The Power of Example, Whither the Biden Death Penalty Promise?

THE POWER

OF EXAMPLE

WHITHER THE BIDEN

DEATH PENALTY PROMISE?

Amnesty International is a movement of

10 million people which mobilizes the

humanity in everyone and campaigns for

change so we can all enjoy our human

rights. Our vision is of a world where those

in power keep their promises, respect

international law and are held to account.

We are independent of any government,

political ideology, economic interest or

religion and are funded mainly by our

membership and individual donations.

We believe that acting in solidarity and

compassion with people everywhere can

change our societies for the better.

Except where otherwise noted, content in this document is licensed under a

CreativeCommons (attribution, non-commercial, no derivatives, international 4.0) licence.

https://creativecommons.org/ licenses/by-nc-nd/4.0/legalcode

For more information please visit the permissions page on our website:

www.amnesty.org amnesty.org

First published in 2022

by Amnesty International Ltd

Peter Benenson House, 1, Easton Street

London WC1X 0DW United Kingdom

Index: AMR 51/5484/2022

Original language: English

AMNESTY.ORG

Cover photography by Scott Langley

TABLE OF

CONTENTS

EXECUTIVE SUMMARY

Key Recommendations

1. THE POWER OF EXAMPLE

1.1 Whither the Biden Death Penalty Promise?

2. 'THIS IS NOT JUSTICE'

2.1 Arbitrariness: “The antithesis of the rule of law”

2.2 Rejection of mitigation and rehabilitation

2.3 Race matters

2.4 Mental disability and legal representation

2.5 Intellectual disability and outdated diagnostics

2.6 No mercy: Was clemency always a lost cause?

3. INTERNATIONAL LAW

3.1 International covenant on civil and political rights

3.2 Prohibition of racial discrimination

3.3 Inter-American Commission on Human Rights

4. END FEDERAL ENABLING OF STATE DEATH PENALTY

4.1 End federal backstopping for states

4.2 End litigation backing state executions

4.3 End work with states on execution methods

5. COMMUTE ALL FEDERAL DEATH SENTENCES

5.1 The case of Billie Allen

6. CONCLUSION AND RECOMMENDATIONS

6.1 Recommendations

APPENDIX: A CENTURY CENTERING ON FURMAN, 1922-1972-2022

ABBREVIATIONS

American Convention on Human Rights

Anti-Drug Abuse Act

Antiterrorism and Effective Death Penalty Act

Federal Bureau of Prisons

Committee for the Elimination of Racial Discrimination

Department of Justice

Death Penalty Information Center

Economic and Social Council

Federal Death Penalty Act

Inter-American Commission on Human Rights

American Convention on Human Rights

International Covenant on Civil and Political Rights

International Convention on the Elimination of All Forms of Racial Discrimination

Military Commissions Act

Organization of American States

Universal Declaration of Human Rights

United Nations

ACHR

ADAA

AEDPA

BOP

CERD

DOJ

DPIC

ECOSOC

FDPA

IACHR

ACHR

ICCPR

ICERD

MCA

OAS

UDHR

AMNESTY INTERNATIONAL

“

IN STRIKING DOWN CAPITAL

PUNISHMENT, THIS COURT DOES NOT

MALIGN OUR SYSTEM OF GOVERNMENT.

ON THE CONTRARY, IT PAYS HOMAGE TO

IT… IN RECOGNIZING THE HUMANITY OF

OUR FELLOW HUMAN BEINGS, WE PAY

OURSELVES THE HIGHEST TRIBUTE”

Furman v. Georgia, United States Supreme Court, 29 June 1972, Justice Thurgood Marshall concurring

On 29 June 1972, the US Supreme Court issued a landmark

decision, Furman v. Georgia, overturning the country’s death

penalty laws. As states rushed to revise their capital statutes, here

was a golden opportunity for the elected branches of the federal

government to provide principled human right leadership, and

to work for a permanent end to judicial killing across the United

States of America (USA). Such leadership never came. Presidents

from Richard Nixon to Donald Trump offered an unbroken 50-year

thread of support for the death penalty even as they proclaimed the

USA to be a, if not the, champion of human rights in the world.

EXECUTIVE

SUMMARY

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Half a century and more than 1,500 executions later, the USA has

a President who campaigned for ofce on an abolitionist platform.

President Joe Biden promised that if elected he would work for

abolition of the federal death penalty and encourage the same at

the state level. However, except for a temporary moratorium on

federal executions, in the eighteen months since he entered the

White House as President, little progress on his abolitionist pledge

has been visible. What is more, his administration’s defense of the

sentences of all of those currently on federal death row – opposing

relief and moving them closer to execution – is cause for concern.

Time is of the essence, and it is passing.

Amnesty International opposes the death penalty in all cases

without exception regardless of the nature or circumstances of

the crime; questions of guilt, innocence, or other aspects of the

case; or the method used by the state to carry out the execution.

The organization does not seek to minimize the seriousness of

violent crime or to downplay its consequences on individuals,

their families, and the wider community. The death penalty is a

punishment, however, that is a symptom of violence not a solution

to it, and one which expands the grief and suffering of the relatives

and loved ones of murder victims to those of the condemned.

It should have no place in any justice system anywhere. While

international human rights law places an expectation on

governments to ensure abolition of the death penalty within a

reasonable timeframe, pending abolition that same body of law

requires adherence to stringent safeguards in any application of

capital punishment.

AMNESTY INTERNATIONAL

Amnesty International submits that the 50th anniversary of Furman

is an opportune moment for the US administration and members

of Congress to be reminded that the world is waiting for the USA

to do what almost 100 countries have achieved during this past

half century – total abolition of the death penalty.

Abolition of

the federal death penalty would be consistent with US obligations

under international human rights law. It would bolster the position

of those states in the USA that have already got rid of the death

penalty or are moving towards doing so. It would set a positive

example to individual state governments that continue to use this

cruel, unnecessary, and awed policy, as well as to the diminishing

list of retentionist countries.

The US Government plumbed a new low between July 2020 and

January 2021 when it carried out 13 federal executions after

none for 17 years. Shortly before the rst of these, a US Supreme

Court Justice warned that the cases of those lined up for federal

execution promised to illustrate the sort of inequities that beset

the death penalty at state level, and which called into question

the constitutionality of the entire system. He was right. Among

the cases of the 12 men and one woman put to death by the

federal government were compelling examples of arbitrariness,

racial discrimination, prosecutorial misconduct, mental disability,

intellectual disability, inadequate legal representation, and the

failure of the authorities to prioritize rehabilitation even in the case

of teenaged offenders (18 and 19 at the time of the crime). The

administration’s drive to get as many individuals as it could to the

death chamber before it left ofce – even in the face of a global

pandemic that hindered defence lawyers representing their death

row clients – generated serious doubts as to whether there was

ever, in any of the cases, a genuine prospect of executive clemency

as international law demands.

By the end of 1971, 13 countries had abolished the death penalty in law. Today, that number has risen to 110 – more than half the world’s countries. More than two-thirds

of countries in the world (144) are abolitionist in law or practice.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

This episode was a brutal wake-up call about what can happen

if the fate of individuals on death row is handed to an executive

with an appetite for seeing death sentences through to their

lethal conclusion, and it led to a new interest in US Congress for

abolition of the federal death penalty. However, as the execution

spree fades from the memory, the political will necessary to pass

legislation for abolition is at risk of dissipating too.

This report, then, stems from Amnesty International's concern

that the clock is running on the Biden pledge with little to show

for it. It is not a study of the federal death penalty as such or an

examination of the cases of the more than 40 individuals currently

on federal death row, or of those federal defendants facing death

penalty trials. The report revisits the six-month federal execution

spree in a bid to jog the collective governmental memory of

that shameful episode and to reboot the political commitment

to abolition. It also seeks to remind the US authorities of their

general and specic obligations under international human rights

law in relation to the death penalty, including as provided in the

International Covenant on Civil and Political Rights (ICCPR).

For decades, UN treaty monitoring bodies have conducted their

reviews of the USA’s human rights record. Time after time, these

expert bodies have called on the USA to halt executions and work

for abolition. Time after time their calls have been rejected. So

too at regional level. The USA has become something of a rogue

outlier on the death penalty at the Inter-American Commission on

Human Rights, which the USA has routinely ignored when this

expert body has called for stays of execution or commutation of

death sentences. So it was during the federal execution spree too.

Among the issues that have come up in UN and regional human

rights bodies time and time again has been the question of racial

and other discrimination in the application of the death penalty in

the USA. The only conclusion that can be drawn from the refusal of

the US authorities to respond appropriately is that in the end they

care little about the fact that executions cement such injustices

into permanence.

AMNESTY INTERNATIONAL

In terms of numbers of death sentences and executions, the

federal death penalty has been a small part of the national picture

since the Furman ruling and the Gregg v. Georgia decision four

years later in which the Supreme Court upheld new state capital

laws. From 1988 (when the federal death penalty was reinstated)

to June 2022, federal cases accounted for 86 death sentences

and 16 executions, compared to more than 5,500 death sentences

and more than 1,400 executions at state level in the same period.

Nevertheless, as far as international law is concerned an execution

in the USA, whether conducted at state or federal level, is a US

execution.

Under international law, the federal government may not point

to the fact that an action incompatible with the country’s

international obligations was carried out by another branch or

level of government to seek to absolve the state party (the USA)

of responsibility for the violation. Moreover, in addition to its own

use of the death penalty, and the profoundly negative human

rights example it has set, the federal government has promoted,

facilitated and defended its use by states. All too often it has been

silent, hiding behind the federal structure to wash its hands of the

death penalty at the state level. It has fended off criticism of the

death penalty on the international stage and led briefs in the US

Supreme Court in support of state authorities defending aspects of

their capital justice system. In some cases, it has even added an

expansionary twist to the reach of the death penalty by seeking it

where the state is unwilling or unable to.

Amnesty International is calling on President Biden to commute

all federal death sentences. They include the death sentence of

Billie Allen, whose case features in the report. Nineteen at the time

of the crime in 1997, he has spent more than half of his life on

federal death row.

Again, the USA’s international law obligations include ending the

death penalty in law within a reasonable timeframe. Half a century

after Furman, and 30 years after the USA ratied the ICCPR, this

timeline has already been far exceeded, still with no nationwide

end to judicial killing in sight. President Biden has held out the

promise to change that. He, his administration, and members of

Congress must redouble their efforts now.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

KEY RECOMMENDATIONS

TO THE PRESIDENT OF THE USA:

• Immediately commute all existing federal death sentences.

• Support a public information campaign about abolition aimed at

demonstrating the facts about arbitrariness, racial bias and impact, errors

and other realities of capital justice; the requirements of international

human rights law; and the national and global trends towards abolition.

TO THE US CONGRESS:

• Immediately work with the White House to promptly enact legislation to

abolish the federal death penalty.

TO THE US DEPARTMENT OF JUSTICE:

• Maintain the moratorium on executions until abolition of the federal

death penalty is signed into law and all federal death sentences have

been commuted.

• Support commutation of every current federal sentence of death.

• Work actively to vacate every current federal death sentence rather than

oppose relief.

• Instruct all US attorneys that the government will no longer authorize

pursuit of death sentences in federal prosecutions and ensure motions

are led in all pending federal capital prosecutions to request that the

court allow withdrawal of any active Notices of Intent to Seek the Death

Penalty.

• Actively oppose the death penalty in any litigation in any case in which

the federal government is involved at state or federal level that touches

directly or indirectly on this punishment and make clear in any such legal

materials that the US government is committed to abolition.

TO THE US STATE DEPARTMENT:

• Ensure implementation of outstanding recommendations to the USA

made by UN and regional human rights monitoring bodies, including on

the death penalty.

• Vote in favor of UN General Assembly resolutions on a moratorium on

the use of the death penalty and support other international initiatives in

favor of abolition.

AMNESTY INTERNATIONAL

“

LEADERSHIP ON HUMAN RIGHTS GOES

FAR BEYOND MERELY REMINDING OTHER

COUNTRIES OF THEIR OBLIGATIONS

AND COMMITMENTS, POINTING OUT

FAILURES, AND REGISTERING OUR

DISPLEASURE. IT INVOLVES LEADING

BY EXAMPLE, ACKNOWLEDGING OUR

SHORTCOMINGS, AND STRIVING TO

LIVE UP TO OUR HIGHEST IDEALS AND

PRINCIPLES”

US Secretary of State Anthony Blinken, March 2021

1.0 THE POWER

OF EXAMPLE

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

n 10 December 1948, the world

adopted the Universal Declaration

of Human Rights (UDHR) as “a

common standard of achievement

for all peoples and all nations”

and pledged to take “progressive measures” to

secure “universal and effective recognition and

observance” of the rights therein, including the

rights to life and to freedom from torture and

other cruel, inhuman, or degrading treatment

or punishment. On that same day, Carlos

Romero Ochoa was led into California’s gas

chamber and killed with cyanide gas.

That

was the last of 13 federal executions in the

USA conducted over a period of six years in the

1940s (see Chart 3 below).

On Human Rights Day, 10 December 2020, US

government carried out the ninth of 13 federal

executions in six months. Eighteen at the time

of the crime, Brandon Bernard had spent half

of his life on death row before being killed by

lethal injection in the federal death chamber in

Indiana. In contrast to a federal administration

xated on execution, a change of mind was

evident among those who had voted for death two

decades earlier. Five of the nine surviving jurors

from Brandon Bernard’s trial now supported

commutation of his death sentence. And the

federal prosecutor who had argued on appeal

for his sentence to be upheld said she no longer

supported his execution. “Like a lot of people”,

she said, “I didn’t think about the day when the

government would take Brandon out of his prison

cell and kill him.”

President Joe Biden marked Human Rights

Day 2021 by recalling “the moral leadership

and service of Eleanor Roosevelt as the rst

Chairperson of the Commission on Human

Rights” during drafting of the UDHR and stating

that today the USA “remains steadfast in our

commitment to advancing the human rights of

all people – and to leading not by the example

of our power but by the power of our example.”

He could have recalled that Eleanor Roosevelt

had shown exemplary leadership when she had

suggested removing the reference to the death

penalty from a preliminary draft of the UDHR

because of moves afoot in various countries to

abolish it.

TODAY, WITH

110 COUNTRIES

ABOLITIONIST IN

LAW, THE WORLD IS

STILL WAITING FOR

AN END TO THE DEATH

PENALTY IN THE USA.

Madera Tribune, “Slayer executed after delays”, 10 December 1948.

USA Today, “I helped put an 18-year-old Black teen on federal death row. I now think he should live”, 7 December 2020.

Proclamation 10321 – Human Rights Day and Human Rights Week, 2021, 9 December 2021.

She proposed this change at the second meeting of the Commission on Human Rights on 11 June 1947.

AMNESTY INTERNATIONAL

COUNTRY AFTER

COUNTRY AROUND

THE WORLD HAS

TURNED AGAINST THE

DEATH PENALTY

The example set by successive US governments on the death penalty since the 1972 US Supreme

Court ruling in the case of Furman v. Georgia, which overturned the country’s death penalty laws,

utterly failed the test of human rights leadership described by the US Secretary of State in March

2021 (above). Yet in the USA its reintroduction and use at state and federal level have been defended

by president after president, despite mounting evidence of the arbitrariness, discrimination and errors

associated with it. As the line of presidential support for the death penalty continued unbroken after

Furman, presidents from Richard Nixon to Donald Trump promoted the USA as a, if not the, global

human rights champion.

Yet in the USA its reintroduction and use at state

and federal level have been defended by president

after president, despite mounting evidence of the

arbitrariness, discrimination and errors associated

with it. As the line of presidential support for the

death penalty continued unbroken after Furman,

presidents from Richard Nixon to Donald Trump

promoted the USA as a, if not the, global human

rights champion.

CHART 1: NOTICES OF INTENT TO SEEK THE DEATH PENALTY FILED IN

FEDERAL COURT BY US GOVERNMENT, 1990-2020

(Source: AI chart using data from the Federal Death Penalty Resource Counsel)

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

2020

3 3

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

DEATH AND THE PRESIDENTS SINCE FURMAN

In 1970, President Richard Nixon expressed pride “that our country played an important role

in the founding of the United Nations” and was continuously working “to advance the cause of

human rights.”

He nevertheless responded to the US Supreme Court’s Furman v. Georgia ruling

by expressing the hope that it would not apply to federal capital statutes.

When it was clear that

it did, he pushed for restoration of the federal death penalty.

Nixon’s successor, Gerald Ford, said the USA had “come to respect and rely on the Universal

Declaration of Human Rights as a fundamental statement of principles reafrming faith in the

dignity and worth of the human person.”

Six months later, he expressed strong support for

reintroduction of the federal death penalty for “sabotage, murder, espionage, and treason”,

and welcomed the US Supreme Court’s Gregg v. Georgia ruling in July 1976 upholding new state

capital laws.

As Georgia’s Governor, Jimmy Carter had signed into law its statute reinstating the death penalty,

approved in the Gregg ruling. Inaugurated as President in 1977, three days after the rst post-

Furman v. Georgia execution, he signed the ICCPR later that year, proposing a broad reservation

to protect the death penalty.

President Ronald Reagan asserted that “we’re proud to be champions of freedom and human

rights the world over” and that “the American people cannot close their eyes to abuses of human

rights and injustice… even on our own shores.”

He nevertheless made reinstatement of the

federal death penalty an administration goal, greatly politicizing it by equating opposition to the

death penalty with being soft on crime.

He lauded the death penalty’s reintroduction in states

“more than 40 of which have acted to adopt appropriate death penalty procedures since the

Furman v. Georgia decision.”

The federal death penalty was reinstated under the 1988 Anti-

Drug Abuse Act (ADAA).

President George H. W. Bush ratied the ICCPR on 5 June 1992, saying this underscored the

USA’s commitment to human rights “at home and abroad.” However, US ratication included a

“reservation” to protect the death penalty from international legal constraint, including the ban on

the execution of those under 18 at the time of the crime. After taking ofce, President Bush called

on mayors to “urge your State legislatures to approve the [death] penalty for the killing of local

law enforcement ofcers.”

His Attorney General made recommendations to state criminal justice

systems, including giving juries the option of the death penalty for the killing of a law enforcement

ofcer, those who killed during other serious crimes and those who killed in prison.

Among the

advisers for this effort was the US Attorney for the Southern District of Alabama, Jeff Sessions. He

and the then US Attorney General, William Barr, would become Attorneys General in the Trump

administration three decades later and work to resume federal executions.

Proclamation 3996 – United Nations Day, 1970, 10 July 1970.

Radio Address about the State of the Union message on law enforcement and drug abuse prevention, 10 March 1973.

See, for example, Radio Address about the State of the Union message on law enforcement and drug abuse prevention, 10 March 1973.

Proclamation 4408 – Bill of Rights Day, Human Rights Day and Week, 1975, 5 November 1975.

Remarks in Anaheim at the Annual Convention of the California Peace Ofcers Association, 24 May 1976.

AMNESTY INTERNATIONAL

President Bush lost the 1992 election to Arkansas Governor Bill Clinton, who had made his support for

the death penalty clear. In January 1992, candidate Clinton had own back from the campaign trail

in New Hampshire to be in Arkansas for the execution of Ricky Rector, a man with a severe mental

disability.

As President, in his rst term he signed into law the Federal Death Penalty Act (FDPA)

which made nearly 60 federal crimes punishable by death, an expansionist list that one Senator

described as showing “our mad rush to appear tough on crime.”

President Clinton also backed

hastening execution: “In death penalty cases, it normally takes eight years to exhaust the appeals;

it’s ridiculous.”

Signing the Antiterrorism and Effective Death Penalty Act (AEDPA) into law in April

1996, he said: “criminals sentenced to death for their vicious crimes will no longer be able to use

endless appeals to delay their sentences.”

Later that same year, he proclaimed “America’s global

leadership on behalf of human rights”

and portrayed his administration as a champion of human

rights. The UN Human Rights Committee condemned the expansion of the federal death penalty,

while the UN expert on the death penalty said that the AEDPA undermined fair trial standards

guaranteed under international law.

CHART 2: FEDERAL DEATH ROW, 1991-2022

(Source: AI chart using data from the Federal Capital Habeas Project)

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

2020

2021

2022

NUMBER OF PRISONERS IN

FEDERAL DEATH ROW

1 1

6 6

60 60 60

The President’s news conference, 9 July 1976.

“The United States reserves the right to impose capital punishment on any person duly convicted under existing or future laws permitting the imposition of capital punishment.” In the end,

ratication did not come until 1992, with a similarly broad reservation. Jimmy Carter has since expressed regret at his role in helping to reinstate the death penalty and called for abolition.

Remarks on Signing the Bill of Rights Day and the Human Rights Day and Week Proclamation, 10 December 1985.

For example, “[T]he liberals, like their agship, the ACLU [American Civil Liberties Union], often seem to concern themselves with the rights of criminals and forget about the rights of the citizens

those criminals prey upon. But now they want to get elected, and so they claim they’re tough on crime. Well, I’ve examined that record, and we’ve all got to go out and tell the American people: When

they say they’re tough on crime, don’t you believe it.” Remarks at a Republican Party Fundraiser in Chicago, Illinois, 30 September 1988.

1988 Legislative and Administrative Message: A Union of Individuals, 25 January 1988. Public Papers of the Presidents of the United States, Ronald Reagan, Book 1 (January 1 – July 1, 1988),

page 96-97.

Remarks to the United States Conference of Mayors, 26 January 1990.

Memorandum to the President, from William P. Barr, Attorney General, Re: Recommendations for State Criminal Justice Systems, 28 July 1992, accompanying: Combating Violent Crime: 24

recommendations to strengthen criminal justice.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

George W. Bush, who entered the White House with his record on executions as Governor of Texas

well known, promised to be a president who would speak for “greater justice and compassion.”

However, his support for the death penalty remained undimmed. Within the rst six months of

his presidency, the USA had conducted its rst federal execution in 38 years and another two

within a year of that. In his second inaugural address, he promised that “America’s belief in

human dignity will guide our policies.”

Yet federal death row continued to grow, more than

doubling during his time in ofce, and his administration set three executions for 8, 10 and

12 May 2006 (later stayed when the prisoners led a legal challenge to the federal execution

procedures). After the attacks of 11 September 2001, the Bush administration quickly put the

death penalty on the table in a November 2001 presidential order authorizing trials by military

commission, and later obtained congressional approval for the Military Commissions Act (MCA)

of 2006 under which it pursued the death penalty in unfair military commission proceedings at

Guantánamo.

President Barack Obama declared that US leadership in the world was “essential” for promoting

the “dignity and human rights of all peoples” and that the question was “never whether

American should lead, but how we lead.”

While his administration was a less ardent proponent

of the death penalty than its immediate predecessors, it took no decisive action against it.

Indeed, it took steps in late 2010 towards scheduling an execution, but in the end no federal

executions took place during the eight Obama years. Hopes that the administration would engage

with states on a national moratorium after a “botched” lethal injection in Oklahoma in 2014

came to nothing after Attorney General Eric Holder left ofce. His successor told senators that

she supported the death penalty as an “effective penalty”.

The administration pursued death

sentences in federal court, as well as at Guantánamo under the revised MCA of 2009.

There were 60 people on federal death row when Donald Trump took ofce as president in 2017.

Thirteen federal executions occurred in the nal six months of his presidency. The day after the

last of these executions, President Trump declared the USA to be “a shining example of human

rights for the world.”

The Atlantic, “The Time Bill Clinton and I Killed a Man” 28 May 2015: “State law did not require the governor’s presence, but politics did: Clinton wanted to raise his national prole and

reverse the Democratic Party’s soft-on-crime image.”

Senate Durenberger, Congressional Record – Senate, 17 November 1993.

Interview with Larry King, 5 June 1995.

Remarks on signing the Antiterrorism and Effective Death Penalty Act of 1996, 24 April 1996.

Proclamation 6964 - Human Rights Day, Bill of Rights Day, and Human Rights Week, 10 December 1996, and Remarks on Signing the Human Rights Proclamation, 10 December 1996.

Report of the Human Rights Committee, United States of America, UN Doc. A/50/40, 3 October 1995, para. 281.

Report of 1997 mission to the USA of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/1998/68/Add.3, 22 January 1998, para. 147.

President George W. Bush, Inaugural address, West Front of the Capitol, Washington, DC, 20 January 2001.

President George W. Bush, Inaugural address, West Front of the Capital, Washington, DC, 20 January 2005.

Statement on the 2015 National Security Strategy, 6 February 2015.

Loretta E. Lynch, Conrmation hearing before the Committee on the Judiciary, US Senate, 28 and 29 January 2015.

Proclamation 10136 – National Sanctity of Human Life Day, 2021, 17 January 2021.

AMNESTY INTERNATIONAL

President Donald Trump’s stance on the death penalty demonstrated its susceptibility to

politicization. After coming to ofce in January 2017, he took to voicing his opinion on individual

cases, including in public comments that outed the presumption of innocence.

President Trump spoke admiringly of China’s death penalty in relation to drugs: “China has much

tougher laws than we do in this country on drugs, so they don’t have a big drug problem in China.

They have a thing called the death penalty.”

He also continued his sporadic case commentary.

Responding to a mass shooting in a synagogue in Pittsburgh on 27 October 2018, for example,

he said: “I think one thing we should do is, we should stiffen up our laws in terms of the death

penalty. When people do this, they should get the death penalty, and they shouldn’t have to wait

years and years.”

On 26 August 2019, the government led notice of its intent to seek the

death penalty against the defendant. As of early June 2022, this notice had not been withdrawn

and the prosecution was continuing as a capital one.

IN 2018, ATTORNEY GENERAL SESSIONS ISSUED A MEMORANDUM TO

FEDERAL PROSECUTORS ENCOURAGING THEM TO PURSUE THE DEATH

PENALTY FOR DRUG-RELATED CAPITAL CRIMES.

– he tweeted on 1 November 2017, the day after a

driver of a truck left eight people dead and another

dozen injured on a cycle path in Manhattan. In

September 2018, the Trump administration led

notice of its intent to seek the death penalty in the

case. By early June 2022, this notice had not been

withdrawn by the Biden administration.

Attorney General Sessions issues memo to US Attorneys on the use of capital punishment in drug-related prosecutions, 21 March 2018, justice.gov/opa/pr/attorney-general-sessions-issues-

memo-us-attorneys-use-capital-punishment-drug-related

Remarks in a meeting with Vice Premier Liu He of China, 22 February 2019, and remarks on declaring a national emergency concerning the southern border of the United States, 15 February

2019.

Remarks on the shooting in Pittsburgh, Pennsylvania, at Joint Base Andrews, Maryland, 27 October 2018.

"SHOULD

GET DEATH

PENALTY!"

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Following mass shootings in El Paso, Texas,

and Dayton, Ohio, in August 2019, President

Trump tweeted: “Today I am also directing the

Department of Justice to propose legislation

ensuring that those who commit hate crimes and

mass murders face the DEATH PENALTY – and

that this capital punishment be delivered quickly

decisively and without years of needless delay.”

The defendant was charged with capital murder

under Texas state law for the El Paso shootings.

He is also facing federal charges with the

possibility of the death penalty. In early 2022,

the prosecution led a proposed schedule

with a July-August 2022 timeline for pre-trial

“constitutional motions relating to capital

punishment.” However, it noted that it had “not

yet qualied this matter as a Death Penalty

case and no inference should be made from

this ling as to whether when, or even if, such a

qualication may be made.”

No further decision

had been announced by early June 2022.

William Barr succeeded Jeff Sessions as US

Attorney General in the Trump administration in

early 2019. On 25 July 2019, the administration

informed the US District Court for the District

of Columbia (DC) overseeing the lethal injection

protocol litigation that the government had

adopted a revised addendum to the execution

protocol of the Federal Bureau of Prisons (BOP)

that “provides for pentobarbital sodium as the

lethal agent.”

The BOP had “secured the

active pharmaceutical ingredients (API) for

pentobarbital from a domestic bulk manufacturer.

Additionally, BOP has secured a compounding

pharmacy…to convert the API into an injectable

solution.”

The very same day, the Attorney

General announced execution dates for ve men

on federal death row in what would be the rst

federal executions since March 2003.

While

the government was ultimately enjoined from

carrying out these executions for six months,

the simultaneous release of a new protocol and

setting of execution dates curtailed the likelihood

of successful legal challenges to the changed

protocol, under "the exceedingly high bar"

required to obtain a stay of execution, whatever

the issue.

Twitter, 5 August 2019, 17:10:05.

The gunman in the Dayton shootings had been shot and killed by police during the attack.

US District Court for the Western District of Texas, USA v. Crusius, Government’s amended proposed scheduling order, 15 February 2022.

US District Court for the District of Columbia (DC), Roane v. Barr, Notice of adoption of revised protocol, 25 July 2019.

District Court for DC, Declaration of Raul Campos, In the matter of the Federal Bureau of Prisons Execution Protocol Cases, 12 November 2019.

US Department of Justice, “Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse”, 25 July 2019, justice.gov/opa/pr/federal-government-resume-capital-

punishment-after-nearly-two-decade-lapse

US Supreme Court, Barr v. Lee, on application for stay or vacatur, 14 July 2020.

AMNESTY INTERNATIONAL

On 14 July 2020, over the dissents of four

justices, the US Supreme Court gave the green

light to the federal government to resume

executions under its new protocol. It said

that single-dose pentobarbital had “become

a mainstay of state executions” and had been

“used to carry out over 100 executions” at state

level “without incident.”

Twelve of the 13 death sentences were handed

down under Presidents Bill Clinton and George

W. Bush, with the 13th under President George

H. W. Bush. These death sentences were imposed

under the ADAA and FDPA, signed into law by

Presidents Reagan and Clinton respectively, and

defended by the administrations of Presidents

Clinton, George W. Bush, Barack Obama and

Donald Trump.

US Supreme Court, Barr v. Lee, On application for stay or vacatur, 14 July 2020.

THIRTEEN FEDERAL

EXECUTIONS TOOK

PLACE IN THE NEXT

SIX MONTHS.

THE FAILURE OF

HUMAN RIGHTS

LEADERSHIP

HAD COME HOME

TO ROOST.

CHART 3: FEDERAL EXECUTIONS SINCE 1920

All post-Furman federal executions have occurred since 2000

(Source: AI chart using data from Federal Bureau of Prisons)

1920s 1930s 1940s 1950s 1960s 1970s 1980s 1990s 2000s 2010s 2020s

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

1.1 WHITHER THE

BIDEN PROMISE?

IN A BREAK WITH THE PAST, HIS OWN INCLUDED, JOE BIDEN CAMPAIGNED

FOR THE PRESIDENCY IN 2020 ON THE PLEDGE THAT IF ELECTED

HE WOULD “WORK TO PASS LEGISLATION TO ELIMINATE THE DEATH

PENALTY AT THE FEDERAL LEVEL AND INCENTIVIZE STATES TO FOLLOW

THE FEDERAL GOVERNMENT’S EXAMPLE.” HIS ADMINISTRATION HAS

CONFIRMED THIS COMMITMENT TO THE UN.

In its 1992 report recommending ratication

of the ICCPR, the Senate Committee on

Foreign Relations, with then Senator Joe Biden

among its members, stressed that this human

rights treaty was “part of the international

community’s early efforts to give the full force

of international law to the principles of human

rights embodied in the Universal Declaration of

Human Rights.”

As President, he has said that

from the UDHR have “sprung transformational

human rights treaties and a global commitment

to advance equality and dignity for all as the

foundation of freedom, peace, and justice. As

a world, we have yet to achieve this goal, and

we must continue our efforts to bend the arc of

history closer to justice and the shared values

that the UDHR enshrines.”

Several states of the USA are well ahead of the

federal government on the abolitionist curve.

They include Virginia, where, on 24 March

2021, Governor Ralph Northam signed a bill to

abolish the death penalty in his state.

“This is a

major change”, said the Governor, “because our

Commonwealth has a long history with capital

punishment. Over our 400-year history, Virginia

has executed more than 1,300 people, more than

any other state… Virginia’s history, we have much

to be proud of, but not the history of capital

punishment.”

For example, see Committee on the Elimination of Racial Discrimination (CERD), Combined 10th to 12th reports submitted by the USA under article 9 of the Convention, 8 June 2021, UN Doc. CERD/C/

USA/10-12, para. 116.

ICCPR, Report from Senator Clairborne Pell, Chair of the Senate Committee on Foreign Relations, 24 March 1992.

Proclamation 10321, 9 December 2021, (previously cited).

Governor Northam Signs Law Repealing Death Penalty in Virginia”, governor.virginia.gov/newsroom/all-releases/2021/march/headline-894006-en.html.

Alaska (1957), Colorado (2020), Connecticut (2012), Delaware (2016), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland (2013), Massachusetts (1984), Michigan (1847), Minnesota

(1911), New Hampshire (2019), New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1972), Virginia (2021), Washington (2018), West Virginia

(1965) and Wisconsin (1853). Source: Death Penalty Information Center, deathpenaltyinfo.org/state-and-federal-info/state-by-state

California (2019), Oregon (2011) and Pennsylvania (2015).

AMNESTY INTERNATIONAL

Today, 23 states are abolitionist.

In three other

states, moratoriums on executions remain in

force.

But the “continuing long-term erosion of

capital punishment across most of the country”

is being countered by “extreme conduct by

a dwindling number of outlier jurisdictions

to continue to pursue death sentences and

executions.”

The 13 federal executions in the

nal six months of the Trump administration

placed the federal government rmly in the

outlier group; the Biden pledge promised to

move it into the abolitionist camp.

As Senator, Joe Biden helped to draft the

1988 ADAA which reinstated the federal death

penalty after Furman v. Georgia.

He was

instrumental in the passage of the 1994 Violent

Crime Control and Law Enforcement Act which

incorporated the FDPA, massively expanding the

federal death penalty.

He was on the Senate

Foreign Relations Committee when it approved

ratication of the ICCPR with a reservation

aimed at protecting the death penalty from

international legal constraint. He voted for the

AEDPA,

although voicing concern about the

risk of executing individuals who had been

wrongfully convicted.

It appears that President Biden is still troubled

by wrongful convictions in death penalty cases.

He would be in the company of many who have

turned against the death penalty, whether for

moral or pragmatic reasons, after observing its

ineffectiveness, cruelty, errors and inequities.

