Two weeks ago, the California Supreme Court heard oral arguments in a death penalty appeal. The defendant’s legal arguments included, in part, that the death sentence must be vacated because the death penalty violates international law and that international law is binding on the California state court. Specifically, the defendant contends that the California death penalty statute violates the International Covenant on Civil and Political Rights (ICCPR) and evolving global norms against capital punishment. The Court has not yet ruled on the case and will be hearing similar legal arguments in another death penalty appeal before the Court on November 4, 2009. Should international human rights instruments and customary international law influence the Court’s analysis of the domestic death penalty statute, the defendant’s due process rights, and what constitutes “cruel and unusual” punishment?
- Two death penalty appeals currently before the California Supreme Court argue violations of the ICCPR and customary international law.
- Neither case makes legally persuasive arguments under international law, and both demonstrate a misunderstanding of customary international law.
- Future legal briefs could make stronger arguments related to the applicability of international law in U.S. state courts (particularly in light of Medellin) and the legal standard under the major sources of international law — treaty-based law, customary international law, and jus cogens.
- Additional resources on the death penalty under international law.
Update December 12, 2009 – Butler
The California Supreme Court held in Butler that the defendant was denied his Sixth Amendment right of self-representation. The Court reversed his death penalty sentence based on precedent under the U.S. Supreme Court case Faretta v. California, 422 U.S. 806 (1975). Pages 17-18 of the decision. This case may be ripe for consideration by the U.S. Supreme Court.
Can a defendant, who is denied access to the prison law library because of security risks, be allowed to represent himself or herself in a death penalty appeal? Does it matter if the defendant’s actions caused such a denial, such as through physical threats against other inmates or guards? Does it matter if the defendant was denied access when he or she did NOT cause the security risks? For example, the defendant may be the target or victim of violence and guards want to safeguard the defendant from future acts of violence, including retaliation. If the prison wants to safeguard the defendant from possible attack by other inmates in common areas, such as the prison law library, does such denied access negate the defendant’s right of self-representation because he or she cannot adequately prepare? What limitations should be placed upon self-representation in a death penalty appeal?
The Court solely addressed the appeal under the 6th Amendment. Having found the grounds for reversal, the Court did not reach to the argument under international law.
Update January 14, 2010 – Martinez
The California Supreme Court affirmed the judgment. The Court rejected the argument put forth under international law. See page 70 of the decision.
that the death penalty itself violates international law or international norms or that
these norms require the application of the penalty to only the most extraordinary
crimes. (People v. Gutierrez (2009) 45 Cal.4th 789, 834; People v. Panah (2005) 35 Cal.4th 395, 500-501.)
Does the Death Penalty Violate International Law?
Although there are multiple death penalty appeals before the California courts, the focus here is on two defendants invoking international law in separate cases currently before the California Supreme Court. Both cases allege violations of the ICCPR and customary international law. The first case, People v. Butler, has already been argued before the Court, relying on legal arguments under Article 7 of the ICCPR (prohibiting cruel, inhuman, or degrading punishment) and customary international law. The Court previously rejected these arguments in a related death penalty appeal involving the same defendant. The Court has not yet issued its opinion on his latest appeal. The second case, People v. Martinez, will be argued before the Court in November. Martinez alleges violations of Article 6 of the ICCPR (limiting the death penalty to the ‘most serious crimes’) and customary international law.
Neither case makes persuasive legal arguments under international law. Both cases demonstrate a lack of understanding of the sources of international law, the elements needed to prove a violation of international law, and what constitutes customary international law. Thus, both likely will fail on the legal points under international law as presented in their Briefs submitted to the Court.
This discussion outlines how the legal arguments under international law could have been stronger under the three major sources of international law — treaty-based law, customary international law, and jus cogens — and the possible counterarguments. Although international law does not provide a definitive answer on the legality of the death penalty, improved analysis in the legal briefs could help the Court resolve key threshold issues and thus have implications for future death penalty appeals. Significantly, a death penalty appeal based on due process violations could be strengthened by legal arguments under international law because a death sentence, in the absence of due process safeguards, would violate international law.
