4. Death Penalty, ICCPR Coalition Report

• Feb. 12, 2016 • Locations: United States of America • Topics: Advocacy, Death Penalty

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I. Executive Summary
Although we welcome the Second and Third Periodic Report of the United States of
America to the United Nations Human Rights Committee, we are troubled by its failure
to adequately address human rights violations relating to the administration of the death
penalty nationwide.
In its Concluding Observations regarding the United States’ initial report under
Article 40 of the ICCPR, this Committee noted specific concerns about the way in which
death sentences were imposed in this country.1 In the eleven years that have passed since
then, the United States Supreme Court has taken important measures to prohibit the
application of the death penalty to juvenile offenders and to the mentally retarded. We
applaud those decisions, and welcome the Supreme Court’s newfound willingness to
consider international law in assessing whether certain aspects of the death penalty
violate the Eighth Amendment to the United States Constitution.
At the same time, and contrary to the Committee’s specific recommendations in
1995, the United States has failed to take measures to restrict the death penalty to the
most serious crimes and has failed to ensure that death sentences are carried out in full
compliance with the human rights obligations contained in the Covenant. While the
application of the death penalty in the United States raises many troubling questions, this
report focuses on only five issues: (1) the arbitrary and discriminatory imposition of
death sentences; (2) the application of the death penalty to offenses that do not constitute
the “most serious crimes;” (3) the execution of the severely mentally ill; (4) evidence that
the practice of executing prisoners by lethal injection amounts to cruel, inhuman or
degrading treatment or punishment; and (5) death row conditions and their effects on the
mental health of prisoners awaiting execution. These practices violate several provisions
of the ICCPR, including Articles 6(1), 6(2), 7, 10, and 26.
First, there is ample evidence that death sentences in the United States are imposed
arbitrarily and on the basis of impermissible factors such as race and poverty. These
systemic problems are compounded by the poor quality of legal representation routinely
provided to indigent defendants facing the death penalty. Moreover, there are no uniform
standards to guide the discretion of state prosecutors in seeking the death penalty. As a
result, there are enormous geographical disparities in the sorts of crimes for which the
death penalty is imposed. The administration of the death penalty in the United States
therefore violates Articles 6(1) and 26 of the ICCPR.
Second, the United States continues to impose capital sentences on individuals who
have not committed the “most serious crimes,” in violation of Article 6(2). The “felony
murder” rule allows for individuals to be sentenced to death, even if they did not kill,
intend to kill, or even contemplate that another human being would die as a result of their
actions. And since the United States last appeared before this Committee, it has taken no
steps to reduce the number of crimes for which individuals are “death-eligible.”2

Third, executions of the severely mentally ill are commonplace in the United States,
despite a decision from the United States Supreme Court prohibiting the execution of the
“insane.”3 In the last ten years, the United States has put to death dozens of prisoners
suffering from schizophrenia, bipolar disorder, and other incapacitating mental illnesses.
Moreover, the United States has allowed at least one mentally ill prisoner to be forcibly
medicated with anti-psychotic medication so that he could be rendered “competent” for
execution. These practices constitute cruel, inhuman or degrading treatment or
punishment in violation of Article 7.
Fourth, there is mounting evidence that current lethal injection protocols violate
Article 7. Lethal injection is the most common method of execution in the United States.
While lethal injection was once believed to cause a painless death, experts have testified
that death by lethal injection can cause excruciating agony.4 Prisoners have sought to
obtain stays of execution while lethal injection is subjected to further study and analysis,
but courts in several states have repeatedly denied them even a temporary reprieve.
Fifth, death row prisoners in states such as Texas and California are routinely
subjected to inhumane and degrading treatment in violation of Articles 7 and 10. Of the
thirty-eight states that allow for the application of the death penalty in the United States,
Texas and California have, by far, the largest number of condemned inmates. The
prisons housing death row inmates in these two states have been severely criticized by the
federal judiciary for imposing inhumane and degrading conditions of detention, and for
failing to provide necessary mental health treatment for incarcerated prisoners. These
conditions have had grave effects on death row inmates’ mental and physical health.
The conditions of death row confinement cannot be viewed in isolation from the
length of time that prisoners spend on death rows awaiting their executions. As several
international tribunals have recognized, prisoners forced to anticipate their own deaths
face a unique form of mental torment. This Committee has stressed that the mere length
of time that a prisoner spends on death row does not give rise to a violation of Articles 7
and 10 of the ICCPR,5 and we do not quarrel with that conclusion in this report. Rather,
we contend that the inhumane conditions on death rows nationwide, coupled with the
cumulative effects of those conditions on prisoners who typically spend over a decade
awaiting execution, amount to cruel, inhuman or degrading treatment or punishment.6
We are hopeful that the discussion in this report will assist the Committee in
evaluating the United States’ record of compliance with the International Covenant on
Civil and Political Rights (ICCPR).

Prepared by Sandra L. Babcock
Co-Chair, International Committee
National Association of Criminal Defense Lawyers

II. Relevant Articles of the ICCPR
Article 2(1)
1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
2. Where not already provided for by existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps, in accordance with
its constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognized
in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to develop
the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 6 (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.

Article 6 (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 judgment rendered by a competent
court.

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.
Article 10 (1):
All persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.
Article 26:
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.

