Death Row Phenomenon

Article 7 of the ICCPR provides that "[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." Other human rights treaties contain identical language. See, e.g., European Convention on Human Rights, art. 3; American Convention on Human rights, art. 5; African Charter on Human and Peoples Rights, art. 5; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 16.

Over the last two decades, a rich body of jurisprudence has developed in support of the notion that prolonged incarceration on death row (also known as "death row phenomenon") constitutes cruel, inhuman, or degrading punishment. See, e.g., Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993) (en banc); Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989) (European Court of Human Rights). These decisions have prompted scores of articles by legal commentators and mental health experts.

In Pratt and Morgan, the Privy Council held that a delay of 14 years between the time of conviction and the carrying out of a death sentence in the case of a Jamaican prisoner was "inhuman punishment." 2 A.C. at 33. The Privy Council further concluded that "in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute 'inhuman or degrading punishment.'" Id. In Soering, the European Court found that prisoners in Virginia spend an average of six to eight years on death row prior to execution. The court determined that "[h]owever well-intentioned and even potentially beneficial is the provision of the complex post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death." 161 Eur. Ct. H.R. (ser. A) at 42 (1989).

More recently, the Supreme Court of Canada considered evidence that death-sentenced inmates in the state of Washington (United States) took, on average, 11.2 years to complete state and federal post-conviction review, in weighing the legality of extraditing two men to the United States to face capital charges. The Court acknowledged a "widening acceptance" that "the finality of the death penalty, combined with the determination of the criminal justice system to satisfy itself fully that the conviction is not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma." Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001) (at para. 122). Relying in part on this evidence, the court held that the Canadian Charter of Rights and Freedoms precluded the defendants' extradition, absent assurances the United States would not seek the death penalty.

The Ugandan Supreme Court has also embraced these arguments, holding that a delay of more than three years between the confirmation of a prisoner's death sentence on appeal and execution constitutes cruel, inhuman or degrading treatment or punishment in violation of their national constitutions. Kigula and Others v. Attorney Gen., 2006 S. Ct. Const. App. No. 03, at 56-57 (Uganda 2009). The Zimbabwe Supreme Court has held that delays of 52 and 72 months between the imposition of a death sentence and execution constitute inhuman punishment. 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)) (available at http://www.unhcr.org/refworld/country,,ZWE_SC,,ZWE,,3ae6b6c0f,0.html). And in 2010, the European Court on Human Rights expanded its decision in Soering in Al Saadoon and Mufdhi v. UK. There, the Court found that the United Kingdom had violated its obligations under article 3 of the European Convention merely by exposing the applicants to the threat of capital punishment.

Arguably, the prohibition against cruel, inhuman, or degrading treatment has attained binding force as customary international law. See Declaration of Tehran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights, including prohibition against cruel, inhuman or degrading treatment, as customary international law). Accord De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985) (noting that the right not to be subjected to cruel, inhuman, and degrading treatment constitutes universally accepted international law).

In the United States, the lower federal courts have rejected the reasoning in Pratt and Morgan and Soering, see, e.g., McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995); White v. Johnson, 79 F.3d 432 (5th Cir. 1996). The Supreme Court has not yet reviewed this question. Former Justice Stevens and Justice Breyer have voiced support for such arguments. See Knight v. Florida, 120 S. Ct. 459 (1999) (Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 119 S. Ct. 366 (1998) (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).

Cases

Al Saadoon and Mufdhi v. UK, No. 61498/08 (2 March 2010).

Kigula and Others v. Attorney Gen., 2006 S. Ct. Const. App. No. 03, at 56-57 (Uganda 2009).

Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993) (en banc)

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)

Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (India 1983) (criticizing the "dehumanizing character of the delay" in carrying out the death penalty)

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)). Available at http://www.unhcr.org/refworld/country,,ZWE_SC,,ZWE,,3ae6b6c0f,0.html.

Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001)

McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995)

White v. Johnson, 79 F.3d 432 (5th Cir. 1996)

Knight v. Florida, 120 S. Ct. 459 (1999)

Elledge v. Florida, 119 S. Ct. 366 (1998)

Lackey v. Texas, 514 U.S. 1045 (1995)

Commentary

Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 Seton Hall L. Rev. 147 (1998).

Stephan Black, Killing Time: The Process of Waiving Appeal--The Michael Ross Death Penalty Cases, 14 J. L. & POL'Y 735, 749 (2006).

Center for Constitutional Rights, The United States Tortures Before It Kills: An Examination of the Death Row Experience From A Human Rights Perspective, http://ccrjustice.org/files/deathrow_torture_postition_paper.pdf, Oct. 10, 2011. 

Michael P. Connolly, Better Never than Late: Prolonged Stays on Death Row Violate the Eighth Amendment, 23 N. E. J. on Crim. & Civ. Con. 101 (1997).

Jessica Feldman, Comment, A Death Row Incarceration Calculus: When Prolonged Death Row Imprisonment Becomes Unconstitutional, 40 Santa Clara L. Rev. 187 (1999).

Ryan S. Hedges, Note, Justices Blind: How the Rehnquist Court's Refusal to Hear a Claim for Inordinate Delay of Execution Undermines its Death Penalty Jurisprudence, 74 S. Cal. L. Rev. 577 (2001).

David Heffernan, Comment: America the Cruel and Unusual? An Analysis of the Eighth Amendment Under International Law, 45 Cath. U. L. Rev. 481 (1996).

Human Rights Advocates, Death Row Phenomenon Violates Human Rights, http://www.humanrightsadvocates.org/wp-content/uploads/2010/05/Death-Row-Phenomenon-2012.pdf, 2012.

Richard B. Lillich, Harmonizing Human Rights Law Nationally and Internationally: The Death Row Phenomenon As A Case Study, 40 St. Louis L. J. 699 (1996).

Karl S. Meyers, Comment, Practical Lackey: The Impact of Holding Execution After a Long Stay on Death Row Unconstitutional Under Lackey v. Texas, 106 Dick. L. Rev. 647 (2002).

Manfred Nowak, Is the Death Penalty an Inhuman Punishment?, in The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, 27, 30 (Theodore S. Orlin, et al., eds., 2000).

Eva Rieter, ICCPR Case Law on Detention, the Prohibition of Cruel Treatment and Some Issues Pertaining to the Death Row Phenomenon, Journal of the Institute of Justice and Intl. Studies, Vol. 1, No. 1, 2002. 

David A. Sadoff, International Law and the Moral Precipice: A Legal Policy Critique of the Death Row Phenomenon, 17 TUL. J. INT'L & COMP. L. 77 (2008).

Philip Sapsford, Can Delay Render Execution Unlawful?, 99 American Society of International Law 71 (2005).

William Schabas, Developments in Criminal Law and Criminal Justice: Execution Delayed, Execution Denied, 5 Crim. L. F. 180 (1994).

Markus G. Schmidt, The Death Row Phenomenon: A Comparative Analysis, in The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, 47-72 (Theodore S. Orlin, et al., eds., 2000).

Richard E. Shugrue, "A Fate Worse Than Death" - An Essay On Whether Long Times On Death Row Are Cruel Times, 29 Creighton L. Rev. 1 (1995).

Amy Smith, Not "Waiving" But Drowning: The Anatomy Of Death Row Syndrome And Volunteering For Execution, 17 B.U. PUB. INT. L.J. 237 (2008).

Florencio J. Yuzon, Conditions and Circumstances of living on Death Row - Violative of Individual Rights and Fundamental Freedoms?: Divergent Trends of Judicial Review in Evaluating Death Row Phenomenon, 30 G.W.J. Int'l L. & Econ. 39 (1996).

Last updated on February 21, 2012

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