Professor Philip Alston
United Nations Human Rights Council Special Rapporteur on extrajudicial, summary or arbitrary executions
New York, 30 June 2008

I spent two weeks (June 16-30) visiting the United States at the invitation of the Government and met with federal and state officials, judges, civil society groups, and victims and witnesses in Washington DC, New York City, Montgomery (Alabama), and Austin (Texas).

I am grateful to the U.S. Government for its cooperation and for having facilitated meetings with officials from the Departments of State, Justice, Defense and Homeland Security, as well as with officials in Alabama and Texas. The US Government’s willingness to invite me and to engage in a constructive dialogue sends an important message.

Although the title of my mandate may seem complex, it should be simply understood as including any killing, which violates international human rights or humanitarian law. This may include unlawful killings by the police, deaths in custody, killings of civilians in armed conflict in violation of humanitarian law, and patterns of killings by private individuals which are not adequately investigated and prosecuted by the authorities. My mandate is not abolitionist, but the death penalty falls within it as regards due process guarantees, its limitation to the most serious crimes and its prohibition for juvenile offenders and the mentally ill.

If there is a single theme that emerges from my visit it is the need for greater transparency in relation to a number of issues of major importance. In most instances, neither laws nor procedures for addressing any potentially unlawful killings are lacking. And, for the most part, data is gathered systematically and responsibly. But in too many cases it is extremely difficult, if not impossible, to gain access to that information. Instead, procedural and other impediments are firmly ensconced in order to thwart those who seek to monitor the accountability of public authorities. This reality is entirely inconsistent with the stated commitments of the Government and my hope is that the necessary steps can be taken to remove the obstacles and ensure full respect for human rights.

In different contexts, I was frequently told by Government officials that although they were unable to answer my specific questions, I should rest assured that there was accountability. Whether or not it does in fact exist, this “private” or “internal” accountability cannot take the place of genuine, public accountability. A Government open and accountable to its people is a foundational premise of a democratic state.

The present statement identifies some, but not all, of the issues and recommendations to be addressed in my final report.
Death penalty

In view of the very limited time available to me, I chose to visit Alabama because it has the highest per capita rate of executions in the US, and Texas because it has the largest number of executions and prisoners on death row.

Executing the innocent: a risk that cannot be ignored:
Since 1973, 129 individuals waiting on death row have been exonerated across the US. This number continues to grow. Indeed, while I was in Texas, the conviction of yet another person on death row was overturned by the Court of Criminal Appeals. While in this case DNA testing ultimately prevented the execution of an innocent man, others may have been less fortunate. In Texas, I met a range of officials and others who acknowledged that innocent people might have been executed. The problem is that a criminal justice system with recognized flaws that the government refuses to address will always be capable of mistakes. While some officials seem to consider due process rights as mere “technicalities,” the growing number of exonerations underscores that they are in fact indispensable safeguards against injustice in cases in which an error can be fatal. At present, a great deal of time and energy is spent trying to expedite executions. A better priority would be to analyze where the criminal justice system is failing in capital cases and why innocent people are being sentenced to death.

In Texas, there is at least significant recognition that reforms are needed. In Alabama, the situation remains highly problematic. Government officials seem strikingly indifferent to the risk of executing innocent people and have a range of standard responses, most of which are characterized by a refusal to engage with the facts. The reality is that the system is simply not designed to turn up cases of innocence, however compelling they might be. It is entirely possible that Alabama has already executed innocent people, but officials would rather deny than confront flaws in the criminal justice system.

Alabama’s systematic rejection of concerns that basic international standards are being violated sits oddly alongside the Government’s determined and successful bid to attract foreign investment from the European Union in particular. Indeed, Alabama’s largest export market in 2007 was Germany. It would thus be appropriate for Alabama to engage in a dialogue on due process concerns in its death penalty with the international community.

Given the rising number of innocent people being exonerated nationwide, both Alabama and Texas need to ask what might be wrong with their criminal justice systems and how the problems might be fixed. I recommend a three-prong strategy: (1) problems such as judicial independence and the absence of an adequate right to counsel should be addressed immediately; (2) systematic inquiries into the workings of the criminal justice systems should be undertaken to identify needed reforms; and (3) the federal courts should be able to review all substantive claims of injustice in capital cases. I turn now to consider each of these.

Alabama and Texas both have partisan elections for judges. It is not for me to evaluate the compatibility of requirements for judicial independence with a system of multi-million dollar campaigns for judicial elections every four years. But if the outcome of such a system in practice is to jeopardize the right of capital defendants to a fair and just trial and appeal there is clearly a need to consider changes. Many of those with whom I spoke suggested strongly that judges in both states consider themselves to be under popular pressure to impose and uphold death sentences whenever possible and that decisions to the contrary would lead to electoral defeat. Yet the role of the judiciary is to ensure that justice is done in individual cases and to avoid the execution of innocent persons. It is not to ensure that the popular will prevails over other considerations. Too often, under the existing electoral system, the death penalty ends up being treated as a political rather than a legal issue.