Background on the Two Cases
People v. Butler
The first case, People v. Butler (Raymond Oscar), California Supreme Court Case No. S068230, was heard on October 6, 2009. The Court has not yet issued an opinion. Gang member Raymond Oscar “Mugsy” Butler committed three murders on two separate occasions. He murdered two Japanese college students during a carjacking in 1994. The execution-style murders sparked international media coverage and prompted an apology, within hours of the crime, from President Clinton to the Japanese Prime Minister. Then, while awaiting trial, Butler and two others stabbed an inmate in 1995. The California Supreme Court affirmed his death sentence for the carjackings on June 18, 2009. The Court heard oral arguments in his death sentence appeal of the inmate stabbing on October 6, 2009. As in his earlier appeal, Butler argues that the death penalty violates Article 7 of the ICCPR and evolving global norms to abolish the death penalty. Article 7 prohibits torture and “cruel, inhuman or degrading treatment or punishment.” The Court rejected both the treaty-based argument and the customary international law argument in its June 18, 2009 opinion related to the appeal of the carjackings conviction. The Court referred to these as “familiar challenges” to the death penalty sentence. It further asserted that these legal arguments lacked “persuasive justifications” for changing “our settled views.” Thus, presented with the same arguments as before and having the same justices on the bench, the Court will likely render a similar finding in its upcoming opinion on the appeal of the death sentence for the inmate stabbing.
People v. Martinez
The second case, People v. Martinez, California Supreme Court Case No. S074624, will be heard on November 4, 2009. Tommy Jesse Martinez, Jr. was convicted for the murder, rape, and robbery of Sophia Castro Torres and sentenced to death in 1998. In the Appellant’s Opening Brief submitted to the Court on August 30, 2005, Martinez argues that the death penalty “as a regular form of punishment falls short of international norms of humanity and decency.” To support his argument, Martinez relies on treaty-based law and customary international law. Specifically, Martinez asserts that, even if the death penalty is lawful in some circumstances, its regular use for a variety of homicides violates Article 6 of the ICCPR, which restricts the death penalty to the “most serious crimes.” His primary argument, however, is that the death penalty is completely prohibited based on state practice by “civilized nations.” The Opening Brief does not inform the Court that this argument relies on customary international law. The Brief then puts forth a moral argument for the abolition of capital punishment and ignores opinio juris, the second element required to prove that a rule has become binding under customary international law. Thus, the Brief fails to satisfy the legal standard for showing a violation under customary international law.
The Death Penalty Under International Treaties
There are multiple international human rights treaties related to the death penalty. The focus here will be on the three international treaties related to the death penalty and legally binding upon the United States: the International Covenant on Civil and Political Rights (ICCPR) (ratified with reservations, June 8, 1992); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (ratified with reservations, Oct. 21, 1994); and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (ratified with reservations, Oct. 21, 1994). Non-ratified treaties could be relied upon as persuasive sources before domestic U.S. courts. For additional treaties, see “Resources” below.
After the Briefs for Butler and Martinez were submitted to the California Supreme Court, the U.S. Supreme Court in 2008 decided a landmark case involving a death penalty appeal based on an alleged violation of the defendant’s due process rights under an international treaty that had been ratified by the United States. The case, MedellÃn v. Texas, significantly impacts how international treaty law, as a matter of U.S. law, is treated in death penalty appeals in U.S. state courts. In light of MedellÃn, attorneys in death penalty appeals should be prepared to address why and how specific treaty-based rights are enforceable in U.S. state courts. Specifically, attorneys should address: how a specific international treaty applies, whether the United States is legally bound by the treaty; whether the United States took any reservations/understandings/declarations; whether the treaty is self-executing or non-self-executing; whether the treaty is a traditional human rights treaty; how the Court should resolve any conflicts between domestic law and treaty-based law; and whether the individual’s rights are enforceable automatically under the treaty or reliant on implementing legislation.