III. Violations of Article 6 of the ICCPR
A. The Death Penalty in the United States is Imposed Arbitrarily
1.

There is ample evidence that the death penalty in the United States is imposed
arbitrarily and on the basis of impermissible factors such as race and poverty.
Studies have repeatedly shown that race matters in the determination of who is
sentenced to death.7 It has been said that, as a statistical matter, race is more likely
to affect death sentencing than smoking affects the likelihood of dying from heart
disease.8 In Philadelphia, the odds of receiving a death sentence are nearly four
times higher when the defendant is black.9 A 2006 study confirmed that defendants’
skin color and facial features play a critical role in capital sentencing.10 And over the
last twenty years, social scientists have repeatedly observed that capital defendants
are much more likely to be sentenced to death for homicides involving white
victims.11 In short, racial discrimination is inherent in the administration of the death
penalty in the United States – giving rise to a violation of Articles 2(1) and 26 as
well as Article 6(1).

Rather than taking measures to eliminate racial disparities in capital sentencing, the
United States has chosen to ignore them. Only one state has passed legislation
authorizing courts to consider statistical evidence of racial disparities in determining
whether a defendant should be subjected to the death penalty.12 Virtually without
exception, courts in other states have refused to consider such evidence – and the
legislatures have failed to take corrective measures.13 These failures violate the
United States’ obligations under Article 2 to provide an effective remedy for
violations of the Covenant.
4

There are also enormous geographical disparities in the application of the death
penalty.14 This derives, in part, from the lack of uniform standards to guide the
discretion of state prosecutors in seeking the death penalty. Prosecutors are almost
always elected officials, and their support or opposition to the death penalty in a
given case is often influenced by the level of popular support for capital punishment
within a given community. In San Francisco, for example, the local prosecutor never
seeks the death penalty because she is morally opposed to it.15 In Kern County,
located in California’s conservative Central Valley – the prosecutor is a zealous
advocate of capital punishment.16 As a result, two individuals who commit the same
crime, and who are ostensibly subject to the same penal laws, may be subject to two
radically different punishments. 17

Finally, individuals facing capital charges are routinely represented by lawyers who
lack the experience and the resources to properly defend them. As Supreme Court
Justice Ruth Bader Ginsburg observed in 2001, “[p]eople who are well represented
do not get the death penalty. I have yet to see a death case in the dozens coming to
the Supreme Court. . . in which the defendant was well-represented at trial.”18

Accounts of incompetent legal representation are legion. In Texas, George
McFarland’s lead trial attorney slept through large portions of his trial, failed to ask
any questions of the vast majority of the prosecution’s witnesses, and failed to
present any testimony supporting a life sentence for his client. A Texas court agreed
that McFarland’s attorney was napping during critical phases of his capital murder
trial. Nonetheless, it refused to vacate his death sentence or grant him a new trial.19
Appellate lawyers are often equally incompetent, particularly in states like Texas that
lack a state-wide public defender system.20
B. The Death Penalty Is Imposed for Offenses That Do Not Constitute the
“Most Serious Crimes.”

In 1995, after hearing the United States’ initial report pursuant to Article 40 of the
ICCPR, this Committee expressed concern about the excessive number of offences
punishable by death in a number of states. Since that time, the United States
Supreme Court has determined that the death penalty may not be imposed on
juvenile offenders and the mentally retarded. While we welcome those decisions, it
is important to recognize that they affected only a small handful of condemned
prisoners in the United States.21 There are currently 3,393 men and women awaiting
execution – 319 more than in 1995. And while execution rates have decreased
slightly in recent years, the federal government has taken no steps to reduce the
number of offenses for which individuals can be sentenced to death.

Article 6 (2) of the ICCPR provides that the death penalty may only be imposed for
the “most serious crimes.”22 The Committee has observed that this expression must
be “read restrictively to mean that the death penalty should be a quite exceptional
measure.”23 And in a case where the petitioner received a death sentence for
5

participating in an armed robbery, the Committee held that the sentence was not
compatible with Article 6(2), since the petitioner’s use of firearms did not produce
the death or wounding of any person.”24 Yet in the United States, the death penalty
continues to be applied to individuals convicted under the felony murder doctrine.
This doctrine allows for the imposition of the death penalty on a defendant who is a
“major participant” in a felony, such as burglary or robbery, even if he never killed,
intended to kill, or even contemplated that someone would be killed during the
commission of the crime.25 In certain states, individuals may also be sentenced to
death for accidental killings during a felony or attempted felony.26 Moreover, the
state of Louisiana allows for the death penalty for the rape of a minor – even if the
victim did not die.27
8.

The application of the death penalty to individuals who did not kill or intend to kill
violates Article 6(2), a conclusion that finds further support from a report of the
United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary
Executions. Referring to the Safeguards Guaranteeing Protection of the Rights of
Those Facing the Death Penalty, which define “most serious crimes” as “intentional
crimes with lethal or other extremely grave consequences,” the Special Rapporteur
determined that the term “intentional” in the Safeguards should be “equated to
premeditation and should be understood as deliberate intention to kill.”28

IV. Violations of Article 7 and 10 of the ICCPR
A. The Execution of the Severely Mentally Ill
9.

The execution of the mentally ill is squarely prohibited by international law.29
Although the United States Supreme Court has held that it is cruel and unusual
punishment under the Eighth Amendment of the United States Constitution to
execute persons who are mentally incompetent,30 the states have defined the term so
narrowly that it is virtually meaningless. As a result, the United States regularly
executes prisoners suffering from severe forms of mental illness.

