U.S.: Urging the Senate to Reconsider the Death Penalty

Jennifer Daskal, Advocacy Director, U.S. Program, provided a written statement to the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Property Rights for the hearing entitled, "An Examination of the Death Penalty in the United States" on February 1, 2006.

Written Statement for the Record

Jennifer Daskal
Advocacy Director, U.S. Program
Human Rights Watch

In 2005, the United States executed the 1000^th person since the death penalty was reinstated in 1976. This infamous event failed to pay heed to either the declining public support for the death penalty or the overwhelming evidence of the arbitrariness and discrimination and fallibility of state and federal criminal justice systems in applying the death penalty.

Human Rights Watch has long opposed the death penalty as an inherently cruel and degrading punishment that violates international norms of human rights. Now, more and more, Americans are agreeing. Support for the death penalty is at its lowest level since the 1970s. According to an October 2005 Gallup Poll, over the last ten years public support for the death penalty has dropped significantly, from 80% in 1994 to 64% in 2005. A June 2004 Gallup Poll expanded on this question, finding that when life without parole is an option, support for the death penalty drops to only 50%.¹

Human Rights Watch believes that it is time for the United States to finally adopt the position taken by every other Western democracy, and abolish the death penalty. Arbitrariness, unfairness, and racial bias continue to plague the death penalty, highlighting the necessity of its abolition.

Fallibility of the Criminal Justice System (Evidence of Innocence)

More than 120 people have been released from death row since 1976 due to evidence of their innocence.² In response to a large number of DNA-based exonerations, Illinois imposed a moratorium on the death penalty in 2000; New York and Kansas have also suspended use of the death penalty.³ Most recently, public concern motivated the New Jersey legislature to impose a moratorium on the use of the death penalty until a commission can report on its use in the state.⁴

When the United States moves forward with executions in the face of persistent evidence of error, it erodes public confidence in the fundamental fairness of the criminal justice system. Just this year, a Houston Chronicle investigative reporter uncovered evidence indicating that when Texas executed Ruben Cantu in 1993, it executed an innocent young man. His formerly silent co-defendant has since signed an affidavit saying that Cantu was not with him during the time of the killing, and the lone eyewitness to the crime recently recanted his story, saying that he was pressured by the police into accusing Cantu. No physical evidence ever linked Cantu to the killing; potential alibi witnesses were never presented; and even the former district attorney who made the decision to charge Cantu with a capital offense now says that he never should have sought the death penalty.⁵

Racial Bias

Racial bias continues to permeate the death penalty system. Notably, while African Americans make up just 13 percent of the population, they account for 42 percent of current death row inmates.⁶ Racial bias affects all levels of the system, from the decision to pursue the death penalty to the decision to impose the death penalty. Eighty percent of the federal death penalty cases from 1995-2000 involved minority defendants; and in 48% of those cases the defendant was African American.⁷ Moreover, black offenders who kill white victims remain much more likely to receive a death sentence than black offenders who kill black victims.⁸

Economic Bias

Most defendants in capital cases are poor and unable to afford their own attorneys. In all too many cases, the attorneys appointed to represent them are overworked, inexperienced, and unwilling or unable to mount a vigorous defense of their clients.⁹ A 2001 report on the death penalty system in Washington state found that 20% of the 84 death row defendants in that state were represented by lawyers who were later suspended, arrested or disbarred.¹⁰ The shortage of capable court-appointed lawyers to handle the complexities of a death penalty case means that poor individuals are often deprived an effective defense.¹¹

Geographic Bias

The location of the crime is also a significant factor in determining the likelihood of receiving the death penalty. The majority of federal death penalty cases derive from a very small section of the country, with 42% originating from only five out of 94 federal districts in the country.¹²Defendants in Texas are more likely to be sentenced to death than defendants in any other state, with defendants in Virginia next in line.¹³ Prosecutors in certain counties are far more likely to seek the death penalty than their counterparts elsewhere – meaning that the imposition of the death penalty can come down to the arbitrary designation of a county line.¹⁴

Mental Illness and the Death Penalty

In 2002, the Supreme Courtissued a landmark opinion outlawing the death penalty for people with mentalretardation.¹⁵Yet, mentally ill individuals continue to be subject to the death penalty. A recentstudy of the 1000 persons executed since the death penalty was reinstated in1976 indicates that approximately ten percent suffered from serious mentalillness or impairment at the time they committed their crime.¹⁶ These are individuals who, like those suffering from mental retardation,suffer from limitations that diminish their culpability. Moreover, they are alltoo often deprived of any treatment for their illness during the many yearsthey remain on death row.¹⁷

International Human RightsNorms

The United States ranks only behind China, Iran, and Vietnam in the number of executions on annual basis-- countries responsible for other serious human rights violations condemned bythe State Department. The Council of Europe has banned the death penalty in allof its 46 member states, and abolition of the death penalty is now a precondition for joining the European Union.¹⁸

International human rightslaw, as codified in the International Covenant on Civil and Political Rights clearlyfavors the abolition of capital punishment, although it does not categoricallyprohibit it.¹⁹ The United Nations Commission on Human Rights has passed numerous resolutionsaffirming its opposition to the death penalty; in its 2003 resolution on “TheQuestion of the Death Penalty,” the Commission stated that the “abolition ofthe death penalty contributes to the enhancement of human dignity and to theprogressive development of human rights.”²⁰

Human Rights Watch opposescapital punishment in all circumstances. It is time for the United States to align itself with human rights promoters, rather than human rights denigrators, andabolish this barbaric form of punishment.