When signing Virginia’s abolitionist bill into

law in March 2021, for example, Governor

Northam spoke for many when he stated: “as I

have learned more about how the death penalty

is applied in this country, I can say the death

penalty is fundamentally awed.”

The USA's retention of the death penalty

implicates all jurisdictions and branches of

government. The obligations of states parties

to the ICCPR (and those under other treaties)

“are binding on every State Party as a whole.”

Moreover, “[a]ll branches of government

(executive, legislative and judicial), and other

public or governmental authorities, at whatever

level – national, regional or local – are in a

position to engage the responsibility of the

State Party.”

Death Penalty Information Center, The death penalty in 2021: Year End Report, 16 December 2021, deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-

2021-year-end-report

Senator Joe Biden, AEDPA debate, Senate oor, 7 June 1995: “in 1988, we passed a bill which I had authored with several others called the Death Penalty for Drug Kingpins Act. It was the rst

constitutional Federal death penalty to go on the books after 1972 when the Supreme Court invalidated the death penalty. I helped write that bill, much to the dismay of many of my liberal friends who

could not understand why..”

In the Senate on 14 May 1992, he said of the crime bill: “I’ll let you all decide whether or not this is weak… It provides 53 death penalty offences… We do everything but hang people for jaywalking

in this bill.” On 24 August 1994, he responded to accusations from a fellow Senator that the Democrats were soft on crime and had diluted the bill: “My friend says this bill is a product of the Democrats

‘bowing to the liberal wing of the Democratic Party.’ Let me dene the liberal wing of the Democratic Party. The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in

this bill.”

In AEDPA debates, after the Oklahoma City bombing, Senator Biden said: “the constant argument put forward is, we have to do this because once we nd the person who did this awful thing in

Oklahoma and they are convicted and sentenced to death, the death penalty must be carried out swiftly. I might add… the Biden crime bill, is the only reason there is a death penalty.”

IN THE PAST DECADE AND A HALF, 11 STATES IN THE USA HAVE ABOLISHED

THE DEATH PENALTY AND THE ANNUAL NUMBERS OF DEATH SENTENCES

AND EXECUTIONS ACROSS THE COUNTRY HAVE FALLEN.

THE PRESIDENT AND HIS

ADMINISTRATION CANNOT BE THE

ONLY AGENTS OF CHANGE.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Congressional Record, 7 June 1995: “although the death penalty should be applied swiftly and with certainty, the worst thing in the world would be for it to be applied wrongly… Mistakes do happen.

Innocent people are convicted and sentenced to die.”

“Since 1973, over 160 individuals in this country have been sentenced to death and were later exonerated. Because we can’t ensure that we get these cases right every time, we must eliminate the

death penalty.” twitter.com/JoeBiden/status/1154500277124251648.

UN Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para 4.

US v. Higgs, 15 January 2021, Justice Sotomayor dissenting.

Barr v. Lee, 14 July 2021.

Dunn v. Reeves, Justices Sotomayor and Kagan dissenting (citing US v. Higgs among others): “In essence, the Court turns ‘deference’ [to state court decisions] into a rule that federal habeas relief is

never available to those facing execution.” That the federal government itself allowed the execution of two men who had strong intellectual disability claims to go forward during the federal execution

spree was presumably also not lost on the states. See Amnesty International Urgent Action, 13 January 2022, www.amnesty.org/en/documents/amr51/5147/2022/en/

In relation to the role played by the judicial

branch, the decisions of the US Supreme Court

regarding the federal executions generated

widespread concern, including among some of

its Justices. At the end of the spree, Justice

Sonia Sotomayor accused the Court of time

and again having dismissed “credible claims

for relief” without providing the opportunity

for “proper brieng” and usually without “any

public explanation.”

The example set by the administration and the

US Supreme Court’s hostility towards “last-

minute intervention” by federal courts, including

but not limited to challenges to execution

protocols,

would have been noted by the

diminishing number of states which are the

main drivers of the USA’s attachment to judicial

killing. They include Alabama, where Matthew

Reeves was executed on 27 January 2022. In

2020, the US Court of Appeals for the 11th

Circuit had ruled that his trial lawyers’ failure to

present evidence of his intellectual disability had

been “decient” and that the absence of this

“powerful” mitigating evidence was “sufcient to

undermine condence in the outcome.” In 2021,

the US Supreme Court overturned this without

providing Reeves an opportunity to submit legal

briefs on the matter or provide oral argument.

Three justices dissented; two of them noted

that the decision “continues a troubling trend in

which this Court strains to reverse summarily any

grants of relief to those facing execution”, citing

what had happened during the federal execution

spree, among other things.

On 7 January 2022, a US District Court judge

issued an injunction blocking Matthew Reeves’

execution by any method other than nitrogen

hypoxia. Alabama had granted those on death row

a one-off opportunity to choose this new method,

instead of the default method, lethal injection.

Matthew Reeves did not ll in the election

form; his lawyers said he would have chosen

hypoxia. The federal judge agreed that because

of his cognitive decits, Matthew Reeves was

unable to read and understand the form without

assistance and the failure of ofcials to provide

such assistance constituted discrimination on

grounds of disability. The judge ruled it would

not harm the state to delay the execution until

it had developed its nitrogen hypoxia protocol,

which at that stage was said to be a matter of

months away. On 26 January, a three-judge

panel of the 11th Circuit upheld the injunction,

noting among other things, expert evidence

that Matthew Reeves’s “language competency

was that of someone between the ages of 4 and

10”, well below what was required to be able

to understand the execution form. At the 11th

hour, however, the Supreme Court voted 5-4 to

vacate the injunction. Dissenting, three justices

noted that four judges on two courts – “after

extensive record development, brieng, and

argument” – had decided that the execution

should be blocked. Yet, the Supreme Court had

“disregard[ed] the well-supported ndings” made

by the lower courts.

AMNESTY INTERNATIONAL

Hamm v. Reeves, 27 January 2022, Justice Kagan, joined by Justices Breyer and Sotomayor, dissenting.

Ofce of the UN High Commissioner for Human Rights, “UN experts call for President Biden to end death penalty”, ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26876

In Alabama, Arizona, Mississippi, Missouri and Oklahoma.

In this report, Black and African American are used interchangeably as are Hispanic and Latino, depending on the context, or when quoted,

or used as a datapoint.

In his Furman dissent in 1972, Justice Powell wrote: “Many may regret, as I do, the failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness...

But impatience with the slowness, or even the unresponsiveness, of legislatures is no justication for judicial intrusion upon their historic powers.” In his concurrence in Baze v. Rees, 16 April 2008,

Justice Stevens said that retention of the death penalty was the product of “habit and inattention” on the part of legislatures, not of the necessary deliberation and evaluation.

In 1994 the Clinton administration told the UN that “the majority of citizens through their freely elected ofcials have chosen to retain the death penalty for the most serious crimes, a policy which

appears to represent the majority sentiment of the country”, (Initial report of the USA to the UN Human Rights Committee, UN Doc. CCPR/C/81/Add.4, para. 139). In 2013, the Obama administration

rejected the call of CERD for a moratorium on executions: “the use of the death penalty is a decision left to democratically elected governments at the federal and state levels”, (CERD, Periodic Report of

the USA, June 2013, para. 70).

The White House continues to take a hands-

off stance to imminent executions at the state

level (see Chapter 4). President Biden should

recall the plea from multiple UN experts to full

not just his commitment on the federal death

penalty, but his promise to lead states in the

same direction:

Another year has passed since this call.

Matthew Reeves is one of more than a dozen

individuals who have been put to death at

state level since President Biden took ofce.

Familiar racial patterns persist. Of the 15 men

executed between 20 January 2021 and 9

June 2022, 13 were for crimes involving white

victims. Eight of those executed were white, six

were Black and one was Native American.

The fact that the judiciary may have upheld

capital laws or declines to block an execution

does not absolve the elected branches of their

human rights responsibilities, not least in the

presence of a judicial philosophy of deference to

those branches.

Despite the failure of Congress and many

state legislatures to address the aws and

human rights violations associated with the

death penalty, on the international stage in an

increasingly abolitionist world, US authorities

have sought to justify resorting to the death

penalty under the rubric of democracy.

“THERE IS NO TIME TO LOSE

WITH THOUSANDS OF INDIVIDUALS

ON STATE DEATH ROWS ACROSS

THE COUNTRY AND SEVERAL

EXECUTIONS SCHEDULED AT

STATE LEVEL IN 2021.”

IT IS TIME FOR THE

LEGISLATURE AND

EXECUTIVE TO MEET

THEIR HUMAN RIGHTS

OBLIGATIONS. FOR

TOO LONG, THEY HAVE

FAILED TO OFFER

THE NECESSARY

LEADERSHIP.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Six of the 13 executions under President Trump

took place between the 2020 presidential

election and President Biden taking ofce,

with the dates for four of these six set by the

administration after the election. This was

the rst time in 132 years that the federal

government had conducted any executions in

the “lame duck” period. While an execution

conducted at any time is incompatible with

human rights principles,

With three federal executions looming in

the nal week of the Trump presidency,

Congresswoman Ayanna Pressley and Senator

Richard Durbin announced that they would

be reintroducing the Federal Death Penalty

Prohibition Act of 2021, bicameral legislation

to abolish the federal death penalty and require

the re-sentencing of those on federal death row.

The Biden administration has yet to throw its

weight behind such legislation.

The immediate threat of more federal executions

was lifted on 1 July 2021 when the US Attorney

General announced a moratorium pending “a

review of the Justice Department’s policies and

procedures.”

By late 2021, the Department of

Justice had withdrawn the government’s notice

of intent to seek the death penalty in some

dozen cases around the country.

A new notice

led under the Biden administration in February

2021 was withdrawn in April 2022 and the trial

proceeded as a non-capital case.

These are

welcome steps. They are, however, small ones.

Other notices were still in place in June 2022

and the death penalty was being considered in

new cases

and in resentencing proceedings.

The administration is still defending the death

penalty in individual cases pending trial,

resentencing and on appeal, raising questions

about its resolve on the Biden pledge. And the

review ordered by the Attorney General remains

a narrow one. Despite deep concerns expressed

by both President Biden and Attorney General

Garland about racial disparities and other

chronic problems in the administration of the

death penalty, the authorized review examines

none of them, but revisits only the new,

expediting procedures put in place at the end of

the prior administration.

PRESIDENT TRUMP HAD, AFTER

ALL, LOST THE ELECTION TO AN

OPPONENT RUNNING ON AN

ABOLITIONIST PLATFORM.

US Department of Justice, “Attorney General Merrick B. Garland imposes a moratorium on federal executions”, 1 July 2021, justice.gov/opa/pr/attorney-general-merrick-b-garland-imposes-

moratorium-federal-executions-orders-review

Houston Chronicle, “Merrick Garland withdrew the death penalty in 12 cases. Does this signal a trend?”, 27 December 2021, houstonchronicle.com/news/houston-texas/houston/article/AG-Merrick-

Garland-death-penalty-backtrack-16732101.php

US District Court for the Western District of Kentucky, USA v. Silvers, Notice of Intent to Seek the Death Penalty, 25 February 2021, and Judicial order on withdrawal of notice, 29 April 2022.

For example, US District Court for the Southern District of Indiana, USA v. Meehan, Minute Order, (At indictment, federal defendant advised of “the possibility the Government may seek a death

sentence”) 24 January 2022.

Penalty phase retrials were pending in two federal capital cases, involving two men tried in Oklahoma in 2005 (USA v. Rodriguez) and North Dakota on 2006 (USA v. Barrett), but whose death

sentences were overturned on appeal in 2021 due to inadequate legal representation.

THESE SIX

EXECUTIONS IN 59

DAYS ILLUSTRATED

THE HOLLOWNESS OF

THE JUSTIFICATION

THAT EXECUTIONS

IN THE USA REFLECT

THE “WILL OF THE

PEOPLE”.

AMNESTY INTERNATIONAL

In one of the cases raising questions about

the Biden pledge, that of the man convicted

of the 2013 Boston Marathon bombing, the

thread of president-to-president support

remains unbroken. The Obama administration

decided to pursue the death penalty in the

case, obtaining it in 2015. This sentence was

then defended under the Trump administration.

In July 2020, the US Court of Appeals for

the First Circuit vacated the death sentence,

nding that the trial judge had failed to meet

the standard for assessing whether potential

jurors could set aside prejudicial pretrial

publicity about the case.

President Trump tweeted: “Rarely has anybody

deserved the death penalty more... The Federal

Government must again seek the Death Penalty

in a do-over of that chapter of the original trial.

Our Country cannot let the appellate decision

stand. Also, it is ridiculous that this process is

taking so long!”

His administration petitioned the Supreme

Court to take the case and “put this landmark

case back on track toward its just conclusion”.

The administration led its brief "well in

advance of the due date" and, after the

President lost the election, opposed defence

requests for additional time, arguing that "the

Nation" had a "strong interest in this Court's

hearing and deciding this case this Term".

The administration waived the 14-day waiting

period for distribution of its petition.

The Court

agreed to take the case soon after President

Biden took ofce. That administration then

led a brief urging reinstatement of the death

sentence.

In March 2022, the Supreme Court

did just that, over the dissent of three justices.

Uncertainty about where the Biden abolitionist

pledge is going was voiced during oral argument

on this case in October 2021 when US Supreme

Court Justice Amy Barrett pointed out to the US

Deputy Solicitor General that “the government

has declared a moratorium on executions, but

you’re here defending his death sentences.”

IT STRESSED, “JUST TO BE

CRYSTAL CLEAR”, THE “MANY

LIFE SENTENCES” STILL IN PLACE

MEANT THAT THE DEFENDANT

“WILL REMAIN CONFINED TO

PRISON FOR THE REST OF HIS

LIFE, WITH THE ONLY QUESTION

REMAINING BEING WHETHER THE

GOVERNMENT WILL END HIS LIFE

BY EXECUTING HIM.”

US Court of Appeals for the Third Circuit, USA v. Tsarnaev, 31 July 2020.

Twitter, 2 August 2020, 19:48:20 and 19:48:23.

US Supreme Court, USA v. Tsarnaev, Petition for a Writ of Certiorari, 6 October 2020.

Re: US v. Tsarnaev, Letter to Clerk of US Supreme Court, from Jeffrey B. Wall, Acting Solicitor General, 23 November 2020.

Re: US v. Tsarnaev, Letter to Clerk of US Supreme Court, from Jeffrey B. Wall, Acting Solicitor General, 18 December 2020.

US Supreme Court, USA v. Tsarnaev, Brief for the United States, June 2021.

US Supreme Court, United States v. Tsarnaev, 4 March 2022. Justices Breyer, Kagan and Sotomayor dissented.

US v. Tsarnaev, oral argument, 13 October 2021. The Deputy Solicitor General said: “the administration continues to believe the jury imposed a sound verdict and that the Court of Appeals was wrong

to upset that verdict. If the verdict were to be reinstated eventually, which will require some further proceedings on remand, there would then be a round of collateral review, some time for reviewing any

clemency petitions. Within that time, the Attorney General presumably can review the matters that are currently under review, such as the current execution protocol.”

JUSTICE BARRETT SAID THAT SHE

WAS “WONDERING WHAT THE

GOVERNMENT’S END GAME IS

HERE.”

SO ARE MANY OTHERS.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

US v. Higgs, 15 January 2021, Justice Sotomayor dissenting (“This is not justice”).

2.0 'THIS IS

NOT JUSTICE'

“

AFTER WAITING ALMOST TWO

DECADES TO RESUME FEDERAL

EXECUTIONS, THE GOVERNMENT SHOULD

HAVE PROCEEDED WITH SOME MEASURE

OF RESTRAINT TO ENSURE IT DID SO

LAWFULLY. WHEN IT DID NOT, THIS

COURT SHOULD HAVE. IT HAS NOT”

US Supreme Court Justice Sonia Sotomayor, 15 January 2021

AMNESTY INTERNATIONAL

For example, remarks made at a “Great American comeback” rally in Jacksonville, Florida, 24 September 2020: “[This election is] about law and order... they said, ‘Oh, don’t say “law and order.

That’s too tough a term’… I said, ‘No, no, it’s about law and order.’”

Throughout the case prior to this, the government acknowledged that Lee's co-defendant was the more culpable actor, both in terms of the crime in question and his previous history. The

government misconduct stemmed from an argument made at the sentencing that Lee was responsible for a prior murder which documents after the fact disproved (see Section 2.1).

Campaign press release, “President Trump ensured total justice for the victims of an evil killer”, 15 July 2020.

US Supreme Court, Gregg v. Georgia, 2 July 1976, Justice Brennan dissenting.

Deposition of Brad Weinsheimer, In the matter of the Federal Bureau of Prisons Execution Protocol Cases, 29 January 2020.

Deposition of Brad Weinsheimer, 29 January 2020, (previously cited).

US Department of Justice, “Executions Scheduled for Four Federal Inmates Convicted of Murdering Children”, 15 June 2020, justice.gov/opa/pr/executions-scheduled-four-federal-inmates-

convicted-murdering-children

SUCH LANGUAGE SERVES AS A REMINDER OF

HOW THE DEATH PENALTY “TREATS MEMBERS

OF THE HUMAN RACE AS NONHUMANS,

AS OBJECTS TO BE TOYED WITH AND

DISCARDED.”

he backdrop to the resumption of

federal executions was public concern

and debate about the role of race

in law enforcement and criminal

justice, as well as the looming 2020

presidential election, with the incumbent running

on “law and order”.

The White House failed

to resist the temptation to politicize the federal

executions and ignored the ever-present concerns

about racial discrimination in the application of

the death penalty.

The day after the rst of the 13 executions,

that of Daniel Lee (see Section 2.1), President

Trump sought to portray candidate Biden’s

position against the death penalty as political

expediency, of his merely having “joined the rest

of the radical Democrats running for president in

opposing it.” President Trump himself exploited

Daniel Lee’s execution for electoral gain, while

making no reference to the arbitrariness or

government misconduct which marked out the

death sentence implemented in the Lee case.

“Joe Biden would have let this animal live”,

went the President’s campaign press release,

referring to the “evil monster” executed a few

hours earlier.

The Trump administration chose which of those

on federal death row it would execute and in

which order. The nal decision was taken by

Attorney General Barr, from a list drawn up in

“late spring or early summer of 2019” by the

BOP, with assistance from the Criminal Division

of the Department of Justice, of 14 individuals

who had “exhausted their appellate and post-

conviction remedies.”

The Department of Justice announcement in

2019 of the rst federal execution dates stressed

that each of the ve men was “convicted of

murdering children”, which it has indicated

was the reason for scheduling those individuals

rst.

It reiterated this aspect of the cases a year

later.

The same line was repeated by the US

Supreme Court itself, despite its irrelevance to

the question before it – namely, whether to give

the federal government the go-ahead to use its

new one-drug execution method.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Barr v. Lee, 14 July 2020: “The plaintiffs are all federal prisoners who have been sentenced to death for murdering children.”

White House press brieng by Press Secretary Kayleigh McEnany, 1 October 2020.

For example, in its Concluding observations on the USA, 18 December 2006, UN Doc. CCPR/C/USA/CO/3/Rev.1, para. 29, the UN Human Rights Committee said that the Bush administration did

not seem to “fully acknowledge” the disproportionate imposition of the death penalty on minorities and low-income individuals. And on 10 March 2010, the Obama administration was accused by a

federal judge of a “dismissive attitude” to the “disturbing statistics regarding the disproportionate number of minorities being prosecuted for capital offenses and sentenced to death” (US District

Court, Eastern District of Louisiana, US v. Johnson, Order and Reasons). The administration had responded to lawyers’ motion for discovery to support a claim that the prosecution in a capital case in

Louisiana had been inuenced by race by stating that it was merely “a variant of a claim that has become perfunctory in modern federal capital cases” and should be denied. The judge denied the

motion, but stated that he did “not doubt that conscious or, more insidiously, unconscious racism can inuence decision-making, from an initial arrest by police through a nal decision by a jury”,

noting “with dismay the dismissive attitude of the government with regard to this issue.”

Deposition of Brad Weinsheimer, 29 January 2020, (previously cited).

Twenty-one white people have been executed in the USA since 1972 for crimes involving solely Black victims. By the end of May 2022, 14 times as many Black people (300) had been executed for

crimes involving solely white victims.

The ve executions announced in the 25

July 2019 news release were stayed. On 15

June 2020, however, the Justice Department

announced execution dates for four men on

federal death row, all of whom were white.

First in line was Daniel Lee. He had long since

abandoned the white supremacist beliefs

alleged by the government’s trial evidence. Yet

as the national debate about systemic racism

continued, in the lead-up to the execution, the

administration emphasized Lee's connection

to white supremacy (without qualication) and

then exploited it afterwards to bolster President

Trump’s anti-racist credentials. Pressed for a

categorical statement that he denounced white

supremacy and the groups that espoused it,

the White House responded: “This President

had advocated for the death penalty for a white

supremacist, the rst federal execution in 17

years.”

On the one hand the administration was willing

to exploit Daniel Lee’s involvement in a white

supremacist organization for its own ends, while

on the other it perpetuated the failure of the

federal government to address the long-standing

and compelling statistical and other evidence

of racial discrimination in the application of the

death penalty.

In total, six of the 13 federal executions were

of white individuals, ve men and one woman,

convicted of the murder of white victims. One

was of a Native American man convicted of the

murder of two Native American people. The

other six executions were of Black men, four

convicted of murders involving Black victims,

and two involving white victims.

RACE WAS NOT A CONSIDERATION

IN SETTING THE EXECUTIONS,

ACCORDING TO THE DEPARTMENT

OF JUSTICE.

NEVERTHELESS,

WHETHER BY DESIGN OR

HAPPENSTANCE, FIVE OF THE

FIRST SIX FEDERAL EXECUTIONS

WERE OF WHITE MEN (CONVICTED

OF KILLING WHITE VICTIMS),

ENSURING THAT THE NATIONAL

DEBATE ABOUT RACISM REMAINED

SOMEWHAT PARTITIONED OFF

FROM THE ISSUE OF FEDERAL

EXECUTIONS RESUMING.

AMNESTY INTERNATIONAL

US District Court for the Western District of Texas, USA v. Bernard, Government’s consolidated response to Bernard’s motion to modify sentence under 18 USC § 3582(c)(1) and motion to stay or modify

execution date, 8 December 2020.

US District Court for the Western District of Texas, USA v. Bernard, Reply in support of motion to modify sentence under 18 USC § 3582(c)(1), 8 December 2020.

Ofce of Public Affairs, US Department of Justice, “Federal government to resume capital punishment after nearly two decade lapse”, 25 July 2019, justice.gov/opa/pr/federal-government-resume-

capital-punishment-after-nearly-two-decade-lapse.

US District Court for DC, Montgomery v. Barr, Defendants’ response in opposition to motion for Temporary Restraining Order and preliminary injunction, 14 November 2020. Barr v. Purkey, Application for

a stay or vacatur of the injunction issued by the United States District Court for the District of Columbia, In the US Supreme Court, July 2020: “the last-minute injunction is intensely disruptive to BOP’s

preparations for the execution… including picking up grieving family members of the victims and other witnesses at the airport and preparing to transport them to the execution facility.”

For example, US Supreme Court, Mitchell v. USA, Response in opposition to emergency application for stay of execution, August 2020: “any further delay would disserve the interests of the government, the

victims’ families, and the public.”

A federal judge accused the administration of “pervasive indifference” towards the interests of family members and granted a motion for a preliminary injunction given the setting of execution dates

during the Covid-19 pandemic, with all the health risks that posed, including for travel; US District Court for the Southern District of Indiana, Peterson et al, v. Barr et al. Order granting plaintiffs’ motion for

preliminary injunction, 10 July 2020. The Court of Appeals for the Seventh Circuit overturned the order after the government appealed.

In re Lezmond Charles Mitchell. Memorandum in support of petition for clemency and for commutation of death sentence. Before the President of the United States and the US Pardon Attorney, July 2020.

In the case of the latter two Black federal

defendants jointly convicted of the murder

of two white people committed when the

defendants were 18 and 19 years old, lawyers

for one of them urged a federal judge to

recognize the role of the now discredited

“superpredator” myth on the decision by

the Clinton administration to seek the death

penalty in the case. With one of the two

already executed, and the second scheduled

for execution, the government protested that

the lawyers were “accusing the prosecution

of racism”,

to which the defense lawyers

responded:

The Department of Justice’s 2019 news release

announcing resumption had also said that

“we owe it to the victims and their families

to carry forward the sentence.”

In litigation

opposing delays to its execution schedule, the

Trump administration repeatedly pointed to

the “overwhelming interest” of victims’ family

members in having the executions carried out.

It did so even in cases where victims’ relatives

opposed the execution.

In at least two of

the cases – those of Daniel Lee and Lezmond

Mitchell – family members of the murder

victims made vigorous efforts to have the death

sentences reduced to life imprisonment.

Lezmond Mitchell’s case, they included the

grandson and cousin of the two victims. He

had initially supported the death sentence, but

now believed “that to take another person’s life

because he made a mistake is not forgiving. It

is revenge.”

"That defensive response misses the point.

The reality is that everyone in this society is

inuenced by racial bias – that’s the heavy

hand of the past and the present that rests on

everyone’s shoulder, including the writers of this

document… [T]he sad truth of the matter is, that

in the late 90s unconscious racial bias expressed

itself through the superpredator myth. Now that

we all can recognize that the superpredator myth

inuenced a lot of bad decisions during that era,

everyone has a responsibility to do what they

can to ameliorate the negative impact of such

decisions.”

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Letter to President Donald J. Trump, dated 7 September 2019.

Letter to President Donald J. Trump, dated 6 September 2019.

Letter re United States v. Daniel Lewis Lee, to Eric Holder, US Attorney General and Christopher Thyer, US Attorney for the Eastern District of Arkansas, from G. Thomas Eisele, 7 November 2014 and

US Court of Appeals for the Eighth Circuit, Lee v. USA, 12 July 2020, Judge Kelly dissenting.

In Daniel Lee’s case, at least two relatives of the

murder victims had written to President Trump

asking him to commute the death sentence. One

wrote:

“Losing family members from such a hateful

act can propel a person to deeply consider

the meaning of life and our purpose and

responsibilities as human beings, our faith and

what we want the nal statement in the legal le

of [our relatives’] lives to be. Do we want it to be

another death?”

She also expressed “the compassion and

heartache I continue to feel for Daniel’s mom...

I am certain this has taken a massive toll on

her life and heart.”

Another relative urged

President Trump, “[i]nstead of continuing the

string of violence, please let justice be served by

reducing Daniel Lee’s sentence to life without

parole instead of the death penalty.”

In her September 2019 letter, the child victim’s

cousin noted that Lee’s co-defendant had been

“the one who murdered my eight-year-old cousin”

and said that it had been “very upsetting to read

Senator Tom Cotton’s tweet the day the execution

date was announced… I’ve seen people speaking

about what we want, calling for this execution in

our name, when they have never spoken to us. I

nd that very disturbing.”

The following does not seek to provide an

exhaustive account of the cases examined or

the multiple legal questions raised during the

execution spree. It does, however, focus on aspects

of these cases that illustrate such concerns.

THE TRUMP ADMINISTRATION’S

RELENTLESS PURSUIT OF

EXECUTION, AND THE US SUPREME

COURT’S ENABLING OF THIS

CONVEYOR BELT OF DEATH,

LEFT NUMEROUS LEGAL CLAIMS

UNRESOLVED AND REPEATEDLY

IMPLICATED THE USA’S

INTERNATIONAL HUMAN RIGHTS

OBLIGATIONS.

What neither the Department of Justice nor

the Supreme Court acknowledged, as the trial

judge in Daniel Lee’s case had emphasized to

the Department ve years earlier and an appeals

judge recalled two days before the execution,

was that the evidence at trial showed that, while

Daniel Lee had participated in the murder of the

two adults, he “would have no part in the killing

of [the eight-year-old child] so [co-defendant]

Kehoe [who received a life sentence] killed the

child himself.”

AMNESTY INTERNATIONAL

100

US Supreme Court, Callins v. Collins, 22 February 1994, Justice Blackmun dissenting.

101

US Supreme Court, Glossip v. Gross, 29 June 2015, Justice Breyer dissenting.

102

Barr v. Lee, 14 July 2020, Justice Breyer, joined by Justice Ginsburg, dissenting.

In his concurrence, for example, Justice William

Brennan wrote “the State does not respect

human dignity when, without reason, it inicts

upon some people a severe punishment that it

does not inict upon others.” In Gregg v. Georgia

four years later, however, clearing the way for

a resumption of executions under revised state

laws, the US Supreme Court decided that “the

concerns expressed in Furman v. Georgia that the

penalty of death not be imposed in an arbitrary

or capricious manner can be met by a carefully

drafted statute...”

The experiment has long since failed. Justice

Blackmun, who had dissented from Furman v.

Georgia and concurred in Gregg v. Georgia, wrote

in 1994 that “the death penalty remains fraught

with arbitrariness, discrimination, caprice, and

mistake” and that he would no longer “coddle

the delusion” that it could be xed.

100

Justice Blackmun’s successor wrote in 2015

that: “Despite the Gregg Court’s hope for fair

administration of the death penalty, 40 years

of further experience make it increasingly clear

that the death penalty is imposed arbitrarily.”

101

Pointing out that “the arbitrary imposition of

punishment is the antithesis of the rule of

law”, Justice Stephen Breyer noted that “after

considering thousands of death penalty cases

and last-minute petitions over the course of more

than 20 years [,] I see discrepancies for which

I can nd no rational explanations.” In July

2021, joined by Justice Ruth Bader Ginsburg as

the US government prepared to conduct its rst

execution in 17 years, Justice Breyer noted that

“the resumption of federal executions promises

to provide examples that illustrate the difculties

of administrating the death penalty consistent

with the Constitution”, lending further weight to

his call to the Court to revisit the constitutionality

of the death penalty.

102

2.1 ARBITRARINESS:

“THE ANTITHESIS OF

THE RULE OF LAW”

ARBITRARINESS IN APPLICATION OF THIS IRREVOCABLE PUNISHMENT

IS AN ISSUE THAT HAS NEVER GONE AWAY. WITH ONLY TWO

JUSTICES IN FURMAN V. GEORGIA FINDING THE DEATH PENALTY

UNCONSTITUTIONAL PER SE, IT WAS JUDICIAL DISQUIET ABOUT

ARBITRARINESS AROUND WHICH THE RULING COALESCED.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

103

Human Rights Committee, General Comment 36, Article 6: Right to life, 3 September 2019, UN Doc. CCPR/C/GC/36, para. 12.

104

Ruth Friedman, attorney for Daniel Lee and Director, Federal Capital Habeas Project, 14 July 2020.

105

US District Court for the Eastern District of Arkansas, USA v. Lee, Motion pursuant to 28 USC §2255 to vacate conviction and sentence, 26 June 2006.

106

Barr v. Lee, 14 July 2021, Justice Breyer, joined by Justice Ginsburg, dissenting.

Article 6(1) of the ICCPR prohibits the arbitrary

deprivation of life. The notion of arbitrariness

under the ICCPR does not just mean against

the law, but must include “elements of

inappropriateness, injustice, lack of predictability

and due process of law, as well as elements of

reasonableness, necessity and proportionality.”

103

Arbitrariness in application of the death penalty

in the USA comes in many forms. Corey Johnson,

for example, was executed on 14 January

2021, less than a week before a new president

took ofce on a pledge that he would work

for abolition of the death penalty. Today, two

of Corey Johnson’s co-defendants, convicted

and sentenced to death at the same trial, are

protected by a moratorium and stand to have

their death sentences overturned if the Biden

administration meets its abolitionist promise

or by executive clemency if that were to come

rst. This, of course, is not a reason against

commutation, but it is another grim reminder of

the absence of justice and constant presence of

cruelty in the application of the death penalty.

“At 2am on July 14, while the country was

sleeping, the Supreme Court issued a 5-4

decision vacating the injunction that had been

in place against the rst federal execution in 17

years. Within minutes, the Department of Justice

moved to re-set Danny Lee’s execution – for

4am, summoning media and witnesses back to

the prison in the very middle of the night. When

it was brought to the government’s attention

that a court stay still remained in place, the

DOJ [Department of Justice] rst maintained

that that stay presented no legal impediment

to executing Danny Lee, but then led an

‘emergency’ motion to lift the stay.

“Over the four hours it took for this reckless and

relentless government to pursue these ends,

Daniel Lewis Lee remained strapped to a gurney:

a mere 31 minutes after a court of appeals

lifted the last impediment to his execution at

the federal government’s urging, while multiple

motions remained pending, and without notice

to counsel, he was executed.

“It is shameful that the government saw t to

carry out this execution during a pandemic.

It is shameful that the government saw t to

carry out this execution when counsel for Danny

Lee could not be present with him, and when

the judges in his case and even the family of

his victims urged against it. And it is beyond

shameful that the government, in the end,

carried out this execution in haste, in the middle

of the night, while the country was sleeping. We

hope that upon awakening, the country will be

as outraged as we are.”

104

The rst federal execution in 17 years was that

of Daniel Lee, convicted in 1999. His lawyer

described what unfolded in the federal death

chamber in the early hours of 14 July 2020:

DANIEL

LEWIS

LEE

AMNESTY INTERNATIONAL

107

US District Court for the Eastern District of Arkansas, USA v. Lee, Memorandum Opinion, 28 August 2008.

108

US District Court for the Eastern District of Arkansas, USA v. Lee, Memorandum Opinion, 18 March 2014.

109

The Department of Justice’s death penalty protocol required the prosecutor to request withdrawal of the death notice from the Attorney General’s Review Committee on Capital Cases. Because

Attorney General Reno was unavailable at the time, Deputy Attorney General Holder convened the meeting at which it was determined that the notice would not be withdrawn.

110

USA v. Lee, Memorandum Opinion, In the US District Court for the Eastern District of Arkansas, 28 August 2008.

Fourteen years earlier, Daniel Lee’s lawyers had

argued that “this is a case that should leave any

observer uneasy as to whether or not the criminal

justice system worked… Everything about this

case is disturbing; every corner turned raises new

questions.”

