Federal Death Penalty: International Obligations and Extradition Agreements

Katherine Boothroyd
Vol. 41 Associate Editor

On Thursday, July 25, 2019, Attorney General William Barr announced that the United States Federal Government would be resuming capital punishment after a nearly twenty-year hiatus.[1] The federal government has not carried out an execution since 2003 due to its inability to obtain the drugs for lethal injections.[2] Since then, the United Nations General Assembly has passed seven resolutions for a moratorium of the use of the death penalty.[3] After voting against one such resolution in 2007, U.S. Representative Robert Hagan reminded the international community that “international law does not prohibit capital punishment.”[4] Indeed, this announcement, though somewhat surprising, does not violate any international agreements. However, the return of the federal death penalty can still impact U.S. obligations under both bilateral extradition treaties and multinational treaties to which the United States is a signatory. Extradition Agreements The death penalty on the state level already impacts many of the United States’ bilateral extradition agreements. Of the roughly 100 countries with which the United States has an extradition agreement,[5] many have abolished the death penalty.[6] Several countries have thus reserved the right to deny extradition in capital cases, some outright and some only in cases where there is adequate assurance that the fugitive will not be executed.[7] Many more countries are reluctant to extradite to the United States in capital cases, despite the absence of any such provision in their treaty with the United States.[8] The landmark decision of Soering v. United Kingdom by the European Court of Human Rights is a quintessential example of this. Mr. Soering, a German national, was detained in England pending extradition to the United States to face murder charges in the Commonwealth of Virginia,[9] where he could have faced the death penalty.[10] Pursuant to the Extradition Treaty with the United States, the British Secretary of State would normally request on behalf of the United Kingdom that the United States not impose or carry out the death penalty.[11] Despite this customary practice, the European Court of Human Rights held that the United Kingdom would violate the Convention for the Protection of Human Rights and Fundamental Freedoms by extraditing Soering to the United States.[12] Soering was only extradited after the relevant authorities agreed not to seek capital punishment; he was eventually convicted and sentenced to life in prison.[13] The sentiment expressed in the Soering continued to develop through the early 2000s and is clearly felt today.[14] In 2001, the Canadian Supreme Court held that “assurances must be sought in extradition cases involving the death penalty in all but the most exceptional of circumstances,” and in 2003 the UN Human Rights Committee held that “for countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.”[15] By 2008, only two abolitionist states had policies that did not unequivocally require assurances that the death penalty will not be sought prior to extradition.[16] In 2010, the European Court of Human Rights held that Protocol No. 13 prohibited the extradition of prisoners where “substantial grounds have been shown for believing that he or she would have a real risk of being subjected to the death penalty.”[17] International Covenant on Civil and Political Rights The United States is not a signatory[18] to the four international agreements that abolish capital punishment.[19] However, the United States does have obligations to various international agreements, e.g. the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the American Declaration of the Rights and Duties of Man, the American Conventions on Human Rights and the Convention on the Rights of the Child, all of which restrict the death penalty in some way.[20] The clearest examples are the obligations found in the ICCPR, which the United States ratified in 1992. The ICCPR does not abolish the death penalty,[21] but it does impose constraints, including strict due process requirements and a prohibition on the use of the death penalty for offenders with less than eighteen years of age at the time the crime was committed.[22] The United States, in ratifying the agreement, attached “‘an unprecedented number’ of reservations, understandings, and declarations,” including reservations to the provisions on capital punishment relating to minors.[23] However, it is another provision of the ICCPR which could cause concern once the United States resumes capital punishment under the Federal Death Penalty Act. Article 6(2) provides that the “sentence of death may be imposed only for the most serious crimes.”[24] In its first report to the United Nations Human Rights Committee, the United States highlighted its adherence to this provision, stating that the death penalty was only carried out against perpetrators of crimes resulting in death with attendant aggravating circumstances.[25] This claim was soon superseded by the Federal Death Penalty Act of 1994, which extended the death penalty to, for example, drug-related crimes with large quantities of drugs or money and attempted murder of a public officer, juror, witness, or member of such person’s family, amongst others.[26] In presenting its subsequent report in 1995, the Human Rights Committee criticized the United States for the expansion of the death penalty under federal law and encouraged the United States to revise the legislation.[27] Now that the federal government will once again execute prisoners, the Human Rights Committee will likely increase its calls on the United States to revise the Federal Death Penalty Act. Since the reinstatement of the federal death penalty in 1988, only three people have been executed.[28] One of these was Juan Raul Garza, whose case drew the attention of the international community when he was sentenced to death in 2001 despite the Inter-American Commission’s report declaring the Garza’s rights were violated by the introduction of unadjudicated offenses occurring in Mexico at the sentencing stage.[29] Garza’s case is a clear example of concerns  about the federal death penalty, which include “due process concerns, the discriminatory application of this penalty, the length of confinement on death row (the so-called death row phenomenon), and the methods of execution.”[30] Conclusion In the Human Rights Committee’s concluding observations on the Fourth Periodic Report of the United States of America, the Committee welcomed the overall decline in the number of executions and increased number of states that abolished the death penalty.[31] However, the Committee again encouraged the United States to establish a formal moratorium at both the national and state level.[32] The United States is likely working on its Fifth Periodic Report to the Committee;[33] meanwhile the first of the five scheduled executions set for December 9, 2019, with “additional executions” to follow (there are sixty-three prisoners on federal death row[34]). While the death penalty will certainly continue to affect extradition treaties with or without the federal death penalty, the United States federal government should take care to only execute those convicted of the “most serious crimes.”[35] Though the Federal Death Penalty allows executions for certain lesser crimes, actually executing only those who commit serious crimes (for example, resulting in the death with attendant aggravating circumstances) could both ensure compliance with the ICCPR and help ease reluctance to extradite perpetrators to the United States, especially those who may face capital punishment under the extended version of the Federal Death Penalty Act.

