The U.S., Capital Punishment and the ICCPR

The United States has expressed reservations to Article 6, section 5 of the ICCPR,[1] stating that “the United States reserves the right, subject to Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.”[2]

Notably, the United States is not a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, the aim of which is the abolition of the death penalty. The rationale behind this reservation, according to the Foreign Relations Committee, is “the recent affirmation of U.S. policy toward capital punishment generally, and in particular the Supreme Court’s decision upholding state laws permitting the death penalty for crimes committed by juveniles aged 16 and 17.”[3]

Recent legal developments undermine the Committee’s rationale, however, and may warrant the reservation’s amendment. In 2005, the United States Supreme Court held the juvenile death penalty unconstitutional, as a violation of the Eighth Amendment’s proscription of cruel and unusual punishment.[4] The respondent was seventeen when he committed murder.[5] Previously, the Court had determined that “standards of decency [did] not permit the execution of any offender under the age of 16 at the time of the crime.”[6] Moreover, the Court cites to the “evolving standards of decency” as evidenced by the growing national consensus against the death penalty for juveniles.[7] The “objective indicia of consensus in this case” was the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books, and the consistency in the trend toward abolition of the practice.[8]

Notably, the Court discusses the ICCPR and other international treaties in its opinion, finding international consensus a factor in determining whether punishment is cruel and unusual.[9]

More recently, a federal judge in California held that the State’s death penalty system violated the Eighth Amendment.[10] Of the nine hundred individuals sentenced to death since 1978, only seventeen had completed federal habeas review and had been denied relief. Of those seventeen, each had been on death row for more than twenty-five years, and eight have been there for more than thirty years. The Court held California’s death penalty system to be arbitrary, determining that a death sentence in California is rather a “sentence of life imprisonment with the remote possibility of death ­– a sentence no rational legislature or jury could impose.”[11] Moreover the selection for execution served no penological purpose, but rather was determined by how quickly the inmate proceeded through the State’s post-conviction review process.[12]

Based on these two cases, it would seem the standards of decency and national consensus have evolved since the Committee recommended the reservation to Article 6. International pressure led by the Human Rights Committee may aid in the continuing push for the striking of this reservation.

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

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[1] “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” (ICCPR).

[2] United States of America. Reservations to the International Covenant on Civil and Political Rights. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=IV~4&chapter=4&lang=en#EndDec.

[3] S. Exec. Rep. at 11, reprinted in 31 I.L.M. at 653.

[4] See Roper v. Simmons, 543 U.S. 551, 551 (2005).

[5] See id. at 556.

[6] See id. at 561 (citing Thompson v. Oklahoma, 487 U.S. 815, 818–838) (opinion of Stevens, J., joined by Brennan, Marshall and Blackmun, JJ.).

[7] Id. at 563–64.

[8] Id. at 567.

[9]Id. at 576 (“As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18.”) United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 567, 161 L. Ed. 2d, at 20); American Convention on Human Rights: Pact of San Jose, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999) (same).”).

[10] See Jones v. Chappell, 31 F. Supp.3d 1050 (C.D. Cal. 2014).

[11] Id. at 1062.

 [12]Id.