105

The controversies persisted to the

end. Dissenting from the US Supreme Court’s

decision to allow the execution to go ahead,

Justices Breyer and Ginsburg reiterated that “the

death penalty is often imposed arbitrarily” and

here was a case where the condemned man’s co-

defendant “was sentenced to life imprisonment

despite committing the same crime.”

106

Daniel Lee’s lawyer sought to subpoena US

Attorney General Janet Reno and Deputy

Attorney General Eric Holder to learn what

drove the decision to continue to seek the death

penalty even after the life verdict for Kehoe was

returned.

109

The trial judge denied a government

motion to quash the subpoenas, but the US

Court of Appeals for the Eighth Circuit overturned

this. The trial judge ruled that Daniel Lee was

entitled to a new sentencing, in part because the

Department of Justice had failed to follow its own

internal protocol for seeking the death penalty.

The government appealed and the Eighth Circuit

reinstated the death sentence. On post-conviction

review, the trial judge stated:

Daniel Lee was one of two defendants against

whom the Clinton administration sought the

death penalty for the murder of a woman, her

husband and her eight-year-old daughter in

Arkansas in January 1996. Daniel Lee and his

co-defendant Chevie Kehoe were brought to trial

jointly in 1999 and both were convicted. Their

sentencing phases were conducted separately.

The sentencing for Lee’s co-defendant was held

rst. The jury sentenced him to life without

the possibility of release. The same jury then

sentenced Lee to death.

The US District Court judge who oversaw the trial

wrote: “Danny Lee is unquestionably less culpable

than Chevie Kehoe in relation to the crimes

alleged and proven in this case.”

107

In 2014,

another judge on the District Court to whom the

case had by then been assigned, wrote:

death penalty for Lee. Nevertheless, after the jury

returned a sentence of life imprisonment for Kehoe,

the United States Attorney for the Eastern District

of Arkansas was unable to obtain permission from

the Attorney General to withdraw the request for

the death penalty as to Lee.”

108

“While much has been said about the DOJ’s

disregard for its own protocol for making death

decisions, little has been said about the fact

that DOJ exercised its prosecutorial discretion in

disregard of the recommendation of the local US

Attorney and her assistants involved in the case

(including lead counsel), the case agents, and

even the victims’ family that a death sentence

should not be pursued against Lee if the jury

spared Kehoe’s life… In the eyes of this Court,

the DOJ’s insistence on continuing to seek the

death penalty as to Lee, under the circumstances,

casts a pall over this case… While this Court

may agree… that Deputy Attorney General

Holder’s decision to require the Government to

continue to seek the death penalty against Lee

was unreasonable, unfair, and possibly even an

abuse of prosecutorial discretion, the question is

whether that decision violated the Constitution.

The Court concludes that it did not.”

110

“Even though the evidence established that Kehoe

was the more culpable of the two defendants,

the jury sentenced him to life imprisonment and

Lee to death. The penalty phase as to Kehoe was

conducted before the penalty phase as to Lee,

and before the jury returned a verdict during the

penalty phase of the Kehoe case, the government

announced in camera that if the jury sentenced

Kehoe to life imprisonment, it would not seek the

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

While this court decided that the Deputy

Attorney General’s decision did not violate the

Constitution, because of the broad discretion

given to prosecutors in US law, Amnesty

International considers that it did amount to a

breach of international standards on the role of

prosecutors and ultimately was responsible for

perpetuating the arbitrariness that dened this

case.

111

The lack of transparency about why the

Deputy Attorney General made this decision

when the prosecution had previously promised to

withdraw the death penalty against Lee if his co-

defendant did not receive it is troubling.

the reason, it was not fair or just for Daniel Lee to

be sentenced to death, and none of the reasons I

come up with make me feel any better.”

113

The trial judge speculated that what may have

“inuenced the jury’s ultimate decision” was

the evidence introduced by the government of

Lee’s involvement in a murder in Oklahoma

when he was 17 years old. If so, it was inuence

based on improper evidence and argument. The

prosecution, in both its opening and closing

argument, told the jury that Lee “has an earlier

murder under his belt.” Evidence later came to

light that the judge in the Oklahoma case against

the teenaged Lee had found that the crime

of murder was “not established by evidence”

and had recommended dismissal of those

charges and substituting with one of robbery. In

2019, the US District Court found that if this

information had been disclosed, “the outcome

at sentencing would have been different.”

114

However, the judge denied relief under the

constraints of the AEDPA.

115

The case of Daniel Lee, according to the

federal court judge who oversaw the trial, in

a letter to the US Attorney General in 2014,

“illustrates that the most carefully crafted capital

punishment regime in the hands of the humans

who must carry it out can never be completely

free of arbitrariness.”

116

After the execution, US

Supreme Court Justices Breyer and Ginsburg said

the case “revealed the inherent arbitrariness of

the death penalty.”

117

The sister of one of the victims wrote to President

Trump in September 2019 to explain the

family’s opposition to the execution, saying it

was incomprehensible “why the two men got

drastically different sentences”, but “whatever

AS DANIEL LEE’S EXECUTION

APPROACHED IN JULY 2020, A

JUDGE ON THE EIGHTH CIRCUIT

WROTE THAT “LEE’S CASE

UNDERSCORES HOW THE DEATH

PENALTY CONTINUES TO BE

ARBITRARILY APPLIED. EVERYONE

AGREES THAT KEHOE WAS FAR MORE

CULPABLE THAN LEE, YET KEHOE

WAS SENTENCED TO LIFE IN PRISON

WHILE LEE WAS SENTENCED TO

DEATH.”

112

111

UN Guidelines on the Role of Prosecutors (1990), para. 12: “Prosecutors shall… respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and

the smooth functioning of the criminal justice system.” Every capital defendant must be given all due process guarantees under Article 14 of the ICCPR, with governments also “bearing in mind”

international instruments such as the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors and Strengthening of the UN Safeguards, as agreed by Economic and

Social Council (ECOSOC) Resolution 1996/15.

112

US Court of Appeals for the Eighth Circuit, Lee v. USA, Amended judgment, 12 July 2020, Judge Kelly dissenting.

113

Letter to President Donald J. Trump, dated 6 September 2019.

114

US District Court for the Eastern District of Arkansas, USA v. Lee, Opinion and order, 26 February 2019.

115

A second federal judge, this time in Indiana, agreed, and granted Lee a stay of execution because of this very evidence and the way in which the jury had been seriously misled. Lee v. Warden, In

the US District Court for the Southern District of Indiana, 5 December 2019. The appellate Court overturned the stay.

116

Letter re United States v. Daniel Lewis Lee, to Eric Holder, Attorney General of the United States and Christopher Thyer, United States Attorney for the Eastern District of Arkansas, from G. Thomas

Eisele, 7 November 2014.

117

Barr v. Purkey, On application for stay or vacatur, 16 July 2020, Justice Breyer, joined by Justice Ginsburg, dissenting.

AMNESTY INTERNATIONAL

118

Reservations are territories reserved as permanent tribal homelands”, justice.gov/otj/about-native-americans#otj25. The Navajo Nation’s reservation is the largest in the USA, extending into Utah,

Arizona and New Mexico.

119

Statement of Helen Elaine Avalos, Assistant Attorney General, Navajo Department of Justice, on behalf of Peterson Zah, President of the Navajo Nation. Hearing before the Subcommittee on Crime

and Criminal Justice of House Judiciary Committee, 103. Cong., 2d Sess., 22 February 1994.

Lezmond Mitchell was convicted in 2003 of the

28 October 2001 murder of a woman and her

nine-year-old granddaughter during a carjacking

in Arizona. He was sentenced in 2003 to life

imprisonment for the two murder counts and to

death for carjacking resulting in death. The crime

was committed when Lezmond Mitchell, who had

no criminal record, had just turned 20 and his

co-defendant was 16 (and therefore ineligible

for the death penalty under the federal statute).

Both defendants were Navajo, as were the

victims, and the crime occurred on the Navajo

Nation’s reservation.

118

The murders alone did not make Lezmond

Mitchell eligible for the death penalty because

the FDPA included the “tribal option”, which

allows Native American tribes to decide whether

the death penalty should apply to federal

prosecutions of crimes committed against Native

American people on tribal lands. The Navajo

Nation decided that it categorically should

not (as did all but one of the other tribes).

Lobbying for the tribal option in Congress in

1994, an Assistant Attorney General in the

Navajo Department of Justice explained: “the

death penalty is counter to the cultural beliefs

and traditions of the Navajo people who value

life and place great emphasis on the restoration

of harmony through restitution and individual

attention.”

119

However, the US government charged Lezmond

Mitchell with carjacking resulting in death.

Carjacking is considered a “crime of nationwide

applicability” with federal jurisdiction deriving

through the notion of interstate commerce

(cars are manufactured and used in interstate

commerce). Consequently, the tribal option was

not applicable to the carjacking charge and

Lezmond Mitchell was punishable by death. In

2014, the Chief Justice of the Supreme Court of

the Navajo Nation wrote that “the Department

of Justice relied on a technicality to bypass us.

Instead of respecting the opt-in provisions, the

Department of Justice sought death against

Mr Mitchell not for murder, but for carjacking

resulting in death. The difference was in name

only.”

120

Tribal nations are recognized by the federal

government as “domestic dependent nations”

with “inherent powers of self-government.” It

was the clear intent of the Navajo Nation to opt

out of the death penalty.

121

The Inter-American

Commission on Human Rights (IACHR) issued a

report on the merits of Lezmond Mitchell’s case

in 2020. It concluded that:

“the application of the carjacking count with

the sole purpose of seeking the death penalty

contravenes, in practice, the raison d’être behind

the sovereign decision taken by the Navajo Nation,

that is, that death by a member of their nation

on Navajo territory should not be punishable by

death. In fact, this legal subterfuge resulted in

practice in the application of a death sentence not

for the murder but for a car robbery, an offence

involving the protection of a minor legal interest...

In addition, the application of the death penalty

using this legal maneuver resulted in a violation of

a collective dimension, and affects the values and

autonomy of the Navajo Nation. The Commission

notes that neither the State nor the Attorney

LEZMOND

CHARLES

MITCHELL

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Attorney General have presented an explanation

to justify the reasons why the application of death

penalty in the specic case would seek a better

interest than the interest of the Navajo Nation

and the protection of its autonomy and culture in

conformity with their own worldview...

Mr Mitchell’s right to be sentenced in accordance

with the general understanding of the Navajo

Nation that the commission of a murder by a

Navajo on tribal territory should not lead to the

death penalty, is a component of the right to a

fair trial and to the protection against the arbitrary

imposition of a penalty. Therefore, in the absence

of a justication to override this decision of

the Navajo Nation, the State also infringed Mr

Mitchell’s rights to a fair trial.”

122

120

Letter from Chief Justice Yazzie, Supreme Court of the Navajo Nation, 21 July 2014. Submitted to IACHR and quoted in OEA/Ser.L/V.II, Doc. 225, 24 August 2020, Report No 211/20, Report on

Admissibility and Merits, Lezmond C. Mitchell, United States of America. The letter continued: “The federal jurisdictional basis for rst-degree murder was based on the fact that the crime took

place on Navajo land, thus implicating the Federal Death Penalty Act requirement of the tribe’s approval. But the jurisdictional basis for the carjacking charge was interstate commerce, which

allowed the Department of Justice to disregard our wishes. This loophole allowed the federal government to bypass our wishes, and we view this action as both a moral and political affront to Navajo

sovereignty.”

121

In 2020, a federal judge described the decision as “a betrayal of a promise made to the Navajo Nation… our history shows that the United States gave tribes the option to decide for themselves”,

US Court of Appeals for the Ninth Circuit, Mitchell v. United States, 19 June 2015, Circuit Judge Christen, concurring.

122

Report no. 211/20, Case 13.570, Report on admissibility and merits. Lezmond C. Mitchell, United States of America.

123

US Court of Appeals for the Ninth Circuit, USA v. Mitchell, 7 September 2007.

124

US Court of Appeals for the Ninth Circuit, Mitchell v. US, 19 June 2015, Circuit Judge Reinhardt, dissenting in part.

125

Update on Cost and Quality of Defense Representation in Federal Death Penalty Cases, September 2010, uscourts.gov/FederalCourts/AppointmentOfCounsel/Publications/UpdateFederalDeathPenaltyCases.aspx

The bypassing of the “tribal option” was found

legal by the US Court of Appeals for the Ninth

Circuit,

123

but raised consternation not just

within the Navajo government and the IACHR,

but also the federal judiciary. In 2015, a Court

of Appeals judge, dissenting, wrote that while

legally available “the novel use of carjacking as

a loophole to circumvent the tribal option” had

set Mitchell up to “suffer the ignominious fate of

being the rst person to be executed for an intra-

Indian crime that occurred in Indian country.”

The government’s conduct, he continued,

“reects a lack of sensitivity to the tribe’s values

and autonomy, and demonstrates a lack of

respect for its status as a sovereign entity.” He

wrote that “the arbitrariness of the death penalty

in this case is apparent.”

124

The capital decision-making process under then-

Attorney General John Ashcroft had been made

“less deferential” to local federal prosecutors and

the “number of capital prosecutions increased

substantially”, resulting in an almost tripling of

the federal death row under President George

W. Bush.

125

Before the Mitchell trial, the US

Attorney for Arizona had advised against the

federal government pursuing execution, citing the

Navajo Nation’s opposition to the death penalty.

The daughter and mother of the victims also

requested that the death penalty not be sought.

Attorney General Ashcroft overruled the US

Attorney “and forced a capital prosecution based

on the carjacking aspect of the crime, thereby

avoiding the application of the tribal option.”

126

As things stood, this judge concluded in the

above dissent, execution would represent no

more than fullment of “the wishes of a former

attorney general.”

127

The UN Human Rights Committee has said

that it is “contrary to the object and purpose

of article 6 [of the ICCPR] for States parties

to take steps to increase de facto the rate of

use of and the extent to which they resort

to the death penalty.”

128

Attorney General

Ashcroft’s decision to overrule the Arizona

federal prosecutor “marked the beginning of

an aggressive expansion of the federal death

penalty, particularly into jurisdictions that did

not permit the use of that penalty. Mitchell

was the rst object of the new policy.”

129

AMNESTY INTERNATIONAL

126

US Court of Appeals for the Ninth Circuit, Mitchell v. US, 19 June 2015, Circuit Judge Reinhardt, dissenting in part.

127

US Court of Appeals for the Ninth Circuit, Mitchell v. US, 19 June 2015, Circuit Judge Reinhardt, dissenting in part.

128

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 50.

129

US Court of Appeals for the Ninth Circuit, Mitchell v. USA, 19 June 2015, Circuit Judge Reinhardt, dissenting in part.

130

Wainwright v. Witt (1985). Under the Witt standard, a juror can be dismissed for cause if his or her feelings about the death penalty would “prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.” Morgan v. Illinois (1992) explicitly extended the Witt standard to include proponents of the death penalty.

131

Ofce of the Speaker of the 24th Navajo Nation Council, “Navajo Nation calls for end to federal execution of tribal member, Lezmond Mitchell”, News Release, 13 August 2020..

132

US Court of Appeals for the Ninth Circuit, USA v. Mitchell, 5 September 2007, Judge Reinhardt dissenting: “So improper and arbitrary a justication cannot be presumed to be the prosecution’s true motive.”

133

US Court of Appeals for the Ninth Circuit, Mitchell v. USA, 19 June 2015, Circuit Judge Reinhardt dissenting in part. Such background information was provided in his clemency petition: “In his early

adolescence, Lezmond began self-medicating with drugs and alcohol. By the time he was seventeen, a mental health professional who treated Lezmond after he was caught with marijuana insisted that

Lezmond was suicidal and required intensive psychotherapy and residential treatment to address his mental health and substance abuse issues. But Lezmond, lacking the support of his family, went untreated,

and his substance abuse and mental illness worsened. In the months leading up to the commitment offenses, he was drinking alcohol and smoking marijuana daily, and using near-lethal doses of cocaine,

methamphetamine, and ecstasy. On the day of the crimes, Lezmond had been awake for several days bingeing on drugs and alcohol, and he and [his 16-year-old co-defendant] continued to drink and use cocaine,

methamphetamine, marijuana and ecstasy. A board-certied psychiatrist has opined that Lezmond was psychotic at the time of the killings.”

134

Statement before Subcommittee on Crime and Criminal Justice of House Judiciary Committee, 22 February 1994, (previously cited).

135

US Court of Appeals for the Ninth Circuit, Mitchell v. US, 30 April 2020, Circuit Judge Hurwitz concurring.

The trial took place far from the Navajo

reservation, having been moved from Prescott

to Phoenix, Arizona. This move contributed to a

jury being selected which consisted of 11 white

people and one Navajo person. In the original

jury pool, there were as many as three dozen

Native Americans. However, all but one were

dismissed either because of their opposition to

the death penalty – consistent with their religion

and culture – and only “death-qualied” jurors

(those willing to pass a death sentence) can sit

on a capital jury in the USA;

130

or because they

spoke Navajo as their rst language; or because

of the “hardship created by the long distance

between the Navajo Nation and Phoenix.”

131

That the prosecution appeared to favor a

white jury was indicated when it peremptorily

excluded the only African American and the only

remaining Native American who had continued

to that stage of jury selection. The defense

objected to both exclusions; the judge allowed

the removal of the Black juror.

132

The judge did

not allow the removal of the Native American

juror, concluding that the prosecution’s

dismissal had been discriminatory.

In 2015, the death sentence was upheld by

the US Court of Appeals for the Ninth Circuit

over the dissent of one of the three judges. He

pointed to the “myriad ways in which [trial]

counsel performed deciently”, including failure

to investigate and present mitigating “evidence

of drug and alcohol abuse, physical abuse, and

of emotional and mental problems that would

have helped the jury understand what led up

to Mitchell’s commission of [the crime].”

133

In her testimony before Congress in 1994,

mentioned above, the Assistant Attorney General

in the Navajo Department of Justice had said:

“The vast majority of major crimes committed

on the Navajo Nation and within other Indian

reservations are precipitated by the abuse of

alcohol. The death penalty will not address the

root of the problem; rather rehabilitation efforts

will be more effective.”

134

When the Court of Appeals upheld the

death sentence in 2020, one of the three

judges expressed the hope that the Trump

administration, with the “unfettered ability

to make the nal decision”, would “carefully

consider whether the death penalty is appropriate

in this unusual case.”

135

There were no signs

of any such care taken. Lezmond Mitchell was

executed on 26 August 2020.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

136

See ICCPR Article 10.3.

137

US Supreme Court, Roper v. Simmons, 1 March 2005. Four months before the US Attorney General sent the fax authorizing the death penalty in the Vialva/Bernard case, the Clinton administration

had urged the Supreme Court not to review the issue of executing people for crimes committed when they were under 18. The Court agreed not to (see Domingues v. Nevada, Section 4.2).

138

US Supreme Court (1989), Stanford v. Kentucky, Justices Brennan, Marshall, Blackmun and Stevens dissenting.

139

For example, in the US District Court for the District of Vermont, USA v. Fell, Order, on 20 August 2018, a federal judge addressed the federal defendant’s age at the time of the carjacking

murder – 20. The judge noted that “a person is more likely to act in a reckless, thoughtless manner at age 20 than at age 30” and that “neuroscience has begun the process of identifying biological

explanations for these differences.” He said that the “arbitrary nature of a xed age rule is ameliorated by the fact that the age and maturity of an individual defendant may be presented as a

mitigating factor.” Donald Fell, sentenced to death in 2005, was granted a new trial in 2014. Under a plea deal in 2018, Fell was sentenced to life without parole.

On 7 February 2000, a letter was faxed from

Attorney General Janet Reno in Washington,

DC, to the US Attorney for the District of

Western Texas in San Antonio telling him he was

authorized to seek the death penalty against

Christopher Vialva and Brandon Bernard for their

part in a carjacking and robbery planned by a

group of teenagers in June 1999. The carjacking

had ended in the murder of a young couple on

the Fort Hood military base.

Twenty years after this fax was sent, the

instruction contained in it reached its lethal

conclusion when, rst Christopher Vialva and

then Brandon Bernard were put to death in the

federal execution chamber. Brandon Bernard was

18 years old at the time of the crime; Christopher

Vialva was eight weeks older and had recently

turned 19. By the time of their deaths, they

had spent half their lives on death row. Their

plight represented the absolute failure of the

federal authorities to recognize that prioritizing

reform and rehabilitation would have been

the constructive route to have taken and one

compatible with international human rights law,

which sets reformation and social rehabilitation

as the goal of incarceration.

136

2.2 REJECTION OF

MITIGATION AND

REHABILITATION

THE DEATH PENALTY, WROTE JUSTICE POTTER STEWART IN HIS FURMAN

V. GEORGIA CONCURRENCE IN 1972, “IS UNIQUE IN ITS IRREVOCABILITY.

IT IS UNIQUE IN ITS REJECTION OF REHABILITATION OF THE CONVICT AS

A BASIC PURPOSE OF CRIMINAL JUSTICE. AND IT IS UNIQUE, FINALLY,

IN ITS ABSOLUTE RENUNCIATION OF ALL THAT IS EMBODIED IN OUR

CONCEPT OF HUMANITY.”

AMNESTY INTERNATIONAL

140

Common Core Document of the USA: Submitted with the Fourth Periodic Report of the USA to the United Nations Committee on Human Rights concerning the International Covenant on Civil and

Political Rights, 30 December 2011, para. 152.

141

US Court of Appeals for the Fifth Circuit, US v. Bernard, Opinion, 19 July 2002.

142

Angela Moore, USA Today, “I helped put an 18-year-old Black teen on federal death row. I now think he should live”, 7 December 2020. She noted “recent research” tends to view Black youth as

“more blameworthy than their white counterparts, even when other relevant circumstances are identical.” See also, for example, Glossip v. Gross, 2015,

143

Updated from Amnesty International, “He could have been a good kid”: Texas set to execute third young offender in two months, May 2014, amnesty.org/en/documents/amr51/027/2014/en/

It was not until 2005 that the Supreme Court

banned the death penalty against individuals

under 18 years old, recognizing young people’s

immaturity, impulsiveness, poor judgment,

underdeveloped sense of responsibility and

vulnerability or susceptibility to “negative

inuences and outside pressures, including

peer pressure”, as well as their potential for

reform. Its ruling in Roper v. Simmons noted

that “the qualities that distinguish juveniles

from adults do not disappear when an individual

turns 18.”

137

Even a decade and a half earlier,

four dissenting US Justices had written in

a Kentucky capital case that “many of the

psychological and emotional changes that an

adolescent experiences in maturing do not

actually occur until the early 20s.”

138

At the joint trial of Christopher Vialva and

Brandon Bernard in 2000, according to the jury

verdict form, not a single juror considered the

age of either to be a mitigating factor. On direct

appeal to the Fifth Circuit Court of Appeals

in 2002, lawyers argued that the jurors had

arbitrarily refused to acknowledge the existence

of a mitigating factor that plainly existed. The

very law under which they were charged – the

FDPA – did not allow anyone under the age

of 18 to be sentenced to death, yet the age

of these two defendants just outside that

categorical exemption was considered to have no

mitigating effect whatsoever. The Fifth Circuit

rejected the appeal.

141

Youth can be presented as a mitigating factor.

139

Indeed, the right of defendants to present

mitigating evidence has been emphasized by US

authorities when offering reassuring words on

the international stage about the “heightened

procedural protections” in capital cases.

140

The federal prosecutor who wrote government

briefs and conducted oral argument in the direct

appeal before the Fifth Circuit, defending the

death penalty in the Bernard/Vialva case, herself

pointed out in 2020 in an article that “science

has made dramatic strides in understanding

the youthful brain. In 2000, it was not widely

appreciated that the brain remains physically

immature well past age 18. Since then, science

has established that the structures of the brain

are not fully developed in young men until they

are 25 or 26… That same science shows that

18-year-olds are no different from 17-year-

olds in both immaturities and potential for

rehabilitation.”

142

CHRISTOPHER ANDRE

VIALVA AND BRANDON

BERNARD

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

The federal trial was conducted in Texas, where

more teenaged defendants have been sentenced

to death and executed at state level than in any

other state. Only four other states have executed

more people of any age than Texas has executed

teenaged offenders since Furman v. Georgia.

Ninety of the 574 people put to death there

from 1982 to June 2022 were teenagers (17,

18 or 19 years old) at the time of the crimes

for which they were sentenced to death. Of

these 90 people, 56 were African American

(62%) and of these 56 people, 40 (71%) were

convicted of crimes involving white victims.

143

Since 2014, Texas has executed nine people for

crimes committed when they were 18; four were

Black, three were Hispanic and two were white.

“When I heard about the crime through the

media coverage”, Brandon Bernard’s former

juvenile probation ofcer recalled in 2020, “I

knew that the race of the defendants and the

victims would be a factor in the outcome of the

trial. Since Brandon and his friends were African

American and the victims were white, church-

going people, race would be an issue, especially

in this part of Texas.”

144

Another contributing factor to the sentencing

outcome may have been that the case unfolded

during a period in the USA in which youth were

portrayed in the media and by politicians as

“superpredators”.

“[T]he now discredited superpredator myth –

that Black adolescent males ware inherently

dangerous and must be locked up else they grow

more and more violent [was] exactly the theory

that the government advanced to secure a death

sentence… While the term was not explicitly

racist, it was racially charged… The term’s

negative impact across communities of color can

hardly be overstated – it changed for the worse

the way prosecutors, judges, juries, and the

community at large viewed young Black men. A

constant media focus on the term ‘superpredator’

caused an unfounded panic… In fact, the

government invited the jurors to return a verdict

that was based on that false myth. The crux of

the government case was that Vialva and Brandon

were apex predators who needed to be killed

rather than merely caged.”

145

Christopher Vialva was executed on 24

September 2020. By the time that Brandon

Bernard was scheduled for execution on 10

December 2020, ve of the nine surviving

jurors said that they had come to believe that

life imprisonment was adequate punishment

for Brandon Bernard. Two of the former jurors

signed declarations in 2016 in support of

his bid for clemency from President Obama.

One said: “I felt that Brandon was a kid who

got caught up with the wrong crowd” and

that he was “just an adolescent, trying to

nd belonging… my understanding now, as

I am older, with more life experiences, about

teenagers and our brain and social development

factors into my current wishes for clemency.

I do not want Brandon to be executed for bad

decisions he made when he was a teenager.”

146

The other expressed her view that Brandon

Bernard’s “trial attorneys failed even to

adequately represent him. Due to this failure

in legal representation, I am not opposed to

Mr Bernard requesting his death sentence be

commuted to life without the possibility of

parole.”

147

As the execution neared in 2020,

another of the former jurors declared his

hope that President Trump “rights this wrong

and commutes Mr Bernard’s sentence to life

imprisonment.”

148

In similar vein, the man who

served as the foreperson of the jury said that he

was “praying the President commutes Brandon

Bernard’s death sentence.”

149

144

Declaration of Novotny Baez, 25 August 2020.

145

US District Court for the Western District of Texas, USA v. Bernard, Motion to modify sentence under 18 USC §(c)(1), 7 December 2020.

146

Declaration, Jason Fuller, 21 July 2016.

147

Declaration, Laird Cooper, 26 May 2016.

AMNESTY INTERNATIONAL

After Brandon Bernard’s rst appeal had run

its course, his lawyers sought authorization

to le a successive petition to present a new

claim that the government had failed to disclose

evidence favorable to Bernard and had presented

false testimony at the trial. The appeal lawyers

had discovered this evidence of prosecutorial

misconduct in 2018, after it emerged in a re-

sentencing of one of the younger co-defendants

in the case. However, because the new evidence

raised concerned evidence at the sentencing

phase, rather than challenging the evidence of

Brandon Bernard’s guilt, the US Court of Appeals

for the Fifth Circuit ruled that he could not

overcome the barrier imposed under the AEDPA

for authorization to le a successive petition.

150

The Fifth Circuit “got it wrong”, according to US

Supreme Court Justice Sonia Sotomayor. Brandon

Bernard had "never had the opportunity to test"

his "troubling allegations that the Government

secured his death sentence by withholding

exculpatory evidence and knowing eliciting false

testimony against him", and now he never would,

Justice Sotomayor added.

151

What the appeal lawyers had discovered was

that before the 2000 trial, the prosecutors had

consulted with the former head of the Gang Unit

in the Police Department for Killeen in Texas.

She had told them that in the 13-tier hierarchy

of the gang to which the defendants were alleged

to belong, Brandon Bernard had been at the

bottom. That he was on the periphery of the gang

contradicted the prosecution’s argument that the

structure was at, that he was an equal participant

and that he therefore posed the same risk of

“future dangerousness”. The gang expert had even

produced a striking pyramidal diagram depicting

the structure, developed with an informant.

The prosecution knew all of this before Brandon

Bernard was tried but did not tell his lawyers.

Under international law, this violates the

principle of “equality of arms”. In a criminal

trial, where the prosecution has all the machinery

of the state behind it, this principle guarantees

that the defense has a genuine opportunity to

prepare and present its case.

Even before this evidence came to light, a former

warden of federal death row had supported

clemency for Brandon Bernard in 2016 and had

criticized the government’s argument at trial that

his gang afliation in the outside world inevitably

meant he would associate with any such gang

in prison and be a future danger. This “was

exaggerated and inaccurate”, said the former

warden, and Bernard’s lack of dangerousness had

subsequently been shown in his prison record

which was one of “zero disciplinary infractions in

[at that point] 16 years.”

152

On the eve of Brandon Bernard’s execution, the

government rejected efforts to have the judiciary

reduce the death sentence in recognition of its

excessive nature and the evidence of his remorse

and reform. Such claims, “might be fodder for

a clemency petition”, it said, but they did not

qualify as reasons for the courts to reduce his

sentence.

153

Neither it seems did they qualify as

reasons for executive clemency.

148

Declaration, Gary McClung, 13 August 2020.

149

Declaration, Calvin Kruger, 6 November 2020.

150

In re: Brandon Bernard, US Court of Appeals for the Fifth Circuit, 9 September 2020.

151

Barnard v. United States, 10 December 2020, Justice Sotomayor dissenting.

152

Declaration of Mark Bezy, 20 August 2016.

153

US District Court for the Western District of Texas, USA v. Bernard, Government’s consolidated response to Bernard’s motion to modify sentence under 18 USC § 3582(c)(1) and motion to stay or

modify execution date, 8 December 2020.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

154

Callins v. Collins, 22 February 1994, Justice Blackmun dissenting.

155

Amnesty International, Another planned killing by the US Government: The imminent federal execution of Louis Jones, February 2003, amnesty.org/en/documents/amr51/020/2003/en/

156

Bruce Webster was sentenced to death in June 1996. The District Court vacation of his sentence was afrmed by the Seventh Circuit in 2020.

Concurring in the ruling, Justice Potter Stewart

noted that “if any basis can be discerned for the

selection of these few to be sentenced to die,

it is the constitutionally impermissible basis of

race.” Fifty years on, the elected branches must

surely nally face up to the reality that the USA

has failed to devise and “may not be capable

of devising procedural or substantive rules to

prevent the more subtle and often unconscious

forms of racism from creeping into the system”

and that “where a morally irrelevant – indeed,

a repugnant – consideration plays a major role

in the determination of who shall live and who

shall die”, continued resort to the death penalty

“in light of its clear and admitted defects is

deserving of a sober second thought.”

154

Such

sober reection was entirely absent during the

federal execution spree.

The last federal execution before resumption

in 2020 was of Louis Jones, a Black defendant

tried in the Northern District of Texas in front of

an almost all-white jury, who was executed in

the federal death chamber in March 2003.

155

Seventeen and a half years later, Orlando

Hall, another Black man sentenced to death

in the same US District met the same fate.

Orlando Hall was tried before an all-white jury

and a prosecutor who would later be named

in two major judicial rulings overturning death

sentences because of the prosecution’s racist

jury selection techniques.

In September 1994, a 16-year-old girl was

murdered near Pine Bluff in Arkansas after

she had been abducted in Texas. Five men,

including Orlando Hall, were charged in the

crime. In 1995, the federal government led

notice of its intent to seek the death penalty

against Orlando Hall and Bruce Webster under

the FDPA. Orlando Hall and Bruce Webster

were tried separately in the Northern District

of Texas. Both were sentenced to death. Bruce

Webster’s death sentence was overturned in

2019 because of his intellectual disability, after

records supporting this claim – which the Social

Security Administration had told his lawyers did

not exist – emerged.

156

2.3 RACE MATTERS

THE MAN WHO GAVE HIS NAME TO THE FURMAN V. GEORGIA RULING WAS

WILLIAM HENRY FURMAN. THIS BLACK MAN WAS TRIED AND SENTENCED TO

DEATH IN 1967 BEFORE A JURY CONSISTING OF 11 WHITE JURORS AND ONE

BLACK JUROR FOR THE MURDER OF A WHITE MAN DURING A BURGLARY.

WHILE ARBITRARINESS WAS THE ISSUE AROUND WHICH THE FURMAN V.

GEORGIA RULING COALESCED, RACE WAS THE ELEPHANT IN THE ROOM.

ORLANDO

CORDIA

HALL

AMNESTY INTERNATIONAL

157

US District Court for the Southern District of Indiana Hall v. Watson, Order denying motion for stay of execution, 17 November 2020. Of the 100 prospective jurors at jury selection, seven were

Black. “After strikes for cause, ve qualied black prospective jurors remained. The defense struck one black juror due to her strong pro-death-penalty views, and the government peremptorily struck

the remaining four, leaving no black jurors.”

158

US Supreme Court, Miller-El v. Dretke, 13 June 2005.

Given the facts alleged in the crime, Orlando

Hall and Bruce Webster could have been tried in

either the Northern District of Texas (Fort Worth

Division) or the Eastern District of Arkansas

(Pine Bluff Division). Around that time, the latter

had a Black population of 35.85% compared to

10.41% in the Texas location. The result of the

Clinton administration’s decision to prosecute

in Texas was therefore to dilute the presence of

Black jurors. In the end, none of the 12 jurors at

Orlando Hall’s trial was Black; prosecutors used

their peremptory challenges to dismiss four Black

prospective jurors at jury selection.