• The Supremacy Clause
The Supremacy Clause of Article VI of the U.S. Constitution specifically mentions “treaties” as having the force of law within the United States: “Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The U.S. Supreme Court, in Whitney v. Robinson, 124 U.S. 190, 194 (1888), interpreted the Supremacy Clause to mean that a treaty has equal legal weight as legislation, giving rise to the “last-in-time” principle for domestic enforceability when there is a conflict between a treaty and a law. The legally non-binding Restatement (Third) on the
Foreign Relations Law of the United States clarifies that, if a domestic law supersedes a treaty, the United States is not relieved from its international obligations. Most jurisdictions give significant weight to the Restatement.
• MedellÃn v. Texas: Self-Executing and Non-Self-Executing Treaties
Prior to the U.S. Supreme Court case of MedellÃn v. Texas in March 2008, the importance of the distinction between “self-executing” and “non-self-executing” treaties was given little, if any, attention in death penalty appeals. The 6-3 ruling has profoundly changed the legal discussions on whether a defendant has an enforceable individual right under an international treaty in a U.S. state court.
Mexican national JosÃ© Ernesto MedellÃn Rojas, while he was on death row in Texas, argued that he was entitled to judicial review of his death sentence because Texas authorities failed to inform him of his right to have the Mexican consulate notified when he was arrested, thereby violating Article 36 of the Vienna Convention on Consular Relations (VCCR), a treaty ratified by the United States. Mexican authorities stated that they would have provided assistance to MedellÃn during his criminal prosecution, thus possibly altering the outcome of the death penalty sentence. In essence, Medellin argued the treaty-based rights of consular notification and assistance were enforceable due process rights. The Supreme Court in MedellÃn ruled that the right to consular notification was not directly enforceable because it required implementing domestic legislation. Thus, MedellÃn could not bring a cause of action in Texas court because there was no legislation rendering the treaty judicially enforceable as law. Additional issues, arising from federalism, included whether the United States could supersede Texas criminal law by ratification of an international treaty, the implementation of a federal legislation, orders in a Presidential Memorandum, or enforcement of a decision by the International Court of Justice. In contrast, a self-executing treaty is immediately enforceable upon ratification. Because treaties do not explicitly identify whether they are “self-executing” or “non-self-executing,” the determination of domestic rights and obligations can be perplexing for defendants, attorneys, and justices. Texas executed Medellin by lethal injection in August 2008 (see earlier blog)
Notably, in the related ICJ case of Avena, the United States argued that it could not foresee a treaty interpretation granting individuals the right to judicial enforcement of due process rights under the VCCR because it was a political affairs treaty, not an international human rights treaty.
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral human rights treaty with two optional protocols. The treaty entered into force on March 23, 1976 and has 165 parties (see current status of ratifications). The United States ratified the ICCPR, with reservations, on June 8, 1992. The Second Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty, entered into force on July 11, 1991. The Second Protocol currently has 72 parties and 35 signatories (see current status of ratifications). The United States is not a party to the Second Optional Protocol.
Martinez argues a violation of Article 6′s restriction of the death penalty to the ‘most serious crimes.’ Butler argues a violation of Article 7′s prohibition of “cruel, inhuman or degrading treatment or punishment.”
• ICCPR Article 6 – Death Penalty Limited to the ‘Most Serious Crimes’
Martinez contends the death penalty in California is a violation of Article 6, Section 2 of the ICCPR, rather than a violation of Article 7′s against cruel and unusual punishment. Article 6(2) states that the “sentence of death may be imposed only for the most serious crimes.”
Martinez asks the Court to find the application of California’s death penalty statute to be overly broad and not limited to “exceptional crimes, such as treason.” If so, he argues, his death sentence must be vacated because California has sentenced too many criminals to death in violation of its treaty obligations and the Eighth Amendment’s prohibition against cruel and unusual punishment, as implemented through the Due Process Clause of 14th Amendment to the states. The United States took a reservation to Article 6 to reserve and reiterate its legal right to impose the death penalty, except on pregnant women, based on existing or future U.S. laws.
One question is whether Martinez would argue that California’s alleged regular imposition of the death penalty would require vacating all death row sentences in California, even for the most serious crimes. Perhaps, the hopeful argument is that Court will find a violation, vacate the sentence, and not ponder upon whether Martinez committed a serious crime still worthy of punishment and lawful under Article 6(2).
