Human Rights Quarterly

Editor’s Note

We are pleased to draw our readers’ attention to the June 1996 International Commission of Jurists’ Report of a Mission Concerning the Administration of the Death Penalty in the United States. We are publishing Part I of this two part study. We have reproduced Part I as it appears in the full report, without editing the manuscript to conform its style or footnotes to the Human Rights Quarterly format.* The entire report may be obtained from:

International Commission of Jurists
P.O. Box 160
26, chemin de Joinville
CH-1216 Cointrin/Geneva, Switzerland
E-mail: icjch@gn.apc.org
Telephone: (4122) 788-47-47; Fax: (4122) 788-48-80

Table of Contents

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Preface

The International Covenant on Civil and Political Rights (ICCPR) is an international instrument that came into force on 23 March 1976 after the thirty fifth deposit by a country (State Party) of an instrument of ratification. The ICCPR defines and circumscribes a variety of basic human rights and freedoms, and imposes an absolute and immediate obligation on each of the countries that have ratified it to “respect and ensure” these rights “to all individuals within its territories and subject to its jurisdiction.” Included in this instrument is the basic right of non-discrimination, the right to a fair trial and specific rights in respect of death penalty sentencing, which is not prohibited but is restricted with special safeguards and a view to its ultimate abolition. Prior to the coming into force of the ICCPR, another international instrument, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) had already been in force since 4 January 1969. The purpose of this Convention is to “adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations” in all fields of public life. Again, the ICERD places an absolute and immediate obligation on countries that ratify it to take certain steps to achieve this end. One of these obligations is to guarantee the right to everyone—without distinction as to race, colour, or national and ethnic origin—to equality before the law in the enjoyment of, among others, the right to equal treatment before the courts. Furthermore, the ICERD also places an obligation on these countries to assure everyone within their jurisdiction effective protection and remedies against acts of racial discrimination.

In 1992, the United States ratified the ICCPR and in 1994, it ratified the ICERD. Both were ratified with reservations, or qualifications made by the United States in relation to some of the rights contained in these instruments—included reservations that relate to the practise and procedure of death penalty sentencing within the country. For example, the United States reserved the right to impose the death penalty on juveniles (persons under the age of 18), which is expressly prohibited under the ICCPR. However, in spite of this and other reservations, the US Government remains bound in international law to meet various obligations under these important human rights instruments.

Death penalty sentencing has a long history in the United States of America and allegations of it being applied in an unfair and racially biased manner is not new. In 1972, a decision of the US Supreme Court stated that the application of the death penalty under the then existing laws of the States of Georgia and Texas were “arbitrary and capricious.” The effect of this decision was to hold in abeyance all death penalty laws, at state and federal levels—but several state legislatures soon revived the penalty by [End Page 167] amending legislation. Others followed, and in 1988, so did the federal government. In recent years, with the increase in violent...