157

At trial, the defense presented no evidence

and waived closing argument. Orlando Hall was

convicted on all counts. The penalty phase lasted

three days. The prosecution presented evidence

of the defendant’s previous convictions for drug-

related crimes and seven witnesses to testify

as to the defendant’s purported bad character,

all but one of whom defense counsel declined

to cross-examine. The defense presented only

the defendant’s sister and mother as character

witnesses. The federal trial judge denied Orlando

Hall’s request to make a statement expressing his

remorse and asking for forgiveness from his own

and the murder victim’s family. The jury voted for

death and the judge formally sentenced Orlando

Hall to death on 12 February 1996.

His appeal, led in 2000, was denied in 2004.

It was only after this that detailed new evidence

fully emerged of the history of racially motivated

jury selection tactics employed by one of the

prosecutors, Paul Macaluso, when working at

Texas county level. Paul Macaluso had trained

and practiced in the Dallas County District

Attorney’s Ofce from 1973 to 1988. During this

whole time, “prosecutors in the Dallas County

ofce had followed a specic policy of system-

-atically excluding [B]lacks from juries.”

158

This

policy was contained in a manual, known as

the Sparling Manual, written in 1968, which

directs prosecutors that “you are not looking

for any member of a minority group which may

subject him to oppression – they almost always

empathize with the accused.”

In 2005, in its ruling in Miller-El v. Dretke

(Miller-El II), the US Supreme Court found that

Paul Macaluso’s “chosen race-neutral reasons

for the strikes do not hold up and are so far at

odds with the evidence that pretext is the fair

conclusion, indicating the very discrimination the

explanations were meant to deny.”

In August 2020, Hall’s lawyers became aware of

a statistical analysis led in another case with

the IACHR of the federal government’s pursuit

of the death penalty in Texas between 1988 and

2010. This analysis, conducted by an Associate

Professor in the Department of Sociology and

Criminology at the University of Denver, found

that:

"Federal prosecutors in Texas have requested

authorization to seek the death penalty against

32 men and obtained a death verdict in 13 cases.

Ten of the 13 men who received the federal death

penalty in Texas are black. Thus, while blacks

make up 12% of the Texas population, they

constitute 77% of all the federal death verdicts

within the State of Texas…

[F]ederal prosecutors in Texas were almost six

times more likely to request authorization to seek

the death penalty against black defendants…

Moreover, authorization was almost eight times

more likely to be granted in cases with black

defendants… Finally, a death verdict was about

sixteen times more likely to be rendered in cases

with black defendants… [emphasis in original]

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

159

Declaration of Scott Phillips, 29 March 2011.

160

Hall v. Watson, Response to Hall’s 28 USC § 2241 petition and response in opposition to Hall’s motion for stay, 16 November 2020.

161

Hall v. Watson, Order denying motion for stay of execution, 17 November 2020.

It is highly unlikely that a race-neutral factor or

factors could explain why black defendants were

16 times more likely to be sentenced to death.

The racial disparities are almost surely too extreme

to have a benign explanation. Indeed, the racial

disparities are the most acute I have seen in my

years of research on the subject.”

159

The federal government’s response to the petition

led for Orlando Hall was that it was too late

and was “nothing more than a last-ditch attempt

to level barred and baseless allegations against

the US Attorney’s Ofce.

160

The claims, it said,

were based on “jury-selection issues and alleged

discrimination in the application of the death

penalty – events that occurred 25 years ago” and

the delay in making the discrimination claim was

“unfair to the government”.

The District Court judge acknowledged as “real”

the many limitations that counsel said they faced

throughout the process.

161

However, he denied

the petition and refused to stay the execution

as to allow Orlando Hall’s racial discrimination

claims to be brought now “would be contrary

to the framework Congress created for federal

prisoners seeking postconviction relief” under

the AEDPA. Orlando Hall was executed on 19

November 2020.

AMNESTY INTERNATIONAL

162

US Supreme Court, Ford v. Wainwright, 26 June 1986; US Supreme Court, Panetti v. Quarterman, 28 June 2007.

163

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 49. See also Safeguard no.3 of the UN Safeguards Guaranteeing Protection of the Rights of those

Facing the Death Penalty, ECOSOC Resolution 1984/50.

164

UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ECOSOC 1984/50, and Additions to Safeguards as agreed by ECOSOC Resolution 1989/64.

The UN Human Rights Committee has said that

under the ICCPR “States parties must refrain

from imposing the death penalty on individuals

who face special barriers in defending themselves

on an equal basis with others, such as persons

whose serious psychosocial or intellectual

disabilities impede their effective defence, and

on persons who have limited moral culpability.

They should also refrain from executing persons

who have a diminished ability to understand the

reasons for their sentence.”

163

International legal standards require that anyone

facing the death penalty is provided “adequate

legal assistance at all stages of the proceedings”

and this should go “above and beyond the

protections afforded in non-capital cases.”

164

Adequate legal representation is essential in all

cases, but in none more so than where a case

can end in a death sentence and one in which

there is evidence of serious mental disability.

165

After the executions of Wesley Purkey and Lisa

Montgomery, Justice Sotomayor pointed out that

both executions may have been unconstitutional

given the signicant evidence that both lacked

a rational understanding of the reason for and

reality of their impending execution. “We will

never have denitive answers” to the question of

constitutionality, she wrote, “because this Court

sanctioned their executions anyway.”

166

2.4 MENTAL

DISABILITY AND LEGAL

REPRESENTATION

EXECUTING SOMEONE WHO LACKS A RATIONAL UNDERSTANDING OF THEIR

EXECUTION VIOLATES THE US CONSTITUTION.

162

INTERNATIONAL HUMAN

RIGHTS LAW AND STANDARDS PROHIBIT THE USE OF THE DEATH PENALTY

AGAINST PEOPLE WITH MENTAL (PSYCHOSOCIAL) AND INTELLECTUAL

DISABILITIES.

WESLEY

IRA

PURKEY

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

165

See also Report of the Ofce of the UN High Commissioner for Human Rights, Right to access to justice under article 13 of the Convention on the Rights of Persons with Disabilities, 27 December

2017, UN Doc. A/HRC/37/25, paras 19 and 24-32.

166

US v. Higgs, 15 January 2021, Justice Sotomayor dissenting.

167

US Court of Appeals for the Seventh Circuit, Purkey v. USA, 2 July 2020.

168

US Court of Appeals for the Seventh Circuit, Purkey v. USA, 2 July 2020.

169

US Court of Appeals for the Seventh Circuit, Purkey v. USA, 2 July 2020.

170

Report of Bhushan S. Agharkar, MD, DFAPA, 19 November 2019, p. 5.

171

Report of Bhushan S. Agharkar, (previously cited), p. 7.

In jail in Kansas in 1998, Wesley Purkey asked

to be prosecuted by the federal government if he

confessed to the murder of a 16-year-old girl who

had gone missing earlier that year in an unsolved

crime. He was facing a life sentence under state

law for another murder and “he thought that if

he were convicted on federal charges, he would

also receive a life sentence, but he could serve it

in a federal facility. It apparently did not occur to

him that the death penalty is possible for certain

federal crimes.”

167

On 5 November 2003, in the Western District

of Missouri, a jury found Wesley Purkey guilty of

the kidnapping, rape and murder of the girl. At

the sentencing, his lawyers presented evidence

of organic brain damage, diminished mental

capacity and of physical, sexual and emotional

abuse he had endured as a child. The jurors

voted for a death sentence but left blank the

form on which they were supposed to record how

many of them had found mitigating factors. The

defense lawyer initially objected but in the face

of the federal prosecutor’s objection dropped the

matter. Without knowing how or even whether

the jurors had weighed the mitigating and

aggravating evidence, the trial judge formally

imposed the death sentence on 23 January

2004.

Wesley Purkey’s nal appeal lawyers argued that

the legal representation during the sentencing

phase had been minimal and inadequate, and the

Seventh Circuit agreed that “the efforts of trial

counsel to build a case for mitigation fell short of

what current counsel have now found.” The panel

ruled it could not say the jury’s decision would

have been different if it had been presented with

this additional mitigation. It nevertheless said

that it was “disturbed” by the blank jury form:

“It was for the jury to balance aggravating and

mitigating factors, but it is hard to know whether

it did that.” The trial judge “never resolved the

question whether the blank form meant that

the jury neglected to address the question of

mitigation, or if it meant that it thought about

the subject and concluded that there was nothing

to report.”

168

“As the law now stands”, the Seventh Circuit

said, “once a Sixth Amendment claim of

ineffective assistance of counsel has been raised,

as happened in Purkey’s case, that is the end

of the line.” The Seventh Circuit acknowledged

that “the failure of trial counsel to conduct

a proper mitigation analysis” was “worthy of

further explanation” and that it was not rejecting

the claim “on the merits”, but under “our

understanding” of the “draconian” rules for

permitting a successor petition. If this reading of

these rules was “too restrictive, there would be

signicant issues to litigate”, it added.

169

Wesley Purkey’s mental disability was long-

standing and had worsened over the years.

“In 1971, at 19 years of age, Mr Purkey was

diagnosed with Schizophrenia Reaction, Schizo-

Affective Type, and Depression. In 1998 with

Psychosis; in 1999 with Bipolar Disorder.” He

made numerous suicide attempts.

170

At the time

he made his contact with the FBI – without a

lawyer – to confess to the murder of the 16-year-

old, he had been “xated on his delusional

beliefs about an extensive poisoning conspiracy”

in which “chemicals were coming through the

vents and ceiling and had planted something in

his chest.”

171

AMNESTY INTERNATIONAL

172

Report of Bhushan S. Agharkar, (previously cited), p. 8.

173

Report of Bhushan S. Agharkar, (previously cited), p. 9

174

US District Court for DC, Purkey v. Barr, Order, 15 July 2020.

175

Barr v. Purkey, On application for stay or vacatur, 16 July 2020, Justices Sotomayor, Ginsburg, Breyer and Kagan, dissenting.

176

Safeguard no.8 of the UN Safeguards guaranteeing protection of the rights of those facing the death penalty, approved by ECOSOC resolution 1984/50 of 25 May 1984 and endorsed by the UN

General Assembly without a vote; UN Human Rights Committee, General comment No. 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 46.

174

US District Court for DC, Purkey v. Barr, Order, 15 July

2020.

177

Statement by Department of Justice Spokesperson Kerri Kupec on the Execution of Wesley Ira Purkey, 16 July 2020, www.justice.gov/opa/pr/statement-department-justice-spokesperson-kerri-

kupec-execution-wesley-ira-purkey

178

Barr v. Purkey, On application for stay or vacatur, 16 July 2021, Justices Sotomayor, Ginsburg, Breyer and Kagan, dissenting.

In 2016, he was diagnosed with “lifelong

complex-PTSD (Post-Traumatic Stress Disorder)

as a result of severe trauma from his experiences

of extreme physical, sexual, and emotional abuse

throughout his childhood and adolescence,

and Major Depressive Disorder secondary to his

PTSD.” Neurological testing in 2003 and 2016

showed “evidence of brain damage, particularly

frontal lobe damage” further limiting his

“capacity to regulate his thoughts, emotion, and

behavior, which has signicantly deteriorated

over time.”

172

In 2017, he was diagnosed with

the early stages of dementia, likely Alzheimer’s

disease, consistent with his family history and his

head injuries.

173

After his execution was set for 13 December

2019, his lawyers led an action in the US

District Court for Washington, DC, asserting that

their client was incompetent to be executed.

On 15 June 2020 the government reset four

execution dates, including Wesley Purkey’s,

for 15 July 2020. The District Court judge

blocked the execution, noting that Purkey’s

lawyers had “made a substantial showing”

of his incompetence for execution, while the

government had “provided no independent

evidence of competence.”

174

However, the Trump administration turned to

the Supreme Court against the decision. On 16

July 2020, in a single sentence, and over the

dissent of four justices who accused the majority

of “shortcut[ting] judicial review and permit[ting]

the execution of an individual who may well be

incompetent”, the Court vacated the District

Court’s order.

175

The lawyers reled the competency claim in

the Southern District of Indiana and lodged an

emergency application for a stay of execution in

the Seventh Circuit. While that was pending, the

execution went ahead at around 8am on 16 July

2020. International law and standards set out

as one of the safeguards to guarantee protection

of the rights of those facing the death penalty

that executions may not be carried out “pending

any appeal or other recourse procedure or other

proceeding relating to pardon or commutation of

the sentence.”

176

The Department of Justice asserted that Wesley

Purkey had been “afforded every due process of

law under our Constitution.”

177

Four Supreme

Court justices were nevertheless among those

who protested the injustice. They wrote that

proceeding with the execution, “despite the

grave questions and factual ndings regarding

his mental competency, casts a shroud of

constitutional doubt over the most irrevocable of

injuries.”

178

ON DEATH ROW, HIS

MENTAL CONDITION

DETERIORATED.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

LISA

MARIE

MONTGOMERY

A week before the Trump administration left ofce,

Lisa Montgomery was executed by lethal injection,

the rst woman to be put to death by the federal

government in 67 years.

In 2007, a federal jury in Kansas City, Missouri,

voted that Lisa Montgomery be sentenced to

death, after convicting her of the kidnapping and

killing in December 2004 of a woman and cutting

her unborn baby from her body. Lisa Montgomery

had taken the baby with her to the neighboring

State of Kansas and claimed it was her child. She

was arrested soon afterwards.

Lisa Montgomery’s lawyers outlined her

background of abuse and trauma in a complaint

led in federal court in November 2020:

“Mrs. Montgomery is a victim of incest, child sex

trafcking, gang rape, physical abuse, and neglect.

These harrowing experiences, combined with

congenital brain damage and multiple traumatic

brain injuries, have resulted in incurable and

signicant psychiatric disabilities.

Mrs. Montgomery’s profound trauma began during

her childhood. Her alcoholic stepfather sexually

abused her beginning when she was eleven years

old. In subsequent years, he raped her on a weekly

basis. He built her a room on the outside of the

family’s trailer to isolate her from the rest of the

family. He invited his friends to rape her as well;

she told a police ofcer at the time that they raped

her anally, vaginally, and orally, one after the other.

When they were nished, they urinated on her.

Her mother, far from protecting Lisa, threatened,

abused, and beat her, and trafcked her to men

in exchange for services. This sexual violence

continued when, as a teen, Lisa was pressured into

marrying her stepbrother, who then sexually tortured

and raped her.

Decades of rapes, beatings, and sexual torture

have taken a devastating toll. Mrs. Montgomery

has documented brain damage, experiences

temporal lobe seizures, and has been diagnosed

with Bipolar Disorder and Complex Post Traumatic

Stress Disorder (“Complex PTSD”). She dissociates

regularly, involuntarily detaching from her

circumstances, and struggles to know what is

real and what is not. She endures hallucinations,

psychosis, mania and depression, affecting every

aspect of her daily life. To treat her episodes of orid

psychosis and mitigate the debilitating symptoms

of her other psychiatric disabilities, FMC Carswell

personnel administer her anti-psychotic, anti-

epileptic, and anti-depressant medications. Even

with these treatments, Mrs. Montgomery continues

to experience severe, distressing, and near-constant

symptoms of her mental illnesses.”

179

After the execution was set, Lisa Montgomery’s

two long-standing post-conviction lawyers both

contracted Covid-19 while travelling to meet their

client in the Federal Medical Center in Carswell,

Texas, where she was held, and their resulting

serious illness prevented them from working on her

clemency petition. Their client’s background and

mental disability compounded the challenges to

ensure effective legal representation at that critical

stage before her set execution. Firstly, these two

lawyers had spent many years earning

179

US District Court for DC, Montgomery v. Barr et al. Complaint for injunctive and declaratory relief for violations of the Fifth Amendment to the United States Constitution and 18 USC §3599, 12

November 2020.

180

US District Court for DC, Montgomery v. Barr, Defendants’ response in opposition to motion for Temporary Restraining Order and preliminary injunction, 14 November 2020.

AMNESTY INTERNATIONAL

arguing that the lawyers could have worked

on a clemency petition before contracting

Covid-19, that other lawyers could take it

forward remotely and that “the public interest

in allowing the execution to proceed as planned

is overwhelming.”

180

However, the District Court

dismissed any suggestion that the two lawyers had

been anything “less than diligent in this matter”

before they had contracted the virus and rejected

the notion that other attorneys could “ll the

shoes” of the two sick lawyers “at this late date”,

in particular because of the expertise needed in

dealing with a client who was “severely mentally

ill”. In response to the assertion that there was

an “overwhelming” public interest in having

the execution proceed, the judge ruled that

“the public has an interest in ensuring that this

failsafe of our criminal justice system [clemency]

operates in a fair and considered manner.” On

19 November 2020, the judge issued an order

preventing the government from executing Lisa

Montgomery before 31 December 2020, to allow

the two lawyers time to recover and to nalize the

clemency petition (they eventually led it on 24

December).

By this time, President Trump had already lost the

election. The administration was now running out

of time to see its timetable of executions through

if courts issued stays, even temporary ones. On

23 November 2020, with less than a month left

in ofce, the Trump administration reset the

execution of Lisa Montgomery for 12 January

2021. It did so despite federal regulations

stating: “If the date designated for execution

passes by reason of stay of execution, then a new

date shall be designated promptly by the Director

of the Federal Bureau of Prisons when the stay is

lifted” [emphasis added].

On 24 December 2020, the District Court judge

concluded that the order setting a new execution

date while his earlier stay was in effect was

unlawful. He duly vacated the 23 November BOP

order setting the 12 January 2021 execution

date. However, on 1 January 2021, a three-judge

panel of the US Court of Appeals for the DC

Circuit summarily reversed this, without a full

brieng on the merits. On 5 January, the Court of

Appeals refused to grant a rehearing before the

full court.

The lawyers also argued that the scheduling of

the execution violated the FDPA by contravening

Missouri law (where she was tried) which required

a minimum of 90 days’ notice. On 8 January

2021, the judge ruled that the government

had not violated the FDPA. On 11 January, a

three-judge panel of the DC Circuit Court of

Appeals denied an emergency motion for a stay

of execution.

181

However, this time, the court

agreed to rehear the case in front of the full court

on an expedited schedule. This schedule would

nevertheless have taken the case just beyond the

end of the Trump administration.

181

US Court of Appeals for the DC Circuit, Montgomery v. Rosen, Order, 11 January 2021, Circuit Judge Millett, dissenting.

182

Montgomery v. Warden, Order granting motion to stay execution pending a competence hearing, 11 January 2021.

183

US Court of Appeals for the Seventh Circuit, Montgomery v. Watson, Emergency motion to vacate District Court’s order staying Montgomery’s execution, 12 January 2021.

184

US Court of Appeals for the Seventh Circuit, Montgomery v. Watson, Order, 12 January 2021.

185

IACHR resolution 91/2020 Precautionary Measure No. 1048-20 Lisa Montgomery regarding the USA, 1 December 2020.

DESPITE THIS, THE

ADMINISTRATION

ARGUED THAT LISA

MONTGOMERY WAS

NOT ENTITLED TO

HAVE HER EXECUTION

POSTPONED

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

One of the judges had earlier pointed out

that if Lisa Montgomery’s lawyers were “right

on the law, she will be executed prematurely

in violation of law… That itself is the very

essence of an injury that cannot be remediated

after the fact.” In contrast, there was “no

corresponding harm to the government entailed

in simply postponing for a short time the date of

execution.” The Trump administration thought

otherwise, appealed to the Supreme Court,

which lifted the stay, over the dissent of three

justices.

Meanwhile, while all this had been going on,

the conditions in which Lisa Montgomery was

held after her execution was scheduled had

been giving rise to serious concern. She was

subjected to 24-hour video surveillance and

illumination of the cell, low temperatures, had

no contact with other prisoners and was allowed

a cold shower three times a week. The prison

authorities asserted that the conditions were

to protect her from suicide, but her lawyers

responded that it was contributing to a serious

deterioration in her mental health.

A US District Court judge issued a stay of

execution based on the “ample evidence”

before him that the person’s “current mental

state is so divorced from reality that she

cannot rationally understand the government’s

rationale for her execution.” Having made a

“substantial threshold showing of insanity”, she

was entitled to a fair hearing on this issue.

182

The government responded that this claim

should have been led a few weeks earlier, but

the judge responded that the claim was “not

frivolous”, was backed by expert opinion and,

given the individual’s “deterioration, this case’s

procedural history and what’s at stake”, the

timing was “not unreasonable”.

The Trump administration, now with only days

left in ofce, led an “emergency motion” in

the US Court of Appeals for the Seventh Circuit

arguing that the district court had “erred by

rewarding her egregious ploy to evade her lawful

death sentence.”

183

The Seventh Circuit panel

granted the motion on the grounds that Lisa

Montgomery had “not overcome the strong

presumption against last-minute stays.”

184

Her lawyers turned to the US Supreme Court,

but it declined to intervene. Justices Breyer,

Sotomayor and Kagan would have granted a stay

of execution.

On 1 December 2020, the IACHR had issued

“precautionary measures” in the case, calling

on the US government not to allow the

execution of Lisa Montgomery to proceed until

the it had had the time to reach a decision

on her petition, which raised the questions of

her serious mental disability, the adequacy of

her trial representation, and her conditions of

connement. The US government responded

that “the Commission lacks authority to request

precautionary measures, since the State is not a

party to the American Convention, and requests

that the IACHR refrain from requesting such

measures.”

185

Notwithstanding the government’s

position, the execution of Lisa Montgomery

in the face of IACHR precautionary measures

violated international law.

186

[D]eath sentences must not be carried out as long as international interim measures requiring a stay of execution are in place. Such interim measures are designed to allow review of the sentence

before international courts, human rights courts and commissions, and international monitoring bodies, such as the United Nations treaty bodies. Failure to implement such interim measures is

incompatible with the obligation to respect in good faith the procedures established under the specic treaties governing the work of the relevant international bodies.” Human Rights Committee,

General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 47.

187

See, for example, IACHR resolution 95/2020, Precautionary Measure No. 1080-20, Christa Pike regarding the United States of America, 11 December 2020, and IACHR resolution 57/2021,

Precautionary Measure No. 551-21, Erica Sheppard regarding the United States of America, 29 July 2021. The IACHR noted that the US government had reafrmed “its longstanding position that the

Commission lacks the authority to require that States adopt precautionary measures.”

ONCE AGAIN, THE

FEDERAL GOVERNMENT’S

FAILURE TO LEAD BY

EXAMPLE WAS CLEAR.

187

AMNESTY INTERNATIONAL

188

Strengthening of the UN Safeguards as agreed by ECOSOC Resolution 1996/15.

189

Atkins v. Virginia, 20 June 2002. Atkins overturned Penry v. Lynaugh (1989).

190

US v. Higgs, 15 July 2021, Justice Sotomayor dissenting.

The FDPA states that a sentence of death

shall not be carried out upon a person who has

intellectual disability. In June 2002 the US

Supreme Court outlawed the use of the death

penalty on anyone with intellectual disability.

The Court left it to states as to how to implement

the ruling. It did not dene intellectual disability,

but pointed to denitions used by professional

bodies, which referred to signicantly sub-

average intellectual functioning (usually assessed

by IQ score), related limitations in adaptive

functioning and onset before the age of 18.

189

The determination of the line between

intellectual disability and borderline intellectual

disability – which in a capital case can determine

life or death for the individual in question – can

be a close call, possibly with disagreement

among experts. It is not an exact science.

Moreover, diagnostic standards evolve as the

knowledge of the medical community grows over

time. Alfred Bourgeois and Corey Johnson, two

men on federal death row and scheduled for

execution, presented substantial evidence that

they had intellectual disability under modern

diagnostic standards. However, federal courts

decided that the men could not challenge their

executions on this issue because they had earlier

been denied relief on it, albeit under standards

that were now outdated.

2.5 INTELLECTUAL

DISABILITY AND

OUTDATED DIAGNOSTICS

INTERNATIONAL HUMAN RIGHTS LAW AND SAFEGUARDS PROHIBIT

THE USE OF THE DEATH PENALTY AGAINST THOSE WITH INTELLECTUAL

DISABILITIES.

188

THE ADMINISTRATION’S DRIVE TO EXECUTE, IN THE

CONTEXT OF THE SUPREME COURT’S WILLINGNESS TO LEAVE SERIOUS

LEGAL CLAIMS UNRESOLVED, MEANS THAT THE FEDERAL GOVERNMENT MAY

WELL HAVE VIOLATED THE CONSTITUTION, THE FDPA AND INTERNATIONAL

LAW WHEN IT KILLED ALFRED BOURGEOIS AND THEN AGAIN WHEN IT

EXECUTED COREY JOHNSON A MONTH LATER.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Justice Sotomayor argued that the Supreme

Court should have answered the question as to

whether “prior proceedings relying on obsolete

medical standards” do or do not preclude under

the FDPA whether an individual “is intellectually

disabled at the time of his execution.” It did

not. The Bourgeois and Johnson executions

“may well have been illegal”, she said.

190

In their 2020 action in the Southern District of

Indiana, the lawyers brought a habeas corpus

petition, arguing that the 2011 decision of

the District Court in Texas had “applied non-

clinical, unscientic standards; relied largely

on commonly held, but erroneous stereotypes

of intellectually disabled persons” and had

employed factors described by the US Supreme

Court in 2017 as “untied” to the “medical

community’s information” creating “an

unacceptable risk that persons with intellectual

disability will be executed.”

191

On 10 March 2020, the Indiana federal court

stayed the execution. The judge found that the

lawyers had made a strong showing that Alfred

Bourgeois met all three criteria for intellectual

disability: evidence of appropriately adjusted IQ

scores of 68 and 70, strong evidence of decits in

all three adaptive skill sets and a strong showing

that the onset of his decits occurred when he

was under 18.

192

The US administration appealed and on 6 October

2020, the Court of Appeals for the Seventh

Circuit reversed the District Court’s nding on

procedural grounds and vacated the stay. The

Court of Appeals took the view that even if Alfred

Bourgeois was deemed to have intellectual

disability under current standards, he could not

overcome the procedural bar against second or

successive petitions imposed by the AEDPA.

The government had argued that because

intellectual disability is a permanent condition

present by the time a person reaches 18, a claim

of intellectual disability must be raised at the

time of sentencing or, at the latest, in a Section

2255 motion (the main statute authorizing post-

conviction relief for people in federal prison).

Alfred Bourgeois had raised such a claim in 2011

– which was the claim that had been rejected

based on now outdated medical standards.

Alfred Bourgeois, who lived in LaPLace,

Louisiana, was sentenced to death in the

Southern District of Texas in March 2004 for

the murder of his two-year-old daughter, J. G., in

July 2002. The murder occurred in his 18-wheel

tractor/trailer at a time when he was making a

delivery at the Corpus Christi Naval Air Station

in Texas. His family – his wife, their two children

and J. G. (his child from another relationship) –

were accompanying him on his long-haul trucking

route.

Lawyers for Alfred Bourgeois challenged his

death sentence in 2020 in the US District

Court in the Southern District of Indiana (where

federal death row is located) on the grounds of

intellectual disability. The same claim had been

brought a decade earlier in the Southern District

of Texas. That court found that it had not been

established by a preponderance of the evidence

that Alfred Bourgeois had intellectual disability.

191

US Supreme Court, Moore v. Texas, 28 March 2017.

192

US District Court for the Southern District of Indiana Bourgeois v. Warden, Order staying execution of Alfred Bourgeois, 10 March 2020.

193

Bourgeois v. Watson, 11 December 2020, Justice Sotomayor, joined by Justice Kagan, dissenting.

ALFRED

BOURGEOIS

AMNESTY INTERNATIONAL

The Supreme Court declined to take the case, over

the dissent of Justices Sotomayor and Kagan who

were concerned by the government’s argument

about people on death row with intellectual

disability claims invariably needing only one

opportunity to make their case:

“[W]hile a prisoner’s intellectual disability may

not change, the medical standards used to assess

that disability constantly evolve as the scientic

community’s understanding grows… Bourgeois

thus puts forth a strong argument that federal

prisoners sentenced to death should be able

to le new habeas petitions if they can show a

potentially dispositive change in the diagnostic

landscape following their rst petition… Bourgeois

presents a serious question that is likely to recur...

I would therefore resolve this open legal issue

before sanctioning Bourgeois’ execution.”

193

The execution went ahead on 11 December

2020. There was not long to wait for what Justice

Sotomayor, joined by Justice Kagan, predicted

when the Supreme Court allowed the execution to

proceed – that the “serious question” presented

by the Bourgeois case “was likely to recur.”

Thirty-ve days after it killed Alfred Bourgeois,

and less than a week from the end of the Trump

administration, the federal government executed

Corey Johnson despite his unresolved claim of

intellectual disability.

At the sentencing, the defense presented evidence

that Corey Johnson had an IQ of 77, in the

borderline intellectual disability range. His lawyers

argued that his impaired intellectual functioning

rendered him “unable to cope and adapt to

society” and should mitigate against a death

sentence even if it did not categorically bar him

from it.

The expert presented by the defense knew that

the defendant had scored an IQ of 69 when he

was 16, but because of the earlier IQ 77 score, he

made no further effort to assess the other criteria

for a diagnosis of intellectual disability and neither

the judge nor the jurors were asked to determine

the issue. Eight jurors found that Corey Johnson’s

IQ of 77 was a mitigating factor but recommended

the death penalty on seven counts of capital

murder.

Meanwhile, the courts had continued to take

the position that the IQ 77 score presented at

Corey Johnson’s trial placed him outside of the

diagnostic range for intellectual disability. When

new lawyers had taken over his case, they located

two more IQ scores that Corey Johnson had

received as a child, one of 73 at age eight, and

another 75. The lawyers arranged to have three

renowned experts conduct evaluations and review

all relevant materials and interview witnesses

from Johnson’s background. All three concluded

that he had intellectual disability; assessed his

corrected (under modern standards) IQ scores at

72 (age eight), 75 (age 12), 65 (age 16), and 73

(age 23); found that he had adaptive decits in all

three domains (conceptual, social and practical);

and determined that his intellectual and adaptive

decits began well before the age of 18.

195

Corey Johnson and two co-defendants, charged

under the 1988 Anti-Drug Abuse Act for a series

of drug-related murders in Virginia in 1992,

were convicted and sentenced to death at a joint

federal trial in 1993.

194

The Clinton administration withdrew its notice of intent to seek the death penalty against a fourth defendant shortly before his trial after his lawyer produced evidence of his intellectual disability

and an IQ of 71.

195

USA v. Johnson, Motion pursuant to 28 USC § 2255 raising claim of ineligibility to be executed under 18 USC § 3596(c), In the 14 December 2020.

COREY

JOHNSON

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

As Corey Johnson’s execution date neared, on

2 January 2021, the US District Court rejected

his petition: “In passing the AEDPA, Congress

sought to put an end to eleventh-hour relief

that capital defendants often sought in district

courts.”

196

There was greater concern within the

US Court of Appeals for the Fourth Circuit which

voted by eight to seven to deny Corey Johnson’s

petition to have the whole court rehear the case.

One of the seven dissenting judges wrote:

“Although Johnson fell just 2 points short (77)

of the IQ threshold for intellectual disability

(70-75) in 1993, the newly available evidence

convincingly demonstrates that his old IQ score

is incorrect and that he is intellectually disabled

under current diagnostic standards. But no court

has ever considered such evidence. If Johnson’s

execution is carried out today, the United

States will execute an intellectually disabled

person, which is unconstitutional” [emphasis in

original].

197

Cory Johnson was executed on 14 January

2021, less than a week before the inauguration

of President Biden, after the US Supreme Court

denied Johnson’s emergency application for

a stay of execution to permit him to present

evidence that the Constitution prohibited his

execution because he had intellectual disability.

196

US District Court for the Eastern District of Virginia,USA v. Johnson, Memorandum opinion, 2 January 2021.

197

US Court of Appeals for the Fourth Circuit, USA v. Johnson, Order, 14 January 2021, Judge Wynn, dissenting from the denial of rehearing en banc.

198

US v. Higgs, 15 July 2021, Justice Sotomayor dissenting.

AMNESTY INTERNATIONAL

199

US District Court for DC, In the matter of the Federal Bureau of Prisons Execution Protocol Cases, Memorandum Opinion, 12 January 2021.

200

US District Court for the District of Maryland, USA v. Higgs, Memorandum opinion, 29 December 2020.

201

US Supreme Court, USA v Higgs, Respondent’s brief in opposition to petition for writ of certiorari, 13 January 2021.

Even a global pandemic was not allowed to get

in the way, whether it was attorneys contracting

the disease, as in the case of Lisa Montgomery’s

clemency lawyers (see Section 2.4) or the

condemned individuals themselves.

Despite “the current record high rates of

infections and fatalities”, noted the US District

Court judge overseeing the lethal injection

litigation as the nal executions in the spree

approached, the Trump administration “intend[s]

to go forward with the scheduled executions

of… Corey Johnson and Dustin Higgs on January

14 and 15, 2021, although both men have

been diagnosed with COVID-19.” Both tested

positive less than a month before their scheduled

executions, she continued, after the government

had assured the Court that adequate procedures

were in place to protect the people imprisoned at

Terre Haute. Defense lawyers argued that their

Covid-19 infections increased the risk of an

excruciating death by lethal injection, specically

that damage to their lungs and other organs

could cause them to experience the sensation

of drowning before being rendered unconscious

during the execution. The judge granted a

“limited” injunction, to remain in effect until 16

March 2021 which, if not reversed, would have

seen them live into the Biden administration.

199

The Trump administration appealed and the

Court of Appeals vacated the injunction, over the

dissent of one of the three judges.

2.6 NO MERCY: WAS

CLEMENCY ALWAYS A

LOST CAUSE?

WHILE THE SUPREME COURT “REPEATEDLY SIDESTEPPED ITS USUAL

DELIBERATIVE PROCESSES, OFTEN AT THE GOVERNMENT’S REQUEST,

ALLOWING IT TO PUSH FORWARD WITH AN UNPRECEDENTED,

BREAKNECK TIMETABLE OF EXECUTIONS”,

198

THE ADMINISTRATION DID

NOTHING TO OFFSET THIS JUDICIAL HANDS-OFF APPROACH WITH ANY

DUE DILIGENCE OF ITS OWN.

DUSTIN

HIGGS

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

202

US Supreme Court, USA v Higgs, Reply brief for the petitioner, January 2021.

