Wednesday, October 28, 2020

US Federal Government Embraces Capital Punishment Leading Up to UN Review

A cell on death row. Image credit: Innocence Project 

This summer the United States federal government aggressively resumed federal executions, ending an ad hoc federal moratorium that had been in place since 2003. So far this year, the federal government has executed seven people, and three more federal executions are currently scheduled for 2020. The execution of Lisa Montgomery, scheduled for December 8, will mark the first federal execution of a woman since 1953. The number of US federal executions this year already exceeds the total number of federal executions that took place in the rest of the last half century combined. Even as both individual US states and nations around the world are abandoning capital punishment, the US federal government is instead choosing to embrace it. As the United States prepares for a review of its human rights record at the UN in November, the future of the federal death penalty is on the agenda. 

Capital Punishment and the Universal Periodic Review

The resumption of federal executions comes as the United States is in the midst of its third Universal Periodic Review (UPR), a human rights process that every UN member state undergoes about every five years. The UPR is organized by the Human Rights Council. Although the United States withdrew from the Council in 2018, it still participates in the UPR as a UN member state.  

The UPR of the United States is formally a three-hour event at the UN in Geneva that is scheduled for November 9. But the November review is the culmination of a long process that began in 2019 when the Human Rights Council solicited input on the US record from stakeholders. As an NGO with UN Special Consultative Status, Dui Hua provided a stakeholder submission on the US human rights record last fall. The death penalty was a theme raised by many stakeholders, and Dui Hua’s submission (PDF) focused in particular on Attorney General William Barr’s stated intention to re-start federal capital punishment. Dui Hua highlighted ongoing concerns about the administration of the federal death penalty and urged the administration to maintain the moratorium and address these procedural concerns. Dui Hua also noted that the federal government had selected people with the most gruesome crimes for execution, rather than those who had been on death row the longest, raising worries that optics—rather than justice—shaped the terms of the resumption. 

Countries under review also prepare a national report in response to the stakeholder input. The US national report was due in February and finally released in September. While it does discuss capital punishment, it does not adequately address stakeholder concerns about the resumption of federal executions raised by Dui Hua. The report does not explain why the US attorney general directed the Bureau of Prisons to restart federal executions after more than 17 years without them. Nor does the report—which describes in detail the graphic crimes of the condemned—explain why the government is going forward with executions for these individuals, rather than others who had also exhausted appeals. Because these matters are entirely under the control of the same federal administration whose department of state prepares the national report, the report ought to address these issues. 

Capital Punishment in a Federal Review

The United States is a compound federal republic in which criminal justice authority is divided between state and national jurisdictions. As long as capital punishment is deemed constitutional by the Supreme Court, state executions are a state matter outside the control of the federal government. The majority of US executions have always been carried out by the states—a point national government officials often make to international audiences. When the United States last underwent a UPR in 2015, the US report touted the fact that “the federal government has carried out no executions since our last UPR; in fact, it has not executed an inmate since 2003 and only three since 1963.” In some sense, the national government has been de facto abolitionist for over a decade. The resumption of federal executions ends this record. The federal government already accounts for half of all executions in the United States so far this year. If the federal government proceeds with the three executions it currently has scheduled, then federal executions will exceed state executions in 2020. It would be the first time in modern US history that this has occurred.  

The rise of federal executions comes as states are moving away from capital punishment. Since the last US UPR in 2015, capital punishment has been struck down by courts in two states (Delaware, 2016; Washington State, 2018), repealed by the legislature in two states (New Hampshire, 2019; Colorado, 2020) and subject to moratoriums in two states (Pennsylvania, 2015; California, 2019). The death penalty is now abolished or under moratorium in half of all states. State executions have also been declining for two decades. As leaders in Washington have become directly responsible for a significant share of US executions, international scrutiny of American capital punishment should also shift from the states to the federal government.  

Renewed Comparison to China

Dui Hua has long called for all countries that retain the death penalty to adhere to transparency and the rule of law in application of capital sanctions. The foundation puts a particular focus on China because of its secrecy and resistance to international laws and norms. China is a capital punishment outlier in the world today. 

Despite the overall transparency in US federal executions, the manner in which the condemned were selected remains unclear. Of the many individuals on federal death row who have exhausted their appeals, those who were given execution dates this year are not the people who have been there longest. It appears that these individuals may have been scheduled for execution first because their crimes were particularly shocking and unlikely to elicit public sympathy. The Justice Department’s announcement of the resumption of federal executions in 2019 placed particular emphasis on the fact that the individuals scheduled for execution had committed crimes against children and the elderly. The US UPR report similarly emphasizes the graphic nature of the crimes committed by those who were executed. An impartial justice system should avoid even the appearance of politicization in the death penalty process. As China faces accusations that American, Australian, Japanese, and Canadian citizens are facing capital sentences for political reasons, the US federal government must do more to indicate how it is selecting individuals for execution warrants.  

The current administration also appears to want to use the death penalty to mimic China in ways that may violate the US Constitution and international law. As Dui Hua makes clear in its US UPR stakeholder submission, President Trump has repeatedly called for the death penalty for drug dealers, an idea he claims he got from Xi Jinping. Following President Trump’s statements about capital punishment for drug offenders, former Attorney General Jeff Sessions released a memo encouraging federal prosecutors to pursue capital punishment in drug cases where permitted by federal law, including non-homicide “drug kingpin” cases. While capital punishment for non-homicide drug kingpin crime is allowed under US federal statute, no defendant has ever been sentenced to death under the statute, so its legality is untested. Existing caselaw suggests that capital punishment for a non-homicide drug crime is unconstitutional under the Eighth Amendment, and therefore constitutes “cruel, inhuman or degrading treatment or punishment” under Article 7 of the International Covenant on Civil and Political Rights as indicated under US reservations to the Covenant as well. In addition to capital punishment for non-homicide offenses, President Trump has also expressed support for the extra-judicial execution for drug offenses in the Philippines, a practice that is a clear violation of the Universal Declaration of Human Rights and US and international law. 

The UPR and the Election

Because the power to carry out federal executions lies with the US executive branch, the upcoming presidential election will likely shape the course of federal executions over the next few years. Criminal justice has been front-and-center in the presidential race, even though capital punishment has not been a major topic of debate. The issue got more attention during the primary race. At the time, Democratic nominee Joe Biden called for eliminating the federal death penalty. Vice presidential candidate Kamala Harris also publicly opposes the death penalty. She declined to pursue the death penalty when prosecuting David Hill for murdering a police officer. Hill is now serving a sentence of life in prison without parole. Ultimately, the near future of the federal death penalty will be decided at the ballot box on November 3. Regardless of that outcome though, the United States should expect to receive comments from nations around the world at the UPR in Geneva on November 9.