Nehal Khorraminejad, Vol. 36 Associate Editor
On January 27, 2015, the State of Georgia executed Warren Lee Hill, a 54-year-old man convicted of murdering another inmate while serving time for killing his girlfriend in 1985. In his appeals, Mr. Hill’s attorneys argued that his mental disability (he had an IQ of 70) exempted him from capital punishment. Nearly thirteen years ago, in Atkins v. Virginia, the Supreme Court of the United States deemed the execution of the mentally disabled unconstitutional under the Eight Amendment. However, the Court left the task of defining the contours of mental disability to state legislatures, allowing states like Georgia to establish overly-fluid definitions of mental retardation, resulting in all-too-common circumvention of the Supreme Court rule. Certain state laws make it difficult for defendants like Mr. Hill to avoid the ultimate form of punishment, despite a strong showing of poor adaptive skills by the defendant. The day after Mr. Hill’s execution, a spokesperson for the European Union (EU) issued a statement expressing disappointment in Georgia’s decision to execute Mr. Hill in light of his condition. In the statement, the spokesperson reiterated that the execution of a mentally disabled person is “contrary to widely accepted human rights norms and to the minimum standards set forth according to international human rights law.”
Statements by spokespersons like the one issued in the case of Warren Lee Hill are not uncommon for the EU; the partnership is a global leader in the push for universal abolition of the capital punishment, follows and participates in the litigation of certain cases, and does not hesitate to express its opposition to the continued use of the death penalty in the United States. As a vehicle for promoting the EU’s human rights agenda, the Delegation of the European Union in the United States seeks to convince U.S. legislatures that the death penalty is an inhumane and degrading form of punishment that goes against the standard laid out in the Universal Declaration of Human Rights. When a scheduled execution violates certain international norms, for example the execution of the mentally disabled, the Delegation makes representations to U.S. governors and courts both as a preventive measure during litigation, and as an expression of EU condemnation if the state court sentences the prisoner to death. However, the efficacy of international efforts is brought into question as the United States continues to be one of the few international leaders to retain the use of capital punishment. How can international entities facilitate the abolition of the death penalty? What are some domestic factors that are halting the movement from an international perspective?
The execution of Warren Lee Hill highlights some key points regarding the influence of international mechanisms on the abolitionist movement in the United States. The first is the growing significance that U.S. courts, the Supreme Court in particular, are placing in world opinion with regard to establishing societal norms. When deciding Atkins v. Virginia, a concern for the court was the “consistency in the direction of change” towards excluding the mentally disabled from death row. Among its considerations as to whether there was a “social and political consensus” with regard to the exclusion, the Court referred to an amicus curiae brief submitted by the EU, highlighting the consistent and overwhelming disapproval of executing mentally disabled offenders in the global community. Although domestic sentiment is undoubtedly the major factor in determining how the United States defines “cruel and unusual punishment,” the use of the EU brief points to the Court’s growing willingness to consider the opinion of international actors with regard to determining standards of decency. The hope for leaders in the abolitionist movement is that international consensus will ultimately affect judicial opinion with regards to all prisoners, and not just specific classes like juvenile offenders or the mentally disabled.
International actors will certainly have no shortage of evidence for the U.S. courts; the U.S. is clearly in the minority in its continued tolerance of capital punishment. The international community, spearheaded by European states, has expressed time and time again that use of the death penalty goes against universally accepted human rights norms. In a General Comment, the UN Human Rights Committee stated that Article 6 of the International Covenant on Civil and Political Rights “refers generally to abolition [of the death penalty] in terms which strongly suggest… that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life…” Furthermore, the number of states recognizing the inhumanity of the practice and abolishing it either by law or through practice grows every year. According to Amnesty International’s 2013 report, 140 countries have abolished capital punishment either legally or through practice. This leaves 58 countries that still condemn convicts to death. However, of those, only 22 executed prisoners in 2013, the United States included. In December 2014, a record number of UN member states voted in favor of a UN General Assembly resolution calling for a moratorium on executions with the ultimate goal of abolishing capital punishment globally. The resolution is the fifth of its kind, and gained the support of six new states, placing the number of states in support at 117.
The continued use of capital punishment also poses a potential risk to the United States’ ability to participate in international discourse regarding human rights standards. In 2001, the UN Human Rights Commission voted to exclude the U.S. from the panel in response to alleged disrespect towards international organizations and treaties. The U.S. has since been reinstated, but the move shows the international community’s lack of hesitation to exclude the U.S. from important discussions. Pressure of this kind can already be seen with regard to the death penalty: the Council of Europe issued a Resolution in 2011 urging the U.S. (which has observer status at the Council) to abolish the death penalty. The Council invited the U.S. under the rationale that the two entities shared the same ideals and values, but the former has made it very clear that the use of the death penalty goes against its core human rights values. The U.S. government’s concern in maintaining its reputation and ascendency in the sphere of international human rights may further incentivize placing pressure on the states that maintain the use of the death penalty to eradicate the practice.