[1] Press Release, U.S. Dept. of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse; see generally 18 U.S.C. 3591-3598. [2] Merrit Kennedy, Federal Government to Resume Capital Punishment After Nearly 20-Year Hiatus, NPR, July 25, 2019 https://www.npr.org/2019/07/25/745223284/federal-government-to-resume-capital-punishment-after-nearly-20-year-hiatus. [3] Death Penalty: Global Abolition Closer Than Ever as Record Number of Countries Vote to End Executions, Amnesty Int’l, Dec. 17, 2018, https://www.amnesty.org/en/latest/news/2018/12/global-abolition-closer-than-ever-as-record-number-of-countries-vote-to-end-executions/. [4] Mark Tran, UN Committee Calls for Abolition of the Death Penalty, Guardian, Nov. 16, 2007, https://www.theguardian.com/world/2007/nov/16/unitednations. [5] See, e.g. Extradition Treaties, U.S. Dept. of State, https://2009-2017.state.gov/documents/organization/71600.pdf [6] Abolitionist and Retentionist Countries, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries [7] Michael John Garcia & Charles Doyle, Extradition to and from the United States: Overview of the Law and Recent Treaties 9, Cong. Res. Serv., March 17, 2010; see also id. at footnote 42. [8] Id. at 9. [9] Though the Soering case was a state decision (Mr. Soering was indicted by the Commonwealth of Virginia for capital murder), it was the United States that made the extradition request, pursuant to a bilateral treaty with the United Kingdom. See Craig R. Roekcs, Extradition, Human Rights, and The Death Penalty: When Nations Must Refuse to Extradite a Person Charged With Capital Crime, 25 Cal. Western Int’l L. J. 189, 198 (1994); see also Extradition Treaty, June 8, 1972, U.S.-U.K., art. IV, 28 U.S.T. 227, 235. [10]Stephan Breitenmoser & Gunter E. Wilms, Human Rights v. Extradition: The Soering Case, 11 Mich. J. of Int’l L. 845, 848, 850 (1990). [11] Id. at 855. [12] Id. at 847. [13] Denise Martinez-Ramundo, Andrew Paparella & Alexa Valiente, Convicted Killer, After Decades of Maintaining Innocence Believes Freedom is ‘Finally in Sight,’ ABC News, Feb. 9, 2018, https://abcnews.go.com/US/convicted-killer-decades-maintaining-innocence-believes-freedom-finally/story?id=52914848 [14] See Bharat Malkani, The Obligation to Refrain from Assisting the Use of the Death Penalty, 62 Int’l & Comp. L. Q. 523, 533 (July 2013). [15] Id. [16] Id. at 533-34. [17] Id. at 534. [18] See Status of Ratification of 18 International Human Rights Treaties, U.N. OHCHR,  https://indicators.ohchr.org/; Chart of Signature and Ratification of Treaty 114, Council of Europe, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/114/signatures?p_auth=TnOvl6sp; Chart of Signature and Ratification of Treaty 187, Council of Europe, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/187/signatures; Ratifications of International Treaties on the Death Penalty, AI Index: ACT 50/07/00, Amnesty Int’l.,  https://www.amnesty.org/download/Documents/132000/act500072000en.pdf [19] These include the Second Optional Protocol to the International Covenant on Civil and Political Rights, Protocol No. 6 to the European Convention on Human Rights, Protocol No. 13 to the European Convention on Human Rights, and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty. , International and Regional Treaties, Int’l Commission Against Death Penalty, http://www.icomdp.org/international-and-regional-treaties/ [20] William A. Schabas, The Federal Death Penalty and International Law, 14 Fed. Sent’g Rep. 32 (2010). [21] International Covenant on Civil and Political Rights, Art. VI, Dec. 16, 1966, T.I.A.S. 92-908, 999 U.N.T.S. 171. [22]  John Paul Truskett, The Death Penalty, International Law, and Human Rights, 11 Tulsa J. Comp. & Int’l L. 557, 561-62 (2004). [23] Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 Nw. J. of Int’l L.  1, paragraph 3, 17 (2005). [24] International Covenant on Civil and Political Rights, supra note 2. [25] Schabas, supra note 18, at 32. [26] Id. at 33. This extension also seemingly violated the American Convention on Human Rights, which prohibited extension of the death penalty to additional crimes. Id. [27] Id. [28] Executions Under the Federal Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/executions-under-the-federal-death-penalty [29] Schabas, supra note 18, at 33. [30] Id. [31] Human Rights Committee, International Covenant on Civil and Political Rights, Conclusions and  Observations on the Fourth Periodic Report of the United States of America, CCPR/C/USA?CO/4, Apr. 23, 2014 https://2009-2017.state.gov/documents/organization/235641.pdf [32] Id. at 4. [33] FAQ: The Covenant on Civil & Political Rights (ICCPR), ACLU, April 2019, https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr [34] List of Federal Death-Row Prisoners, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/list-of-federal-death-row-prisoners#list [35] Of the executions scheduled thus far, this most certainly seems to be the case. See Press Release, supra note 1. The views expressed in this post represent the views of the post’s author only.