10. The cases of these inmates are too numerous to recount in this report, but they have
been cogently summarized by Amnesty International in its recent report about the
execution of mentally ill offenders in the United States.31 Amnesty found that one of
every ten individuals executed in the United States suffered from a serious mental
disorder other than mental retardation. In all, Amnesty found that at least 100
severely mentally ill men and women have been executed in the United States since
1977.32
11. One of the most tragic cases was that of Kelsey Patterson, a man who suffered from
paranoid schizophrenia and spent many years in and out of state mental hospitals.33
Shortly before he was charged with capital murder, his family had attempted to have
him committed to a mental facility, but the state rejected the request because he had
not harmed anyone. In 1992, Mr. Patterson shot two people, then removed all of his

clothing except for a pair of socks. He was arrested while wandering naked through
the streets.34
12. During his trial, Mr. Patterson frequently spoke of “remote control devices” and
“implants” that controlled his behavior.35 The prosecution conceded that he was
severely mentally ill. Nevertheless, he was convicted and condemned to death.
13. After his appeals were concluded, the Texas Board of Pardons and Paroles
recommended that his sentence be commuted to life imprisonment. The Governor
rejected that recommendation. The courts found him “competent” to be executed,
because United States law merely requires that a condemned inmate understand that
he will be executed, and the reason for his execution.36 When he was escorted to the
room where he was put to death on May 18, 2004, the warden asked him if he had a
final statement. Reporters described Kelsey Patterson’s response as follows:
Statement to what? Statement to what? . . .They’re doing this to steal my
money. My truth will always be my truth. No kin to you . . . undertaker. . .
murderer. Go to hell. Get my money. Give me my rights. Give me my
rights. Give me my life back.”37
14. Steven Staley, who likewise suffers from paranoid schizophrenia, is currently facing
execution in Texas. Unlike Mr. Patterson, a court found Mr. Singleton incompetent
to be executed. Rather than commute his death sentence, however, the state has
sought and obtained a court order authorizing prison officials to forcibly administer
anti-psychotic drugs to restore his competency so that Mr. Staley can be executed.38
Mr. Staley’s lawyer objected to the court order, observing that “[t]he whole idea of
holding somebody down and injecting them so that we can then say, with a straight
face, this person is now competent so we can kill them, I think that smacks of an
Orwellian-Soviet-style approach to criminal justice.”
B. Lethal Injection as Cruel, Inhuman or Degrading Treatment or Punishment
15. The overwhelming majority of executions in the United States are carried out by
lethal injection.39 Medical professionals have raised grave concerns that, far from
producing a rapid and sustained loss of consciousness and humane death, the lethal
injection techniques employed by a majority of states may cause the inmate to
consciously suffer an excruciatingly painful and protracted death.40
16. Lethal injection is accomplished in most states by injecting the prisoner with a
combination of three chemical substances: (1) sodium thiopental, or sodium
pentothal; (2) pancuronium bromide, or Pavulon; and (3) potassium chloride.41
17. The first drug administered to the condemned prisoner is sodium thiopental, or
sodium pentothal, an ultra-short-acting barbiturate that is ordinarily used to render a
surgical patient unconscious for mere minutes. Because it is a short-acting drug,
medical experts have expressed concerns that it may not sedate the inmate
7

throughout the entire lethal injection process.42 These concerns are heightened by
the lack of medical personnel participating in the lethal injection process. Because
medical personnel infrequently participate in executions, the dosages of sodium
thiopental can be improperly measured and mixed with the other chemicals,
compounding the risk that the death row inmate will not be “put to sleep,” but will
rather experience his own death in agonizing clarity.43
18. The second chemical involved in the lethal injection process, pancuronium bromide,
paralyzes the muscles, but does not affect sensation, consciousness, or the ability to
feel pain and suffocation.44 In other words, pancuronium bromide serves no purpose
in the lethal injection process other than to guarantee that the condemned inmate will
be forced into a chemical straightjacket, unable to react or move even if the sodium
thiopenthal has not caused unconsciousness. Unlike in a surgical context where
paralysis during delicate procedures serves a legitimate and beneficial surgical
purpose (preventing the patient from unconsciously moving), in the execution
process where the end sought is death rather than the preservation of life, and where
the “patient” is rendered sufficiently immobile for the task by strapping him onto a
gurney, paralysis serves no rational or legitimate purpose. A paralytic agent does,
however, serve to make the execution appear humane to witnesses, since there is no
way for witnesses to gauge whether the inmate is experiencing a peaceful or an
agonizing death.45
19. If the sedative effect of the sodium thiopental is ineffective or neutralized, the
pancuronium bromide would serve both to inflict and to mask the excruciating pain
of the condemned inmate. As Dr. Mark Heath, Assistant Professor of Clinical
Anesthesia at Columbia University, explains:
If administered alone, a lethal dose of pancuronium would not immediately
cause a condemned inmate to lose consciousness. It would totally immobilize
the inmate by paralyzing all voluntary muscles and the diaphragm, causing
the inmate to suffocate to death while experiencing an intense, conscious
desire to inhale. Ultimately, consciousness would be lost, but it would not be
lost as an immediate and direct result of the pancuronium. Rather, the loss of
consciousness would be due to suffocation, and would be preceded by the
torment and agony caused by suffocation. This period of torturous
suffocation would be expected to last at least several minutes and would only
be relieved by the onset of suffocation-induced unconsciousness.46
20. He adds:
It is my opinion based on a reasonable degree of medical certainty that
pancuronium, when properly and successfully administered, effectively
nullifies the ability of witnesses to discern whether or not the condemned
prisoner is experiencing a peaceful or agonizing death. Regardless of the
experience of the condemned prisoner, whether he or she is deeply
unconscious or experiencing the excruciation of suffocation, paralysis, and
8

