The Death Penalty in the United States and the Force of Regional Human Rights Law

by Saira Mohamed

The botched execution last month of Oklahoma prisoner Clayton Lockett has focused attention on some of the most critical questions in the American criminal justice system, such as the meaning of the Eighth Amendment’s prohibition on cruel and unusual punishment, racial disparity in the administration of capital punishment, and the purpose of the death penalty. This column departs from those crucial discussions and considers another one: the role of human rights law in curbing capital punishment in the United States. Specifically, it interprets the botched execution of Clayton Lockett as a signal of the impact that regional human rights law—in this case, European law—can have on foreign practices. Indeed, despite the perceived impotence of human rights law because of the absence of universal standards and the rarity of enforcement mechanisms, the impact of European death penalty prohibitions on practices in the United States should serve as a reminder that human rights law can reach beyond borders.

European Law and American Executions

The last forty-three minutes in the life of Clayton Lockett drastically and tragically diverged from the plan that the state of Oklahoma had put in place for them. Lockett was to be executed by lethal injection on the evening of April 29. The execution began as planned, but minutes after Lockett had been declared unconscious, he began “writhing and buckling,” talking, and, it appeared, attempting to lift himself off the gurney, according to an editor at the Tulsa World who was a witness at the execution. The warden then informed observers that the blinds of the execution chamber would be closed; Oklahoma Department of Corrections Director Robert Patton next announced that the execution had been halted because of a “vein failure.” Shortly thereafter, Patton informed the media that Lockett had died of a heart attack.

Recent reports indicate that Lockett’s death may well have resulted from officials’ failure to properly insert the needle needed to deliver the drugs, rather than from the lethal injection protocol, which the state had not used before. But in attempting to understand how an execution could have mutated into an accidental killing, observers quickly focused on Oklahoma’s use of an untested combination of drugs. For years, American states with the death penalty used a three-drug protocol to carry out lethal injections: first, a sedative, usually sodium thiopental, used to render the inmate unconscious; a second drug to paralyze; and a third drug, potassium chloride, to stop the heart. This system began to crumble when, among other things, the British government enacted a regulation preventing the export to the United States of sodium thiopental, and the American company Hospira announced in early 2011 that it would no longer produce sodium thiopental at its plant in Italy amid warnings by the Italian government that it would not permit the export of drugs for lethal injection. As states turned to sodium pentobarbital as a substitute for the thiopental, Danish company Lundbeck decided in mid-2011 that because of its opposition to the death penalty, it was discontinuing export of that drug to the United States for use in lethal injection.

These moves—signs of the strength of opposition to capital punishment in Europe—culminated in the December 2011 passage by the European Union of an amendment to its Torture Goods Regulation, which limits trade in products that could be used for the purpose of capital punishment. The new regulation explicitly prohibits the export from Europe of drugs used for lethal injection. Meanwhile, several American states began to improvise with new protocols. In January, for example, Oklahoma executed Michael Lee Wilson using compounded pentobarbital as the sedative; seconds into the execution, Wilson said, “I can feel my whole body burning.” After Ohio ran out of pentobarbital, it executed Dennis McGuire, also in January, with a new combination of midazolam and hydromorphone. For Lockett, the state of Oklahoma also used midazolam, but it relied on a three-drug protocol instead.

Amid these experiments in capital punishment, other executions have been put on hold as states figure out how to cope with the new reality of lethal injection drugs. The same night that Clayton Lockett died, another inmate, Charles Warner, was scheduled to be put to death; his execution has now been stayed for six months while the state conducts an independent review of its lethal injection process. Moreover, states such as Arkansas and California have not carried out executions in years as they struggle to come up with new sources of drugs or new methods of execution. President Obama, meanwhile, has called for a review by the Department of Justice of all states’ death penalty procedures.

The delays and de facto moratoria on executions that have resulted from lethal injection drug shortages represent one step toward the goal that European governments and corporations are seeking to achieve: abolition of the death penalty around the world. Expressing the European Union’s “disapprov[al] of capital punishment in all circumstances,” the 2011 Torture Goods Regulation explicitly dedicates itself to respect for the “fundamental rights” and principles of the EU Charter, including the right to life and the prohibition against torture and inhuman or degrading treatment or punishment. The EU Charter, of course, is a regional instrument; it has no application to the United States or to any other country outside of the European Union. Nonetheless, European human rights laws have had clear impact outside of the region. Having abolished capital punishment within the region, Europe is extending the reach of its own death penalty prohibition in hopes that it may ultimately encompass more of the world.