This problem of politicizing death sentences is illustrated by Alabama’s law permitting judges to override the considered opinion of the jury in sentencing. Even if a jury unanimously decides to sentence a defendant to life in prison, the judge can instead impose a death sentence. When judges override jury verdicts, it is nearly always to increase the sentence to death rather than to decrease it to life, and a significant proportion of those on death row would not be there if jury verdicts were respected. Given the key role of the jury in American justice, it is difficult to justify giving officials who will be held to account for their stance on the death penalty every four years the power to substitute their own individual opinions for those of the 12 member jury. Given concerns about possible innocence and the irreversible nature of the death penalty, Alabama should relieve judges of this invidious role by repealing the law permitting judicial override. Instead, juries should be permitted to play their historical role of protecting individual rights.

In both Alabama and Texas a surprisingly broad range of people in and out of government acknowledged the inadequacy of existing programs for providing criminal defense lawyers to those who cannot afford to hire their own. It is clear that major reforms would be required if the right to counsel is to be taken seriously. Yet, in both states, money-saving half-measures are being discussed when what is needed are state-wide, well-funded, independent public defender services. There is a clear onus on states to systematically evaluate the workings of their criminal justice systems to ensure that the death penalty is not imposed unjustly. Alabama could draw on the in-depth analysis of the issues produced by the American Bar Association (ABA). While various officials dismissed the ABA as being biased, they generally acknowledged that those who conducted the study were serious lawyers, and none had undertaken a thorough analysis of the report. Given the seriousness of the problems identified, and the reluctance to undertake any alternative in-depth study, it is incumbent upon the authorities to formally respond to the ABA’s findings and recommendations. Giving reasons for accepting or rejecting specific recommendations would indicate a serious concern to respond to alleged injustices.

The role of the federal courts in reviewing death sentences imposed by state courts has been curtailed by federal legislation designed to “expedite” such cases. As initially enacted, this legislation permitted states to opt-in to expedited review, if the state provided counsel for indigent death row inmates in post-conviction cases. The federal courts had responsibility to determine whether states qualified, and they found that few states met statutory requirements for the provision of counsel. The appropriate response to this would have been to improve state systems for indigent defense. Instead, Congress amended the law to permit the Department of Justice to adopt regulations under which it, rather than the Courts, would certify whether state indigent defense systems met this standard. The regulations initially drafted by DOJ were grossly inadequate for this purpose. The final regulations will be promulgated soon, but the approach of DOJ officials with whom I spoke regarding this issue leaves me far from optimistic that they will prove adequate either. Congress should take seriously the extent to which many state criminal justice systems fail to adequately protect constitutional rights in capital cases, rather than trying to find an expeditious shortcut. Instead of being forced to dismiss cases due to procedural technicalities, the federal courts can and should provide a critical back-stop to prevent injustice. The best way forward would be for Congress to enact legislation permitting federal courts to review all issues in death penalty cases on the merits, with appropriate exceptions, such as where a defendant attempts to deliberately bypass state court procedures.

Racism and the death penalty:
Studies across the country suggest racial disparities in the application of the death penalty. In particular, many studies suggest that a defendant is more likely to receive the death penalty when the victim is white, and some studies also suggest that a defendant is more likely to receive the death penalty if he is African American. When I raised this issue with federal and state government officials, I was met with indifference or flat denial. Some officials had not read any specific reports on race disparity and showed little concern for the issue. Others conceded racial disparity as a fact, but invoked a handful of studies suggesting that this was not caused by racial bias. Thus I was told that the overrepresentation of African Americans among those sentenced to death as opposed to life without parole was related to racial disparities in criminality, or to the overrepresentation of African Americans in the prison population generally. Many officials wrote-off the results of studies showing racial disparity as being biased because they were written by researchers with anti-death penalty views. Given what is at stake, there is a need for governments at both the state and federal levels to revisit systematically the concerns about continuing racial disparities.

Preliminary recommendations:

Domestic US issues

• Due process in death penalty cases should be improved

• Alabama and Texas should establish well-funded, state-wide public defender services. Oversight of these should be independent of the executive and judicial branches.
• In light of current flaws in state criminal justice systems and the finality of death, the US Congress should enact legislation permitting federal courts to review all issues in death penalty post-conviction review cases on the merits.
• Alabama should evaluate and respond in detail to the findings and recommendations of the American Bar Association report on the implementation of the death penalty in that state.
• Reforms to the system of partisan elections for judges should be considered in order to ensure that capital case defendants receive a fair trial and appeals process.