potassium injection, he or she will appear to witnesses to be serene and
peaceful due to the relaxation and immobilization of the facial and other
skeletal muscles.47
21. The third drug, potassium chloride, would cause excruciating pain if injected
alone, or in an inmate who had not been rendered sufficiently anesthetized.
And, if administered to a conscious inmate after pancuronium bromide, that pain
would be undetectable to witnesses. According to Dr. Heath:
Intravenous injection of concentrated potassium chloride solution causes
excruciating pain. The vessel walls of veins are richly supplied with sensory
nerve fibers that are highly sensitive to potassium ions. The intravenous
administration of concentrated potassium in doses intended to cause death
therefore would be extraordinarily painful. [The state’s] selection of
potassium chloride to cause cardiac arrest needlessly increases the risk that a
prisoner will experience excruciating pain prior to execution.48
22. Although executions have been temporarily halted in California, Florida, and
Missouri while the courts consider whether current methods of lethal injection create
an unacceptable risk of suffering, other states have continued to use the same
questionable methods to execute death row inmates. Since January 24, 2006, at least
thirteen prisoners have been executed in six states after filing legal challenges to
lethal injection protocols.49 And on May 2, 2006, Ohio’s attempt to execute Joseph
Clark was horribly botched after his vein collapsed during the execution process.50
C. Death Row Conditions and Their Effects on Prisoners Awaiting
Execution
23. In most states, death row prisoners are segregated from the general prison population
and subjected to exceedingly harsh conditions of confinement. In light of the time
that most condemned inmates spend on death row, and the existence of secure and
humane prison facilities that house other prisoners convicted of violent crimes, there
is no legitimate reason why inmates under sentence of death should be isolated from
the general prison population or deprived of educational and occupational outlets.51
1. Death Row Conditions in Texas
a. Overview
24. Since 1999, all male Texas death row prisoners have been incarcerated in the
Polunsky Unit in Livingston, Texas. They are housed in small (approximately 60
square feet) cells, with a sink, a toilet, and a thirty-inch wide bunk. The cells have
solid doors. In addition to being single-celled, death row prisoners are segregated
from other prisoners in every aspect of their lives. They eat alone, exercise alone,
and worship alone. Communication on death row – accomplished by yelling
between cells – is extremely difficult.52
9

25. Prisoners are allowed no physical contact with family members, friends, or even
their attorneys. Generally, a death row prisoner will have physical contact with no
one other than prison staff from his entry onto death row until the time of his
execution. Even in the days and hours before his execution, the prisoner is not
permitted to touch any family member or loved one.
26. The best-behaved death row prisoners spend twenty-three hours per day in their
cells. They are ordinarily given access to small indoor or outdoor “cages” for one
hour per day. Prisoners considered to be disciplinary problems, which usually
includes the most mentally ill inmates,53 are only allowed outside of their cells only
three to four hours per week.
27. Texas’ death row – unlike any death row in the nation – does not offer any
television, making radio the primary source of mental stimulation for the average
semi-literate death row prisoner. Radios are routinely taken from prisoners as a
disciplinary sanction. Death row prisoners are not provided any opportunities to
participate in “programming,” i.e., structured activities in or out of their cells.54
They receive no educational or occupational training.
28. The conditions on Texas’ death row are harsher than those found in many of the
nation’s highest security prisons and segregation units. Thus, the conclusions of
federal courts and mental health experts evaluating the effects of less severe
conditions apply with even greater force here. And those experts have repeatedly
observed that prolonged confinement without sensory stimulation or human contact
exacerbates pre-existing psychological disorders and can precipitate mental illness in
otherwise healthy individuals.55
b. Mentally Ill Prisoners and Death Row Conditions
29. It is well-established that a large percentage of death row inmates suffer from mental
disabilities.56 Yet, as of February 2006, dozens of severely mentally ill death row
prisoners were housed in the conditions described above. James Coburn, a Texas
death row inmate who suffered from schizophrenia, “deteriorated on death row to the
point that he was psychotic and eating his own feces.”57 He was executed on March
26, 2003.
30. Conditions on Texas’ death row are virtually indistinguishable from administrative
segregation conditions58 in other Texas prisons that have been found to be “virtual
incubators of psychoses – seeding illness in otherwise healthy inmates and
exacerbating illness in those already suffering from mental infirmities.”59 Experts
who have evaluated the Texas system of administrative segregation have observed
that the denial of contact and social stimuli is particularly harmful for the mentally
ill, and that the quality of mental health care they receive in administrative
segregation is “medically inadequate.”60

31. As a result of the prison’s negligence, mentally ill death row prisoners are not
receiving the care they need, and several actively psychotic prisoners – including
prisoners who have been identified in court pleadings as psychotic – remain on death
row receiving little to no treatment at all.
2. Death Row Conditions in California
32. There are 645 inmates on death row in California. All of the male inmates are
housed in the San Quentin State Prison,61 the oldest prison in California. San
Quentin was recently described as “so old, antiquated, dirty, poorly staffed, poorly
maintained, with inadequate medical space and equipment and over-crowded that . . .
it is dangerous to house people there with certain medical conditions.”62
33. Judge Thelton Henderson visited San Quentin on February 10, 2005, in connection
with litigation surrounding the abysmal conditions at the prison. Judge Henderson
characterized the tour as “horrifying,” observing that “[e]ven the most simple and
basic elements of a minimally adequate medical system were obviously lacking.”63
He concluded that prisoners in San Quentin (and throughout California) were
“subjected to an unconstitutional system fraught with medical neglect and
malfeasance.”64 The prison’s neglect of the incarcerated population is so severe that
inmates have died “as a direct result of this lack of care, and . . . more are sure to
suffer and die if the system is not immediately overhauled.”65
34. The cumulative effect of those conditions is clearly aggravated by the length of time
that California prisoners typically await their executions.66 According to the
California Department of Corrections, there are currently two inmates who have
been awaiting their execution for 28 years.67 There are 8 more inmates who were
sentenced to death 27 years ago.68 There are 10 who were sentenced 26 years ago.69
There are 24 who were sentenced 24 years ago.70
35. Since the death penalty was reinstated in 1978, California has executed 13 inmates.
During that same time however, 31 inmates were on death row so long that they died
of natural causes.71 Of the 13 inmates actually executed in California the average
time the inmates spent on death row was 17 years and 7.82 months.72
36. Daniel B. Vasquez, the warden of San Quentin from 1983-1993, recently described
what inmates experience as a result of their extended incarceration under deplorable
conditions: “I have observed that the weight and pressure of living as a condemned
man on Death Row is extremely debilitating and wears a prisoner out both physically
and emotionally. Every court petition brings a ray of hope and rescue to the
condemned prisoner, every court reprieve promises more and every court denial
dashes that hope and engenders despair. The condemned prisoner must constantly
adjust to these extremities of emotion, which grinds at his spirit. The process can be
especially debilitating for prisoners who must contend with death warrants.”73