203

UN Safeguards guaranteeing protection of the rights of those facing the death penalty, ECOSOC resolution 1984/50, , and Additions to safeguards as agreed by ECOSOC Resolution 1989/64.

204

Strengthening of the UN Safeguards, as agreed by ECOSOC Resolution 1996/15.

205

UN Basic Principles on the Role of Lawyers, 1990, Principle 14.

A US District Judge wrote: “It is not lost on the

Court that this execution is scheduled to occur

just ve days before the inauguration of a new

president who has stated his opposition to capital

punishment.”

200

For their part, the defense

lawyers described the administration as being

“driven by the desire to execute Mr Higgs before

President-elect Biden is inaugurated on January

20, 2021.”

201

The government lawyers in turn

accused them of “simply trying to run out the

clock until the next Administration, which [they]

envision will be more favorably disposed toward

[Higgs] than the one that sought and secured

nine death sentences for his triple murder

(President Clinton’s) and the three that defended

those sentences against his many challenges

(President Bush’s, President Obama’s, and

President Trump’s).”

202

International law requires that anyone facing

the death penalty is provided “adequate legal

assistance at all stages of the proceedings” and

this should go “above and beyond the protections

afforded in non-capital cases.”

203

Every capital

defendant must be given all due process

guarantees under Article 14 of the ICCPR, with

governments also “bearing in mind” international

instruments such as the Basic Principles on

the Role of Lawyers and the Guidelines on the

Role of Prosecutors

204

Under such standards,

lawyers seeking to keep their clients alive

through legitimate court and clemency actions

are acting as they should, consistent with the

Basic Principle that “Lawyers, in protecting the

rights of their clients and in promoting the cause

of justice, shall seek to uphold human rights and

fundamental freedoms recognized by national

and international law.”

205

In 2020 and 2021, Department of Justice lawyers

were in possession of the same knowledge about

the incoming administration’s abolitionist pledge

and obliged to “respect and protect human dignity

and uphold human rights.”

206

Knowing that within days or weeks the very

same individuals they were seeking to hustle

towards the death chamber could benet from

a change in policy and law surely behooved

the Attorney General, the Solicitor General and

other Department of Justice lawyers to pause for

thought and consider the bigger picture. In such

a situation, one might hope that government

lawyers, acting in the spirit of international

human rights law, would give the benet of the

doubt to life.

During the years that Dustin Higgs was on death

row, 10 states in the USA had abolished the

death penalty. One was Maryland, where Dustin

Higgs had been sentenced to death. Under

the FDPA, a federal death sentence can only

be implemented “in the manner prescribed

by the law of the State in which the sentence

is imposed” or, if the state does not have the

death penalty, then the court must designate

another state which does. Because Maryland

had the death penalty at the time Dustin Higgs

was sentenced to death, the District Court’s nal

Judgment and Order of 3 January 2001 did not

THE LAST OF THE 13 EXECUTIONS

SCHEDULED WAS THAT OF

DUSTIN HIGGS.

THE PRESIDENT-ELECT’S PROMISE

TO WORK FOR ABOLITION OF THE

DEATH PENALTY WAS CONSISTENT

WITH US HUMAN RIGHTS

OBLIGATIONS.

INSTEAD, THEY MAINTAINED

THE RELENTLESS PURSUIT

OF EXECUTION.

207

AMNESTY INTERNATIONAL

206

UN Guidelines on the Role of Prosecutors, 1990, para. 12.

207

US Supreme Court, Callins v. Collins, 22 February 1994, Justice Blackmun dissenting: “we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free

from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.”

208

US District Court for the District of Maryland, USA v. Higgs, Motion to amend Judgment and Order, 4 August 2020.

209

See Rules of the Supreme Court of the United States, 2019, Rule 11, supremecourt.gov/ctrules/2019rulesoftheCourt.pdf

210

US Court of Appeals for the DC Circuit, Roane v. Rosen, Order, 13 January 2021, Circuit Judge Pillard, dissenting: “The government insists that these nal scheduled executions [of Corey Johnson

and Dustin Higgs] must proceed as planned. It fails to explain why they must take place this week… I believe the government has failed to meet the high burden required to second-guess the district

court’s factnding and stay its order. Any desire on the part of the government to check two more executions off its list does not justify concluding otherwise.”

211

Testimony of Stephen I. Vladeck, Case Selection and Review at the Supreme Court. Hearing before the Presidential Commission on the Supreme Court of the United States, 30 June 2021, page 9,

www.whitehouse.gov/wp-content/uploads/2021/06/Vladeck-SCOTUS-Commission-Testimony-06-30-2021.pdf

designate another state. The government had

from 2013, when Maryland abolished the death

penalty, to 2020 to seek this change. It did

nothing to this end in those seven years, instead

waiting until the execution was scheduled.

The Trump administration led a motion in the

US District Court in Maryland asking the judge

to amend the original judgment and order to

designate Indiana, the location of federal death

row, “as the state implementing death.”

208

During this process, and without waiting for

the nal decision, the Department of Justice

announced on 20 November 2020 that Higgs

would be executed on 15 January 2021, ve

days before the end of the Trump administration.

On 29 December, the judge denied the

government’s motion, nding he did not have

the authority to amend the original order. The

government appealed to the Fourth Circuit Court

of Appeals, which set oral argument for 27

January 2021, a week after President Trump was

due to leave ofce. The Court of Appeals denied

a government motion to expedite the process.

Supreme Court to take a case before there is

a judgment from the court below (in this case

the Fourth Circuit Court of Appeals). Under

the rules of the Supreme Court such petitions

will only be granted “upon a showing that the

case is of such imperative public importance

as to justify deviation from normal appellate

practice and to require immediate determination

in this Court.”

209

Here the “imperative public

importance” was never explained, leaving the

suspicion that this was an administration simply

looking, and being allowed, “to check one more

execution off its list.”

210

Indeed, according to

a leading US Supreme Court expert, this may

have been the rst time in the history of the US

Supreme Court that it had reached out in this

way in order to summarily reverse. And it did

so with the only outcome in the case being that

Dustin Higgs would be killed by the government

without the Supreme Court even examining the

novel legal theory that allowed it to do so.

211

Dustin Higgs – who maintained his innocence

to the end (the actual gunman in the murders

had received a life sentence)

212

– sought

clemency from President Trump. Given the

relentlessness of the administration’s pursuit

of these executions, however, was executive

clemency ever a real prospect, as required

under international human rights law? Even

before anyone knew how the execution schedule

would unfold, the IACHR had concluded

that the structure of the federal executive

clemency process in the USA failed to meet its

international law obligation to guarantee the right

to minimal fairness standards.

213

On 15 January 2021, without comment, the

Court granted the government’s petition for

"certiorari before judgment", reversed the District

Court order and instructed the Fourth Circuit

to remand the case to the District Court for the

prompt designation of Indiana. Certiorari before

judgment is a procedural move rarely used by the

AS IT HAD DONE THROUGHOUT ITS

EXECUTION SPREE, THE TRUMP

ADMINISTRATION TURNED TO THE

US SUPREME COURT.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

212

The co-defendant was tried rst – charged with being the person who had shot the three young women – and the jury found him guilty of all three murders. He was sentenced to life imprisonment

after the jurors were unable to reach a unanimous verdict on sentence. Dustin Higgs’s trial began ve weeks later in front of a different jury. A key witness at the guilt stage was a third defendant

who was present at the crime and who faced over 15 years in prison. The government had agreed to seek a lighter sentence in the murder case in exchange for his cooperation in the Higgs

prosecution (he was sentenced to seven years). The jurors unanimously found in mitigation that Higgs was “not the sole proximate cause of the victims’ deaths” but rejected as a mitigating factor

that Haynes was an equally culpable defendant who had not been sentenced to death for the murders.

213

IACHR Report No. 28/20, Case 12.719, Report on Merits: Orlando Cordia Hall, USA. 22 April 2020, para. 80.

214

See Herrera v. Collins (1993) and Harbison v. Bell (2009).

215

On his last day in ofce in 2001, President Clinton commuted the death sentence of David Chandler and in his last week in ofce in 2017 President Obama commuted Aboleda Ortiz’s death

sentence. Nine of the 13 individuals executed under President Trump had sought clemency from the outgoing President Obama.

216

See Amnesty International, “Open letter to the US Attorney General concerning the imminent execution of Juan Raul Garza”, 14 June 2001, amnesty.org/en/documents/amr51/088/2001/en/ The

rst federal execution in 38 years was of Timothy McVeigh, who waived his appeals and did not seek clemency. President Bush did not intervene to stop the execution.

217

US Court of Appeals for the Ninth Circuit, Mitchell v. USA, 19 June 2015, Circuit Judge Reinhardt dissenting in part.

218

Daniel Lee, Wesley Purkey, Lezmond Mitchell, William LeCroy, Christopher Vialva, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, Corey Johnson and Dustin Higgs.

The US Supreme Court has described executive

clemency as “the ‘fail safe’ in our criminal

justice system.”

214

In the past three decades

since the federal death penalty was reinstated,

two individuals on federal death row have been

granted executive clemency, both at the end of

presidential terms, when the act of clemency

carries no political cost to the outgoing

president. Neither man had an execution date

at the time.

215

Ten of the 13 individuals executed between July

2020 and January 2021 had sought presidential

commutation of their death sentences.

218

11th, Orlando Hall, had sought a court-ordered

injunction on the grounds that “the dramatically

abbreviated notice [of execution] and the ongoing

COVID-19 pandemic make it impossible for Mr

Hall to prepare an adequate case for clemency

with the assistance of counsel.” The US District

Court ruled against him stating: “[Hall] alleges

that [the government is] violating his due

process and statutory rights by executing him

in the middle of a pandemic, which has made

it impossible to meaningfully pursue clemency.

The argument raises issues that the court nds

troubling, but, ultimately, unlikely to succeed.”

219

The seventh of the 13 federal executions,

and the last before the presidential election,

was of Christopher Vialva, carried out on 24

September 2020. Earlier that day, President

Trump had spoken at a pre-election rally in

Florida. Having told the audience that the

Democrats wanted to “pack” the US Supreme

Court with “far-left Justices” who, among

other things, would “declare the death penalty

totally unconstitutional”. He said: “They came

to my ofce today and the death penalty – for

clemency. I said, ‘What was the crime?’ The

crime was so horrible that I won’t tell you what

it was, but it’s been going on for 21 years or

so. The crime was so horrible that this person

committed, that I said, ‘Look, I just can’t talk

about it’. It was so horrible.”

220

President George W. Bush denied clemency to

Juan Raul Garza, despite the IACHR calling

for commutation after nding that the death

sentence was “arbitrary and capricious”.

216

The

third federal execution in the post-Furman v.

Georgia era took place on the eve of the US-

led invasion of Iraq in March 2003 after the

President denied clemency to Louis Jones,

“an African American war veteran [who] had

returned home from the rst Gulf War with

post-traumatic stress disorder and brain damage

likely linked to his exposure to nerve gas during

the war – known as Gulf War Syndrome – and

displayed symptoms of that syndrome during his

commission of the crime.”

217

AS UNDER PRESIDENT BUSH,

THERE WAS A 100% FAILURE RATE

OF THE CLEMENCY PETITIONS PUT

BEFORE PRESIDENT TRUMP.

NO ONE ON FEDERAL DEATH ROW

FACING IMMINENT EXECUTION HAS

YET BEEN GRANTED CLEMENCY.

AMNESTY INTERNATIONAL

The 10 petitions presented to President Trump

contained compelling cases for clemency,

including claims of intellectual and mental

disability, inadequate legal representation,

rehabilitation, arbitrariness, racial discrimination

and prosecutorial misconduct. It seems that none

of the requests for commutation was formally

denied or even acknowledged by the President.

Each petition was simply “administratively

closed” after the execution.

221

Lisa Montgomery, who had petitioned President

Trump for clemency, was executed less than

a month after the pardon was issued in the

contractor case. Three months after President

Biden took ofce, a US District Court Judge in

Indiana drew a line under her case: “Lisa Marie

Montgomery led this habeas corpus petition

challenging her competence to be executed. The

government executed Ms Montgomery on January

13, 2021. There now is no relief available, so

this action is moot.”

224

An executed person “has

indeed lost the right to have rights”, as Justice

William Brennan wrote half a century ago in

Furman v. Georgia.

On 22 December 2020, after 10 federal

executions in the previous ve months, in seven of

which cases the individual had sought executive

clemency, President Trump granted a “full and

unconditional” pardon to four private US security

contractors convicted of crimes committed during

a massacre in Iraq in 2007. They included one

man who was convicted of rst-degree murder and

sentenced to life imprisonment. Denying a motion

of acquittal in 2019, a federal judge noted the

convicted man’s “anti-Iraqi animus”, describing

how this contractor’s actions had prompted a

“twenty-minute barrage of death and destruction

[which] killed fourteen civilians and wounded

seventeen others – many attempting to ee, and

at least one with his hands up.” The judge noted

that “all told, two different juries – twenty-four

different people – considered weeks of evidence

and unanimously concluded [the contractor]

committed rst-degree murder.”

222

THIS DEFICIT OF MERCY STOOD IN

EVEN STARKER RELIEF WHEN SET

AGAINST THE SAME PRESIDENT’S

USE OF HIS CLEMENCY POWER

ELSEWHERE DURING THE SAME

PERIOD, RAISING FURTHER

QUESTIONS ABOUT ARBITRARINESS

IN THE DEATH PENALTY.

THE CHAIRPERSON OF THE UN

WORKING GROUP ON THE USE OF

MERCENARIES DESCRIBED THE

FOUR PARDONS AS “AN AFFRONT

TO JUSTICE” AND A VIOLATION OF

THE USA’S OBLIGATIONS UNDER

INTERNATIONAL LAW WHICH

UNDERMINED “HUMANITARIAN

LAW AND HUMAN RIGHTS AT A

GLOBAL LEVEL”.

223

DUSTIN HIGGS, WHO HAD ALSO

PETITIONED PRESIDENT TRUMP

FOR CLEMENCY, WAS EXECUTED

MAINTAINING HIS INNOCENCE:

“I DID NOT KILL THEM AND DID

NOT ORDER THE MURDERS.”

225

219

US District Court for DC, Hall v. Barr, Memorandum opinion, 16 November 2020.

220

Remarks at a “Great American Comeback” rally in Jacksonville, Florida, 24 September 2020.

221

See UN Human Rights Committee, General Comment 36, 3 September 2019, UN Doc. CCPR/C/GC/36, para. 47: “pardon or commutation procedures must offer certain essential guarantees, including

certainty about the processes followed and the substantive criteria applied and the rights for individuals sentenced to death to initiate pardon or commutation procedures and to make representations

about their personal or other relevant circumstances, to be informed in advance when the request will be considered, and to be informed promptly about the outcome of the procedure.”

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

222

US District Court for DC, USA v. Slatten, Memorandum Opinion, 30 August 2019. The defendant was convicted in his rst trial, but was granted a retrial, US Court of Appeals for the DC Circuit,

USA v. Slatten, 4 August 2017.

223

UN Ofce of the High Commissioner for Human Rights, “US pardons for Blackwater guards an ‘affront to justice’ – UN experts”, 30 December 2020, ohchr.org/EN/NewsEvents/Pages/DisplayNews.

aspx?NewsID=26633

224

US District Court for the Southern District of Indiana, Montgomery v. Warden, Order dismissing action as moot, 27 May 2021.

225

See Caroline Lester, Harper’s Magazine, “The Lightning Farm”, May 2021.

226

Letter from T. J. Watson, Warden, Federal Correctional Complex, Terre Haute, Indiana, to The Honorable Peter J. Messitte, US District Court Judge for the District of Maryland, 19 January 2021.

On the eve of President Trump’s departure from

ofce, a letter was received by the US District

Court Judge in Maryland who had overseen

the trial of Dustin Higgs and had rejected the

government’s motion to amend the 2001 Order

to allow the execution to go forward. It was from

the Warden of federal death row in Indiana:

“This is to inform you of the death of inmate

Dustin John Higgs… Inmate Higgs passed away

at 1:23am on January 16, 2021… The cause of

death was execution by lethal injection.”

226

ENOUGH IS ENOUGH.

MAY THAT BE THE

FINAL FEDERAL

EXECUTION IN

US HISTORY.

AMNESTY INTERNATIONAL

3.0 INTERNATIONAL

LAW

“

THERE IS NO TREATY OR

OVERWHELMING INTERNATIONAL

CONSENSUS TO ABOLISH THE DEATH

PENALTY WHICH IMPOSES ANY

OBLIGATIONS ON THE UNITED STATES”

Obama administration, November 2011

227

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

227

US District Court for the District Court of Puerto Rico, USA v. Casey, USA’s response in opposition to defendant’s motion to declare the Federal Death Penalty Act inapplicable in the Commonwealth

of Puerto Rico, 14 November 2011: “To the extent the United States has signed any treaty attempting to prohibit or limit the imposition of the death penalty, the United States customarily objects to

such provisions and reserves its right to impose the death penalty within constitutional constraints."

228

See Margaret E. McGuiness, “The Internationalism of Justice Harry Blackmun” in Missouri Law Review, Vol 70, Issue 4 (2005).

229

Letter of submittal, Four treaties pertaining to human rights: Message from the President of the US, 23 February 1978.

“Taking international law seriously where the

death penalty is concerned”, US Supreme

Court Justice Harry Blackmun said in April

1994 shortly before his retirement, “draws

into question the United States’ entire capital

punishment enterprise.”

228

The federal

government, however, has not taken international

law on the death penalty in good faith. It ratied

the ICCPR in 1992 with a “reservation” – which

itself violates international treaty law – aimed

at protecting judicial killing around the country

from international legal constraint. And it has

routinely ignored calls from treaty monitoring

bodies to work for a moratorium and abolition,

or to address racial discrimination in the capital

justice system. On a regional level, the USA has

become something of a rogue outlier in the Inter-

American system.

Transmitting the ICCPR and the International

Convention on the Elimination of All Forms of

Racial Discrimination (ICERD) to the Senate

over four decades ago for its advice and consent

on ratication, the Carter administration stated

that it was “increasingly anomalous that the list

of parties does not include the United States,

whose human rights record domestically and

internationally has long served as an example to

the world community.”

229

OVER THOSE 40-

PLUS YEARS, WHAT

HAS BECOME

INCREASINGLY

ANOMALOUS IS

THAT THE LIST OF

ABOLITIONIST STATES

DOES NOT INCLUDE

THE USA.

AMNESTY INTERNATIONAL

230

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 50.

231

The USA signed the ICCPR on 5 October 1977 and ratied it on 8 June 1992.

232

Human Rights Committee, General Comment 6: Article 6 (Right to life), 1982, para. 6.

233

Statement during the adoption of the Third Universal Periodic Review (UPR) of the United States, Lisa Peterson, Acting Assistant Secretary of State for Democracy, Human Rights and Labor,

Geneva, 17 March 2021, geneva.usmission.gov/2021/03/17/us-upr-1/

Article 6 requires state parties that have not

yet abolished the death penalty to narrow its

application and clearly establishes the goal of

working towards its abolition. In 1982, the UN

Human Rights Committee expressed concern

that state reports submitted to it showed that

“progress made towards abolishing or limiting

the application of the death penalty [was] quite

inadequate.” Since then, abolition has taken off

around the world.

232

The US government, however, still does not accept

that working for abolition amounts to any sort of

international legal requirement. In March 2021,

at the UN and facing calls from other countries for

the USA to abandon the death penalty, the Biden

administration adopted a long-held US attitude

when it responded that: “While we respect those

who make these recommendations,

they reect continuing differences of policy,

not differences about what the United States’

international human rights obligations

require.”

233

Under ICCPR Article 4, there can be no

derogation from Article 6 on the provisions

relating to the right to life, recognizing its nature

as a peremptory norm of international law.

234

The

UN Human Rights Committee has conrmed that

“reservations with respect to the peremptory and

non-derogable obligations set out in Article 6 are

incompatible with the object and purpose of the

Covenant.”

235

3.1 INTERNATIONAL

COVENANT ON CIVIL

AND POLITICAL RIGHTS

ARTICLE 6(6) OF THE ICCPR REQUIRES STATES PARTIES TO BE ON AN

“IRREVOCABLE PATH TOWARDS COMPLETE ERADICATION OF THE DEATH

PENALTY, DE FACTO AND DE JURE, IN THE FORESEEABLE FUTURE.

230

THE

USA SIGNED THE ICCPR FOUR AND A HALF DECADES AGO AND HAS BEEN A

STATE PARTY TO THIS TREATY FOR 30 YEARS.

231

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

234

Human Rights Committee, General Comment 29, States of Emergency (Art. 4), UN Doc. CCPR/C/21/Rev.1/Add.11, para. 11.

235

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 68.

236

ICCPR, Report from Senator Clairborne Pell, 1992, (previously cited).

237

The sole quasi-concession to the ICCPR, but in reality a reection of domestic political considerations, was that “the Administration is now prepared to accept the prohibition against the execution

of pregnant women.”

238

ICCPR, Report from Senator Clairborne Pell, 1992, (previously cited).

239

Harold Hongju Koh, “Paying ‘decent respect’ to world opinion on the death penalty”, U. C. Davis Law Review, Vol. 35, No. 5, June 2002.

The USA, however, ratied the ICCPR in 1992

with a “reservation” aimed at protecting the

death penalty from international constraint. The

administration of George H. W. Bush had told the

Senate Committee on Foreign Relations in 1992

that: “Given the sharply differing view taken by

many of our future treaty partners on the issue

of the death penalty, it is advisable to state

our position clearly.”

236

This position was that,

regardless of what the ICCPR might require in

relation to the death penalty, the USA reserved the

right to use it against anyone, subject only to its

own constitutional constraints.

237

The Committee

approved ratication, adding:

“In view of the leading role that the United

States plays in the international struggle for

human rights, the absence of ratication of

the Covenant is conspicuous and, in the view

of many, hypocritical. The Committee believes

that ratication will remove doubts about the

seriousness of the US commitment to human

rights and strengthen the impact of US efforts in

the human rights eld.”

238

If a purpose of ratifying the ICCPR was to

dispel accusations of human rights hypocrisy,

the conditions the USA attached meant that it

was always likely to fail in this aim. According

to a former US Assistant Secretary of State for

Democracy, Human Rights and Labor in the

Clinton administration:

“Increasingly, I found important bilateral meetings

with our closest allies – particularly from European

Union and Latin American countries – consumed

with answering demarches challenging the death

penalty… The practice has caused allies and

adversaries alike to challenge our claim of moral

leadership in international human rights.”

239

The Committee’s scrutiny of the USA’s initial

report under the ICCPR came in 1995. The

Committee was troubled by “the extent” of the

reservations, understandings and declarations

which it believed were intended to ensure that

the USA was accepting only what was already the

law of the USA, and no more – effectively this

was ratication in name only. It stated that the

reservations to Articles 6 and Article 7 (prohibiting

torture and other cruel, inhuman or degrading

treatment or punishment), which the USA had

formulated to protect the death penalty, were

“incompatible with the object and purpose of the

Covenant”; that is, in violation of the prohibition of

such reservations.

240

In its 1995 conclusions, the UN Human Rights

Committee made clear that it “deplore[d]” the

expansion of the death penalty under the FDPA

and called on the USA to narrow the death

penalty’s scope with a view to abolition, in

conformity with Article 6 of the ICCPR.

THE UN HUMAN RIGHTS

COMMITTEE HAS FOUND

SERIOUS SHORTCOMINGS

IN US COMPLIANCE SINCE

RATIFICATION, INCLUDING ON

THE DEATH PENALTY, BUT THE

USA HAS ROUTINELY FAILED TO

IMPLEMENT THE COMMITTEE’S

RECOMMENDATIONS.

AMNESTY INTERNATIONAL

240

Article 19(c), Vienna Convention on the Law of Treaties, Report of the Human Rights Committee, United States of America, 3 October 1995, UN Doc. A/50/40, para. 279.

241

Human Rights Committee, Concluding observations: USA, 18 December 2006, UN Doc. CCPR/C/USA/CO/3/Rev.1, para. 29.

242

Human Rights Committee, Concluding observations on the fourth periodic report of the USA, 23 April 2014, UN Doc. CCPR/C/USA/CO/4, para. 8.

243

He became the Committee’s ranking minority member in 1997 and served as its chair from 2001 to 2003 and from 2007 to 2009. He resigned as a senator in January 2009 shortly before becoming

vice president under President Obama.

244

Annex to the letter dated 22 April 2009 from the Permanent Representative of the USA to the United Nations addressed to the President of the General Assembly Human rights commitments and

pledges of the USA, UN Doc. A/63/831, p. 4.

245

US District Court for the District of Puerto Rico, USA v. Casey, United States’ response in opposition to defendant’s motion to declare the Federal Death Penalty Act inapplicable in the

Commonwealth of Puerto Rico, 14 November 2011.

246

Fourth Periodic Report of the USA to the UN Human Rights Committee, 22 May 2012, UN Doc. CCPR/C/USA/4, para. 151, and UN Human Rights Committee, Fifth periodic report submitted by the

United States of America under article 40 of the Covenant pursuant to the optional reporting procedure, due in 2020, 19 January 2021, UN Doc. CCPR/C/USA/5, para. 15.

247

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 50.

248

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 44.

In 2006, the UN Human Rights Committee

reviewed the USA’s Second and Third Reports,

expressing regret that, despite its previous call,

the USA had “extended the number of offences

for which the death penalty is applicable.” It again

called for a moratorium, “bearing in mind the

desirability of abolishing the death penalty.”

241

In 2014, in its review of the USA’s Fourth

Report, the UN Human Rights Committee again

pointed to the racial disparities in imposition of

the death penalty, “exacerbated by the rule that

discrimination has to be proven on a case-by-case

basis” (under the 1987 US Supreme Court ruling

in McCleskey v. Kemp). It called for a moratorium

at the federal level and engagement of the federal

authorities with “retentionist states with a view to

achieving a nationwide moratorium.”

242

The UN Human Rights Committee has been

seeking withdrawal of the USA’s reservations,

understandings and declarations for a quarter of

a century. As a senator, Joe Biden was a member

of the Committee on Foreign Relations when it

approved these conditions. During his time on

this Committee, the USA ratied the ICCPR,

the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

and ICERD.

243

The Obama administration, with Joe Biden as vice

president, promised that: “The United States is

committed to meeting its United Nations treaty

obligations and participating in a meaningful

dialogue with treaty body members.”

244

That same

administration simultaneously insisted that

“since the death penalty is clearly and

unambiguously authorized by the Constitution,

the right to impose the death penalty is not

prohibited by the treaty.”

245

It also told the UN

Human Rights Committee that, following the

2005 Supreme Court prohibition of the execution

of offenders for crimes committed when under

18, “the United States now implements Article

6(5) in full.” This was repeated by the Trump

administration in January 2021.

246

Yet this is

far from the whole story. The reservation led by

the USA applied, by its wording, to Article 6 in

its entirety. Again, the reservation was aimed at

preserving the use of the death penalty against

“any person”, subject solely to constitutional

constraints.

Article 6.1 of the ICCPR prohibits the “arbitrary”

deprivation of life – a provision routinely

implicated in the application of the death

penalty in the USA. Article 6.4 guarantees

meaningful availability of clemency in capital

cases. And Article 6.6, as repeatedly made clear

by the UN Human Rights Committee, conrms

the abolitionist intent of the Covenant.

247

overarching prohibition also is that the death

penalty “must not be imposed in a discriminatory

manner contrary to articles 2(1) and 26 of the

Covenant.”

248

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

249

Amnesty International, USA: Life, liberty and the pursuit of human rights: A submission to the UN Human Rights Committee for the 109th session of the Committee, September 2013, amnesty.org/

en/documents/amr51/061/2013/en/; Concluding observations on the fourth periodic report of the USA, 23 April 2014, UN Doc. CCPR/C/USA/CO/4, para. 5; Amnesty International, USA: Submission to

the UN Committee Against Torture: 53rd session of the Committee, October 2014, amnesty.org/en/documents/amr51/049/2014/en/; and Committee against Torture, Concluding observations on the

combined third to fth periodic reports of the United States of America, 19 December 2014, UN Doc. CAT/C/USA/CO//3-5, para. 12.

250

Amnesty International, USA: Right the wrong: Decision time on Guantánamo, 11 January 2021, Chapter 5, www.amnesty.org/en/documents/amr51/3474/2021/en/

The US reservation to Article 7 of the ICCPR –

that the USA considered itself bound only to the

extent that “cruel, inhuman or degrading treatment

or punishment” means the cruel and unusual

treatment or punishment prohibited under the

Constitution – was led in part to protect its use of

the death penalty (it led an identical one to Article

16 of Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

in 1994). It said that “because the Human Rights

Committee, like the European Court of Human

Rights, has adopted the view that prolonged judicial

proceedings in cases involving capital punishment

could in certain circumstances constitute [cruel,

inhuman or degrading] treatment, US ratication

of the Covenant should be conditioned upon

a reservation limiting our undertakings to the

prohibitions of the Fifth, Eighth and/or Fourteenth

Amendments” to the Constitution.

After the attacks of 11 September 2001, this

reservation formulated to protect the death penalty,

was exploited by Bush administration lawyers to

give legal approval to torture and other ill-treatment,

as well as enforced disappearance, against foreign

nationals held outside the USA in the “war on

terror”

249

. Today, six individuals in US custody at

Guantánamo, who were earlier subjected to torture

and enforced disappearance in US custody under

this detention regime, face the death penalty at

unfair trials under the Military Commissions Act.

If any execution were to follow such proceedings,

which fail to meet international fair trial standards,

it would violate international law and constitute

a violation of the right to life. In the case of any

of the six men currently facing capital trial at

Guantánamo, their execution would amount to

killing witnesses to crimes, specically the crimes

under international law of torture and enforced

disappearance committed against them and

others by US personnel, for which the perpetrators

continue to enjoy impunity.

250

AMNESTY INTERNATIONAL

251

Senate, 103rd Congress. Executive Report 103-29, ICERD, 2 June 1994.

252

Combined initial, second and third State Party reports of United States of America, 10 October 2000, UN Doc. CERD/C/351/Add.1, paras 322-325.

253

Report of the Committee on the Elimination of Racial Discrimination, Fifty eighth session (6 23 March 2001), Fifty ninth session (30 July 17 August 2001), UN Doc. A/56/18 (Supp), para. 396.

254

Consideration of reports submitted by States Parties under article 9 of the Convention, Concluding observations of the Committee on the Elimination of Racial Discrimination, United States of

America, UN Doc. CERD/C/USA/CO/6, 8 May 2008, para. 23.

The USA ratied the ICERD on 21 October 1994.

The Senate Committee on Foreign Relations

approved ratication of ICERD saying that it

would “enable the United States to participate

in the work of the Committee on the Elimination

of Racial Discrimination established by the

Convention to monitor compliance.”

251

The Clinton administration submitted the USA’s

combined initial, second and third reports in

2000. On the death penalty, the administration

acknowledged public concerns about evidence of

racial bias and discrimination but said that “the

US Government remains condent that the death

penalty is imposed only in the most egregious

cases and only in the context of the heightened

procedural safeguards required by our state and

federal constitutions and statutes.”

252

The Committee for the Elimination of Racial

Discrimination (CERD) did not share this

condence and urged the USA “to ensure,

possibly by imposing a moratorium, that no death

penalty is imposed as a result of racial bias on

the part of prosecutors, judges, juries and lawyers

or as a result of the economically, socially and

educationally disadvantaged position of the

convicted persons.”

253

Eight years later, the CERD considered the USA’s

combined fourth, fth and sixth periodic reports.

It remained concerned about “the persistent and

signicant racial disparities with regard to the

imposition of the death penalty, particularly those

associated with the race of the victim.” In addition

to calling on the George W. Bush administration to

“identify the underlying factors of the substantial

3.2 PROHIBITION

OF RACIAL

DISCRIMINATION

APPROXIMATELY 13% OF THE POPULATION OF THE USA IS BLACK. IN

FEDERAL CASES, OF 539 DEFENDANTS WHOSE CASES WERE AUTHORIZED

FOR A FEDERAL CAPITAL PROSECUTION BETWEEN 1988 AND APRIL 2021,

263 (49%) WERE AFRICAN AMERICAN, 148 (28%) WERE WHITE, 99 (18%)

WERE LATINO AND 29 (5%) WERE “OTHER”. OF THE 16 PEOPLE PUT TO

DEATH IN FEDERAL EXECUTIONS SINCE 2001, SEVEN WERE WHITE, SEVEN

WERE BLACK, ONE WAS LATINO AND ONE WAS NATIVE AMERICAN.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

255

Reports submitted by States parties under article 9 of the Convention. Seventh to ninth periodic reports of States parties due in 2011. United States of America, 3 October 2013, UN Doc. CERD/C/

USA/7-9, para. 70 ("With respect to the Committee's comment concerning a potential moratorium on the death penalty, there is vigorous public debate in the United States on the death penalty….

Any further decisions concerning a moratorium would have to be made separately at the federal level and by each of the 32 states that retain the death penalty")

256

CERD, Concluding observations on the combined seventh to ninth periodic reports of the USA, 25 September 2014, UN Doc. CERD/C/USA/CO/7-9, para. 20.

racial disparities in the imposition of the death

penalty” and root out discriminatory practices,

it reiterated its earlier call to the USA to “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.”

254

The USA’s seventh, eighth and ninth combined

reports under ICERD were submitted by the

Obama administration in 2013.

255

After

scrutinizing the USA’s reports, CERD repeated

its call for a moratorium on the death penalty “at

the federal level, with a view to abolishing the

death penalty.”

256

Today, over half a century after the USA

signed the ICERD, and more than 25 years

after ratifying it, the intransigence of the

federal government on the death penalty

may be softening. In June 2021, the Biden

administration submitted its combined 10th,

11th and 12th reports to the CERD conrming

that it “supports legislatively ending the death

penalty at the federal level and encouraging

states to follow the federal government’s

example.” At the same time, however, it

continued to display a level of condence in

the capital justice system not justied by the

evidence of discrimination within it.

