P.O. Box 5675, Berkeley, CA 94705 USA
The Death Row Phenomenon is a Violation of the Limitations Placed on Capital Punishment Under
International Human Rights Law.
Human Rights Council th Session 4
Agenda Item: Special Procedures/ Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions/ Special Rapporteur on Torture
Elisabeth Hanowsky, Frank C. Newman Intern
Representing Human Rights Advocates through
University of San Francisco School of Law’s
International Human Rights Clinic
Professor Connie de la Vega
Tel: 001 415 422 69 61
The use of capital punishment (or the death penalty) continues. The law of sixty-nine countries allows
12for the punishment. In 2005, at least 2,148 people were executed. In that same year, 5,186 were reported to
3have received a death sentence. As in previous years, most of these executions took place in only a few
ninety-four percent of the executions conducted in 2005 were in China, Iran, Saudi Arabia and the countries –
4United States. For want of proper reporting from many countries, the total number of those awaiting execution is difficult to access. However, the number has been estimated at between 19,474 and 24,546
The United Nations has expressed concern over the use of capital punishment and Human Rights Advocates supports the work of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. Although capital punishment has not yet been declared a violation of international law, the Commission on
6Human Rights has called upon retentionist countries to abolish the punishment. The Commission on Human
Rights also “expressed conviction that the abolition of the death penalty contributes to the progressive
7development of human rights.” It also affirmed that retentionist countries must strictly observe the relevant
8procedural safeguards and limitations to the punishment when applying the penalty. Per the International
Covenant on Civil and Political Rights (ICCPR) Article 6, the imposition of the death penalty is allowed, but must be imposed only for the most serious crimes and without arbitrariness. Article 7 of the ICCPR prevents the imposition of the death penalty when it would involve torture. Article 10 requires humane treatment while
1 Amnesty International, Facts and Figures on the Death Penalty, February 23, 2007 at http://web.amnesty.org/pages/deathpenalty-facts-eng. 2 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng. 3 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng. 4 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng. 5 Amnesty International, Facts and Figures on the Death Penalty, February 23, 2007 at http://web.amnesty.org/pages/deathpenalty-facts-eng (quoting numbers from human rights researcher Mark Warren). 6 U.N. Human Rights Commission resolution 2005/59 of 20 April 2005, resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003; see also International Covenant of Civil and Political Rights, Article 6; The Second Optional Protocol to
the International Covenant on Civil and Political Rights. 7 U.N. Human Rights Commission resolution 2005/59 of 20 April 2005, resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003. 8 U.N. Commission on Human Rights resolution 2005/59 of 20 April 2005.
in custody. Article 14 defines legal procedural safeguards to the imposition of the punishment. Additional safeguards -- initially adopted by the United Nations Economic and Social Council and later endorsed by the United Nations General Assembly and Commission on Human Rights -- include restrictions on the number of offenses for which the punishment is imposed, increases in public capital punishment information, prevention of the sentence on those with mental illness, and that the punishment be executed with as little suffering as
However, the Commission has noted that much still needs to be done in the implementation of these
10safeguards. Human Rights Advocates is concerned that the safeguards and limitations to the use of capital punishment as announced in the ICCPR and resolutions of the Commission on Human Rights are not being abided by. Specifically, the onset of the “death row phenomenon” or “death row syndrome” in prisoners under the sentence of death violates ICCPR Articles 6, 7, 10 and 14, in addition to other safeguards adopted by the Commission.
II. The Death Row Phenomenon Defined
The “death row phenomenon” or “death row syndrome” is a combination of circumstances found on
1112death row that produce severe mental trauma and physical deterioration in prisoners under those sentences.
This phenomenon is a result of the harsh conditions experienced on death row, the length of time that they are
13experienced, and the anxiety of awaiting one’s own execution. Other associated factors that contribute to
9 United Nations Economic and Social Council resolutions 1984/50 of 25 May 1984, 1985/33 of 29 May 1985, 1989/64 of 24 May 1989, 1990/29 of 24 May 1990, 1990/51 of 24 July 1990 and 1996/15 of 23 July 1996 as cited by the United Nations General Assembly resolution 39/118 of 14 Dec 1984 and Commission on Human Rights resolution 2005/59 of 20 April 2005 and resolution 2004/67 of 21 April 2004. 10 U.N. Commission on Human Rights resolution 2005/59 of 20 April 2005 at para.4. 11 Death row is the prison that houses inmates sentenced to death. 12 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No.