3. The Effects of Lengthy Incarceration and Inhumane Conditions on Death Row
Inmates: A Case Study
37. Prolonged incarceration on death row, particularly under the conditions described
above,74 has devastating psychological effects on condemned prisoners – particularly
those who are mentally ill. Indeed, the torturous effects of "death row phenomenon"
-- that is, the psychological impact of a lengthy stay on death row -- have been
widely noted by jurists and scholars over the last three decades.75
38. It is both necessary and appropriate for nations to provide adequate procedural
safeguards to ensure condemned inmates receive full and fair appellate review of
their convictions and sentences. Nonetheless, prolonged incarceration on death row
amid unendurable conditions of confinement gives rise to violations of Articles 7 and
10 of the ICCPR.76 The case of César Roberto Fierro Reyna, a Mexican national on
Texas’ death row, provides a particularly disturbing example of the destructive
psychological effects of extended solitary confinement on death row.77
39. César Roberto has been under a sentence of death since February 27, 1980. He has
been scheduled for execution on fourteen separate occasions, coming within days of
execution before receiving court-ordered stays on six different occasions.78
According to the prison’s classification records, Mr. Fierro contacted the prison's
psychiatric department for the first time on May 15, 1986, stating that he was hearing
voices and he might injure himself.79
40. As the years passed, Mr. Fierro’s mental condition continued to deteriorate. On
December 28, 1999, Mr. Fierro learned that his mother had died four days earlier. In
a grievance submitted to the prison on January 25, 2000, he wrote that he made an
appointment with the psychiatrist because he "went down emotionally and was
feeling real bad[.]" The prison sent a psychiatrist or a psychologist to his cell, but
Mr. Fierro requested a private consultation. He was told that only outwardly
psychotic prisoners are allowed private psychiatric consultations, and hence his
request was refused. In the grievance, Mr. Fierro wrote:
I don't look sick and I can do things as you can see by this grievance, but I
hear the voices at the same time and I can do things I don't want to do and
that's what I would like to avoid completely.80
41. He reiterated his request for a private meeting with a psychiatrist, and asked that the
psychiatrist "get my old medication back or whatever he deems appropriate." Id.
The prison responded that its records indicated that Mr. Fierro had been seen by the
unit psychiatrist, and that the psychiatrist had found no indication that Mr. Fierro was
in need of further treatment.81
42. Mr. Fierro’s attorneys as well as reporters have observed a marked deterioration in
Mr. Fierro’s mental health over the years of his incarceration on death row. Until
March 1999, he was able to communicate with his attorneys in a regular and fairly
12

rational manner. From that point forward, however, Mr. Fierro’s letters to his
attorneys became increasingly bizarre and irrational. He lost a great deal of weight.
He became convinced that his attorneys were conspiring against him.82
43. One of the hundreds of irrational letters he sent to his attorneys included the
following message:
NO ACCESS TO GRIEVANCES. STOLEN PENS AND STAMPS. LIMITED
ACCESS TO SAME INK AND STAMPS. NO TYLENOLS. NO FLOSS.
SCARED OF DENTIST BECAUSE A DRILLED HOLE OR SOMETHING
AND CAVITIES.
NO MEDICAL.
INCOMPETENT EMPLOYEES.
FORGOT, GUM/TOOTH BLEEDS. NO FAIR HEARINGS, CONFISCATION
OF DOCUMENTS AND ORCHASTRATED [sic} CASES. NO RULES. NO
MAIL.
PSYCHOLOGICAL SUICIDE BY HYPNOSIS OR OTHER
INSINUATED. ALSO THE ATTEMPT TO CONFUSE AND MANIPULATE,
ALSO CUTS, GASSING AND BEATING SO FAR IN THIS RUN.83
44. What is particularly tragic about Mr. Fierro’s case is that he may actually be innocent
of the crime for which he was convicted. Numerous media reports have described
the miscarriage of justice that led to his conviction.84 Although a Texas court has
found that his confession was coerced by the El Paso police,85 and his former
prosecutor has urged the courts to grant him a new trial, he remains on death row.
As of February 27, 2006, he has spent twenty-six years awaiting his execution for a
crime he may not have committed.

V. Recommendations and Conclusion
1.

The United States should suspend executions in those areas in which racial
disparities in death sentences have been documented. The United States should also
pass legislation mandating judicial consideration of statistical evidence regarding
racial disparities in capital sentencing, so that courts will take that evidence into
account in determining whether individuals should be subjected to the death penalty.

The United States should restrict the application of the death penalty by reducing the
number of crimes for which individuals may be sentenced to death, and by strictly
limiting the application of the death penalty to those who have committed an
intentional homicide. The “felony murder” doctrine should not be invoked to justify
the application of the death penalty to individuals who did not kill.

The United States should discontinue executions of the mentally ill, and should
refrain from forcibly medicating prisoners to render them competent for execution.

