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44th Street Notes


Human Rights and the Death Penalty


Dec 2000

The City Bar works hard in the field of Human Rights. Recently, for example, we met with Iranian officials to protest Human Rights violations in the trial of Iranian Jews charged with spying for Israel; received a delegation of senior British officials to discuss whether policing in Northern Ireland conforms to Human Rights standards; and wrote to the Indonesian Government about the disappearance of a leading Human Rights defender. Our international Human Rights Missions, often led by distinguished jurists, are highly regarded. Political asylum cases that raise human rights issues are a key part of the City Bar Fund¡¦s immigration law practice.

Two Way Street Protesting Human Rights violations, however, is obviously a two way street. Recently, for example, the City Bar has worked with the Paris Bar to call attention to Human Rights violations in the administration of the death penalty in the United States. After hearing my remarks on the death penalty at a meeting of the Union Internationale des Avocats, the leader of the Paris Bar extended to me the honor of using the editorial column he normally writes to address this subject. My editorial, entitled ¡§Send a Message,¡¨ has just been published in the Paris Bar Bulletin and is posted on the City Bar website, www.abcny.org. The British Government has also been active on the death penalty front. This summer British Solicitor General Ross Cranston told an ABA audience that his government regularly files Human Rights protests against the United States in regard to particular executions.

Congressional Power Another speaker at this ABA symposium argued that it was futile to protest to the United States Government because the death penalty was largely a matter within the jurisdiction of the 50 States and Congress was powerless to act. Under this view Congress would not have the power to impose, for example, a moratorium on executions in the United States. Such a moratorium would have to be enacted state by state. In 1972, the City Bar issued a report urging Congress to enact just such a moratorium under its power to enforce the Fourteenth Amendment by appropriate legislation. Certainly the Fourteenth Amendment is clear that a life may not be taken without due process of law; the Supreme Court has jurisdiction to decide what process is due when it comes to taking a life; and state legislatures and state high courts (invoking state due process clauses) have the jurisdiction to impose more restrictive standards than would the Supreme Court. It remains to be seen, however, whether the Supreme Court will allow Congress any death penalty role beyond federal crimes and the rules for collateral attack of state convictions in federal District Court.

Human Rights-Friendly Interpretation The Supreme Court should give a Human Rights-friendly interpretation to congressional power under the Fourteenth Amendment. Although the phrase ¡§Human Rights¡¨ was not used by the framers of the Constitution or the Fourteenth Amendment, the phrases that were used¡X¡§privileges and immunities,¡¨ ¡§due process¡¨ and ¡§equal protection of the laws¡¨¡Xare the sum and substance of Human Rights. Further, the framers of the Bill of Rights made it express that the rights they provided for were not exclusive and were subject to further elaboration. The constitutional text provides no definitive answer to the scope of congressional power. The ends of representative government are served by allowing Congress, our leading representative body, to secure by legislation protection for Human Rights within the United States.

The Need for a National Moratorium As the City Bar urged in 1972, Congress should use its power to protect Human Rights by enacting a national moratorium on executions. Prejudice was a threat to the fair application of the death penalty then and it remains one today. In no way have we stepped up to funding representation adequate in the circumstances at all phases of trial and post-conviction review for those at risk of losing their lives. These problems matter. DNA evidence, in the fraction of capital cases where it is available, has so far exonerated eight death row prisoners. There is no reason to expect greater accuracy in death penalty cases where DNA evidence is not available. Recent studies have also shown a high level of discovered prosecutorial misconduct in high profile, politically charged capital cases. How much prosecutorial misconduct, including the withholding of exculpatory evidence, goes undiscovered? Unless and until we can know that prejudice, the defendant¡¦s economic circumstance and prosecutorial misconduct have no bearing on the outcome of either the guilt or sentencing phases of a capital case, executions must not go forward.

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