4, 833, 833. 13 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No. 4, 833, 834-36.
the mental trauma include a cramped environment of deprivation, arbitrary rules, harassment, and isolation
14 from others.
Numerous scholars have documented this severe mental trauma, a result of the stress associated with
15death sentences. One study found, “[t]he observable result of mental suffering inflicted on the condemned
16prisoner is destruction of spirit, undermining of sanity, and mental trauma…” Specific manifestations
include: an overwhelming sense of fear and helplessness, mental incompetence, fluctuating moods, recurrent depression, mental slowness, confusion, forgetfulness, lethargy, listlessness, drowsiness, symptoms of senility (in the forms of rambling correspondence, misplacing objects within a small cell, and expressing disconnected
17thoughts), self-mutilation, and insanity. The conditions of confinement also appear to aggravate existing
Jurists have also noted the debilitating mental affects of sentencing a person to death. A United States court (California) stated the process of carrying out a verdict of death is frequently so degrading to the human
14 Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature,” 20 BEHAVIORAL SCIENCES AND THE LAW 191, 204 (Jan-Mar 2002). 15 Some of the scholars who have written about death row phenomenon include Schabas, Execution Delayed, Execution Denied, 5 CRIM. L. FORUM 180 (1994); Lambrix, The Isolation of Death Row, in FACING THE DEATH PENALTY 198 (M. Radelet ed. 1989);
Mello, Facing Death Alone, 37 AMER. L. REV. 513, 552 & n.251 (1988) (same) (citing studies); Stafer, Symposium On Death
Penalty Issues: Volunteering for Execution, 74 J. CRIM. L. 860, 861 & n.10 (1983) (citing studies); Holland, Death Row Conditions:
Progression Towards Constitutional Protections, 19 AKRON L. REV. 293 (1985); Johnson, Under Sentence of Death: The
Psychology of Death Row Confinement, 5 LAW & PSYCHOLOGY REVIEW}141, 157-60 (1979); Hussain & Tozman, Psychiatry on
Death Row, 39 J. CLINICAL PSYCHIATRY 183 (1979); West, Psychiatric Reflections on the Death Penalty, 45 AMER. J.
ORTHOPSYCHIATRY 689, 694-95 (1975); Gallemore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 AMER. J.
PSYCHIATRY 167 (1972); Bluestone & McGahee, Reaction to Extreme Stress: Impending Death By Execution, 119 AMER. J.
PSYCHIATRY 393 (1962); Note, Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV.
814, 830 (1972); G. Gottlieb, Testing The Death Penalty, 34 S. CAL. L. REV. 268, 272 & n.15 (1961); A. Camus, Reflections on the
Guillotine, in RESISTANCE, REBELLION & DEATH 205 (1966). 16 Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, IOWA LAW REVIEW, 57 IOWA L. REV. 814, 829
(1972). 17 S. Blank, Killing Time: The Process of Waiving Appeal The Michael Ross Death Penalty Cases, JOURNAL OF LAW AND SOCIAL
POLICY 14 JLPOLY 735, 749; Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A
Critical Review of the Literature,” 20 BEHAVIORAL SCIENCES AND THE LAW 191, 204 (Jan-Mar 2002), citing Johnson, “Under
Sentence of Death: The Psychology of Death Row Confinement,” 5 LAW AND PSYCHOLOGY 141-192 (1979); Strafer, Volunteering
For Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J. CRIM. L. & CRIMINOLOGY 860, 872 (1983); The Death Penalty Cases, 56 CALIF. L. REV. 1268, 1342 (1968); Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 829 (1972). 18 Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature,” 20 BEHAVIORAL SCIENCES AND THE LAW 19, 206 (Jan-Mar 2002).
19 In India, commenting on a prisoner that had been on death spirit as to constitute “psychological torture.”
row for many years, a judge noted, “[he] must be now, be more of a vegetable than a person and hanging a
20vegetable is not the death penalty.”