The United States should adopt a moratorium on all executions nationwide until
current methods of lethal injection have been thoroughly studied by the courts and by
medical professionals.
13

The United States should discontinue the practice of segregating prisoners on death
row, and should give death row prisoners access to educational and occupational
training. In the meantime, the United States should improve conditions on death row
so that they comply with applicable international standards. The United States
should ensure that mentally ill death row prisoners are housed in mental institutions
apart from the death row population and are provided with appropriate treatment.

We are grateful to the Committee for considering this submission in evaluating
the United States’ compliance with its obligations under the ICCPR.

Concluding Observations of the Human Rights Committee: United States of America, ¶¶281,
296, U.N. Doc. CCPR/C/79/Add.50, A/50/40 (1995).
2

See Concluding Observations at ¶281.

Ford v. Wainwright, 477 US 399 (1986).

A declaration from Dr. Mark Heath, describing these problems in detail, has been provided as
an exhibit to this report.
5

See, e.g., Johnson v. Jamaica, ¶8.4 (No. 588/1994), U.N. Doc. CCPR/C/56/D/588/1994 (1996).

Id. ¶8.5.

DEATH PENALTY INFORMATION CENTER, The Death Penalty in Black and White: Who Lives,
Who Dies, Who Decides (1998) (available at
http://www.deathpenaltyinfo.org/article.php?scid=45&did=539).
8

Id.

David C. Baldus, et. al., Racial Discrimination and the Death Penalty in the Post-Furman Era:
An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 CORNELL L.
REV. 1638-1770 (1998).
10

Jennifer Eberhardt, et. al, Looking Deathworthy: Perceived Stereotypicality of Black
Defendants Predicts Capital Sentencing Outcomes, 17 PSYCH. SCI. 383 (2006) (attached as an
Exhibit to this Report).
11

See generally AMNESTY INTERNATIONAL, Death by Discrimination: The Continuing Role of
Race in Capital Cases, April 24, 2003 (available at
http://web.amnesty.org/library/index/engamr510462003). See also Samuel Gross & Robert
Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide
Victimization, 37 STAN. L. REV. 27, 78, 96 (1984); SAMUEL GROSS & ROBERT MAURO, DEATH
AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 65-66 (1989).
12

Kentucky Revised Statutes Ann, §532.300.

Human Rights Committee, General Comment 18, Non-discrimination, ¶10 (Thirty-seventh
session, 1989), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 26 (1994).
14

See, e.g., DEATH PENALTY INFORMATION CENTER, Arbitrariness and the Death Penalty
(available at http://www.deathpenaltyinfo.org/article.php?did=1328); DEPT. OF JUSTICE, THE
FEDERAL DEATH PENALTY SYSTEM: A STATISTICAL SURVEY (1988-2000) (finding that 40% of
the 682 cases sent to the Justice Department for approval to seek the death penalty were filed by
only five jurisdictions) (available at http://www.usdoj.gov/dag/pubdoc/dpsurvey.html).
15

Harriet Chiang, DA Defends Decision Not to Seek Execution, S.F. CHRONICLE, April 25, 2004,
at B1.
16

David Kravets, Death Penalty Varies by Geography in California, SAN MATEO DAILY J., Feb.
6, 2004 (available at
http://www.smdailyjournal.com/article_preview.php?id=27725&eddate=02/06/2004).
17

See Glenn L. Pierce & Michael L. Radelet, The Impact of Legally Inappropriate Factors on
Death Sentencing for California Homicides, 1990-1999, 46 SANTA CLARA L. REV. 1, 25-36
(2005) (noting that San Francisco had 910 homicides from 1990-1999 but had not sentenced a
single person to death, whereas Kern County had only 661 homicides yet sentenced ten
individuals to death).
18

Associated Press, April 10, 2001.

Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005).

See TEXAS DEFENDER SERVICE, Lethal Indifference: The Fatal Combination of Incompetent
Attorneys and Unaccountable Courts in Texas Death Penalty Appeals (2002) (available at
http://www.texasdefender.org/front.pdf).
21

The Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), affected only 72
juvenile offenders in twelve states. See DEATH PENALTY INFORMATION CENTER, U.S. Supreme
Court: Roper v. Simmons (2005) (available at
http://www.deathpenaltyinfo.org/article.php?scid=38&did=885). The decision in Atkins v.
Virginia, 536 U.S. 304 (2002), which prohibited the imposition of the death penalty on mentally
retarded offenders, has had an even more limited impact. Daryl Atkins, whose case led to the
Supreme Court’s seminal decision, has once again been sentenced to death after a Virginia jury
rejected evidence of his mental retardation. See INTERNATIONAL JUSTICE PROJECT, Daryl
Renard Atkins (available at: http://www.internationaljusticeproject.org/retardationDatkins.cfm).
22

See also Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,
¶1, E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (No. 1) at 33, U.N. Doc. E/1984/84
(1984) (death penalty may only be imposed “for the most serious crimes, it being understood that
their scope should not go beyond intentional crimes with lethal or other extremely grave
consequences”).
23

Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982), para. 7;
Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994).

Lubuto v. Zambia, ¶7.2 (No. 390/1990), U.N. Doc. CCPR/C/55/D/390/1990/Rev.1 (1995).

See Tison v. Arizona, 481 U.S. 137, 157-58 (1987).

See, e.g., Cal. Penal Code §190.2(b) (“Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an actual killer . . . need not have
had any intent to kill at the time of the commission of the offense which is the basis of the special
circumstance in order to suffer death”); Ga. Code Ann. §16-5-1 ) (“A person also commits the
offense of murder when, in the commission of a felony, he causes the death of another human
being irrespective of malice”).
27

Louisiana Revised Statutes 14:42D(2)(a); State v. Wilson, 685 So. 2d 1063 (La. 1996).