The Court rejected the argument of “the death penalty as a regular form of punishment” as a violation of international law in People v. Mendoza (Cal. Supreme Court, November 27, 2007) (upholding the death penalty for defendant Martin Mendoza, convicted of murdering three children with a semiautomatic firearm) and People v. Carrington (Cal. Supreme Court, July 27, 2009) (upholding the death penalty for female defendant Celeste Simone Carrington, convicted of two murders, robbery with special circumstances, and multiple murders with special circumstances committed during four robberies).
Martinez also could have argued:
- Article 6(2) was intended as a temporary measure to accommodate retentionist states by allowing them adequate time to abolish the death penalty;
- Now, sufficient time has passed for states to change their domestic criminal laws and constitutions to abolish the death penalty;
- Ultimately, the death penalty clause of 6(2) is incompatible with the right to life under 6(1) because it irreversibly deprives the individual of the right to life and the individual’s right to a remedy in the event of an error in conviction and execution; and
- Article 6(6) demonstrates the commitment of state parties to abolition.
This argument is further bolstered by the wording of Article 6(2)’s introduction: “In countries which have not abolished the death penalty.” The text implies international consent by the signatories to abolish eventually the death penalty because countries that have already abolished the death penalty lack the legal right to the exception clause under 6(2). Those countries thus are precluded from reinstating it as a form of punishment.
The above argument, however, is not conclusive because retentionist states, such as the United States, could argue that Article 6(2) was included to accommodate persistent objectors of the death penalty. Under the persistent objector doctrine, states are not legally bound by emergent norms under customary international law if they manifestly and consistently object to the new norm. Thus, the permissive right of some states to impose capital punishment under Article 6(2) could be interpreted as the codification of the permanent legal right of persistent objectors and not as evidence of global agreement on abolition.
Still, in reading Martinez’s argument, I have found myself contemplating the contemporary scope of Article 6(2):
- Has the judicial interpretation by domestic courts or legislative implementation of what constitutes a “serious crime” broadened or narrowed since the 9/11 terrorism attacks?
- Should the Rome Statute, which defines the most serious international crimes, be considered when defining the most serious crimes domestically? Should the ICC’s prohibition of the death penalty be afforded more persuasive weight by domestic courts?
- Should “serious” crimes be limited only to violent acts? Can non-violent crimes ever be sufficiently grave to justify the death penalty? Should violent acts that do not result in any victims’ deaths be considered “serious”?
- Should there be a quantitative threshold, such as defining a serious crime as requiring multiple murders? Would numerical criteria be considered arbitrary and thus unlawful? Would it undermine the goals of deterrence and justice for the victims? Yet, see the literature and thought-provoking discussions in international criminal law related to whether there can be a genocide of one.
- Should Article 6(2) also be read as a death penalty exception to Article 7′s prohibition of cruel and unusual punishment? Does the absence of an explicit exception under Article 7 render it complete and non-derogable? How, and when, could the death penalty become “cruel and unusual” when it is already a permissible derogation from the individual’s “right to life”?
Categories of crimes that particularly warrant a close comparison with actual practices in other cases include the imposition of the death penalty for felony-murders or other non-intentional killings, and single-victim homicides. See Article VI, Section 2 of the International Covenant on Civil and Political Rights, which limits the death penalty to the “most serious crimes.”
1. 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.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
(bold emphasis added)
(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.
(bold emphasis added)
People v. Mendoza, 171 P.3d 2, 28 (Cal. 2007)
Defendant argues Californiaâ€™s use of the death penalty as a regular form of punishment violates international law, a contention we have repeatedly rejected. (People v. Elliot, supra, 37 Cal.4th at p. 488.) Nor does it violate international norms of humanity and decency. (People v. Panah (2005) 35 Cal.4th 395, 500-501.) Thus, contrary to defendantâ€™s argument, the death penalty does not violate the Eighth and Fourteenth Amendments to the United States Constitution. (People v. Blair (2005) 36 Cal.4th 686, 754-755.)
(bold emphasis added)
People v. Carrington, Cal. Supreme Court, 64-65 (July 27, 2009)
Defendant provides no convincing reason for us to reconsider our previous holdings on these issues.