III. The Mental Trauma Known as the Death Row Phenomenon Has Been Recognized by Courts
Numerous international and domestic courts have recognized the death row phenomenon as possibly amounting to torture or cruel punishment. The European Court of Human Rights has found that the onset of
21the death row phenomenon can be a violation of Article III of the European Convention on Human Rights.
In Soering, the court recognized the existence of the death row phenomenon and found that the factors of the conditions on death row, the length of time spent there, and the effects of the death sentence on an individual prisoner could constitute a violation of “inhumane or degrading treatment or punishment” under Article III of the Convention. As a result, the Court unanimously declined to extradite a prisoner to the United States where he would face a death sentence. In a later case, the same court reaffirmed this view, finding that Article III could be breached by a long delay in execution, harsh conditions, and a constant anxiety of one’s own
22death. The United Nations Human Rights Committee has also recognized the existence of the death row
23phenomenon as a possible breach of Article 7 of the ICCPR. The Committee also noted the factors of a long
24delay, harsh conditions and the impact the sentence has on the prisoner.
Other courts have also recognized the death row phenomenon as a violation of punishment. In Pratt
and Morgan Redux, the Judicial Committee of the Privy Council recognized the existence of the death row
19 People v. Anderson, 6 cal 3d 628, 649 (1971); see also Soering v. United Kingdom, 161 Eur. Ct. H.R. at 102 (1989). 20 Rahendra Prasad v. State of Uttar Pradesh 3 SCR 78, 130 (1979). 21 Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989). 22 Çinar v. Turkey, 79A DR 5 (1994) (reported in French version only). 23 Pratt and Morgan v Jamaica nos 210/1986 and 225/1987, UN doc A/44/40/ 222 (1989) [declining to find a violation in the particular case, but noting that under an individualized determination of each case, the result could be different]; Kindler v Canada
Redux (No. 470/1991) UN Doc. CCPR/C/48/D/470/1991 (1992) [recognized the death row phenomenon but declining to find a delay]; Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995) [violation found based on delay in addition to other factors]. 24 Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995).
phenomenon and found a violation of inhuman punishment because of a fourteen-year delay in sentence and
25 In Kindler v. Canada, the Supreme Court of Canada recognized the existence of the death row execution.
26phenomenon. Although no violation of the Canadian Charter was found in this circumstance, the court
27found the phenomenon could be a violation when applied to other facts. The Supreme Court of Zimbabwe,
in Catholic Commission v. Attorney General, found that the prolonged delays and harsh conditions of
28incarceration violated the prohibition against cruel and unusual treatment. Also, appellate courts in India,
when determining whether to quash a sentence of death, take into account the length of time spent on death
29row because of the “dehumanizing character of the delay.”
The death row phenomenon factors of long sentences on death row, harsh conditions, and effects of the sentence on the prisoner noted by the United Nations Human Rights Committee, the European Court of Human Rights, and the Judicial Committee of the Privy Council, among others, continue to exist and to exist with increasing severity. Each of these factors is discussed in turn below.
a. Inmates spend extreme lengths of time on death row
In some countries, prisoners wait for more than a decade to be executed. For death-sentenced prisoners in the United States in 2005, the average time spent on death row was twelve years and three
30months. In the state of California, which has the largest death row in the United States, some inmates have
31awaited their execution for more than twenty years. In one case, an inmate has waited, through no fault of
25 Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). This case was also appealed to the Inter-American Commission and Court of Human Rights, and the United Nations Human Rights Committee. In all the cases, a violation was found by the reviewing court. However, the Human Rights Committee based the reasons for a violation on particularly cruel actions of officials failing to notify the prisoners that their death sentences were stayed until 45 minutes before the scheduled
execution. 26 Kindler v Canada (Minister of Justice), 2 S.C.R. 779 (Can.) (1991), this case was later brought before the United Nations Human Rights Committee as Kindler v Canada Redux. 27 Kindler v Canada (Minister of Justice), 2 S.C.R. 779 (Can.) (1991). 28 Catholic Commission v. Attorney General (Zimbabwe), 2 Z.L.R. 306, (1993). 29 Vatheeswaran v. State of Tamil Nadu, 25 S.C.R. 348, 353 (1983). 30 United States Bureau of Justice, Statistics Bulletin Capital Punishment, 2005 published Dec. 2006 (revised Jan. 1, 2007) at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf. 31 California Department of Corrections and Rehabilitation Division of Adult Operations, Death Row Tracking System, available at:
