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The Death Row Phenomenon violates the implementation of the

By Margaret Griffin,2014-04-22 21:57
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The Death Row Phenomenon violates the implementation of the

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

    Contact Information:

    Elisabeth Hanowsky, Frank C. Newman Intern

    lizhanowsky@gmail.com

    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

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    I. Introduction

    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

    5people.

    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.

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    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

    9 possible.

    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.

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    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

    18mental disorders.

    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 Cru