Consequently, we reject defendant’s argument that her death sentence violates articles VI and VII of the International Covenant of Civil and Political Rights, which prohibit cruel, inhuman, or degrading punishment and the arbitrary deprivation of life. “International law does not compel the elimination of capital punishment in California.” (People v. Snow (2003) 30 Cal.4th 43, 127.)
We also have rejected the argument, presently made by defendant, that the assertedly regular imposition of the death penalty as punishment for a substantial number of homicides â€” as opposed to exceptional crimes such as treason â€”
constitutes cruel and unusual punishment because such punishment has been abolished in the majority of nations, including all of Western Europe.
â€œCalifornia’s status as being in the minority of jurisdictions worldwide that impose capital punishment, especially in contrast with the nations of Western Europe, does not violate the Eighth Amendment. (See, e.g., People v. Moon (2005) 37 Cal.4th 1, 47-48.)” (People v. Mungia (2008) 44 Cal.4th 1101, 1143.) California does not impose capital punishment as a ” ‘regular punishment for substantial numbers of crimes’ “ (People v. Demetrulias (2006) 39 Cal.4th 1, 43, italics omitted.) “The death penalty is available only for the crime of first degree murder, and only when a special circumstance is found true; furthermore, administration of the penalty is governed by constitutional and statutory provisions different from those applying to “regular punishment” for felonies. (E.g., Cal. Const., art. VI, Â§ 11; Â§Â§ 190.1-190.9, 1239, subd. (b).)” (Id. at p. 44.)
(bold emphasis added)
• ICCPR Article 7 – Prohibition of “Cruel, Inhuman or Degrading Treatment or Punishment”
Butler argues that the death penalty violates Article 7′s prohibition of “cruel, inhuman or degrading treatment or punishment.” To support this argument, the Brief cites three journal articles from 1993: M. Cherif Bassiouni, Symposium: Reflections on the Ratification of the International Covenant of Civil and Political Rights by the United States Senate, 42 DePaul L. Rev. 1169 (1993); Michael H. Posner & Peter J. Spiro [author name corrected here], Adding Teeth to the United States Ratification of the Covenant on Civil and Political Rights: The International Human Rights Conformity Act of 1993, 42 DePaul L. Rev. 1209 (1993); and John Quigley, Criminal Law and Human Rights, Implications of the United States Ratification of the International Covenant on Civil and Political Rights, 6 Harv. Hum. Rts. J. 59 (1993).
In its earlier opinion related to the carjackings in June 2008, the Court dismissed this argument in a single sentence: “The death penalty does not violate the Eighth Amendment, international law, including article VII of the International Covenant of Civil and Political Rights, or â€œevolving standards of decency.â€ (E.g., People v. Lindberg, supra, 45 Cal.4th at p. 54; Harris, at p. 1323.)
Notably, the United States took a reservation to Article 7 to limit the interpretation of the terms to how they are construed under the 5th, 8th, and 14th Amendments of the U.S. Constitution. Accordingly, a successful legal argument would need to show how the death penalty violates “cruel and unusual” under U.S. law and, then, show how that violation is consistent with a violation under the treaty. An alternate argument would need to show how the reservation defeats the “object and purpose” of the treaty, making the reservation invalid and paving the way for greater flexibility in the interpretation of Article 7.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
(bold emphasis added)
(3) That the United States considers itself bound by article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
Eighth Amendment – 8th / VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment – 14th / XIV
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(bold emphasis added)
• ICCPR Articles 14 and 26
Although the discussion thus far has focused on Articles 6 and 7, additional legal arguments could be made that the death penalty violates other due process safeguards of the ICCPR. See Article 14 on equality before the courts, fair and public hearing, the presumption of innocence, the right to a trial without undue delay, and additional procedural guarantees. See Article 26 on equal treatment before the law and nondiscrimination.
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Because the death sentence disproportionately affects minorities, arguments could be made related to the right to equality before the law under the International Convention on the Elimination of All Forms of Racial Discrimination. CERD entered into force on January 4, 1969 and currently has 173 parties. The Amendment to Article 8 is not yet in force.