32 In Nigeria, his own, for fifteen years for his first appeal to be heard, at one point without counsel at all.
33prisoners have an average twenty-year stay on death row. More than one-third of Japanese death row
prisoners have spent more than ten years awaiting execution, and in one reported case, a prisoner had spent
34more than 38 years. In 2005, Amnesty International reported a Yemen case of a prisoner sentenced in 1996
35that was still awaiting execution. In sum, long delays, often decades long, are common on death rows across the world.
Some bodies have found that this extreme delay alone (irrespective of prison conditions and anxiety
over the sentence) is enough to produce the death row phenomenon and thus violate the prohibition on torture or cruel, inhuman and degrading punishment. The Judicial Committee of the Privy Council has held that delay alone in the implementation of a death sentence can warrant a finding of the death row phenomenon –
36and that a delay of 14 years was enough alone to constitute a violation of cruel punishment. Moreover, the
Privy Council found that a time of four years and ten months under the sentence of death, when a result of
37factors outside of the prisoner’s control, also constituted the death row phenomenon.
However, the Human Rights Committee has declined to find that delay alone is enough to warrant a
38finding of the death row phenomenon and a violation based on torture or cruel punishment. While the
Committee has found a period of seven years on death row is a cause for concern, no violation of Article 7 of
39the ICCPR existed without evidence of the other factors. The Committee in these cases has expressed
concern that prisoner’s themselves are to blame for the delays and that hasty executions may result. As
32 See, Petition P 120-07 by Human Rights Advocates and fos*ters to the Inter-American Commission on Human Rights [it is expected that the inmate will wait another ten years for his appeals to finish, allowing for time on death row to exceed 25 years]. 33 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston - Mission to Nigeria of 7 Jan.
2006 at E/cn.4/2006/53/add.4; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston
of 8 March 2006 at E/cn.4/2006/53. 34 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng, see case of Hakamada Iwao. 35 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng. 36 Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). 37 Guerra v. Baptiste (1996) AC 397, (1995) 3 WLR 891, (1995) a All ER 583. 38 Johnson v. Jamaica, (No. 588/1994), UN Doc. CCPR/C/56/D/588/1994 (1996). 39 U.N. Human Rights Committee Comm. No. 600/1994 of 21 Oct. 1994 at CCPR/C/57/D/600/1994.
detailed below, these concerns are inapplicable in the cases of extreme delay as the prisoners are often not at fault for the delay and cases of extreme delay do not interfere with prohibitions against undue haste. In cases that would put a prisoner at risk of undue haste, HRA in no way advocates for the removal of these protections.
The delays in execution are generally not the fault of the prisoners themselves, but rather the fault of the state. The Privy Council has noted that often the delays experienced are not a result of the prisoners’
40 Many judicial systems draw out proceedings for actions, but are a result of the failure of the judicial system.
interminable amounts of time. One United States judge has criticized the delay caused by the appeals process in that “the process has become unacceptably cruel to defendants …who spend long years under the sentence
of death while the judicial system conducts seemingly interminable proceedings which remind many
41observers of a cruelly whimsical cat toying with a mouse.” Disturbingly, death row inmates are waiving
their appeals, choosing execution in order to avoid this extreme delay. Between 1976 and 2003, ten percent of
42those executed in the United States were volunteers.
Another problematic area is that of legal representation. For example, it is noted that adequate representation may be a factor in these delays -- the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions noted in a 1998 report that 170 California (United States) death row inmates with
43appeals still left had NO legal counsel. In fact, it takes five years for appellate counsel to even be appointed to a California death row inmate. Moreover, appointed counsel may not be properly trained to handle a death
44case, a cause of many legal errors at the trial stage.