Toothless Human Rights Law?

Human rights law gets a bad rap for many reasons: because in most cases it has no “teeth,” no courts or armies to enforce it; or because its purportedly universal rights protect only individuals with power or voice, or only those lucky enough to live in the countries that believe they are indeed rights. The European restrictions on the export and production of lethal injection drugs, however, indicates the power of human rights law, even when protections are limited to a particular region. By most accounts, the prohibition on the death penalty is not a matter of universal human rights law. It is not banned outright in any major human rights treaty, and while customary international law prohibits certain applications of the death penalty—for example, executions of individuals who were juveniles at the time they committed the offense or executions that take place without a fair trial—it does not currently prohibit capital punishment.

Nonetheless, human rights law has managed to shape the use of the death penalty, at least at the margins. The United States Supreme Court already has turned to foreign and international law in its decisions on the death penalty; in the majority opinion in Roper v. Simmons, for example, which struck down the juvenile death penalty, Justice Anthony Kennedy noted that the position of the United Kingdom, the European Union, and others that execution of individuals who were under the age of eighteen when their crimes were committed provided “respected and significant confirmation” of the Court’s conclusions. That citation of foreign law represents a choice by American decisionmakers to allow European positions to penetrate American practices, bringing to mind the common complaint that human rights law (and international law more generally) affects states only when they choose to be affected; but the course that lethal injection practices have taken in this country indicate that foreign human rights laws can exert influence even when the justices of the Supreme Court do not wish for them to do so.

This is not the first time that regional law on the death penalty has impacted practices in the United States. Twenty-five years ago, the European Court of Human Rights held that the United Kingdom could not legally extradite Jens Soering to the United States to face charges of capital murder in Virginia. Soering, along with his girlfriend, Elizabeth Haysom, had killed Haysom’s parents and fled to Europe. After he was apprehended in England and the British government agreed to the U.S. request for his extradition, Soering filed a petition with the European Commission of Human Rights. Soering claimed not only that the death penalty itself constituted degrading or inhuman treatment, but also that if extradited he would be exposed to “death row phenomenon” and suffer from degrading or inhuman treatment as a result of the unknowable period of time he would spend in detention awaiting execution. The Commission denied Soering’s claims but referred the case to the European Court of Human Rights. With little reservation, the Court denied Soering’s argument that the execution itself contravened the European Convention on Human Rights, as the treaty expressly permits the use of the death penalty. Nonetheless, it accepted the death row phenomenon argument and concluded that in light of the “very long period of time spent on death row . . . , with the ever present and mounting anguish of awaiting execution of the death penalty,” as well as Soering’s age and mental state, extradition to face the death penalty would expose Soering to a “real risk” of inhuman or degrading treatment as prohibited by Article 3 of the Convention.

On account of the European Court’s interpretation of the Convention, the government of the United Kingdom could not transfer Soering to the United States to face the death penalty. Instead, the British government obtained assurances from Virginia’s attorney general that Soering would not be charged with capital murder; he was subsequently extradited to Virginia, convicted of first-degree murder and sentenced to two consecutive life terms. The impact of the case, however, has stretched far wider than merely the life of one young man. Council of Europe member states have interpreted Soering broadly to prohibit, in a number of other cases, extradition when the death penalty might be imposed, regardless of the death row phenomenon. States that prohibit capital punishment on their own thus have found a way to extend their own territorial prohibitions to other states by refusing to extradite without assurances.

The Reach of Regional Rights

Regional human rights laws and institutions are understood to reflect the shared histories and political, economic, or cultural realities of a geographic area. Countries in Latin America, for example, may be able to reach agreement on some set of rights or remedies because of their shared experience of political disappearances in their recent history; or African states may unite in a common concern for group rights that outside the continent are considered less important or appealing. The recent history of lethal injection in the United States, however, shows that regional and national human rights laws can and do contribute to the enforcement of rights not only within a state or within a region, but also across borders and across oceans. It should be a reminder that, and even without that fetishized universality that too often is used to measure laws’ success or failure, human rights laws that are seemingly limited in scope can have wide application, can shape state practices, and can impact human lives.

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