“[T]he US judicial system provides an exhaustive

system of protections at both the federal and state

levels to ensure the death penalty is not applied

in a summary, arbitrary, or discriminatory manner,

and that its implementation is undertaken with

exacting procedural safeguards, after multiple

layers of judicial review, in conformity with the US

Constitution and US international obligations. DOJ

continues to take great precautions to ensure that

decisions to seek the death penalty at the federal

level are not based on factors that include race or

national origin.”

257

This condence notwithstanding, Attorney

General Merrick Garland has reiterated what

he said at his conrmation hearing, stating: “I

have concerns about the death penalty... and

I’m concerned about disparate impact on Black

Americans.”

258

He is not the rst. In 2000,

Attorney General Reno said that she was “sorely

troubled” by the evidence of racial bias in

the federal death penalty system.

259

In 2013,

Attorney General Holder pointed to the need to

“confront the reality” that “people of color often

face harsher punishments than their peers.”

260

Over 1,500 executions have been carried out

under the USA’s current capital justice system,

begun in the fourth quarter of the 20th century,

and continuing into the 21st. Over 80% of these

executions have occurred in the South, a region

where around 38% of the USA’s population

lives. A third of the individuals executed

nationally were Black, despite the fact that

Black people comprise only approximately 13%

of the population. Over 75% of executions were

of people convicted of crimes involving white

victims.

In 2008 the most senior justice on the US

Supreme Court stated that it had allowed race

“to continue to play an unacceptable role in

capital cases.”

261

A principal culprit is the

Court’s now 35-year-old McCleskey v. Kemp

decision in which it ruled that “the same types

of statistical data that were routinely accepted

as proof of racial discrimination in housing,

employment, education, and the denial of other

civil rights were not sufcient as proof that a

death sentence had been unconstitutionally

imposed.”

262

The UN Special Rapporteur on

Extrajudicial, Summary or Arbitrary Executions,

in his report of his mission to the USA in

1997, noted that the 1987 McCleskey v. Kemp

ruling, under which a successful claim of racial

discrimination

AMNESTY INTERNATIONAL

257

CERD, Combined 10th to 12th reports, 8 June 2021, UN Doc. CERD/C/USA/10-12, (previously cited), para. 116.

258

US Attorney General reviews Justice Dept’s federal death penalty policies, Reuters, 22 June 2021.

259

New York Times, “Reno troubled by death penalty statistics”, 12 September 2000.

260

Attorney General Eric Holder to American Bar Association, 12 August 2013.

261

Baze v. Rees, 16 April 2008, Justice Stevens concurring in the judgment.

262

Death Penalty Information Center, “35 years after McCleskey v. Kemp: A legacy of racial injustice in the administration of the death penalty”, 21 April 2022, deathpenaltyinfo.org/news/35-years-

after-mccleskey-v-kemp-a-legacy-of-racial-injustice-in-the-administration-of-the-death-penalty

263

Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, January 1998, UN Doc. E/CN.4/1998/68/Add.3, (previously cited), paras 64-65.

264

CERD, General Recommendation 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination, 24 September 2009, UN

Doc. CERD/C/GC/32, para. 7.

would have to prove discriminatory intent by the

decision-makers, “has had the effect of allowing

the courts to tolerate racial bias because of the

great difculties defendants face in proving

individual acts of discrimination in their cases.”

The Rapporteur questioned the compatibility of

the ruling “with obligations undertaken under

the International Convention on the Elimination

of All Forms of Racial Discrimination, which

requires States parties to take appropriate

steps to eliminate both direct and indirect

discrimination.”

263

Discrimination under the

Convention “includes purposive or intentional

discrimination and discrimination in effect”

[emphasis added].

264

McCleskey v. Kemp was present during the

Trump administration’s defense of death

sentences as well as during its execution spree.

For example, three days before Orlando Hall

was executed on 19 November 2020, having

raised statistical evidence of systemic racism in

federal capital justice in Texas, the government

simply turned to McCleskey v. Kemp: “the

Supreme Court has rejected such claims

predicated on these types of statistics and has

instead explained that a defendant who tries to

demonstrate this kind of constitutional violation

‘must prove that the decisionmakers in his case

acted with discriminatory purpose.’”

265

CHART 4: EXECUTIONS 1972-2022, GENDER OF MURDER VICTIM

Solely female

victims

Solely male

victims

Crimes with one

victim, female

Crimes with one

victim, male

At least one

female victim

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

63%

94%

57%

10%

44%

36%

38%

42%

(AI chart using data from DPIC)

Federal State

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

CHART 5: EXECUTIONS AS PERCENTAGE OF FEDERAL AND STATE TOTALS,

1972-2022, FOR SINGLE VICTIM CRIMES, BY GENDER AND RACE

OF VICTIM

74% of state executions were of individuals sentenced to death for a single murder

50% of federal executions were of individuals sentenced to death for a single murder

(AI chart using data from DPIC)

Single victim,

white male

Single victim,

black male

Single victim,

black female

Single victim,

white female

35%

30%

25%

20%

15%

10%

Federal State

0% 0%

31%

29%

13%

4.5%

28%

265

US District Court for the Southern District of Indiana, Hall v. Watson. Response to Hall’s 28 USC §2241 petition and response in opposition to Hall’s motion for stay, 16 November 2020.

266

US District Court for the District of South Carolina, USA v. Council, Brandon Council’s motion to strike the Federal Death Penalty Act allegations from the indictment and as a possible punishment in

this case, 18 September 2018.

267

Declaration of Kevin McNally regarding the geographic location of cases, the frequency of federal death sentences and the race and gender of defendants and victims, 17 June 2016. Ten of 16 (63%)

of federal executions have involved white female victims. This is many times greater than one would expect given the pool of white female victim cases.

268

Declaration of Laura Cohen Bell, 2016.

269

US District Court for the District of South Carolina, USA v. Council, Order, 7 May 2019.

Meanwhile, the McCleskey obstacle remains rmly

in place. In 2019, Brandon Council was facing

the death penalty at his federal trial in South

Carolina, despite his offers to plead guilty and

serve life without the possibility of release.

266

This

African American man was charged with fatally

shooting two white women during a bank robbery

in Conway, South Carolina, in 2017. His lawyers

led a motion to strike the death penalty from the

case based on its disproportionate use against

those charged with the murder of white female

victims. According to the Federal Death Penalty

Resource Counsel Project, “since 2000, in a

grossly disproportionate number of cases, juries

have imposed the death penalty when

the victims was a white female… many times

greater than one would expect given the pool

of white female victim cases.”

267

According to

expert evidence presented pre-trial in Brandon

Council’s case, there was a “one in one thousand

chance” that the race and gender of the

victim was unrelated to the capital sentencing

outcome.

268

The District Court ruled that the”[d]

efendant’s arguments are foreclosed by Supreme

Court precedent”, particularly McCleskey v.

Kemp, and that he was “not entitled to discovery

or an evidentiary hearing.”

269

The trial went

ahead and in 2019 the jury voted for death. Only

10 of the 12 jurors found in mitigation that “all

life has value”.

AMNESTY INTERNATIONAL

270

US District Court for the Western District of Kentucky, USA v. Silvers, Motion to declare Federal Death Penalty Act unconstitutional, 8 December 2021 (citing Declaration of Kevin McNally regarding the

geographic location of federal cases, the frequency of authorizations, death sentences and executions and the race and gender of defendants and victims).

271

US District Court for the Western District of Kentucky, USA v. Silvers, United States response to Defendant’s motion to declare Federal Death Penalty Act unconstitutional, 21 December 2021.

272

US District Court for the Western District of Kentucky, USA v. Silvers, Order, 29 April 2022.

273

Concluding observations of the Committee on the Elimination of Racial Discrimination, 8 May 2008, UN Doc. CERD/C/USA/CO/6, para. 23. See also, Concluding observations on the combined seventh

to ninth periodic reports of the USA, 25 September 2014, UN Doc. CERD/C/USA/CO/7-9, para. 20.

274

CERD, General Recommendation 31 on the prevention of racial discrimination in the administering and functioning of the criminal justice system (2005), para. 35.

275

See, for example, IACHR Report No. 28/20, Case 12.719, Report on Merits: Orlando Cordia Hall, USA, 22 April 2020.

Victor Silvers was facing a federal capital trial

in Kentucky, with the government having led

notice of its intent to seek the death penalty

a month after President Biden took ofce. His

lawyers challenged the constitutionality of

the FDPA, including on race. Citing statistical

evidence that of the 539 defendants whose

cases had been authorized for a federal capital

prosecution as of 15 April 2021, the breakdown

was as follows, (A) African American, 263

(49%); (B) white, 148 (28%); (C) Latino,

99 (18%); and (D) “other,” 29 (5%).

270

The

government responded that the “defendant’s

arguments are foreclosed by Supreme Court

precedent”, particularly McCleskey v. Kemp.

271

The judge denied this motion as moot on 29

April 2022 after the US Attorney General

authorized withdrawal of the USA’s Notice of

Intent to Seek the Death Penalty.

272

CERD has long called for the USA to implement

“effective strategies aimed at rooting out

discriminatory practices” in the application of

the death penalty.

273

In so doing, it has pointed

to its General Recommendation 31 under

ICERD, issued more than a decade and a half

ago, which calls for “special attention” to the

death penalty “in countries which have not

abolished it”, especially when there is evidence

of racial discrimination in its application.”

274

The IACHR has taken the view that heightened

scrutiny is required where the allegation

concerns racial discrimination, so that it can be

ensured that the distinction “is not based on

the prejudices and/or stereotypes that generally

surround suspect categories of distinction”. At

the same time, the principle of equality and non-

discrimination incorporates both “the prohibition

of arbitrary differences of treatment” and “the

obligation of States to create conditions of real

equality for groups that have been historically

excluded or that are at greater risk of being

discriminated against.”

275

In July 2019, the IACHR transmitted a report on

its analysis of Orlando Hall’s case to the Trump

administration. Unlike the US authorities, once

it found that there was “no direct evidence” of

racial discrimination against Hall, this was not

the end of its inquiry. Instead, it considered

the “indicia of suspected use of race in the

application of the death penalty”; the “lack of

information” provided by the authorities and “the

fact that the prosecuting attorney responsible

for assembling the all-white jury was later found

to have engaged in racial discrimination in jury

selection in two separate cases.”

The IACHR found that the US government

had failed “to fully respond to the allegations

concerning possible racial discrimination raised

throughout this process” and that this and

the condemned person’s “lack of access to an

effective remedy with regard to the allegation

of racial discrimination” violated the USA’s

international obligations. By April 2020, the

administration had not replied to the IACHR.

The Commission urged that Orlando Hall’s death

sentence to be commuted. Instead, he was

executed on 19 November 2020.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

276

IACHR, “IACHR condemns resumed use of the death penalty at the federal level in the United States after a 17-year lapse”, Press Release, 20 June 2020, oas.org/en/iachr/media_center/

PReleases/2020/149.asp

277

The Carter administration proposed a reservation to ACHR Article 4 with similar intention to that led on the ICCPR: “United States adherence to Article 4 is subject to the Constitution and other

law of the United States.”

278

President Carter transmitted the ACHR to the Senate on 23 February 1978 “with a view to… ratication.”

279

American Declaration of the Rights and Duties of Man, cidh.oas.org/basicos/english/basic2.american%20declaration.htm

The principal human rights treaty of the Americas

region, the American Convention on Human

Rights (ACHR), was signed by the USA on 1 June

1977.

277

The treaty was referred to the Senate

Committee on Foreign Relations, whose members

at the time included Senator Joe Biden. Hearings

were held in November 1979. That was the last

action taken towards ratication.

Like the ICCPR, the ACHR has provisions on the

death penalty (Article 4). By signing the ACHR,

the USA committed itself, under international law,

not to do anything to undermine the object and

purpose of the treaty pending its decision to ratify

it.

278

Article 4.4 states: “The death penalty shall

not be re-established in states that have abolished

it.” Article 28.1, meanwhile, states that: “Where

a State Party is constituted as a federal state,

the national government of such State Party shall

implement all the provisions of the Convention

over whose subject matter it exercises legislative

and judicial jurisdiction.” The reinstatement of the

federal death penalty in 1988 and expansion of

it in 1994 were incompatible with the object and

purpose of the ACHR.

The IACHR is the expert body established under

the ACHR, along with the Inter-American Court of

Human Rights, to monitor implementation of and

compliance with the treaty. In the case of OAS

member states that have not ratied the ACHR,

“the Commission examines the international

responsibility of OAS Member States based on the

American Declaration [on the Rights and Duties

of Man

279

], and is authorized to do so by the OAS

Charter.”

280

The US government pledged in April 2009, when

Joe Biden was vice president, that: “The United

States is committed to cooperating with the human

rights mechanisms of the United Nations, as well

as the Inter-American Commission on Human

Rights and other regional human rights bodies.”

281

The USA continues to defy calls from the IACHR to

meet its international human rights obligations in

relation to the death penalty.

3.3 INTER-AMERICAN

COMMISSION ON

HUMAN RIGHTS

THE USA IS ONE OF 35 MEMBER STATES OF THE ORGANIZATION OF

AMERICAN STATES (OAS). IT IS THE ONLY ONE THAT CURRENTLY CARRIES

OUT JUDICIAL EXECUTIONS.

276

AMNESTY INTERNATIONAL

280

IACHR, Basic Documents in the Inter-American System, oas.org/en/iachr/mandate/Basics/intro.asp, including Note 11. See also, IACHR, Towards the closure of Guantánamo, 2015, para. 18:

“According to the well-established and long-standing jurisprudence and practice of the Inter-American system, the American Declaration is recognized as constituting a source of legal obligation for

OAS member states, including in particular those States that are not parties to the American Convention on Human Rights”, oas.org/en/iachr/reports/pdfs/Towards-Closure-Guantanamo.pdf

281

Annex to the letter dated 22 April 2009 from the Permanent Representative of the USA to the United Nations addressed to the President of the General Assembly Human rights commitments and

pledges of the USA, UN Doc. A/63/831, p. 4.

282

IACHR, “IACHR expresses its profound concern for the reinstatement of the death penalty at the federal level in the United States”, Press Release, 15 August 2019, oas.org/en/iachr/media_center/

PReleases/2019/201.asp

283

IACHR, Report No. 52/01, Case 12.243, Juan Raul Garza, USA, 4 April 2001, para. 118.

284

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 47: “death sentences must not be carried out as long as international interim measures

requiring a stay of execution are in place… Failure to implement such interim measures is incompatible with the obligation to respect in good faith the procedures established under the specic

treaties governing the work of the relevant international bodies.”

285

IACHR, The death penalty in the Inter-American Human Rights System: From restrictions to abolition, OEA/Ser.L/V/II, Doc. 68, 31 December 2011, paras 48-49, oas.org/en/iachr/docs/pdf/

deathpenalty.pdf

286

See for example, “IACHR condemns execution of Russell Bucklew in Missouri, United States of America”, Press Release, 7 October 2019, oas.org/en/iachr/media_center/PReleases/2019/249.asp

287

Amnesty International, USA: Execution set despite mental disability, 25 April 2022, amnesty.org/en/documents/amr51/5500/2022/en

In 2019, when the Trump administration

moved to resume federal executions, the IACHR

reminded the US government that to do so would

be “contrary to the fundamental human rights

obligations of an OAS member state pursuant

to the American Declaration and the Charter

of the Organization of Americas States and the

instruments deriving from it.”

282

In a US federal

case two decades earlier, the IACHR had said

that “in capital cases, the failure of a member

state to preserve a condemned prisoner’s life

pending review by the Commission of his or

her complaint… deprives condemned persons

of their right to petition in the Inter-American

human rights system, and results in serious

and irreparable harm to those individuals, and

accordingly is inconsistent with the state’s

human rights obligations.”

283

At least 47 people have been executed in the

USA since 1996 in the face of “precautionary

measures” issued by the IACHR calling for a

stay of execution to allow the Commission time

to review the merits of the person’s petition. The

Commission has said that it considers the USA’s

“incompliance with the principles of the system

to be of the utmost gravity.”

285

Not only does the federal government effectively

shield individual states as they carry out

executions in the face of precautionary measures

or ndings on the merits of petitions,

286

it has

also set an appalling example in its own direct

cases. A quarter of all federal executions (four

of 16) in the USA since 2001 were carried out

despite the IACHR’s ndings of international

law violations upon full analysis of the merits

of petitions and government responses – Juan

Raul Garza (2001), Lezmond Mitchell (2020)

and Orlando Hall (2020) – or in the face of

IACHR precautionary measures calling for a

stay of execution pending full review of the

petition – Lisa Montgomery (2021). Since the

federal execution spree, there has been another

execution in the USA carried out in deance of

IACHR precautionary measures. Clarence Dixon

was executed on 11 May 2022 despite his long-

standing mental disability, including repeated

diagnoses of paranoid schizophrenia.

287

INTERNATIONAL HUMAN RIGHTS

LAW PROHIBITS EXECUTIONS

FROM BEING CARRIED OUT UNTIL

ALL RIGHTS TO APPEAL HAVE

BEEN EXHAUSTED AND RECOURSE

TO PROCEEDINGS HAVE BEEN

COMPLETED, INCLUDING TO

INTERNATIONAL AND REGIONAL

BODIES. THE USA IS A SERIAL

VIOLATOR IN THIS REGARD IN

RELATION TO THE INTER-AMERICAN

HUMAN RIGHTS SYSTEM.

284

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

4.0 END FEDERAL

ENABLING OF STATE

DEATH PENALTY

“

THE FEDERAL GOVERNMENT WILL REMOVE

ANY FEDERAL INHIBITION TO THE STATES’

ABILITIES TO MEET THEIR OBLIGATIONS”

US Senate Committee on Foreign Relations report recommending ratication of ICCPR, 24 March 1992

288

AMNESTY INTERNATIONAL

288

ICCPR, Report from Senator Clairborne Pell, 1992, (previously cited), p. 18.

289

Press brieng, White House, 8 April 2022. See, Amnesty International, “USA; Woman’s execution would violate international law”, 30 March 2022, amnesty.org/en/documents/amr51/5420/2022/

en/

290

Press brieng, White House, 18 November 2021. The Oklahoma case was that of Julius Jones.

291

“That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters

covered therein, and otherwise by state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures

appropriate to the Federal system to the end that the competent authorities of the state or local government may take appropriate measures for the fulllment of the Covenant.”

292

ICCPR, Report from Senator Clairborne Pell, 1992, (previously cited).

On 8 April 2022, the White House was asked

whether President Biden would seek the Texas

Governor’s intervention in the case of a woman

facing imminent execution in Texas despite

serious doubts about the reliability of her

conviction and the fairness of her trial. The Press

Secretary’s response was to point to the review

of the federal death penalty and that the case

in question was “obviously at a state level”.

289

A similar response had been given ve months

earlier in relation to an Oklahoma death penalty

case – the case in question, it said, involved “a

state-level sentence... there wasn’t a real role that

the federal government could ofcially play.”

290

As already noted, there have been more than a

dozen executions at state level since President

Biden took ofce. His promise to go beyond

working to end the federal death penalty and to

incentivize states to do the same is an important

part of his pledge, but he and his administration

should act on it as a matter of urgency.

Over the past ve decades, the federal

government has failed to build on abolitionist

moves by states. On the contrary, in addition to

its own use of the death penalty, it has promoted,

facilitated and defended its use by states. All too

often it has been silent, hiding behind the federal

structure to wash its hands of the death penalty

at the state level. It has fended off criticism of

the death penalty on the international stage and

led briefs in the US Supreme Court in support

of states defending aspects of their capital

justice system. In some cases, it has even added

an expansionary twist to the reach of the death

penalty by seeking it where the state is unwilling

or unable to.

Article 50 of the ICCPR expressly states that

the provisions of the Covenant “shall extend

to all parts of federal states without any

limitations or exceptions.” As already noted,

there is an obligation under Article 6 of the

ICCPR for governments to work for abolition

within a reasonable timeframe and all branches

of government in all jurisdictions should

work to ensure compliance with the country’s

international treaty obligations.

The rst Bush administration proposed that

the USA le an “understanding” to Article 50

upon ratication, and the Senate Committee

on Foreign Relations approved it.

291

The

understanding was intended to signal that “the

Federal Government will remove any federal

inhibition to the States’ abilities to meet their

obligations.”

292

At the time of the USA’s initial

report to it, the UN Human Rights Committee

noted “with satisfaction” US assurances that this

understanding was not a reservation and was “not

intended to affect the international obligations of

the United States.” Yet the federal government

has continued to assist or enable the states in

their death penalty pursuits.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

293

Remarks at a Brieng on Law Enforcement for United States Attorneys, 16 June 1989.

294

Other cases of federal government intervention include Richard Jackson, currently on federal death row, and Kenneth Barrett, who is awaiting resentencing after his federal death sentence was

overturned in 2021 due to Inadequate representation at the original sentencing. Both men were serving lengthy state sentences for the same crimes that the Department of Justice the prosecuted and

obtained death sentences.

295

US District Court for the Eastern District of New York, USA v. Wilson, Memorandum and Order, 7 February 2013.

A penchant for some federal ofcials to seek to

extend the reach of the federal death penalty

was illustrated in 1989 when President George

H. W. Bush promoted pursuit of the death

penalty where state law did not allow it: “In

those States where police are not protected by

death penalty provisions, we should make full

use of those Federal laws that permit the death

penalty for cop-killers.”

293

An example of this came in 2004, when the

administration of President George W. Bush

took over the prosecution of Ronell Wilson for

the 2003 murder of two undercover New York

City Police Department ofcers. Twenty-year-old

Wilson was initially charged with rst degree

murder in state court and the District Attorney

led notice of intent to seek the death penalty

under state law. However, 15 months later, the

New York Court of Appeals ruled that the state’s

death penalty statute was unconstitutional. The

state could have continued to prosecute Ronell

Wilson with a maximum sentence of life

imprisonment. Instead, the Bush administration

took over and the defendant was indicted in

federal court. He was sentenced to death in

2007, the rst federal death sentence passed in

New York since 1954.

294

The death sentence was later overturned due

to prosecutorial misconduct at the sentencing.

The Obama administration chose to pursue

the death penalty at resentencing.

295

Wilson’s

lawyers told the judge that they were intending

to introduce in mitigation “that Mr Wilson would

not and could not have faced the death penalty

if the federal government had not taken over

the prosecution.”

296

The judge prohibited this

on the grounds that “New York’s ban on capital

punishment is due to a specic, technical

opinion by the State’s highest court that would

require substantial explanation.”

297

The following

month the jury voted for a death sentence and

on 10 September 2013 the judge sentenced the

defendant to death for the second time.

4.1 END FEDERAL

BACKSTOPPING

FOR STATES

THE FEDERAL GOVERNMENT HAS ON OCCASION ASSISTED STATES

WHEN THEY HAVE RUN INTO DIFFICULTIES WITH THEIR OWN CAPITAL

STATUTES IN THE COURTS.

AMNESTY INTERNATIONAL

296

USA v. Wilson, Letter to the Honorable Nicholas G. Garaus, District Judge, US District Court for the Eastern District of New York, from Loretta Lynch, US Attorney for the Eastern District of New York, 29

May 2013 (misdated 29 March).

297

US District Court, Eastern District of New York, USA v. Wilson, Memorandum & Order, 14 June 2013, the judge noted that at jury selection, “numerous jurors… were confused as to why the death

penalty is an available option given New York’s ban.”

298

Supreme Court of the State of Kansas, Kansas v. Marsh, 17 December 2004.

299

US Supreme Court, Kansas v. Cheever, 11 December 2013, “Rather than continuing to prosecute Cheever without any chance of a death sentence, state prosecutors dismissed their charges and

allowed federal authorities to prosecute Cheever under the Federal Death Penalty Act of 1994.”

300

US District Court, District of Kansas, Memorandum and order, USA v. Cheever, 29 March 2006. In one of his pre-trial rulings, the judge wrote: “In the years since Furman… the Supreme Court has

revisited its death penalty jurisprudence numerous times… Sometimes the decisions ow from one another; but on other occasions, what was a well settled rule of law in one decade is found repugnant

to the Constitution in the next. Lower courts administering capital cases are severely burdened with not only understanding the present state of the law, but also divining what it will be next week, next

term, or ten years from now when cases presently being tried may still be in the throes of appellate review.”

In 2016, a federal court review found that an

earlier ruling that Wilson did not have intellectual

disability had applied an inappropriate standard.

Applying the correct standard led to this nding

being reversed and his death sentence was found

unconstitutional. Thirteen years after Wilson was

indicted under state law, he was sentenced to life

imprisonment under federal law, the maximum

the state prosecution could have obtained after

New York’s capital statute was overturned (the

legislature has not replaced the statute).

This was not an isolated case of the federal

government directly assisting a state in its

death penalty travails. In Kansas in 2005,

Scott Cheever was charged in state court with

the capital murder of a Kansas county Sheriff.

However, a month before the crime, the Kansas

Supreme Court had ruled that the state’s death

penalty statute was unconstitutional.

298

Although

the State of Kansas could have gone ahead and

pursued a life sentence against Scott Cheever,

it instead turned to the US administration to

prosecute him under the FDPA so that the death

penalty could be pursued against him.

299

The

federal government could have chosen not to

involve itself or even encouraged the state to take

the death penalty off the table. Instead, Scott

Cheever was charged with capital murder under

the FDPA and in July 2005 the administration

of George W. Bush led notice of its intention to

seek the death penalty.

300

Meanwhile, the state succeeded in having the

US Supreme Court overturn, by a vote of ve to

four, the Kansas Supreme Court’s ruling on the

constitutionality of the state’s capital statute.

301

Jury selection in the federal prosecution began

in September 2006, but proceedings were

suspended a week later. The state authorities

asked that the case be returned to state court

given that the death penalty was now an option

again under state law. The federal government

led a motion to dismiss, which was granted

by the federal judge on 2 November 2006, a

year and a half after the federal indictment. The

capital murder charge against Scott Cheever

was re-led under state law. Scott Cheever was

convicted and sentenced to death.

The US administration’s involvement in the case

did not end there. In 2012, the Kansas Supreme

Court overturned Cheever’s capital murder

conviction and his death sentence, nding that

his constitutional Fifth Amendment right not to

be compelled to incriminate himself had been

violated. The state appealed to the US Supreme

Court. In 2013 the Obama administration led

a brief in the US Supreme Court in support of

the State of Kansas. The brief asserted that the

federal government “has a signicant interest

in the Court’s disposition of this case” because

the Fifth Amendment “applies to the federal

government as well as to the States.” Given its

earlier pursuit of the death penalty against this

defendant, the federal government’s interest

apparently included ensuring a death sentence.

302

The US Supreme Court overturned the ruling of

the Kansas Supreme Court which then upheld

Scott Cheever’s conviction and death sentence.

303

At the time of writing, he remained on death row.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

301

Kansas v. Marsh, 26 June 2006.

302

When concurrent jurisdiction exists with a State or local government, a Federal indictment for an offense subject to the death penalty generally should be obtained only when the Federal interest in

the prosecution is more substantial than the interests of the State or local authorities." Justice Manual, Section 9, 10.110, www.justice.gov/jm/jm-9-10000-capital-crimes#9-10.010

303

Supreme Court of Kansas, State of Kansas v. Scott D. Cheever, 22 July 2016.

304

See also, for example, US Court of Appeals for the Fourth Circuit, US v. Hager, 20 June 2013, Judge Wynn dissenting: “nothing prevented Virginia from prosecuting this case in its courts… Perhaps

the driving consideration behind prosecuting this matter in federal court was that it is not clear whether, under Virginia’s capital punishment statute, this murder falls into any of Virginia’s fteen

categories of death-eligible murders.” Thomas Hager remains on federal death row. Virginia abolished the death penalty in 2021.

305

Human Rights Committee, General Comment 36, UN Doc. CCPR/C/GC/36, (previously cited), para. 38.

306

For example, US District Court for the District of Vermont, USA v Michael Jacques, Opinion and order re: Defendant’s motion to reconsider point eight in favor of striking the Notice of Intent to Seek the

Death Penalty, 2 September 2011: “Determining that certain offenders convicted of death-eligible offenses under federal law would not be eligible for the death penalty simply because of the district

in which they were tried – while others, convicted of the same federal offenses in other districts would be eligible – would violate the principle that, to be rational, narrowing must be based on the

heinousness of the offense.”

In Amnesty International’s view, the domestic

transfer of a defendant facing a capital charge

from a jurisdiction without the death penalty to

one with it, for the sole purpose of keeping the

death penalty as a sentencing option, contravenes

the spirit of the lex mitior principle whereby, if

the law relevant to the offence of the accused

has been amended, the less severe law should be

applied.

304

The UN Human Rights Committee has

said:

“the abolition of the death penalty should apply

retroactively to individuals charged or convicted

of a capital offence in accordance with the

retroactive leniency (lex mitior) principle, which

nds partial expression in the third sentence of

article 15(1) [of the ICCPR], requiring States

parties to grant offenders the benet of lighter

penalties adopted after the commission of

the offence. The retroactive application of the

abolition of the death penalty to all individuals

charged or convicted of a capital crime also

derives from the fact that the need for applying

the death penalty cannot be justied once it has

been abolished.”

305

The argument has been made and accepted by

courts that to enforce a federal death penalty

only if the crimes were committed in a state that

had the death penalty would create or exacerbate

geographic disparities in the application of the

death penalty.

306

This may be true (although to

pursue a death sentence does not necessarily

result in one). However, the government – whether

at state or federal level – is also under an

obligation to work for abolition.

FROM A HUMAN RIGHTS LAW

PERSPECTIVE, THE ANSWER TO

GEOGRAPHIC DISPARITIES IN

THE APPLICATION OF THE DEATH

PENALTY IS NOT TO EMBARK ON

THE PURSUIT OF MORE DEATH

SENTENCES TO EVEN OUT THE

SPREAD OF THEM GEOGRAPHICALLY,

BUT TO ERADICATE THE DEATH

PENALTY ALTOGETHER.

AMNESTY INTERNATIONAL

307

Strickland v Washington, Brief for the United States as amicus curiae supporting petitioners, August 1983.

308

UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ECOSOC 1984/50, and Additions to Safeguards as agreed by ECOSOC Resolution 1989/64.

309

Payne v. Tennessee, Brief for the United States as amicus curiae supporting respondent, April 1991.

310

Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, January 1998, UN Doc. E/CN.4/1998/68/Add.3, (previously cited), para. 153.

Even before reinstating the federal death penalty

in 1988, the US government was ratifying

treaties in ways that gave states the go ahead

to ignore international legal constraints on

the death penalty. It was also intervening in

litigation in support of state capital justice.

Below are a few examples of such interventions

over the years. In this way, the federal

government has contributed to the development

of domestic law that has allowed violations of

international human rights safeguards protecting

those facing the death penalty.

1983 – STRICKLAND V.

WASHINGTON:

The Reagan administration urged the Supreme

Court to reverse a Court of Appeals decision that

the legal representation at trial of a person on

Florida’s death row had been inadequate. The

administration argued that for a successful

appeal on this issue, not only should the

performance of the lawyer have fallen

“measurably below the range of competence

demanded of defense counsel”, but it would also

have to be shown that “substantial prejudice

resulted”.

307

The Supreme Court indeed

ruled that “the proper standard requires the

defendant to show that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would

have been different.” The 1984 Strickland

ruling has allowed executions of people whose

representation had contravened the international

standard that anyone facing the death penalty be

provided “adequate legal assistance at all stages

of the proceedings”, “above and beyond the

protections afforded in non-capital cases”.

308

4.2 END LITIGATION

BACKING STATE

EXECUTIONS

PRESIDENT BIDEN’S PROMISE TO WORK FOR ABOLITION OF THE FEDERAL

DEATH PENALTY AND TO ENCOURAGE STATES TO ABOLISH THEIRS,

MUST INCLUDE STOPPING ALL FEDERAL ACTIVITIES THAT SUPPORT OR

FACILITATE STATE EXECUTIONS.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

311

Senator Clairborne Pell, Congressional Record, 7 June 1995: “With this time-honored tradition of habeas corpus so much a part of the bedrock legal principles which underpin our society, why are we

considering changing it all? The answer is clear and has been readily acknowledged by the proponents of this so-called reform: they want to expedite the execution of those who have received the death

penalty. It is that simple. There is no other driving force behind these efforts.”

312

Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, January 1998, UN Doc. E/CN.4/1998/68/Add.3, (previously cited), para. 147.

313

US Supreme Court, Domingues v. Nevada, Brief for US as amicus curiae., October 1999. See Amnesty International, “USA: Death Penalty/legal concern: Michael Domingues “, 28 June 1999, amnesty.

org/en/documents/amr51/102/1999/en/ and “USA: Further information on death penalty / legal concern: Michael Domingues”, 1 November 1999, amnesty.org/en/documents/amr51/148/1999/en/

314

US Supreme Court, Mickens v. Taylor, Brief for the United States as amicus curiae supporting respondent, September 2001.

315

See Amnesty International, “USA (Virginia): Death penalty/Legal concern”, 28 May 2002, www.amnesty.org/en/library/info/AMR51/081/2002/en and “USA (Virginia): Further information on Death

penalty/Legal concern – Walter Mickens (m), black, aged 47”, 12 June 2002, amnesty.org/en/library/info/AMR51/097/2002/en

1991 – PAYNE V. TENNESSEE:

The George H. W. Bush administration led a

brief in the US Supreme Court in support of

Tennessee’s efforts to have Booth v. Maryland

(1987) and South Carolina v. Gathers (1989),

prohibiting the introduction of “victim impact”

testimony at capital trials, overturned.

309

The

state had introduced victim impact evidence

at Pervis Payne’s 1987 trial, in violation of the

Booth ruling. In Booth v. Maryland, the Supreme

Court had said that: “One can understand the

grief and anger of the family... [b]ut the formal

presentation of this information by the State

can serve no other purpose than to iname the

jury and divert it from deciding the case on the

relevant evidence concerning the crime and

the defendant.” In Payne v. Tennessee, the US

Supreme Court (with some new justices) reversed

this earlier decision, ruling that victim impact

testimony was admissible and thereby upholding

Pervis Payne’s death sentence. In 1998, the

UN expert on the death penalty expressed his

concern at the approach to victims’ rights in

the USA and warned that, while victims were

“entitled to respect and compassion, access to

justice and prompt redress, these rights should

not be at the expense of those accused. Court

should not become a forum for retaliation.”