The United States ratified CERD on October 21, 1994 and took multiple reservations. Notably, the last reservation states: “That the United States declares that the provisions of the Convention are not self-executing.” (bold emphasis added). Thus, at minimum, implementing domestic legislation is required for the defendant to have a judicially enforceable right under CERD in a U.S. court.
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) entered into force on June 26, 1987 and currently has 146 parties. Its Optional Protocol entered into force on June 22, 2006. The United States ratified CAT on October 21, 1994 and took a reservation that stated: “nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” The United States is NOT a party or a signatory to the Optional Protocol.
Arguments could be made that prolonged detentions on death row, the method of execution, or physical and psychological mistreatment of detention cell conditions could constitute torture or cruel or unusual punishment.
The Death Penalty Under Customary International Law (CIL)
The U.S. Constitution, as stated earlier, refers explicitly to “treaties,” and does not mention customary international law. The recognition of customary international law in U.S. courts arises from the landmark U.S. Supreme Court case of The Paquete Habana, 175 U.S. 677 (1900). In that case, the Court stated: “International law is part of our law . . . . where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” Even so, the contemporary role of customary international law in context of the U.S. legal system remains controversial, reflecting differences of Constitutional interpretations and concerns with potential impacts to U.S. sovereignty. For more recent cases favorable to customary international law, see Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (recognizing the role of the “law of nations” in U.S. jurisprudence); Roper v. Simmons, 543 U.S. 551 (2005) (considering a treaty not ratified by the United States to strike down the death penalty for juveniles). Upcoming Supreme Court cases this term include: Graham v. Florida and Sullivan v. Florida.
Martinez’s primary argument under international law is that the death penalty is completely prohibited based on evidence of state practice by “civilized nations.” Although the Opening Brief does not identify it, the relevant source of law for his argument is customary international law. This source of law is considered legally binding, whether or not it is codified in a treaty or other international legal instrument. A rule of customary international law is binding upon all states, regardless of their assent to the rule, with the exception of persistent objector states. As discussed earlier, under the persistent objector doctrine, states are not legally bound by a rule of customary international law if they manifestly and consistently object to the rule from its inception.
Whether the death penalty violates customary international law depends on two criteria: (1) widespread state practice to abolish it, and (2) opinio juris — a belief by states that there is a legal obligation to abolish it.
The Opening Brief unsuccessfully argues the first element and completely overlooks the second element. Thus, the Brief submitted to the Court fails to meet the legal threshold for showing a violation of international law. Martinez’s lawyers would need to introduce additional evidence for both elements during the upcoming oral hearing to succeed on the claim that the death penalty violates customary international law. Moreover, the lawyers would need to address and overcome the legal implications related to the status of the United States as a persistent objector to the death penalty.
• Widespread State Practice
Martinez’s argument that the death penalty is completely prohibited under international law based on widespread state practice is neither sufficiently legally persuasive nor supported by adequate data in the Opening Brief. The Brief, submitted to the Court in 2005, begins by quoting a 1990 journal article about the Soering v. United Kingdom case to assert that the United States is one of 10 countries in the world largely responsible for state-sponsored executions. The Brief then cites a list of abolitionist and retentionist countries published by Amnesty International in 2000 to support the assertion that all European States are now abolitionist states. Yet, the data do not establish that the abolition of the death penalty, as a state practice, is consistent or universal. Further, the data in the brief are outdated, thereby undermining the strength of the argument as to the current status of state practice as “widespread.”
As an update to the Brief, attorneys for Martinez could reference two contemporary sources in support of the claim that there is a trend to abolish the death penalty. First, the UN General Assembly in 2008 adopted a second resolution calling for a moratorium on the death penalty. Second, as of 2008, more than 2/3 of all countries were abolitionist states:
- 92 states have abolished the death penalty for all crimes;
- 10 states have abolished the death penalty for ordinary crimes;
- 36 states are abolitionist in practice;
- TOTAL ABOLITIONIST STATES IN LAW OR PRACTICE: 138
Source: Amnesty International, Death Sentences and Executions in 2008 (pdf).
