April 18, 2000

Lethal Law: America Must Follow International Lead, Abolish Death Penalty

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“The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality,” U.S. Supreme Court Justice Arthur J. Goldberg wrote in a 1976 article in the Boston Globe. Echoed by all Western democracies except the United States, Goldberg’s words aptly describe the tragedy promised if Mumia Abu-Jamal is executed.

For 17 years, Jamal, a journalist and political activist, has been on death row in Pennsylvania for the murder of a police officer. Judge Albert Sabo, who presided over Jamal’s trial, has presided over more trials resulting in death judgments than any other U.S. judge.

Sabo rejected all of Jamal’s new evidence introduced at his 1995-96 post-conviction review hearings in state court. This new evidence included witnesses who wanted to recant their testimony implicating Jamal, who testified about police coercion of false testimony, who knew about police suppression of exonerating evidence, and who saw another man shoot the officer.

Unfortunately for Jamal, federal review of his incomplete state record is now threatened. Under the Antiterrorism and Effective Death Penalty Act of 1996, federal judges must give a presumption of correctness to state court factual findings in criminal cases.

U.S. District Court Judge William H. Yohn will decide whether to limit Jamal’s federal habeas review to Sabo’s state court record or whether to re-open the federal court record. The record as it stands would virtually ensure execution. Six former Philadelphia prosecutors have sworn in court documents that no accused could receive a fair trial in Sabo’s court.

International treaties and customary norms have consistently condemned capital punishment. One of Jamal’s 29 claims in his federal habeas corpus petition is that his death sentence is unconstitutional under evolving standards of international law.

The International Covenant on Civil and Political Rights, a major international treaty, provides, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

In the Second Optional Protocol to this covenant, the U.N. General Assembly stated, “No one within the jurisdiction of a State Party to the present protocol shall be executed.” It further mandates that, “Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”

Capital punishment is not one of the penal options available to the International Criminal Court. It likewise is not available to the International Criminal Tribunal for the Former Yugoslavia, established to prosecute serious violations of international humanitarian law in the former territory of Yugoslavia.

Significantly, in Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, the European Convention stated, “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”

According to last week’s report of the Organization of Security and Cooperation in Europe, capital punishment is becoming obsolete among its 54 active members, although a handful, including the United States, continues to use the death penalty.

Amnesty International reported that four of the countries that executed people in 1998 – the United States, China, Iran and Saudi Arabia – accounted for 85 percent of all executions.

The U.N. Human Rights Committee found the United States to be noncompliant with its obligations under the International Covenant on Civil and Political Rights, a treaty ratified by the United States, because of its excessive number of offenses subject to the death penalty and the number of death sentences imposed.

The United States has no uniform law on the death penalty: Each state is free to choose whether or not to execute its residents. The Inter-American Commission on Human Rights found that this discrepancy violates the American Declaration of the Rights and Duties of Man, which the United States signed.

In 1997, the U.N. Special Rapporteur reported to the U.N. Commission on Human Rights that “race, ethnic origin, and economic status appear to be the key determinants of who will, and who will not, receive a death sentence” in the United States. The commission responded by calling for an immediate moratorium on capital punishment.

Also in 1997, the American Bar Association, concerned about incompetency of counsel in death penalty cases and racial bias toward either the victim or the defendant, called for a moratorium on the death penalty.

Since 1976, 75 people in the United States have been released from death row as a result of DNA and other exonerating evidence. Several others, however, have been mistakenly executed. And, two months ago, Illinois Gov. George Ryan, dismayed that his state had proven innocent nearly as many death row inmates as it had executed, announced a moratorium on executions.

A recent study in Texas, which leads all other states in the number of people executed, showed that the current capital punishment system is an outgrowth of the racist “legacy of slavery.”

The Marquis de Lafayette, speaking to the French Chamber of Deputies in 1830, years after witnessing the excesses of the French Revolution, said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.”

The United States must fall in line with the prevailing principles of international law and the community of civilized nations by abolishing the death penalty. As Justice William Brennan wrote in his dissent in Stanford v. Kentucky, 492 U.S. 361 (1989), “the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society.”

Treaties ratified by the United States become the law of the land under the Constitution. In honoring these treaties, norms of international law must also be followed regarding international displeasure with the death penalty. Even Justices Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O’Connor have considered international law in their rulings.

For instance, in a case last October that challenged the lengthy delays in execution as cruel and unusual punishment, Justice Breyer looked to Jamaica, Zimbabwe and international treaties in arguing, albeit unsuccessfully, that the Court should give “decent respect to the views of mankind.”

Like virtually all other civilized countries, the United States must take the high road and abolish the death penalty. We must choose and affirm life, not death.