310

In 2021, 19 years after the Supreme Court

outlawed the use of the death penalty against

those with intellectual disability, and after more

than three decades of seeking to execute Pervis

Payne, who continued to assert his innocence,

the state conceded that it had no evidence

to refute the claim that he had intellectual

disability. He was resentenced to life in prison in

2022.

1996 – FELKER V. TURPIN:

President Clinton signed the AEDPA into law in

1996, at least in part to hasten executions.

311

The administration was then asked for its

views by the Supreme Court after Ellis Felker,

on death row in Georgia, challenged the Act’s

constitutionality. The administration asserted

that the limits the AEDPA placed on the ling

of second or successive habeas petitions were

“based on reasonable principles of nality.”

In 1998, the UN’s expert on the death penalty

said that the AEDPA had “further jeopardized

the implementation of the right to a fair trial as

provided for in the ICCPR and other international

instruments.”

312

The AEDPA precluded scrutiny

of constitutional violations raised in several of

the 13 federal execution cases under President

Trump.

1999 – DOMINGUES V. NEVADA:

Invited by the US Supreme Court to express

its views on whether executing individuals for

crimes committed when they were under 18

years old violated international law, the Clinton

administration urged the Court not to review the

question (despite the FDPA prohibiting the death

penalty against people from this age group).

313

The Court dismissed the case. Nine more people

were executed in the USA for crimes committed

when they were children – in clear violation of

international law – before the US Supreme Court

nally ruled in 2005 that such executions were

unconstitutional.

AMNESTY INTERNATIONAL

316

US Supreme Court, Uttecht v. Brown, Brief for the United States as amicus curiae supporting petitioner, February 2007. The Bush administration pointed to the case of Wesley Purkey, since executed

in the Trump execution spree, and the rejection by the Eighth Circuit of his challenge to the removal of three would-be jurors for their reluctance to impose the death penalty.

317

Uttecht v. Brown, 4 June 2007.

318

US Supreme Court, Kahler v. Kansas, 23 March 2020, Justices Breyer, Ginsburg and Sotomayor disseting.

319

For example, In the US Supreme Court, USA v. Tsarnaev, Reply brief for the United States, September 2021 (arguing for reinstatement of the federal death sentence – death sentence reinstated by

Court on 4 March 2022) and Savage v. US, Brief for the United States in opposition, October 2021 (arguing for death row prisoner’s petition challenging gaps in the appellate record to be denied –

petition denied by the Court on 15 November 2021). The current administration continues to ght for the death sentence in the cases of all the individuals on federal death row.

2001 – MICKENS V. TAYLOR:

Walter Mickens was sentenced to death in Virginia

in 1993 for murder. The murder victim was

facing weapons and assault charges at the time

of his death. The judge dismissed these charges

because of his death. On the next working day,

the same judge appointed the lawyer who had

been representing the murder victim to represent

Mickens. Neither the judge nor the lawyer

disclosed to Mickens that he was being defended

by the lawyer of the murder victim. The matter

remained undisclosed until it was discovered

years later by Mickens’s appeal lawyer. The

Supreme Court agreed to review the case and

the George W. Bush administration led a brief

in support of Virginia urging the Court to uphold

the death sentence, asserting its interest because

“claims of ineffective assistance of counsel

are frequently asserted… in federal criminal

cases.”

314

The Court upheld the death sentence,

over the dissent of four justices that Mickens

should get a new trial. In 2002, Walter Mickens

was executed, in violation of the ICCPR.

315

2007 – UTTECHT V. BROWN:

In 2006, the Ninth Circuit overturned Cal

Brown’s death sentence in Washington because a

prospective juror had been unlawfully excluded at

jury selection. The man in question had said that

he believed the death penalty was “appropriate

in severe cases”, that he would consider

mitigating and aggravating factors and would

“follow the law” without reservation. However,

the prosecution had objected to the juror on the

grounds that he was too reluctant to impose the

death penalty and the trial judge allowed his

exclusion. The State appealed to the US Supreme

Court to reinstate the death sentence and the

George W. Bush administration led a brief

in support.

316

In 2007, the Supreme Court

reimposed the death sentence, nding that

“deference to the trial court is appropriate”,

adding that the AEDPA “of course, provide[s]

additional, and binding, directions to accord

deference” to the trial court.

317

Four justices

accused the majority of “defer[ring] blindly”

to a state court’s error. Cal Brown was

executed in 2008.

2019 – KAHLER V. KANSAS:

Kraig Kahler, a man with serious mental

disabilities, was sentenced to death in Kansas

for the murder in 2009 of four of his family

members. Kansas law does not allow the jury

to consider mental disease or defect as a

defense to crime, except to the extent that a

defendant is shown to lack the mental state

required to commit the offence. This law

effectively abolishes the “insanity defense”.

The Kansas Supreme Court upheld Kahler’s

conviction and death sentence and the US

Supreme Court decided to take the case. The

Trump administration led a brief urging the US

Supreme Court to afrm the Kansas Supreme

Court’s decision, asserting its interest in the

outcome on the grounds that, although federal

law currently provided for an insanity defense,

“the federal insanity standard has varied over

time, and the United States has an interest in

Congress’s authority to prescribe the contours

of criminal liability.” In March 2020, the US

Supreme Court afrmed the Kansas Supreme

Court’s judgment. Three justices dissented. While

they recognized that “the Constitution gives the

States broad leeway… to provide different

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

denitions and standards related to the defense

of insanity… Kansas has not simply redened the

insanity defense. Rather, it has eliminated the

core of a defense that has existed for centuries:

that the defendant, due to mental illness, lacked

the mental capacity necessary for his conduct to

be considered morally blameworthy.”

318

Michael Nance is, at the time of writing, under

sentence of death in Georgia and his case before

the US Supreme Court concerns the procedural

mechanism for an individual on state death row

to challenge the method of execution. The Biden

administration asserted that its “interest in the

case” was that “federal law authorizes capital

punishment for certain criminal offenses”

and “the decision in this case could alter the

procedure by which federal capital inmates

bring method-of-execution claims.”

321

This

is far from being an abolitionist stance, and

indeed at oral argument on 25 April 2022 the

federal administration took a position that was

of concern about procedures for challenging

execution protocols rather than of concerns

about executions per se. The Assistant to the

US Solicitor General explained to the Court

that the federal government was concerned to

minimize “procedural complexity” and therefore

supported the petitioner’s contention that he

could challenge the execution protocol under

the civil rights statute (42 U.S.C. §1983) as

opposed to in a habeas corpus petition as the

state was arguing. The Supreme Court’s decision

was pending at the time of writing.

Since the Biden administration took ofce, there

have been at least three occasions in which it

has involved itself in litigation in state capital

cases before the US Supreme Court (in addition

to the federal cases in which it continues to

defend the death penalty in lower courts and,

when the cases reach there, the US Supreme

Court).

319

However, in these three cases (from

Georgia, Ohio and Texas), it has not sided with

the state. In the Georgia case, it led an amicus

curiae brief in support of the individual on

death row (see below) and in the other two it

supported neither party.

320

It is unclear whether

this approach stems from a change in direction

pursuant to the Biden abolitionist pledge or

merely reects the issues raised in the cases.

However, the Department of Justice briefs made

no reference to the administration’s abolitionist

promise or opposition to the death sentence in

question, omissions which effectively leave it

supporting the state’s pursuit of execution.

320

US Supreme Court, Ramirez v. Collier, Brief for the United States as Amicus Curiae supporting neither party, September 2021. The Court stayed the execution of John Ramirez in Texas to consider

his challenge to Texas’s policies prohibiting his spiritual advisor from praying audibly or laying hands on the condemned man in the execution chamber. The Biden administration asserted its interest

as including clarication of relevant practices of the Federal Bureau of Prisons. On 24 March 2022, the Court reversed the Fifth Circuit Court of Appeals, nding that Texas could create procedures to

accommodate Ramirez’s request. See also, US Supreme Court, Shoop v. Twyford, Brief for the United States as Amicus Curiae supporting neither party, March 2022. Raymond Twyford is on death row

in Ohio. His traumatic childhood included him shooting himself in the head at the age of 13, leaving bullet fragments in his skull. The case before the Supreme Court arose because a US District Court,

under the All Writs Act, ordered the warden to transport Raymond Twyford to a medical facility for neuroimaging for use in his legal challenges. The state appealed the order. The decision in Shoop was

pending at the time of writing.

321

Nance v. Ward, Brief for the United States as Amicus Curiae supporting Petitioner, March 2022.

AMNESTY INTERNATIONAL

322

Letter to US Attorney General from Attorneys General of Alabama, Colorado, Delaware, Florida, Idaho, Mississippi, Missouri, Nevada, Oregon, Tennessee, Utah, Washington and Wyoming, 25 January

2011.

323

Letter from Attorney General Eric Holder to James McPherson, Executive Director, National Association of Attorneys General, 4 March 2011. Again, in 2012, the attorneys general of 15 states urged the

US Attorney General to ensure that the federal Food and Drug Administration (FDA) appealed against a District Court ruling that the FDA had acted “arbitrarily and capriciously” when allowing imports

of a “misbranded” and “unapproved” drug used in lethal injections. The Obama administration agreed to the states’ request. On 23 July 2013, however, the Court of Appeals upheld the District Court

ruling. The Obama administration did not appeal further.

324

Deposition of Brad Weinsheimer, 29 January 2020, (previously cited).

325

Deposition of Rick Winter, In the matter of the Federal Bureau of Prisons Execution Protocol Cases, 15 November 2019.

In 2007, for example, the Bush administration

sided with the states in defending the

constitutionality of lethal injection. In an amicus

curiae brief led in the US Supreme Court in

relation to a legal challenge to Kentucky’s lethal

injection protocol, the administration argued that

“the use of capital punishment in America dates

virtually from the foundation of the rst colony”

and that “[a]ny risk of pain inherent in lethal

injection is manifestly one that today’s society

chooses to tolerate.” The US Supreme Court

upheld Kentucky’s injection protocol and ended

a six-month moratorium in practice on lethal

injections. More than 400 people have been put

to death by lethal injection since the Court’s

decision in April 2008.

In 2011, with the sole US manufacturer of

sodium thiopental suspending production and

withdrawing from the market altogether, the

USA’s death penalty states turned to each

other, to sources overseas and to the federal

government to seek solutions. A 2011 letter

from 13 state attorneys general to the US

Attorney General solicited his “assistance in

either identifying an appropriate source for

sodium thiopental or making supplies held

by the Federal Government available to the

States.”

322

Rather than using the opportunity to

work against executions, Attorney General Holder

replied that he was “optimistic” solutions could

be found to allow lethal injections to proceed.

323

4.3 END WORK

WITH STATES ON

EXECUTION METHODS

OVER THE PAST FOUR DECADES, THE FEDERAL GOVERNMENT HAS

COME TO THE AID OF STATES WHEN THE USA’S PREFERRED METHOD

OF EXECUTION DURING THIS PERIOD – LETHAL INJECTION – HAS COME

UNDER THREAT THROUGH LEGAL CHALLENGES OR LACK OF DRUGS.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

326

Ofce of Attorney General, Manner of Federal Executions, 28 CFR Part 26, Final rule, effective on 24 December 2020.

327

US District Court for the District of South Carolina, USA v. Council, Government’s response in opposition to defendant’s motion to vacate, 5 August 2021.

328

US District Court for the District of South Carolina, USA v. Council, Order, 10 September 2021.

The Obama administration continued to work on

the federal lethal injection protocol, including

“reviewing state protocols and discussing

the issue with states.”

324

According to a BOP

lawyer, BOP personnel travelled to Mississippi in

2011 to witness an execution under the state’s

single-drug protocol using pentobarbital as

the lethal agent. BOP personnel subsequently,

possibly in 2014, visited Ohio to witness an

execution there under that state’s two-drug

protocol (in the event, the execution did not

take place). There had also been an earlier

trip to Texas and, similar to that visit, the BOP

“was interested in seeing how Ohio was going

to carry out an execution involving midazolam

and hydromorphone. We wanted to observe their

procedures or practices, meet their personnel,

tour their facilities, gain knowledge.” In the case

of Texas, the BOP personnel “reviewed their

press packet”, the materials provided to the

media attending an execution.

325

After President Trump took ofce, Attorney

General Sessions set about resolving the

federal government’s lethal injection problems

and the effort was delegated to the BOP with

the Attorney General kept in the loop. The

administration nally settled on adopting a

one-drug protocol and arranged to source the

drug from domestic suppliers. All 13 federal

executions were carried out under this protocol.

In addition to the six federal executions carried

out after the 2020 presidential election,

Attorney General Barr nalized new regulations

in that same “lame duck” period allowing for

the use of methods other than lethal injection in

future federal executions. As noted above, the

FDPA requires that executions are carried out

“in the manner prescribed by the State in which

the sentence is imposed” or, if that state is one

without the death penalty, the trial judge is to

designate another state that does have it. The

new rules noted that the regulations used until

now had been “promulgated in a nal rule on

January 19, 1993.” That was the nal full day

of President George H. W. Bush’s “lame duck”

period and it had been his Attorney General,

William Barr, who had overseen nalization of

that new rule too.

The 1993 regulations authorized executions

only by lethal injection. Yet, as Attorney General

Barr’s new 2020 rules state, “some States

also authorize execution by other means in

certain circumstances”, including electrocution,

nitrogen hypoxia and ring squad, and “States

may authorize execution by other means in the

future” and could even authorize methods to the

exclusion of lethal injection. The new rule noted

that the current federal execution chamber was

equipped only to carry out lethal injections, so

that “if cases arise in which the Department is

required to execute a Federal inmate according to

the law of a State that uses a method other than

lethal injection, the most expedient means of

carrying out the execution may be to arrange for

State assistance.” The new rule aimed to give the

federal government “greater exibility to conduct

executions” and to allow for “State and local

facilities and personnel” to be used in carrying

out federal executions.

326

The rule became

effective on 24 December 2020.

Brandon Council was sentenced to death in

South Carolina in October 2019. As standard

under the FDPA, the nal judgment reads: “When

the sentence of death is to be implemented, the

Attorney General shall release the defendant to

the custody of a United States Marshal, who shall

supervise the implementation of the sentence in

the manner prescribed by the law of the State in

which the sentence is imposed.”

AMNESTY INTERNATIONAL

329

See, for example, US Supreme Court, Buntion v. Lumpkin, 21 April 2022, Statement of Justice Breyer respecting the denial of application for stay: “We have described even four weeks of waiting in

prison under the threat of execution as ‘one of the most horrible feelings to which [a person] can be subjected’ … [Carl Wayne] Buntion has suffered under such conditions for decades. When efforts to

administer the death penalty produce results such as this, it raises serious questions about whether that practice complies with the Constitution’s prohibition against cruel and unusual punishment.”

Carl Buntion, aged 78, was executed in Texas on 21 April 2022 after 31 years on death row.

In May 2021, the South Carolina General

Assembly amended the state’s death penalty

statute in response to claims by the Department

of Corrections that it could not obtain the

drugs needed for its lethal injection protocol.

The amendments changed the state’s default

method of execution from lethal injection to

electrocution, and purported to give those on

death row a choice between three methods:

electrocution, the ring squad, or lethal injection

(if available). If the person sentenced to death

did not select anything, his or her execution

would be electrocution. Lawyers for Brandon

Council moved to have his death sentences

vacated on the grounds that, as things stood,

execution would be by electrocution.

“No execution date has been scheduled for

Defendant, and no method of execution has been

selected. In fact, the Government has imposed a

moratorium on all federal executions and, even in

the absence of that moratorium, cannot schedule

Defendant’s execution until after he has exhausted

[his appeals]… [T]he transient unavailability of

that [lethal injection] option to State prisoners

is immaterial to whether the Federal Bureau of

Prisons could accomplish a federal execution by

lethal injection ‘in the manner prescribed by the

law of the State’.”

327

In September 2021, the US District Court

denied Brandon Council’s motion. Among other

things the Court said that “simply put, the

obstacles facing the South Carolina Department

of Corrections (such as not being able to

obtain lethal injection drugs) are immaterial.

In fact, the Federal Government executed

thirteen prisoners with a lethal injection drug

(pentobarbital) after [Brandon Council] was

sentenced.” The judge also noted the case of

Dustin Higgs, the last person executed under

President Trump after the US Supreme Court

summarily ruled that the District Court in

Maryland had to designate Indiana as the

executing state, given that Maryland had

abolished the death penalty (see Section

2.6). In Brandon Council’s case, the Court

concluded that: “By logical implication, if a

federal defendant can still be executed despite

the particular state no longer having capital

punishment, it would seem a defendant could

still be executed even if, for example, a particular

method of execution (such as electrocution) was

later declared unconstitutional (i.e., the death

sentence could still be implemented by lethal

injection or ring squad).”

328

While the FDPA requires the federal government

to carry out executions in the manner used by

the state in which the individual was convicted

in federal court, Attorney General Barr’s

new regulations did not stop there, and were

additionally aimed at shielding government

decisions from scrutiny and reducing judicial

review. It amended the regulations to say that

when the federal government implements a death

sentence, that is, carries out an execution, if

“applicable law conicts with any provision” of

the regulations, the US Attorney General “may

vary from that provision to the extent necessary

to comply with the applicable law”. This

amendment fails to provide any details, such as

AMNESTY INTERNATIONAL URGES

THE FEDERAL GOVERNMENT TO

RECOGNIZE THAT ONLY ABOLITION

WILL END THE CRUELTY THAT THE

DEATH PENALTY CONTINUES TO

INFLICT ON THE CONDEMNED,

REGARDLESS OF THE EXECUTION

METHOD PROPOSED.

329

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

who would need to know, or when, as the

execution approached. In addition, the

regulations state that the Attorney General may

delegate such decisions to, say, the prison

warden, who could then vary from the procedures,

without any outside oversight or scrutiny.

Secondly, the amended regulations remove the

courts from the process of scheduling federal

execution dates, leaving the date, time, place,

and manner of execution to be set by the Director

of the Federal Bureau of Prisons. Lawyers for

those on federal death row have expressed deep

disquiet at this change, based on their view that,

in the federal system the Attorney General and

his or her delegates lack the legal authority to set

execution dates, an aspect of the federal death

penalty which for nearly 200 years has been done

by the judiciary.

AGAIN, THE THREAT OF A BAD

FEDERAL EXAMPLE TO STATES IS

PRESENT, THIS TIME THE EXAMPLE

BEING PROMOTED IS ONE OF

REDUCTION IN TRANSPARENCY

AND JUDICIAL OVERSIGHT.

IF THE BIDEN PLEDGE IS TO BE

MET, THE ONLY MESSAGE ON THE

DEATH PENALTY THAT SHOULD BE

TRANSMITTED FROM THE FEDERAL

GOVERNMENT TO THE STATES IS

THAT THE GOAL IS ABOLITION OF

THIS CRUEL AND UNNECESSARY

PUNISHMENT ACROSS ALL

JURISDICTIONS.

THE SIGNAL THAT

SENDS TO THE OUTLIER

EXECUTING STATES IS A

TROUBLING ONE.

AMNESTY INTERNATIONAL

5.0 COMMUTE ALL

FEDERAL DEATH

SENTENCES

“

STATE-SANCTIONED MURDER IS NOT

JUSTICE, AND THE DEATH PENALTY,

WHICH KILLS BLACK AND BROWN PEOPLE

DISPROPORTIONATELY, HAS ABSOLUTELY

NO PLACE IN OUR SOCIETY. ENDING THE

FEDERAL DEATH PENALTY – WHICH IS AS

CRUEL AS IT IS INEFFECTIVE IN DETERRING

CRIME – IS A RACIAL JUSTICE ISSUE AND

MUST COME TO AN END”

US Congresswoman Ayanna Pressley, January 2021

330

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Between the post-Furman v. Georgia

reintroduction of the federal death penalty in

1988 and April 2021, the number of potential

federal capital defendants – that is, individuals

accused of crimes that potentially carried the

federal death penalty – reviewed by the US

Department of Justice was 4,274. Of these cases,

539 defendants were authorized for capital

prosecution – 13% of defendants against whom

the death penalty could have been sought by

the US Government. These cases have resulted

in death sentences against 82 individuals.

331

Sixteen people have been executed by the federal

government, 13 of them in the six months

between July 2020 and January 2021.

As at state level, the federal death penalty is a

story of “extraordinary attrition”

332

– of thousands

of murders, some of which are “death-eligible”,

fewer that are pursued for capital prosecution,

only some of which reach trial, of which not

all end in a death sentence and fewer still in

execution. The government would have society

believe that this narrowing and sorting ensures

that the death penalty is, as constitutional law

requires, “limited to those offenders who commit

a narrow category of the most serious crimes

and whose extreme culpability makes them the

most deserving of execution.”

333

The evidence is

compelling that the death penalty fails to meet

this constitutional requirement.

According to US Supreme Court Justice Stephen

Breyer in 2015, “whether one looks at research

indicating that irrelevant or improper factors – such

as race, gender, local geography, and resources –

do signicantly determine who receives the death

penalty, or whether one looks at research indicating

that proper factors – such as “egregiousness” – do

not determine who receives the death penalty, the

legal conclusion must be the same: The research

strongly suggests that the death penalty is imposed

arbitrarily.”

334

Eleven of the 16 federal executions (69%) carried

out since Furman v. Georgia were of individuals

tried and convicted in the South, the region where

82% of the people executed at state level since

1972 had been sentenced to death. Six of the 16

(37.5%) were tried in a single state, Texas. Texas

accounts for 38% of all state executions in the

USA.

As of May 2022, there were 42 people on federal

death row: 18 were white, 17 were Black, six

were Hispanic and one was Asian.

335

Of the 42

individuals, 29 (70%) were tried in federal court in

the South, Texas alone accounting for seven of the

42 (17%). Seventeen of the 42 (40%) were tried in

federal court in three states – Texas (seven), Virginia

(six) and Missouri (four).

336

These three states

account for just over half of all state executions in

the USA since 1972 (779 of 1,547).

337

330

Pressley, Durbin, Colleagues Announce Plans to Reintroduce Bill to End Federal Death Penalty, 11 January 2021, pressley.house.gov/media/press-releases/pressley-durbin-colleagues-announce-

plans-reintroduce-bill-end-federal-death

331

Federal Death Penalty Resource Counsel Project, Declaration of Kevin McNally regarding the geographic location of federal cases, the frequency of authorizations, death sentences and executions and

the race and gender of defendants and victims, 26 April 2021.

332

Hugo Adam Bedau, “The United States of America” in (Eds. P. Hodgkinson and A. Rutherford), Capital Punishment: Global Issues and Prospects, Waterside Press, 1996, Chapter 3.

333

Roper v. Simmons, US Supreme Court, 1 March 2005.

334

Glossip v. Gross, 29 June 2015, Justice Breyer dissenting.

335

Not counted here are the federal death sentences of two other men, handed down in Oklahoma in 2005 and North Dakota on 2006, but overturned on appeal in January and September 2021

respectively due to inadequate legal representation at their sentencing phases: US District Court for the District of North Dakota, USA v. Rodriguez, Order appointing Federal Community Defender for the

Eastern District of Pennsylvania for penalty phase of re-trial, 5 May 2022, and US District Court for the Eastern District of Oklahoma USA v. Barrett, Response in opposition to motion to alter or amend

judgment, 10 January 2022.

336

Source: Federal Capital Habeas Project. Another person sentenced to death in federal court in Missouri died in September 2021. Robert Bolden, a Black man, was sentenced to death for the murder

of a white bank security guard in 2002. Robert Bolden, a Canadian national, was an insulin-dependent diabetic whose medical condition deteriorated during nearly a decade on federal death row

in Indiana. He was transferred in 2016 to the US Medical Center for Federal Prisoners (MCFP) in Missouri after a medical emergency in which he had kidney failure. His lawyers then challenged the

"exceedingly harsh and restrictive, if not draconian, conditions" they said he was held In in MCFP, and "constitutionally inadequate medical care". In the US District Court for the Western District of

Missouri, Bolden v. Kane, Plaintiff's revised complaint for injunctive and declaratory relief and compensatory damages, 15 February 2018.

337

Virginia abolished the death penalty in March 2021.

AMNESTY INTERNATIONAL

CHART 6: RACE AND THE DEATH PENALTY

CHART 7: GEOGRAPHY OF JUDICIAL KILLING IN THE USA

Execution at state and federal level since 1972

Federal death penalty mirrors regional bias of state system

(Source for Both Graphs: AI chart using data from DPIC)

White

defendant

Executions, convicted

in South

On death row January 202,

convicted in South (without CA,

federal=75%, state=67%)

Executions, convicted

in Texas

White

victim

White

defendant /

black victim

Black

defendant /

white victim

Black

defendant

Black

victim

90%

80%

70%

60%

50%

40%

30%

20%

10%

90%

80%

70%

60%

50%

40%

30%

20%

10%

Federal State

44%

69%

44%

62%

25%

56%

82%

70%

37.5%

48%

38%

34%

77%

15%

19%19%

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

wrote Justice Breyer’s predecessor, Justice Harry

Blackmun, in 1994 when announcing that he

was giving up on the post-Furman death penalty.

He expressed the hope that the day would come

when the US Supreme Court would conclude

that "the effort to eliminate arbitrariness while

preserving fairness in the iniction of death is

so plainly doomed to failure that it - and the

death penalty - must be abandoned altogether".

While he might "not live to see that day" Justice

Blackmun said, he had "faith that eventually

it will arrive".

338

Justice Blackmun died nearly

a quarter of a century ago. Today, the USA

continues its attachment to the death penalty,

even as the list of countries that have abandoned

it has grown year by year, and even though

international law requires abolition within a

reasonable timeframe. In line with his abolitionist

promise, and pending legislation to end the death

penalty altogether, President Biden must now

commute all federal death sentences.

"PERHAPS IT SHOULD NOT BE

SURPRISING THAT THE BIASES AND

PREJUDICES THAT INFECT SOCIETY

GENERALLY WOULD INFLUENCE

THE DETERMINATION OF WHO IS

SENTENCED TO DEATH"

338

Callins v. Collins, 22 February 1994, Justice Blackmun dissenting.

AMNESTY INTERNATIONAL

At about 10.35am on 17 March 1997, two men

got out of a minivan in front of a bank in St

Louis, Missouri, wearing ski masks and armed

with semi-automatic ries and walked into

the lobby of the bank. Shots were red and an

armed and uniformed security guard, Richard

Hein, was hit and fell to the oor, where he was

shot again and fatally wounded.

One of the assailants took money from the cash

drawers and the two men returned to the van.

They drove into a park, whereupon a re started

in the van (its interior had apparently been

pre-soaked with gasoline and was accidentally

ignited by a cigarette lighter). The driver, later

identied as Norris Holder, was arrested near the

vehicle. The passenger ran into a wooded area

and was not captured at the scene.

Billie Allen, aged 19, was arrested at about

2am the next morning and taken to police

headquarters, where he remained in an

interrogation room, handcuffed to a table,

for the next seven or eight hours. After two

hours, he asked for a lawyer, but remained

incommunicado. Later that morning, he was

positively identied in an identity line-up by

two forestry workers who had come across

an individual in the woods after the van re.

According to the police, after being told of these

identications, Billie Allen said he wanted to

discuss the robbery, recanted his request for

a lawyer and made statements incriminating

himself in the murder.

5.1 THE CASE OF

BILLIE ALLEN

TWO OF THE 42 PEOPLE ON FEDERAL

DEATH ROW AT THE TIME OF WRITING

WERE SENTENCED TO DEATH FOR A

MURDER COMMITTED DURING A BANK

ROBBERY IN ST LOUIS, MISSOURI, IN

MARCH 1997. ONE OF THEM IS BILLIE

JEROME ALLEN.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

The Clinton administration led notice of its

intent to seek the death penalty against both

defendants on 8 August 1997.

The two were tried separately, Billie Allen rst.

Billie Allen was convicted on both counts. The

jury found identical aggravating and mitigating

factors on each count but returned a sentence

of life imprisonment on Count 1 and death

on Count 2.

339

The judge imposed the death

sentence on 4 June 1998.

Billie Allen is Black, as is his co-defendant. The

murder victim was white. The prosecutors, the

judge and the defense team were all white. On

appeal in 2009, Billie Allen’s lawyers sought

an evidentiary hearing on the race issue, noting

that as of 12 May 2009, of the 460 federal

defendants against whom the US Attorney

General had authorized federal prosecutors to

seek the death penalty, 119 were white and 341

were from minority racial or ethnic groups, of

whom 237 were Black.

The government response to the statistical

evidence of disparity was to denigrate it, saying:

“There are three kinds of lies: lies, damned lies,

and statistics.” It argued that the race claim was

anyway doomed to fail under the Supreme Court’s

1987 McCleskey v. Kemp ruling which requires

proof that “the decision-makers in his case acted

with discriminatory purpose.” The District Court

judge ruled that, “even if the Court were to

agree with Allen that these statistics amount

to a compelling indictment of the federal

government’s use of the death penalty against

minority defendants, the law is nevertheless

clear that a defendant cannot make out a

selective prosecution claim under the Equal

Protection Clause without evidence that there

was discriminatory motive to prosecute him in

particular.”

340

The fact that this case was prosecuted as a

federal crime rather than a state case likely had

an impact on the eventual racial composition of

the jury:

“Most federally-prosecuted capital crimes occur

in minority-concentrated areas. Thus, expansion

of the venire [jury pool] to the federal district

level (which often includes white-ight suburbs)

has a dramatic effect on the circumstance of

the prosecution… as the jury pool gets whiter,

the opportunity for implicit race bias increases

(and minority group defendants suffer the

consequences).”

341

339

Norris Holder was convicted and sentenced to death on both counts.

340

US District for the Eastern District of Missouri, Memorandum and order, Allen v. USA, 10 May 2011.

341

G.B. Cohen & R.J. Smith, “The racial geography of the federal death penalty” in Washington Law Review, Vol. 85: 425 (2010).

ON 17 APRIL 1997, BILLIE ALLEN

WAS INDICTED ON TWO CHARGES:

(1) KILLING THE GUARD WHILE

COMMITTING AN ARMED BANK

ROBBERY AND (2) THE USE OF A

FIREARM TO COMMIT A CRIME

OF VIOLENCE RESULTING IN THE

MURDER.

THE CRIME OCCURRED IN ST LOUIS,

WHERE THE BLACK POPULATION IS

AROUND 46% OF THE TOTAL (AS IS

THE WHITE POPULATION). BECAUSE

THE CASE WAS PROSECUTED IN

FEDERAL COURT, THE JURY POOL

WAS PULLED FROM THE ENTIRE

EASTERN HALF OF THE STATE,

WHICH IS PREDOMINANTLY WHITE.

AMNESTY INTERNATIONAL

Billie Allen’s jury consisted of 10 white jurors and

two African American jurors, after the prosecution

used peremptory challenges to dismiss ve of the

eight African Americans at jury selection. The

defense challenged this as racially motivated.

After the prosecution gave its “race-neutral”

reasons, the defense conceded that in two cases

the challenges had been based on the individuals’

reservations about the death penalty but argued

that the reasons given for the other three were

pretextual. The judge ruled the reasons sufcient.

Whether or not he was right, the reasons given

further indicate how “death-qualifying” jurors

stacks the deck against the defendant. One of

the African Americans indicated that she was

sympathetic to psychiatric or psychological

testimony. Another said she was generally

opposed to the death penalty but could put aside

those feelings if the facts and law required it. In

the case of the third African American, several of

her relatives had been convicted of crimes (drug

possession, shoplifting) and in response to a

question she had indicated her belief that African

Americans were unfairly treated in the criminal

justice system. In 2011, the District Court agreed

that Allen had “non-frivolous arguments” that

the prosecution’s dismissals of these three jurors

were racially discriminatory but denied the appeal

without an evidentiary hearing.

During the whole of his trial, Billie Allen was

made to wear an electro-shock stun belt.

342

Amnesty International has long called for

abolition of the stun belt on the grounds that its

use violates the right to be free from torture and

other ill-treatment. In 2000, the UN Committee

against Torture called on the USA to abolish

them.

343

In the context of a trial, the use of such

devices also raises fair trial concerns.

344

There was no hearing held to determine whether

or why Billie Allen should be made to wear a stun

belt and the judge made no record of the reason

for the decision. On appeal, lawyers for Billie

Allen sought to interview jurors to establish if they

were aware that he had been wearing the device

(stun belts are worn under clothing but can

nevertheless be visible in prole). The prosecution

objected (describing the request as part of a

“shing expedition” by the defense)

345

and the

request was denied. The District Court ruled that

Allen had not been prejudiced by the stun belt,

even if the jury had been aware or seen that he

was wearing one.

346

Although individual jurors found some mitigating

factors, jointly they found few. Ten of them found

that Billie Allen had “consistently demonstrated

impaired judgment, no real leadership potential,

the personality characteristics of a ‘follower’ or

an incapacity to plan an event as complicated as

the offenses for which he has been convicted.”

No juror found his age (19) at the time of

the crime to be a mitigating factor, despite it

being only one year above the minimum age for

eligibility for the death penalty under the FDPA

(and since 2005 under constitutional law).

342

This is a device – a weapon worn by its victim – that can be triggered by a law enforcement ofcial operating a remote-control transmitter up to 300 feet (90m) away or, as had already happened in

several cases, by accident. On activation, the belt delivers a 50,000 volt, three to four milliampere shock which lasts eight seconds. This high-pulsed current enters the wearer’s body at the site of the

electrodes, near the kidneys, and passes through the body, causing a rapid electric shock. The shock causes incapacitation in the rst few seconds and severe pain rising during the eight seconds. See

Amnesty International, USA: Cruelty in control? The stun belt and other electro-shock equipment in law enforcement, 7 June 1999, amnesty.org/en/documents/AMR51/054/1999/en/

343

Report of the Committee against Torture (23rd (8-19 November 1999) and 24th (1-19 May 2000) sessions), UN Doc. A/55/44, Chapter IV(M), para. 180(c).