40 Guerra v. Baptiste (1996) AC 397; (1995) 3 WLR 891; (1995) a All ER 583. 41 Richard C. Dieter, International Perspectives on the Death Penalty: A Costly Isolation for the U.S., October 1999 at
www.deathpenaltyinfo.org/article.php?scid=45&did=536. 42 S. Blank, Killing Time: The Process of Waiving Appeal The Michael Ross Death Penalty Cases, JOURNAL OF LAW AND SOCIAL
POLICY 14 JLPOLY 735, 737. 43 Report of the Special Rappateur on Extrajudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3. 44 Truskett, The Death Penalty, International Law, and Human Rights, TULSA JOURNAL OF COMPARATIVE AND INTERNATIONAL LAW
11 TLSJCIL 557, 577-78 (2004).
A prisoner also should not be faulted for taking advantage of the legitimate appeals offered by the state when the prisoner is fighting to save his or her own life. While it is true that the inmate may be pushing the appeal process, such a struggle to remain alive is part of human nature. A country that facilitates this struggle
45directly causes the delay and must be held accountable for the actions. The Judicial Committee of the Privy
Council supports this view: “If the appellate procedure enables the prisoner to prolong the appellate hearings
over a period of years, the fault is to be attributed to the appellate system that permits such delay and not the
46prisoner who takes advantage of it.” The European Court of Human Rights has gone even further. The
Court took the position that even if the delay was the result of the inmate’s actions they were not to be blamed for pursuing life as the fact remained that they were pursuing life under death row conditions with mounting
47tension over their own death.
Lastly, recognition of extreme delay would likely not result in executions that are incompatible with other due process requirements. Recalling the recent undue haste in the execution of Saddam Hussein, it is important to note that reductions in extreme delay do not result in hasty executions, and that the two
limitations can be read compatibly. The death row phenomenon does not encompass all delays, only those extreme in length. Strict adherence to procedure should be no excuse for such delays, and legal procedures should be completed in reasonable amounts of time. Reasonable amounts of time, though, are not being found in states that impose death sentences. Prisoners are waiting decades, lifetimes to be executed. Moreover, these lengths of delay are more than exceptional cases -- they are averages.
i. The long delays found in the implementation of death sentences are also a
violation of Article 14 of the ICCPR
The long delays in sentence and execution are also a violation of being tried without undue delay. Article 14(3)(c) of the ICCPR reads, “In the determination of any criminal charge against him, everyone shall
45 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No.
4, 833, 835. 46 Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). 47 Soering v. United Kingdom, 161 Eur. Ct. H.R. at 106 (1989).
be entitled to the following minimum guarantees, in full equity: (c) to be tried without undue delay.” States that impose death sentences must assure that the sentences conform to the procedural requirements of Article 4814. In addition, when capital punishment is at issue, Article 14’s procedural requirements are strictly
49imposed. The United Nations Human Rights Committee has found that a 45-month delay while waiting for
50an appeal on a sentence of death violated the right to be tried without undue delay. Thus, the imposition of
sentences under the threat of death that are extreme in length, often decades, violate these prisoner’s due process rights to be tried without undue delay under Article 14.
b. Physical conditions of death rows are mentally and physically demanding
Not only do inmates spend enormous amounts of time anticipating their own execution, they do so in deplorable conditions. Death row has been characterized as a living hell. Under these conditions, prisoners’
mental and physical states deteriorate rapidly. Generally, prisoners are denied many basic human comforts
5152(which are described henceforth). Prisoners are confined to small cells for up to 23 hours per day. Death
row conditions around the world also include the following: inmates are denied hobbies or meaningful ways to entertain themselves, lights are on at all times (including during sleep), temperature extremes, inadequate nutrition and sanitation, lack of exercise, cells may be so constricting that prisoners cannot stand in them, contact with the outside world (including family and counsel) is infrequent or not allowed, and solitary confinement is common and especially debilitating. One scientific study showed that after a few days in
53solitary, prisoners’ brain waves shift to a pattern of “stupor and delirium.” Another study found that
48 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). 49 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. 50 Pratt and Morgan v. Jamaica, (Nos. 210/1986 and 225/1987), UN Doc A/44/40 222 (1989). 51 See generally Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng; Amnesty International Annual Report 2006 at http://web.amnesty.org/report2006/index-eng. 52 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No.
4, 833, 836. 53 Time Magazine “The Paradox of Supermax” 5 February 2007 at 52-53.