Furthermore, an interesting development within the United States could provide persuasive evidence of an abolition trend in the United States. The Council of the American Law Institute (ALI) voted on October 23, 2009 to withdraw the death penalty section of its Model Penal Code because the system cannot be administered properly or fixed: “[T]hese conditions strongly suggest that the Institute recognize that the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved.”
The Attorney General’s Office could counter argue that the 2008 General Assembly Resolution passed on a vote of 106 countries in favor, 46 against, and 34 abstentions, far short of unanimous. Further, the complete legal abolition of the death penalty in 92 states is less than 50% of all countries worldwide and thus does not demonstrate widespread state practice. Further, the ICCPR’s Second Optional Protocol, undertaking to abolish the death penalty as a separate legal instrument, only has 72 parties after being in force for 18 years.
• Opinio Juris
The second prong under customary international law requires Martinez to show that states abolished the death penalty on the basis of a legal obligation, not just a moral conviction. Thus, evidence must show that states abolish the death penalty practice, as a matter of law, because they fear some type of sanction or legal consequence. The Opening Brief lacks any evidence to support this claim. Rather, the Brief makes a moral appeal, supported by four U.S. Supreme Court cases from the 1800s, asking the courts to consider the “reason, morality, and custom” of other “civilized nations.” The reference to these pre-The Paquete Habana cases raises the question of why these sources rather than the landmark case or more recent cases by the Supreme Court? The Brief also asks the court to favor the abolition of the death penalty based on “moral” grounds, “standards of decency,” and the “impropriety” of it. These moral arguments do not satisfy, and could undermine, the required legal argument and evidence to establish opinio juris.
Martinez’s lawyers will need to present evidence to the Court demonstrating the legal conviction by states to abolish the death penalty. The Restatement of the Law, Third, Foreign Relations Law of the United States provides guidance on what constitutes evidence of customary international law: “(a) judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c) the writings of scholars; and (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.” A few other examples include: the practice and pronouncements of international organizations, foreign legislation, diplomatic correspondence, and speeches by government officials. This list is neither exhaustive nor comprehensive.
Although this country is not bound by the laws of any other sovereignty in its administration of our criminal justice system, it has relied from its beginning on the customs and practices of other parts of the world to inform our understanding. “When the United States became an independent nation, they became, to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe as their public law.” (1 Kent’s Commentaries 1, quoted in Miller v. United States (1871) 78 U.S. [11. Wall.] 268, 315 [20 L.Ed. 135] [dis. opn. of Field, J.]; Hilton v. Guyot (1895) 159 U.S. 113, 227; Sabariego v. Maverick (1888) 124 U.S. 261, 291-92 [8 S.Ct. 461, 31 L.Ed. 430]; Martin v. Waddell’s Lessee (1842) 41 U.S. [16 Pet.] 367, 409 [10 L.Ed. 997].)
Due process is not a static concept, and neither is the Eighth Amendment. “Nor are ‘cruel and unusual punishments’ and ‘due process of law’ static concepts whose meaning and scope were sealed at the time of their writing. They were designed to be dynamic and gain meaning through application to specific circumstances, many of which were not contemplated by their authors. (Furman v. Georgia, supra, 408 U.S. at 420 [dis. opn. of Powell, J.].) The Eighth Amendment in particular “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 100; Atkins v. Virginia, supra, 536 U.S. at 325). It prohibits the use of forms of punishment not recognized by several of our states and the civilized nations of Europe, or used by only a handful of countries throughout the world, including totalitarian regimes whose own “standards of decency” are antithetical to our own. In the course of determining that the Eighth Amendment now bans the excecution of mentally retarded persons, the U.S. Supreme Court relied in part on the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” (Atkins v. Virginia, supra, 536 U.S. at 316, n.21, citing the Brief for the European Union as Amicus Curiae in McCarver v. North Carolina, O.T.2001, No. 00-8727, p.4.)
Thus, assuming arguendo capital punishment itself is not contrary to international norms of human decency, its use as a regular punishment for substantial number of crimes as opposed to extraordinary punishment for extraordinary crimes — is. Nations in the Western world no longer accept it. The Eighth Amendment does not permit jurisdictions in this nation to lag so far behind. (See Atkins v. Virginia, supra.)