United Nations, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary
Executions, UN Doc. CCPR/C/79/Add.85, 19 Nov. 1997, para. 13.
29

See, e.g., Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty,
E.S.C. Res. 1984/50, U.N. ESCOR, Supp. No. 1, at 33, U.N. Doc. E/1984/92 (1984) (death
sentence shall not be carried out on persons who have become insane); United Nationals
Economic and Social Council, Implementation of the Safeguards Guaranteeing Protection of
Rights of Those Facing the Death Penalty, E.S.C. Res. 1989/64, U.N. Doc. E/1989/91 (1989), at
51 ¶ 1 (d) (death penalty shall not be imposed on “persons suffering from…extremely limited
mental competence, whether at the stage of sentence or execution”) (emphasis added); U.N.
Commission on Human rights, Question of the Death Penalty, U.N. Doc. E/CN.4/2005/L.77
(2005) (calling on retentionist countries “not to impose the death penalty on a person suffering
from any form of mental …disabilities or to execute any such person”); Report of the Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions, U.N. Doc. E/CN.4/1997/60
(1996) (calling on retentionist states that impose the death penalty on the mentally ill to “bring
their domestic criminal laws into conformity with international legal standards”).
30

Ford v. Wainwright, 477 US 399 (1986).

AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: THE EXECUTION OF MENTALLY ILL
OFFENDERS (available at http://web.amnesty.org/library/print/ENGAMR510032006).
32

Id.

An excellent summary of Mr. Patterson’s case is provided in AMNESTY INTERNATIONAL,
Another Texas Injustice: The Case of Kelsey Patterson, Mentally Ill Man Facing Execution,
March 18, 2004 (available at http://web.amnesty.org/library/Index/ENGAMR510472004).
34

Texas Executes Mentally Ill Man, N.Y. TIMES, May 19, 2004.

Mike Tolson, Plea Rejected, Mentally Ill Man Executed, HOUSTON CHRONICLE, May 19, 2004.

Ford v. Wainwright, 477 U.S. at 422 (Powell, J., concurring).

Id.

See Melody McDonald, Judge Rules Condemned Man Must Take Anti-psychotic Drug, FORTH
WORTH STAR TELEGRAM, April 11, 2006 (Attached as an exhibit to this report).
39

Currently, 37 of the 38 states that retain the death penalty in the United States use lethal
injection as their primary method. Only Nebraska solely uses electrocution. See DEATH
PENALTY INFORMATION CENTER, Facts About the Death Penalty (available at
http://www.deathpenaltyinfo.org/FactSheet.pdf) (last updated March 1, 2006).
40

See, e.g., HUMAN RIGHTS WATCH, So Long as They Die: Lethal Injection in the United States,
April 2006 (available at http://hrw.org/reports/2006/us0406/); Declaration of Dr. Mark Heath,
¶¶19-20, filed in Morales v. Hickman, No. 5:06-cv-00219-JF, (N. D. Cal. Jan. 20, 2006).
41

See DEATH PENALTY INFORMATION CENTER, Lethal Injection: Some Cases Stayed, Other
Executions Proceed, (available at
http://www.deathpenaltyinfo.org/article.php?did=1686&scid=64) (last visited March 11, 2006);
Heath Declaration, ¶9.
42

Heath Declaration, ¶¶17-19.

Heath Declaration, ¶28.

Id. ¶37.

Id. ¶¶37-43.

Id. ¶40.

Id. ¶43.

Id. ¶11.

Associated Press, Botched Execution Leads to Ohio Review, May 12, 2006.

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Dying Twice: Conditions on New
York’s Death Row (observing that death row prisoners in Missouri are integrated with the general
population) (available at
http://www.abcny.org/Publications/reports/show_html.php?rid=51&searchterm=dying%20twice).
52

The information presented here regarding the conditions on Texas’ death row has been
confirmed by numerous interviews with death row inmates and with the attorneys who represent
those inmates. Compelling individual accounts of life on Texas’ death row have been published
on the internet. See, e.g., Alvin Kelly, Trial by Fire, Feb. 19, 2002 (available at
http://www.ccadp.org/alvinkelly.htm); G. Wilford Hathorn, Animus (2001) (available at
http://www.deathrow.at/hathorn/home1.html).
53

See Shadow Report of the Criminal Justice Working Group at ¶44.

Texas has passed legislation banning the education of prisoners in administrative segregation.
Whether this ban applies to death row prisoners is not clear, but more importantly, it should not
prohibit other kinds of mentally stimulating activity.
55

See, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995); Davenport v.
DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988), Stuart Grassian and N. Friedman, Effects of
Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, AMERICAN JOURNAL OF
LAW AND PSYCHIATRY 49-65 (1986); Stuart Grassian, Psychopathological Effects of Solitary
Confinement, AMERICAN JOURNAL OF PSYCHIATRY 1450-54 (1983). See also HUMAN RIGHTS
WATCH, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness, Part XII (2003) (available
at http://www.hrw.org/reports/2003/usa1003/).
56

See, e.g., Laura Mansnerus, Damaged Brains and the Death Penalty, N.Y. TIMES, Jul. 21,
2001; David Freedman and David Hemenway, Precursors of Legal Violence: A Death Row
Sample, SOCIAL SCIENCE AND MEDICINE 1757-1770 (June 2000).
57

Renee Feltz, Cruel and Unusual? Texas Death Row Conditions, KPFT Radio Transcript, Nov.
8, 2002 (available at http://www.kpft.org/news/110802story3.html).
58

Administrative segregation conditions are identical to death row prisoners’ in all but name.
Administrative segregation prisoners have the same out-of-cell time, recreate and worship alone,
and have comparable restrictions on property. See Ruiz v. Johnson, 37 F. Supp. 2d 855, 908 (S.D.
Texas 1999).
59

Id. at 907.

