prosecution could not go forward. The court's ruling
and the agreement by the Attorney General may mean that no further death penalty
prosecutions can proceed in New Mexico without legislative action.
Costs
The ACLU of Northern California released a report called “The Hidden Death Tax,”
which addressed the high costs and arbitrariness of California’s death penalty system.
The report found that a capital trial costs counties at least $1.1 million more than a noncapital murder trial, and that the state spends an additional $117 million a year pursuing
the execution of those already on death row. One trial alone cost California tax payers
$10.9 million.
In New York, a federal judge said that prosecuting a capital case was not worth the costs
involved. Legendary U.S. Federal District Court Judge Jack B. Weinstein said that
seeking the death penalty against Humberto Pepin Taveras in New York would be a
waste of prosecutors’ time and effort and taxpayers’ money. The case already had
reached $750,000 in defense costs. There has only been one death sentence, Ronell
Wilson in 2007, recommended by a federal jury in New York since the federal death
penalty was reenacted in 1988.
Access to the Courts
On September 25, 2007, the same day that the Supreme Court granted certiorari in Baze
v. Rees, the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller, refused
to keep the courthouse open past 5:00 pm so that an inmate scheduled for execution that
night could challenge his death sentence under the Baze cert grant. Lawyers representing
the condemned man, Michael Richard, had computer problems and called the court to tell
the clerk of the court that they would have to file their Baze challenge after 5:00 pm.
However, per Chief Judge Keller’s instructions, the courthouse was closed at 5:00 pm,
and Richard was executed later that night.
Conditions on Death Row
Conditions on many of the country’s death rows remain deplorable. There have been two
suicides on Texas’s death row. Jesus Flores killed himself on January 29, 2008. William
Robinson committed suicide on February 4, 2008. Robinson, housed in the section of the
prison for inmates with mental health issues, was on suicide watch when he killed
himself.

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The ACLU National Prison Project and the ACLU of Nevada filed suit against the State
of Nevada because of the grossly inadequate medical care provided at Ely State Prison,
where the state’s death row inmates are housed. Eleven of the 12 people executed in
Nevada in the past 35 years have “volunteered” for execution.
Methods of Execution
In Baze v. Rees, the Supreme Court was asked to decide whether the lethal injection
protocol and procedures used by Kentucky were constitutional. The question was
whether the protocol and procedures created a substantial risk that the condemned inmate
would experience unnecessary and excruciating pain. Like virtually all other states,
Kentucky uses a three-drug lethal injection cocktail. The first drug, sodium thiopental, is
supposed to render the inmate unconscious because the next two drugs are extremely
painful. The second drug, pancuronium bromide, paralyzes the inmate. The third drug,
potassium chloride, causes cardiac arrest. The problem is that if the first drug does not
result in unconsciousness, the paralytic will keep the inmate from screaming in pain when
the second and third drugs are injected. Even though the American Veterinarian
Association does not allow the use of the cocktail on animals, the Supreme Court ruled
that the Kentucky protocol was not cruel and unusual punishment.
The Supreme Court of Nebraska ruled in February 2008 that the electric chair constituted
cruel and unusual punishment under the state constitution. This leaves Nebraska without
a functioning capital punishment process since it does not have a lethal injection protocol.
In the decision, Judge William Connolly stated, “[w]e recognize the temptation to make
the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the
hallmark of a civilized society that we punish cruelty without practicing it.”
Progress
The seven months between the grant of certiorari in Baze v. Rees, and the execution of
William Earl Lynd, was the longest the United States had gone without an execution in
over twenty-five years.
During this respite, New Jersey abolished its death penalty. The process began when the
state passed a law for a death penalty study commission. The commission found that
“[t]he alternative of life imprisonment in a maximum security institution without the
possibility of parole would sufficiently ensure public safety and address other legitimate
social and penological interests, including the interests of the families of murder victims.”
On December 17, 2007, Jon Corzine, Governor of New Jersey, signed the abolition bill
into law.
The New York Court of Appeals ruled that the death sentence for John Taylor, who was
the remaining inmate on the state's death row, was unconstitutional under state law. The
decision followed an earlier decision in 2004 which overturned the state’s statute because