Furthermore, inasmuch as the law of nations now recognizes the impropriety of capital punishment as regular punishment, it is unconstitutional in this country inasmuch as international law is a part of our law. (Hilton v. Guyot (1895) 159 U.S. 113, 227; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. [18 How.] 110, 112 [15 L.Ed. 311].)
• Persistent Objector Doctrine
Even if the defendant proves both requirements — widespread state practice and opinio juris — to establish that the death penalty violates customary international law, the defendant must show that the United States is either no longer a persistent objector or is not exempt as a “persistent objector.” Possible arguments could be made to show inconsistent practice within the United States or within the state of California to undermine the applicability of the persistent objector doctrine. Yet, such arguments would be difficult to support.
The Death Penalty and Jus Cogens
Article 53 of the Vienna Convention on the Law of Treaties defines jus cogens norms as universal peremptory norms that are legally binding upon all states. As such, no state can derogate from these norms, not even as a “persistent objector.” Although the death penalty may be on the road to becoming a universally prohibited practice, the death penalty has not yet risen to the level of jus cogens.
There is no definitive legal standard for when a norm becomes a jus cogens norm. Generally, a peremptory norm requires a showing that governments condemn the practice, even if they still engage in the practice. Thus, states might still torture individuals, but such practice would violate a jus cogens norm.
For related discussions, see:
- Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated, 395 F.3d 978 (9th Cir. 2003) (discussing whether forced labor and torture constitute jus cogens violations that are actionable in U.S. courts).
- Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the death penalty for juveniles but not relying on jus cogens, despite the fact that the United States was the only country in the world that allowed the execution of juveniles).
California State Courts and Resources for California Attorneys
- California Judicial Branch
- Supreme Court of California
- Death Penalty Cases – For Attorneys
- Case Information – Search
- California Appellate Project (CAP) – lawyers, caseworkers, internships
- California Appellate Project (CAP) – Library of Death Penalty Defense Training Materials
- California Innocence Project, California Western School of Law, San Diego
- Northern California Innocence Project, Santa Clara Law
- California Department of Corrections and Rehabilitation -statistics, photos death row
- Crimes Punishable by the Death Penalty by State/Federal (Death Penalty Info Center)
- Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the death penalty for juveniles)
International Treaties Related to the Death Penalty (not comprehensive)
- Universal Declaration of Human Rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR) (United States ratified June 8, 1992) and its First Protocol and Second Protocol
Note The United States is not a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
- International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (United States ratified Oct. 21, 1994)
- UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (United States ratified Oct. 21, 1994)
- American Convention on Human Rights (United States, signatory June 1, 1977)
- ACHR Protocol to Abolish the Death Penalty
- Convention on the Rights of the Child (United States signed Feb. 16, 1995)
Media Articles on the Death Penalty
- [Council of American Law Institute (ALI) withdraws death penalty section of its Model Penal Code] Leading Law Group Withdraws Model Death Penalty Laws Because System is Unfixable Because System is Unfixable”, Death Penalty Info. Ctr., Oct. 26, 2009
- Nathan Koppel & Chris Herring, Lethal Injection Draws Scrutiny in Some States, Wall St. J., Oct. 15, 2009, at A13. (discussing forms of execution, torture, and cruel punishment)
- John Schwartz, Judges’ Dissents for Death Row Inmates Are Rising, N.Y. Times, Aug. 14, 2009, at A1. (discussing judges’ concerns with due process safeguards)
- Andrea F. Siegel, Court Test Today for Death Penalty Revisions, Baltimore Sun, Oct. 19, 2009 (discussing how Maryland’s new death penalty statute may lead to arbitrary outcomes)
Organizations – Death Penalty Watchdogs
- Amnesty International, Death Penalty
- American Civil Liberties Union (ACLU)
- Campaign to End the Death Penalty
- Death Penalty Focus, United States
- Death Penalty Information Center, Washington, D.C.
- Innocence Project
- World Coalition Against the Death Penalty (WCADP)
- Resurrection After Exoneration (support program created by exoneree John Thompson to help other exonerees)
- The Justice Project
- National Coalition to Abolish the Death Penalty (NCADP)
Organizations – Pro-Death Penalty