Yet as these incentive structures and the case of Warren Lee Hill both point out, a major roadblock for international efforts to eradicate the death penalty in the United States is its federalist structure. The power to deal in international relations lies with the federal government and, consequently, many of the international mechanisms hoping to incentivize abolition in the U.S. do so by placing pressure on the federal government as an international actor. But the punishment of criminal offenders is ultimately left to the discretion of the states, and any domestic action taken by the federal government is reduced to placing political pressure on state legislatures. Wholesale eradication can only come from Supreme Court decisions declaring certain forms, or ideally all, executions unconstitutional. As mentioned above, certain groups like the EU recognize the courts’ role in the abolitionist movement, and choose to focus their attention to influencing American jurisprudence. Yet as seen with the case of Warren Lee Hill, the federalist structure poses a problem for the implementation of court-mandated constitutional bans. The Supreme Court’s decision to let the states decide the meaning of mental disability in Atkins led to a de facto continuation of executing people within a class that is supposed to be constitutionally protected. Unless the international community can find a way to influence the social climate in each individual state, the structure of the U.S. government gives the states too much discretion for international influence to have any substantial impact.
The predominant international actors, in particular the EU, seem to be attuned to the complications that arise from the U.S.’s federalist structure, and have focused their efforts on more practical approach, in hopes of targeting the states directly. For example, in 2010, the U.S. began experiencing a shortage of sodium thiopental, the preferred drug for carrying out lethal injections. As the U.S. sought out external sources in Europe, the EU responded by issuing export controls on the drug, as well as three others that could potentially be used for executions. These export controls created substantial delay in scheduled executions in several American states which were suddenly faced with the task of changing their modes of execution. The delays brought attention to the practice, initiating conversations about the inhumanity of the punishment, the expenses associated with it, and the constitutionality of lethal injection under the Eight Amendment.  Furthermore, in an effort to attack the death penalty at a more localized level, the EU dedicates funds to national organizations in the U.S that are fighting to abolish the death penalty, allocating 4.8 million dollars in 2009.
Individually, the steps taken by the international community to repudiate capital punishment in the U.S. may have minimal practical implications. Collectively, they indicate to the American population that executions are no longer acceptable under human rights norms, and will facilitate the abolitionist movement domestically.
 Alan Blinder, Georgia Executes Warren Lee Hill for Murder, N.Y Times, Jan. 27, 2015, available at http://www.nytimes.com/2015/01/28/us/georgia-executes-warren-lee-hill-for-murder.html.
 See Atkins v. Virginia 536 U.S. 304 (2002)
 Id. at 371; Ga. Code Ann. § 17-7-131 (2013) (“‘Mentally retarded’ means having significantly sub average general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.”)
 European Union External Action, Statement by the Spokesperson on the execution of Warren Lee Hill (Jan. 28, 2015) available at http://eeas.europa.eu/statements-eeas/2015/150128_02_en.htm
 Universal Declaration of Human Rights, G.A Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948)
 Leading the Fight Against Capital Punishment, Delegation of the European Union to the U.S., available at http://www.euintheus.org/resources-learning/eu-fact-sheets/leading-the-fight-against-capital-punishment/
 Richard C. Dieter, International Influence on the Death Penalty in the U.S., Foreign Serv. J. (Oct. 2003) available at http://www.deathpenaltyinfo.org/node/984
 Atkins, 536 U.S. at 315 (“It is not so much the number of these States that is significant, but the consistency of the direction of change”).
 Id. at 316 (“Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for European Union as Amicus Curiae”).
 Dieter, supra note 9.
 General Comment 6 on Article 6 of the International Covenant on Civil and Political Rights, adopted on 27 July 1982, para. 6
 Amnesty International, Death Sentences and Executions 2013 52 (Amnesty International Publications, 2014).
 Record number of UN members states call for global end to executions, Amnesty International (Feb. 23, 2015) http://www.amnesty.org/en/news/record-number-un-member-states-back-call-global-end-executions-2014-12-19.
 Record vote in support of universal moratorium on the death penalty, International Federation for Human Rights (Feb. 23, 2015) https://www.fidh.org/International-Federation-for-Human-Rights/death-penalty/16685-record-vote-in-support-of-an-universal-moratorium-on-the-death-penalty.
 Barbara Crossette, For the First Time, U.S is Excluded From U.N. Human Rights Panel, N.Y Times, May 4, 2001 available at http://www.nytimes.com/2001/05/04/world/for-first-time-us-is-excluded-from-un-human-rights-panel.html.
 Eur. Parl. Ass. Res. 1807 (2011) available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17986&lang=EN
 Council of Europe Res. (95) 37 (Dec. 7, 1995) available at http://www.coe.int/en/web/portal/united-states.
 See, supra note 5
 See, supra note 1
 Death Penalty Toolkit- for EU- Jan 2014, Delegation of EU in the U.S. available at http://www.euintheus.org/what-we-do/policy-areas/democracy-and-human-rights/torture-and-capital-punishment/death-penalty-toolkit-for-eu-jan-2014/.
 Leading the Fight Against Capital Punishment, supra.