344

Less than a year after Billie Allen’s trial, on 26 January 1999, a federal judge in the US District Court for the Central District of California, in Hawkins v. Comparet-Cassani, found that when used in

the context of a courtroom, “the stun belt, even if not activated, has the potential of compromising the defense. It has a chilling effect... A pain iniction device that has the potential to compromise

an individual’s ability to participate in his or her own defense does not belong in a court of law.” In 2002, a federal appeals court found that the stun belt appeared to pose “a far more substantial risk

of interfering with a defendant’s Sixth Amendment right to confer with counsel than do leg shackles” and that being made to wear a stun belt is a “considerable impediment to a defendant’s ability to

follow the proceedings and take an active interest”, given the anxiety over the possible triggering of the belt (US v. Durham, US Court of Appeals for the Eleventh Circuit, 4 April 2002).

345

US District Court for the Eastern District of Missouri, Allen v. USA, Government’s response to petitioner’s motion for leave to interview trial jurors, 17 December 2007.

346

US District Court for the Eastern District of Missouri, Memorandum and order, Allen v. USA, 10 May 2011.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

Billie Allen’s trial lawyers retained a mitigation

expert, but due to a misunderstanding or poor

communication, he did little or no work on the

case, and by the time this was known several

months later, the trial was approaching and the

expert withdrew. A new specialist was retained

less than a month before the trial. He has said

that: “Based on my experience as a mitigation

specialist, I knew there was no way an adequate

investigation could be completed” in the time

available. He later said that it had been an

error for him to accept the case as it “may have

presented a veneer of competence or adequacy

to the mitigation investigation and sentencing

phase, where none existed.” The mitigation

effort, he said, was a “chaotic, seat-of-the-

pants scramble.” In 2009, he reviewed the

“compelling” mitigation evidence investigated

since the trial and concluded: “there was a

mitigation story to tell on Mr Allen’s behalf, and

we failed to tell it.”

347

The trial lawyer said that the topics covered

by current counsel included “childhood

abuse, neglect, family dysfunction, family

and neighborhood impoverishment, and

abandonment” and a “far more comprehensive

explanation of the stressors and traumas, and

organic brain dysfunction that helped to shape

Mr Allen’s life and adult conduct, and therefore

a far more compelling case for life than what was

actually presented at trial.”

348

The District Court

judge disagreed. Over the second half of 2012,

an evidentiary hearing was held on the claim

that Billie Allen’s legal representation had been

inadequate on the investigation and presentation

of mitigation evidence. In a 278-page decision,

the judge rejected the claim, ruling that the

lawyer had made reasonable decisions on what to

present and that these had not been driven solely

by time constraints.

349

The mitigation case that was presented was

denigrated by the federal prosecution in arguing

for execution. The prosecutor characterized the

evidence of mental impairments as “a joke”

and “excuses”; “what does your common sense

tell you about depression, post-traumatic stress

disorder, and that he had little trouble learning

in school? Your common sense tells you these are

excuses.” Other mitigation evidence was similarly

treated.

Mitigation evidence presented to humanize

the defendant was dismissed with retributive

prosecutorial argument: “You weigh the cold-

blooded murder of Richard Hein against the

evidence he put on in mitigation, that he’s kind

and gentle and artistic. [H]e wasn’t artistic on

the day of this robbery. What was he creating that

day? Murder and mayhem, total destruction in

that bank. The evidence and the law in this case

make it so clear that this defendant deserves

one punishment, and it’s not life in prison, it’s

death.”

For a prosecutor to denigrate such evidence

to obtain a death sentence calls into serious

question their adherence to the obligation

to “perform their duties fairly, consistently

and expeditiously, and respect and protect

human dignity and uphold human rights, thus

contributing to ensuring due process.”

350

The prosecution presented 11 victim impact

witnesses at Billie Allen’s sentencing, including

the victim’s mother, his wife of six months,

his three children, his ex-wife (the children’s

mother) and two of his siblings, as well as three

co-workers. They testied about him, his military

service in the Vietnam War, the effects on them

of his death and their last contacts with him.

Particularly troubling were the prosecution’s

retributive arguments, building on this victim

impact evidence, that Billie Allen should be

executed. For example:

347

Declaration of David Randall, 28 July 2009.

348

Declaration of Richard Sindel, 27 July 2009.

349

US District Court for the Eastern District of Missouri, Allen v. USA, Memorandum and order, 25 June 2014.

AMNESTY INTERNATIONAL

“He has the nerve to come in here and say, ‘My

dad was an alcoholic and so don’t impose the

death sentence on me, my dad wasn’t a good

dad.’ This is the same guy who took [names of the

victim’s three sons] father from them so he could

have money, and he has the nerve to come in and

say, ‘well, gee, I didn’t have a good dad.’”

“When you’re weighing, when you’re weighing the

defendant’s mitigating evidence back there and

you’re weighing that bag of fog, that bag of air

they presented to you, weigh it against the weight

of Richard Hein’s body. Because that’s what this

is all about.”

“He wants to go to prison for life. He wants to go

there, and he wants to watch movies and read

books, he wants to write letters and have visits

from his relatives, he wants to exercise and play

basketball and volleyball. Don’t let him down there

dribbling basketballs on Richard Hein’s grave; it

wouldn’t be right.”

“But when you’re back there [in the jury room] I

want you to remember one thing – three things,

really: That Richard Hein’s mother on Christmas

day will always have an empty chair at her

Christmas table. [Name of Richard Hein’s son]

when he’s hitting a home run or making a great

play in baseball will never look up and see his

father sitting in those stands cheering for him.

And [Richard Hein’s wife], when she looks out

her window and sees those doves on Richard

Hein’s bird feeder, her heart is going to break yet

again.”

“How about the mitigator that you’re going to

see on that verdict form that this defendant is

a gentle, light-hearted, likable person? Richard

Hein didn’t think this guy with the mask, armed

for war, armed to kill, was kind, light-hearted,

or gentle. He thought he was a murderous dog

coming in there to kill people for money.”

The Eighth Circuit Court of Appeals found that

the prosecutor’s use of the term “murderous

dog” had been “inappropriate and improper”,

but that Allen had not been prejudiced by it.

351

Billie Allen’s lawyers have been seeking DNA

testing of evidence from the crime, which they

say could exculpate him, but for years the

government has refused this. Police recovered

blood evidence from a bulletproof vest worn

by one of the assailants. DNA testing excluded

the murder victim and Billie Allen as sources

of the blood. The government has said that this

blood evidence was not assessed against the

DNA prole of Billie Allen’s co-defendant, but

instead apparently presumed that more DNA

testing would only provide additional evidence

against the co-defendant, with no other possible

result from the testing. Billie Allen has named

another man (J.B.) as the most likely second

assailant. If DNA testing were to identify this

individual (who died in 1998), this would

bolster his innocence claim.

BILLIE ALLEN HAS SPENT FAR

MORE THAN HALF OF HIS LIFE ON

FEDERAL DEATH ROW. HIS AND

THE DEATH SENTENCES OF OTHERS

ON DEATH ROW SHOULD BE

COMMUTED AS PART OF THE BIDEN

ABOLITIONIST PLEDGE.

350

UN Guidelines on the Role of Prosecutors, 1990, para. 12.

351

US Court of Appeals for the Eighth Circuit, US v. Allen, 12 April 2001.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

6.0 CONCLUSIONS

AND

RECOMMENDATIONS

“

PAPUA NEW GUINEA JOINS A GLOBAL

TREND AWAY FROM USE OF THE DEATH

PENALTY… I HOPE PAPUA NEW GUINEA’S

EXAMPLE WILL ENCOURAGE THOSE

REMAINING STATES THAT RETAIN THE DEATH

PENALTY TO TAKE SIMILARLY PROGRESSIVE

AND COURAGEOUS STEPS TO ABOLISH IT”

UN High Commissioner for Human Rights Michelle Bachelet, 21 January 2022

352

AMNESTY INTERNATIONAL

“President Biden often speaks of the power of our

example”, a US ofcial noted at the UN in Geneva

in March 2021, adding that “American leadership

on human rights must begin at home.”

353

On the

rst anniversary of President Biden taking ofce

on an abolitionist promise, the parliament of

Papua New Guinea voted to do what the USA has

failed to – rid itself of the death penalty.

354

Over the decades, there have been too many

throwaway statements made by US ofcials

claiming exemplary US leadership on human

rights.

355

After resuming federal executions in

July 2020, for instance, the Trump administration

told the UN Human Rights Council that the US

government was “committed to the principle

that leadership in the eld of human rights is by

example.”

356

The day after the federal government

conducted its 13th execution in six months,

President Trump declared that “the United

States is a shining example of human rights

for the world.”

357

President Biden has said that his administration

will reclaim “our credibility and moral authority,

much of which has been lost.”

358

In relation to

human rights, a loss of credibility happened well

before his predecessor’s term in ofce and the

USA’s continuing resort to the death penalty has

contributed to it. The spate of federal executions

under President Trump – to which a long line of

presidents, attorneys general and members of

Congress contributed – has now been added to

this back catalogue. Indeed, should President

Biden not give clemency to the men now on

federal death row, such inaction would leave them

exposed to a future execution spree.

President Biden has asserted that “America

is back” and that this means that the USA

will fully engage internationally, including in

making international institutions stronger. US

engagement, he has said, must be “rooted in

America’s most cherished democratic values:

defending freedom, championing opportunity,

upholding universal rights, respecting the rule of

law, and treating every person with dignity.” The

President, his administration and Congress must

recognize that respect for human dignity

359

and

retention of the death penalty are incompatible;

that respect for the rule of law must include

international human rights law guaranteeing

protection of the rights of those facing the death

penalty; that upholding universal rights must

include upholding the right of everyone to life

and freedom from cruel, inhuman or degrading

treatment or punishment; and that making

international institutions stronger must include

implementing the conclusions of UN human

rights treaty bodies. Such bodies have long

been telling the USA that working for abolition

within a reasonable timeframe is an international

human rights obligation. Thus far, the USA has

responded that the death penalty is a domestic

policy choice subject only to constitutional

constraints.

The federal execution spree in 2020 and

2021 cast a spotlight on the distance between

constitutional protections and international

human rights safeguards on the death penalty

and the ever-growing gap between countries that

retain the death penalty and the majority that

have eradicated it.

352

UN, “Comment by UN High Commissioner for Human Rights Michelle Bachelet on Papua New Guinea’s repeal of the death penalty”, 21 January 2022, ohchr.org/en/2022/01/comment-un-high-

commissioner-human-rights-michelle-bachelet-papua-new-guineas-repeal-death

353

Statement during adoption of the Third Universal Periodic Review of the USA, Lisa Peterson, Acting Assistant Secretary of State for Democracy, Human Rights and Labor, Geneva, 17 March 2021,

geneva.usmission.gov/2021/03/17/us-upr-1/

354

The PNG abolitionist law came into force in April 2022.

355

In April 2002, for example, President George W. Bush said: “we believe in human rights and the dignity and worth of each individual.” Remarks on the Citizens Corps in Knoxville, 8 April 2002. A

week earlier, he had authorized an enforced disappearance, a crime under international law. Over the ensuing months, the individual in question would be subjected to torture in secret US custody under

authority granted by President Bush. Amnesty International, USA: Crimes and impunity: Full Senate Committee report on CIA secret detentions must be released, and accountability for crimes under

International law ensured, April 2015, p. 87, amnesty.org/en/documents/amr51/1432/2015/en/

356

National report under Human Rights Council resolution 16/21: USA, 13 August 2020 UN Doc. A/HRC/WG.6/36/USA/1.

357

Proclamation 10136, 17 January 2021 (previously cited).

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

After his retirement, US Supreme Court Justice

Lewis Powell, who had dissented from the Furman

v. Georgia ruling half a century earlier, said that

the death penalty “brings discredit on the whole

legal system.”

360

A prime example of this was

seen during the federal execution spree. And a

few months before his retirement, Justice Harry

Blackmun wrote that, in relation to the death

penalty, “the path chosen by the Court lessens

us all.”

361

The White House and Congress must

choose a new way, forging an irrevocable path to

abolition.

Of course, troubling details about misconduct by

prosecutors, or the defense provided to capital

defendants, or evidence of direct and indirect

racial and socio-economic discrimination, or the

execution of people with mental or intellectual

disabilities, not to mention the procedural

obstacles placed in the way of capital appellants

by federal law, are well-known for riddling cases

at state level. These deciencies and obstacles

are fully evident in the federal capital cases as

well. The federal execution spree should not

only remind the US authorities why abolition of

the federal death penalty is urgent, but also why

they should not stop there. They must work for

abolition in states also, as they are required to do

under international human rights law.

Executions were given the go-ahead by the

US Supreme Court to leave “the question of

capital punishment” with “the people and their

representatives, not the courts, to resolve.”

362

This nod to the political branches called to mind

the belief of Justice Thurgood Marshall, the rst

African American US Supreme Court justice and

one of two justices who found the death penalty

per se unconstitutional in Furman v. Georgia, that

“the great mass of citizens”, upon consideration

and other aspects of capital justice which the

US Supreme Court had before it, would conclude

that “the death penalty is immoral, and therefore

unconstitutional.”

363

Fifty years after Furman, Amnesty International

welcomes President Biden’s abolitionist pledge.

He must commute the death sentences of all

those on federal death row, throw his weight

behind abolitionist legislation and a public

information campaign about the aws and

injustices of the death penalty, and ensure that

the death penalty is deauthorized in all pending

capital cases.

“The future will belong to those who embrace

human dignity, not trample it”, President Biden

told the UN General Assembly in September

2021.

364

He must now work for a future without

the death penalty. As the UN Human Rights

Committee has made clear, abolition of the death

penalty is “necessary for the enhancement of

human dignity and progressive development of

human rights.”

365

The USA must nally recognize the death penalty

as a human rights issue on which it should offer

exemplary leadership, not just to retentionist

states within the country but to the diminishing

list of countries that retain this punishment.

AS FAR AS INTERNATIONAL

HUMAN RIGHTS LAW AND THE

DEATH PENALTY ARE CONCERNED,

“AMERICA IS BACK” MUST NOT

MEAN BUSINESS AS USUAL.

358

Remarks by President Biden on America’s place in the world, 4 February 2021, whitehouse.gov/brieng-room/speeches-remarks/2021/02/04/remarks-by-president-biden-on-americas-place-in-the-world/

359

Remarks by President Biden on America’s place in the world, 4 February 2021.

360

John C. Jeffries, Justice Lewis F. Powell, Jr.: A biography (1994).

361

Callins v. Collins, Justice Blackmun dissenting.

362

Barr v. Lee, 14 July 2020.

363

Furman v. Georgia, Justice Marshall concurring.

364

Remarks by President Biden Before the 76th Session of the UN General Assembly, 21 September 2021.

365

Human Rights Committee, General Comment 36, Article 6: Right to life, 3 September 2019, UN Doc. CCPR/C/GC/36, para. 50.

AMNESTY INTERNATIONAL

KEY RECOMMENDATIONS

TO THE PRESIDENT OF THE USA:

• Immediately commute all existing federal death sentences and ensure the

closure of federal death row and dismantling of the execution chamber.

• Work with Members of Congress to fully abolish the death penalty at federal

level and under the Military Commissions Act and under military law.

• Support a public information campaign about abolition, aimed at showing

the facts about arbitrariness, racial bias and impact, errors and other

realities of capital justice, as well as about the requirements of international

human rights law and the national and global trends towards abolition.

• In public proclamations and public statements on international human rights

matters, where appropriate, include reference to the USA’s commitment to

ending the death penalty in the USA and worldwide.

TO THE US CONGRESS:

• Immediately work with the White House to promptly enact legislation to

abolish the federal death penalty.

• Ratify the American Convention on Human Rights and its Protocol on the

abolition of the death penalty as well as the Second Optional Protocol to the

International Covenant on Civil and Political Rights, aiming at the abolition

of the death penalty, without any limiting conditions or reservations.

Immediately withdraw reservations made at point of ratication of the

International Covenant on Civil and Political Rights.

TO THE US DEPARTMENT OF JUSTICE:

• Maintain the moratorium on executions until abolition of the federal death

penalty is signed into law and all federal death sentences have been

commuted.

• Support commutation of every current federal sentence of death.

• Work actively to vacate every current federal death sentence rather than

oppose relief.

• Instruct all US attorneys that the government will no longer authorize pursuit

of death sentences in federal prosecutions, and ensure motions are led

in all pending federal capital prosecutions to request that the court allow

withdrawal of any active Notices of Intent to Seek the Death Penalty.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

• Actively oppose the death penalty in any litigation in any case at state or

federal level that touches directly or indirectly on this punishment and make

clear in any such legal materials that the US government is committed to

abolition.

• Cease any action which could assist a state in the USA, or a country outside

the USA, in imposing or implementing a death sentence.

• Ensure disposal of any chemicals in the possession of the federal authorities

for use in lethal injection.

• Desist from any transfer or extradition of anyone to a situation where they

would face the risk of the death penalty.

TO THE US DEPARTMENT OF DEFENSE

• Deauthorize and end pursuit of the death penalty in all trials under the

Military Commissions Act.

TO THE US STATE DEPARTMENT:

• Ensure withdrawal of all limiting reservations, understandings and

declarations led with human rights treaty ratications.

• Ensure implementation of outstanding recommendations to the USA made

by UN and regional human rights monitoring bodies, including on the death

penalty.

• Ensure implementation of Inter-American Commission on Human Rights

precautionary measures and recommendations from merits reports on death

penalty cases.

• Vote in favor of UN General Assembly resolutions on a moratorium on the

use of the death penalty and support other international initiatives in favor of

abolition.

• Support and promote abolition of the death penalty in bilateral and

multilateral diplomatic forums.

• In annual country reports on human rights practices, ensure coverage of

death penalty issues.

AMNESTY INTERNATIONAL

APPENDIX: A CENTURY CENTERING

ON FURMAN, 1922 1972 2022

1922

1928

1942

1948

1949

1957

1962

1963

1965

1966

1967

1968

Panama abolishes the death penalty for all crimes. 144 executions in the

USA.

Iceland abolishes the death penalty for all crimes.

Six German nationals accused of planning sabotage in the USA are

sentenced to death on 3 August after a secret trial by federal military

commission at the US Department of Justice and are killed over the course

of three hours on 8 August in the electric chair in Washington, DC. These

are six of 13 federal executions in the 1940s.

Universal Declaration of Human Rights (UDHR) is adopted on 10

December. Four of the year’s 117 executions in the USA are carried out

on that day. 1948 sees ve federal executions, two in California’s gas

chamber a week before the UDHR adoption and one on the day of it.

Germany abolishes the death penalty for all crimes.

Honduras abolishes the death penalty for all crimes.

65 executions in the USA, including two federal executions. Alaska and

Hawaii abolish the death penalty.

Monaco abolishes the death penalty for all crimes.

21 executions in the USA, including what will be the last federal execution

until 2001. Michigan adopts constitutional amendment prohibiting the

death penalty. It had abolished it for all but treason in 1847.

Iowa and West Virginia abolish the death penalty.

International Covenant on Civil and Political Rights (ICCPR) opens for

signature.

Dominican Republic abolishes the death penalty for all crimes.

USA signs the International Convention on the Elimination of All Forms of

Racial Discrimination (ICERD).

Two executions in the USA. These will be the last executions until 1977.

Austria abolishes the death penalty for all crimes; 138 new death

sentences in the USA.

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

1969

1971

1972

1973

1974

1975

The Holy See (Vatican City) abolishes the death penalty for all crimes; 143

new death sentences in USA.

UN General Assembly (UNGA) afrms that “to fully guarantee the right to

life” under the UDHR, the main objective is to progressively restrict the

number of offences for which the death penalty may be imposed, “with a

view to the desirability of abolishing this punishment in all countries”; 113

new death sentences in the USA.

Finland and Sweden abolish the death penalty for all crimes; 83 new death

sentences in the USA.

California’s Supreme Court (People v. Anderson) rules the death penalty

“impermissibly cruel. It degrades and dehumanizes all who participate in

its processes. It is unnecessary to any legitimate goal of the state and is

incompatible with the dignity of man and the judicial process”. In a sign of

things to come nationally, California’s Governor, Ronald Reagan, future US

President, asserts that the ruling, if allowed to stand, would be “an almost

lethal blow to society’s right to protect law-abiding citizens and their

families against violence and crime”.

In Furman v. Georgia, the US Supreme Court voids the USA’s capital

laws because of the arbitrary application of the death penalty. Each

Justice writes a separate opinion; only two nd the death penalty per se

unconstitutional. State legislators scramble to reinstate the death penalty.

In Florida, for example, the Governor calls the legislature back into special

session within days of the ruling to pass a new statute. In California,

Governor Reagan backs Proposition 17, a ballot initiative to nullify the

Anderson ruling. Proposition 17 passes.

42 new death sentences in USA. North Dakota abolishes the death

penalty. Georgia’s Governor, and future US President, Jimmy Carter signs

Georgia’s post-Furman capital statute into law. President Nixon proposes

reinstatement of the federal death penalty, telling Congress: “the sharp

reduction in the application of the death penalty was a component of the

more permissive attitude toward crime in the last decade”.

165 new death sentences. Congress amends Federal Aviation Act of

1958 to allow federal death penalty for air piracy resulting in death

(Antihijacking Act of 1974); President Nixon signs it four days before

resigning.

322 new death sentences in the USA, the most in a year between 1972

and 2022.

AMNESTY INTERNATIONAL

1976

1977

1978

1979

1980

1981

1982

1983

1985

1987

In Gregg v. Georgia, the US Supreme Court upholds capital laws in

Georgia, Florida, Texas, and states with similar schemes: “[T]he post-

Furman statutes make clear that capital punishment itself has not been

rejected by the elected representatives of the people. In the only state-wide

referendum occurring since Furman, the people of California adopted a

constitutional amendment that authorized capital punishment”.

Portugal abolishes death penalty for all crimes; 249 new death sentences

in the USA.

First execution in USA since 1967; in Utah, the condemned man refuses

all appeals and demands execution. USA signs the ICCPR.

1,000th death sentence in the USA since Furman.

Denmark abolishes death penalty for all crimes.

Luxembourg, Nicaragua, and Norway abolish death penalty for all crimes.

First ‘non-consensual’ execution since Furman, carried out in Florida.

The new Governor of Arkansas and future US President, Bill Clinton, is

among those who advise the Florida Governor to ensure that the execution

proceeds to facilitate the death penalty in other states. Rhode Island

Supreme Court rules state’s capital statute unconstitutional; the state

legislature will repeal the law in 1984.

Massachusetts Supreme Court rules the death penalty, “with its full

panoply of concomitant physical and mental tortures, impermissibly

cruel”, adding that it “brutalizes the State which condemns and kills its

prisoners”. In 1982, a constitutional amendment will be passed allowing

the death penalty, but in 1984 the state Supreme Court will nd the

subsequent capital statute unconstitutional.

France and Cabo Verde abolish death penalty for all crimes.

25th exoneration of an individual sentenced to death since Furman.

The Netherlands abolishes death penalty for all crimes.

2,000th death sentence in the USA since Furman.

Australia abolishes death penalty for all crimes.

3,000th death sentence in the USA since Furman.

US Supreme Court issues McCleskey v. Kemp, to this day setting up

appeals based on evidence of systemic racism in capital justice to fail.

100

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

1987

1988

1989

1990

1991

1992

1993

1994

Haiti, Liechtenstein and the German Democratic Republic abolish death

penalty for all crimes.

100th post-Furman execution in the USA.

President Reagan signs reinstatement of the federal death penalty into law

in the Anti-Drug Abuse Act.

Cambodia, New Zealand, Romania, and Slovenia abolish the death penalty

for all crimes.

US Supreme Court rules that neither intellectual disability nor being under

18 at the time of the crime is a bar to execution (Penry v. Lynaugh and

Stanford v. Kentucky).

Andorra, Croatia, Czech & Slovak Federal Republic (in 1993 splits to

become Czech Republic and Slovakia), Hungary, Ireland, Mozambique,

Namibia and Sao Tomé and Príncipe abolish death penalty for all crimes.

4,000th death sentence in the USA since Furman.

50th exoneration of an individual sentenced to death since Furman.

Macedonia abolishes the death penalty for all crimes.

The rst federal death sentence since Furman is passed. This death

sentence will be commuted by President Clinton in January 2001, two

hours before he leaves ofce. There are doubts about the reliability of the

conviction and the adequacy of the defence representation at trial.

Arkansas Governor Bill Clinton leaves the presidential campaign trail to

return to Arkansas for an execution there.

Angola, Paraguay and Switzerland abolish death penalty for all crimes.

USA raties ICCPR, les “reservation” aimed at protecting the death

penalty from international legal constraint.

200th post-Furman execution in the USA.

Guinea-Bissau, Hong Kong and Seychelles abolish death penalty for all

crimes.

Italy abolishes death penalty for all crimes.

5,000th death sentence in the USA since Furman.

President Clinton signs into law a huge expansion of the federal death

penalty, in the Federal Death Penalty Act.

AMNESTY INTERNATIONAL

101

1994

1995

1996

1997

1998

1999

2000

USA raties ICERD and UN Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (UNCAT).

UN Human Rights Committee, in its conclusions on the USA’s initial report

under the ICCPR, calls on the USA to restrict the number of offences

carrying the death penalty “with a view eventually to abolishing it”. It

condemns the expansion of the federal death penalty.

300th post-Furman execution in the USA.

Djibouti, Mauritius, Moldova, and Spain abolish death penalty for all

crimes.

President Clinton signs into law the Antiterrorism and Effective Death

Penalty Act (AEDPA), in part to speed up executions.

315 new death sentences in the USA, the third consecutive year that the

total has been more than 300.

75th exoneration of an individual sentenced to death since Furman.

Belgium abolishes death penalty for all crimes.

400th post-Furman execution in the USA.

Georgia, Nepal, Poland, and South Africa abolish the death penalty for all

crimes.

6,000th death sentence in the USA since Furman.

500th post-Furman execution in the USA.

Azerbaijan, Bulgaria, Canada, Estonia, Lithuania, and United Kingdom

abolish death penalty for all crimes.

Timor-Leste, Turkmenistan and Ukraine abolish death penalty for all

crimes.

98 executions in the USA, in what will be the most in a single year

between 1972 and 2022.

600th post-Furman execution in the USA.

100th exoneration of an individual sentenced to death since Furman.

Côte d'Ivoire and Malta abolish the death penalty for all

George W. Bush wins presidential election after overseeing some 150

executions while Texas Governor.

102

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

2000

2001

2002

2003

2004

2005

700th post-Furman execution in the USA.

Bosnia and Herzegovina abolishes the death penalty for all crimes.

7,000th death sentence in the USA since Furman.

First US federal execution since Furman (and rst since 1963), followed

by another eight days later.

President Bush signs military order authorizing military commissions,

executive bodies with the power to hand down death sentences for selected

foreign nationals tried for international terrorism, modelled on an order

signed by President Franklin Roosevelt in 1942 (see 1942).

800th post-Furman execution in the USA.

The Rome Statute of the International Criminal Court (ICC) comes into

force. The ICC, which will prosecute the most serious crimes under

international law, including war crimes and crimes against humanity, will

not have the death penalty as a sentencing option. The USA announces it

will not ratify the treaty, and considers it has “no legal obligations” arising

from its 2000 signature to it.

The US Supreme Court bans death penalty against people with intellectual

disability (Atkins v. Virginia).

Cyprus and Yugoslavia (now two states Serbia and Montenegro) abolish the

death penalty for all crimes.

Armenia abolishes the death penalty for all crimes.

Third federal execution in two years, which will be the last for 17 years.

900th post-Furman execution in the USA.

Bhutan, Greece, Samoa, Senegal, and Turkey abolish the death penalty for

all crimes.

New York State Court of Appeals rules the state’s capital statute

unconstitutional. By 2022, the legislature will not have replaced it.

125th exoneration of an individual sentenced to death since Furman.

1,000th post-Furman execution in the USA.

In Roper v. Simmons, the US Supreme Court rules the execution of people

who were under 18 years old at the time of the crime unconstitutional.

Since Furman, 22 individuals have been executed in the USA for crimes

committed when they were 16 or 17.

AMNESTY INTERNATIONAL

103

2005

2006

2007

2008

2009

2010

2011

Liberia and Mexico abolish the death penalty for all crimes.

UN Human Rights Committee reviews USA’s Second and Third Periodic

Reports under the ICCPR; calls on USA to impose “a moratorium on

capital sentences, bearing in mind the desirability of abolishing death

penalty”.

Philippines abolishes the death penalty for all crimes.

President Bush signs into law the Military Commissions Act under

which selected foreign nationals suspected of “war crimes” committed

in the context of international terrorism can be prosecuted by military

commissions with the power to hand down death sentences.

Albania, Cook Islands, Kyrgyzstan, and Rwanda abolish the death penalty

for all crimes.

New Jersey abolishes the death penalty.

UNGA adopts its rst resolution calling for the establishment of a

moratorium on executions with a view to abolishing the death penalty

(moratorium resolution), with 104 countries voting for it. USA is one of 54

countries voting against.

1,100th post-Furman execution in the USA.

Uzbekistan and Argentina abolish the death penalty for all crimes.

UNGA adopts its second moratorium resolution, with 106 countries voting

for it. USA is one of 46 countries voting against.

New Mexico abolishes the death penalty (prospectively – the two men

remaining on death row will be removed in 2019).

8,000th death sentence in the USA since Furman.

Burundi and Togo abolish the death penalty for all crimes.

1,200th post-Furman execution in the USA.

150th exoneration of an individual sentenced to death since Furman.

Gabon abolishes the death penalty for all crimes.

UNGA adopts its third moratorium resolution, with 109 countries voting for

it. USA is one of 41 countries voting against.

Illinois abolishes the death penalty; rst year since 1973 with fewer than

100 new death sentences.

104

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

2012

2013

2014

2015

2016

2017

2018

1,300th post-Furman execution in the USA. Connecticut abolishes the

death penalty.

Latvia abolishes the death penalty for all crimes.

UNGA adopts its fourth moratorium resolution, with 111 countries voting

for it. USA is one of 41 countries voting against.

Bolivia abolishes the death penalty for all crimes.

Maryland abolishes the death penalty.

The UN Human Rights Committee concludes its review of the USA’s

Fourth Periodic Report, emphasizing the death penalty’s disproportionate

impact on African Americans, and on US government to establish a federal

moratorium and “engage with retentionist states with a view to achieving a

nationwide moratorium”.

CERD issues its concluding observations on its review of the USA’s

combined Seventh to Ninth Periodic Reports in which it calls on the USA

to impose “a moratorium on the death penalty, at the federal level, with a

view to abolishing the death penalty”.

The UN Committee Against Torture issues its concluding observations on

the USA’s combined Third to Fifth Periodic Reports in which it urges the

USA to establish a moratorium on executions, with a view to abolishing the

death penalty.

UNGA adopts its fth moratorium resolution, with 117 countries voting for

it. USA is one of 38 countries voting against.

1,400th post-Furman execution in the USA.

Fiji, Republic of the Congo, Suriname, and Madagascar abolish the death

penalty for all crimes.

Benin and Nauru abolish the death penalty for all crimes.

Delaware Supreme Court rules provisions of the state’s capital statute

unconstitutional. The state remains abolitionist today.

UNGA adopts its sixth moratorium resolution, with 117 countries voting for

it. USA is one of 40 countries voting against.

Guinea abolishes the death penalty for all crimes.

UNGA adopts its seventh moratorium resolution, with 121 countries voting

for it. USA is one of 35 countries voting against.

AMNESTY INTERNATIONAL

105

2018

2019

2020

2021

Burkina Faso abolishes the death penalty for all crimes.

175th exoneration of an individual sentenced to death since Furman.

Washington Supreme Court rules that state’s death penalty

unconstitutional as “it is imposed in an arbitrary and racially biased

manner”.

1,500th post-Furman execution in the USA. New Hampshire abolishes the

death penalty.

The Governor of California, the state with the USA’s largest death row,

orders a moratorium on executions, citing discrimination, cost, lack of

deterrence, and irrevocability. President Donald Trump tweets: “Defying

voters the Governor of California will halt all death penalty executions

of 737 stone cold killers. Friends and families of the always forgotten

VICTIMS are not thrilled and neither am I!”.

UN Human Rights Committee issues General Comment 36 on ICCPR,

article 6, emphasizing that “States parties that are not yet totally

abolitionist should be on an irrevocable path towards complete eradication

of the death penalty, de facto and de jure, in the foreseeable future”.

Chad abolishes the death penalty for all crimes.

Colorado abolishes the death penalty.

Federal executions resume after 17 years with none. There are 10 such

executions from July to December.

UNGA adopts its eighth moratorium resolution, with 123 countries voting

for it. USA is one of 38 countries voting against.

Three more federal executions conducted during the Trump

administration’s nal week in ofce. Virginia abolishes the death penalty.

The new US Attorney General orders a temporary moratorium on federal

executions pending review of policies and procedures relating to such

executions. His memorandum leaves to legislators the systemic problems

of capital justice: “Serious concerns have been raised about the continued

use of the death penalty across the country, including arbitrariness in its

application, disparate impact on people of color, and the troubling number

of exonerations in capital and other serious cases. Those weighty concerns

deserve careful study and evaluation by lawmakers”.

In Sierra Leone, an Act to abolish the death penalty for all crimes is

unanimously adopted by parliament.

106

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

2021

2022

Eleventh consecutive year with fewer than 100 new death sentences in

the USA, and the seventh consecutive year with fewer than 50. The 11

executions during the year is the lowest national total since 1988.

Kazakhstan becomes abolitionist for all crimes after law passed and signed

in late 2021 comes into force. In January, the National Parliament of

Papua New Guinea votes to repeal the death penalty, with the law coming

into force in April. The Presidents of Zambia and Liberia announce plans

to work with their parliaments to abolish the death penalty. The National

Assembly of the Central African Republic adopts a law to abolish the death

penalty.

AMNESTY INTERNATIONAL

107

[email protected]

+44 (2)20 7413 5500

WWW.FACEBOOK.COM/AMNESTYGLOBAL

@AMNESTY

AMNESTY

INTERNATIONAL

IS A GLOBAL

MOVEMENT FOR

HUMAN RIGHTS.

108

THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?

WHEN INJUSTICE HAPPENS TO ONE

PERSON, IT MATTERS TO US ALL.

USA: THE

POWER OF

EXAMPLE

WHITHER THE BIDEN DEATH

PENALTY PROMISE?