Id .at 911-12.

California Department of Corrections and Rehabilitation Division of Adult Operations, Death
Row Tracking System, available at
http://www.corr.ca.gov/ReportsResearch/docs/InmateSecured.pdf (last updated Feb. 27, 2006).
62

Plata v. Schwarzenegger, 2005 WL 2932243 at *3 (N.D. Cal. May 10, 2005) (Order to Show
Cause Re. Civil Contempt and Appointment of Interim Receiver).
63

Id.
Id.

Id. at *1. For a more detailed description of prisoner deaths caused by improper medical care,
see Plata v. Schwarzenegger, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005) (Findings of Fact and
Conclusions of Law Re. Appointment of Receiver). Some of the deaths are also described in
James Sterngold, U.S. Seizes State Prison Health Care, S.F. CHRONICLE, July 1, 2005, at A-1.
66

See Declaration of Dr. George Woods (describing the deterioration in the mental health of
California death row inmate James Blair, a sixty-three year old man incarcerated on death row for
fourteen years). The declaration of Dr. Woods has been provided as an exhibit to this report.

California Department of Corrections and Rehabilitation Division of Adult Operations, Death
Row Tracking System, available at: http://www.corr.ca.gov/ReportsResearch/docs/Summary.pdf
(last updated Feb. 27, 2006).
68

Id.

California Department of Corrections and Rehabilitation, Office of Public and Employee
Communications, January 16, 2006, available at
http://www.corr.ca.gov/ReportsResearch/docs/CIWHD.pdf
72

California Department of Corrections and Rehabilitation , Inmates Executed, available at:
http://www.corr.ca.gov/ReportsResearch/InmatesExecuted.html.
73

Declaration of Daniel B. Vasquez in Support of Ray Allen’s Petition for Clemency and Petition
for Writ of Habeas Corpus, ¶ 14, available at: http://www.aclunc.org/deathpenalty/051227Vasquez%20Declaration.pdf
74

By focusing on Texas and California, we do not mean to imply that death row conditions
elsewhere in the United States are humane. See, e.g., Associated Press, Inmates Waiting to Die
Want More Privileges, May 14, 2006 (describing conditions on Connecticut’s death row); THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Dying Twice: Conditions on New York’s
Death Row (available at
http://www.abcny.org/Publications/reports/show_html.php?rid=51&searchterm=dying%20twice).
But keeping in mind the need for brevity, we have decided to concentrate on California and Texas
since their combined death row populations constitute nearly one-third of the death row
population nationwide.
75

See, e.g., Soering v. United Kingdom, 11 EUR. HUM. RTS. REP. 439 (1989)(European Court of
Human Rights refused to extradite a German national to face capital murder charges because of
anticipated time that he would have to spend on death row if sentenced to death); Pratt & Morgan
v. The Attorney General of Jamaica, Privy Council Appeal No. 10 of 1993, 3 WLR 995, 143 NLJ
1639 (British Commonwealth Privy Council Nov. 2, 1993)(en banc); Catholic Comm’n for
Justice & Peace in Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993
(reported in 14 HUM. RTS. L. J. 323 (1993)); Wood, Competency for Execution: Problems in Law
and Psychiatry, 14 FLA. ST. U. L. REV. 35, 37-39 (1986) ("The physical and psychological
pressure besetting capital inmates has been widely noted .... Courts and commentators have
argued that the extreme psychological stress accompanying death row confinement is an eighth
amendment violation in itself or is an element making the death penalty cruel and unusual
punishment.") (citing authorities); Holland, Death Row Conditions: Progression Towards
Constitutional Protections, 19 AKRON L. REV. 293 (1985); Johnson, Under Sentence of Death:
The Psychology of Death Row Confinement, 5 LAW & PSYCHOLOGY REVIEW}141, 157-60
(1979); Gallemore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 AMER.
J. PSYCHIATRY 167 (1972); Bluestone & McGahee, Reaction to Extreme Stress: Impending
Death By Execution, 119 AMER. J. PSYCHIATRY 393 (1962); Note, Mental Suffering Under
Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 830 (1972); G.

Gottlieb, Testing The Death Penalty, 34 S. CAL. L. REV. 268, 272 & n.15 (1961); A. Camus,
Reflections on the Guillotine, in RESISTANCE, REBELLION & DEATH 205 (1966).
76

See, e.g., Francis v. Jamaica, ¶9.2 (No. 606/1994), U.N. Doc. CPR/C/54/D/606/1994 (1995).

See Patricia Giovine, Pide Ayuda César Fierro, EL DIARIO DE EL PASO, July 27, 2005, at A1;
John Carlin, César Fierro, 25 Años a La Espera de la Ejecución, EL HERALDO, Aug. 18, 2005, at
2.
78

Affidavit of Jean Terranova, ¶3 (Attached as an Exhibit to this Report).

Affidavit of Dr. Pablo Stewart , ¶4 (Attached as an Exhibit to this Report).

Id., ¶7.

Id., ¶8.

Terranova Aff’d., ¶¶4-8.

Id. ¶6.

See, e.g., Dianne Jennings, U.S. Courts Haven’t Considered Effect of Man’s Coerced
Confession, DALLAS MORNING NEWS, Mar. 4, 2002, at A17; Ken Armstrong and Steve Mills,
Gatekeeper Court Keeps Gates Shut, CHICAGO TRIBUNE, June 12, 2000, at A1; Mark Donald,
Stuck in Habeas Hell: Bush Breathes New Life Into Texas Death Row Inmate’s Case, TEXAS
LAWYER, May 2, 2005.
85

Ex Parte Cesar Roberto Fierro, No. 33,752-171-4, slip op. at 2 (171st Dist. Ct. – El Paso May
1, 1995).