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of flaws in the jury instructions. The New York legislature has repeatedly rejected
attempts to re-instate the death penalty.
Other states are also recognizing that their capital punishment systems need to be
examined. The California Commission on the Fair Administration of Justice was created
to examine problems with the death penalty process in that state. The legislature of the
Maryland has approved a death penalty study commission.
With some jurisdictions realizing that the capital system is not working, the United States
still uses this vicious method of punishment, even if it conflicts with international law. In
Medellin v. Texas, the U.S. Supreme Court ruled that the President does not have the
authority to order states to bypass their procedural rules and comply with a ruling from
the International Court of Justice. This ruling allowed Texas to set an execution date in
2008 for a Mexican citizen who was not offered access to the Mexican Consulate at the
time of his arrest. Even the International Court of Justice cannot halt the “killing
machine” in Texas.
Military Commissions and Capital Punishment
On October 17th 2006, U.S. President George W. Bush signed into law the Military
Commissions Act (MCA). The Act was in response to a U.S. Supreme Court Decision
which invalidated a previous attempt of the U.S. government to set up military
commissions system to try “alien unlawful enemy combatants” detained as part of the
U.S. government’s “war on terror.” The MCA is the latest attempt by the U.S.
government to establish a commissions system to try “alien unlawful enemy combatants.”
The MCA lacks basic substantive and procedural protections codified in the U.S.
Constitution, the Geneva Conventions, and numerous international human rights treaties,
including the International Covenant on Civil and Political Rights, the Convention
Against Torture, and the Convention on the Elimination of All Forms of Racial
Discrimination. The violations include the denial of the right of habeas corpus,
independent trial court, and curtailment of the right of judicial review and the right to a
remedy for human rights violations. The military commissions also allow for the use of
evidence obtained through torture. The MCA also protects perpetrators of torture, by
granting persons who committed acts of torture against detainees retroactive immunity
for their crimes.
The MCA explicitly allows for the use of the death penalty in 15 cases. These crimes, in
unqualified terms, include: the murder of protected persons (persons protected under the
Geneva Conventions); murder in violation of the laws of war; or spying. The following
crimes also allow for the penalty of death in cases where one or more person died as a
result of the crime: attacking civilians; taking hostages; employing poison or similar
weapon; using protected persons as a shield; torture; cruel and unusual treatment;
intentionally causing serious bodily injury; mutilating or maiming; using treachery or
perfidy; hijacking or hazarding a vessel or aircraft; terrorism; or conspiracy. There are a
number of additional crimes specified in the MCA, but they do not explicitly allow for a
sentence of death.

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Once a sentence of death is handed down by a military commission, there are a number
of procedural steps that must be followed before the sentence can be carried out. The
President of the U.S. must approve all death sentences, and “may commute, remit, or
suspend the sentence … as he sees fit.” In addition, the decision can be appealed to the
U.S. Court of Appeals for the District of Columbia Circuit and, following the Circuit
Court, to the U.S. Supreme Court. If a “judgment as to the legality of the proceedings”
is upheld by the Supreme Court of the United States, or, if the accused fails to submit his
or her appeal on time, the sentence can be executed, unless the President of the U.S., as
stated above, intervenes.
Despite the serious deficiencies in the current system of military commissions, hearings,
and proceeding, it is even more troubling that even an acquittal by these commissions and to date, only handful of people have been permitted to appear before them – does not
result in release. Detainees are simply returned to the general population at Guantanamo
where they are held indefinitely as “enemy combatants.” To date, the U.S. government
has announced charges against 16 men, including six cases in which the U.S. is seeking
the death penalty.
The Death Penalty in the US scrutinized by UN Human Rights Treaty Bodies:
Since 2006, two U.N. treaty bodies, namely the Human Rights Committee and the
Committee on the Elimination of Racial Discrimination, have addressed the imposition of
death penalty in the U.S. The ACLU submitted comprehensive shadow reports to said
committees which addressed the problem of capital punishment in the U.S. The reports
are available online at: http://www.aclu.org/pdfs/iccprreport20060620.pdf (HRC) and
http://www.aclu.org/pdfs/humanrights/cerd_full_report.pdf (CERD).
The Human Rights Committee and the Committee on the Elimination of Racial
Discrimination have issued the following concerns and recommendations after a thorough
examination of U.S. compliance with these two human rights treaties:
CERD concluding observation issued on March 7, 2008
Paragraph 23
The Committee remains concerned about the persistent and significant racial
disparities with regard to the imposition of the death penalty, particularly those
associated with the race of the victim, as evidenced by a number of studies,
including a recent study released in October 2007 by the American Bar
Association (ABA).1 (Article 5 (a))
Taking into account its general recommendations No. 31 (2005) on the
prevention of racial discrimination in the administration and functioning of
the criminal justice system, the Committee recommends that the State party
undertake further studies to identify the underlying factors of the substantial
racial disparities in the imposition of the death penalty, with a view to

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elaborating effective strategies aimed at rooting out discriminatory practices.
The Committee wishes to reiterate its previous recommendation – contained
in paragraph 396 of its previous concluding observations of 2001 – that the
State party adopt all necessary measures, including a moratorium, to ensure
that death penalty is not imposed as a result of racial bias on the part of
prosecutors, judges, juries and lawyers.
HRC concluding observation issued on July 28, 2006
Paragraph 29
The Committee regrets that the State party does not indicate that it has taken any
steps to review federal and state legislation with a view to assessing whether
offences carrying the death penalty are restricted to the most serious crimes, and
that, despite the Committee’s previous concluding observations, the State party
has extended the number of offences for which the death penalty is applicable.
While taking note of some efforts towards the improvement of the quality of legal
representation provided to indigent defendants facing capital punishment, the
Committee remains concerned by studies according to which the death penalty
may be imposed disproportionately on ethnic minorities as well as on low-income
groups, a problem which does not seem to be fully acknowledged by the State
party. (articles 6 and 14)
The State party should review federal and state legislation with a view to
restricting the number of offences carrying the death penalty. The State party
should also assess the extent to which death penalty is disproportionately imposed
on ethnic minorities and on low-income population groups, as well as the reasons
for this, and adopt all appropriate measures to address the problem. In the
meantime, the State party should place a moratorium on capital sentences, bearing
in mind the desirability of abolishing death penalty.

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