Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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International Law, the Eighth Amendment, and the Death Penalty

Christian Kim

Should international views be given greater consideration in the interpretation of the evolving standards of the Eighth Amendment?

The United States has been pressured by the international community for its stance on capital punishment.  This pressure has recently been reignited with the state of Arkansas announcing the execution of eight death row inmates in the span of ten days at the end of the month.[1]  Although historically many nations exercised capital punishment, the majority of modern day states have either curbed or completely outlawed capital punishment.[2]   In the case of S v. Kaywanyane and Another, South Africa’s highest court ruled that, “[e]veryone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional.”[3]  Canada, after a five year moratorium, passed the C-84 bill, which abolished the death penalty.[4]  As one of the prime leaders in the world for human rights movements, the international community has been puzzled by the United States’ archaic stance on capital punishment.  Despite attempts to kick outside influence from our courts, we have seen such international influence creeping in starting as early as Paquete Habana.  Even the heated topic of capital punishment has not been immune to international influence.

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In Thompson v. Oklahoma[5], the Supreme Court found that the execution of an individual under the age of 16 would be a cruel and unusual punishment under the 8th Amendment’s contemporary standards of decency.  The plurality talked about the “evolving standards of decency,” which was stated in Trop v. Dulles as an indicator of a “maturing society.”[6]  To reach this evolving standard of decency, the court stated that it “is also consistent with the views expressed by… other nations that share the Anglo-American heritage” and additionally, “by the leading members of the Western European Community.”[7]  The court even referred to three human rights treaties that prohibit juvenile capital punishment in the footnotes, specifically: Art. 6(5) of the International Covenant on Civil and Political Rights, Art. 4(5) of the American Convention on Human Rights, and Art. 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[8]

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In Roper v. Simmons[9], the Supreme Court concluded that capital punishment for a juvenile is unconstitutional.  While the court elaborated that international views “do not dictate the outcome of our Eighth Amendment inquiry” the court mentioned that the international community is “instructive for its interpretation of the Eight Amendment’s prohibition of ‘cruel and unusual punishments.’”[10]  The court looked at various statistics in the world to point out that “only seven countries other than the United States have executed juvenile offenders since 1990.”[11]

In Atkins v. Virginia[12], the Supreme Court ruled that imposing the death penalty on mentally handicapped individuals would be a cruel and unusual punishment under the 8th Amendment.  Even though the court relied on its conclusion based on only domestic findings, the majority mentioned in a footnote that the internationally community opposes capital punishment for mentally handicapped individuals[13]

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To determine what constitutes cruel and unusual under the Eighth Amendment, our courts placed an emphasis on the “evolving standards” in our nation.  Although there has been a lot of opposition on the use of international views to determine our constitutional rights, it is not a novel practice to have our courts cite international laws or sources, as shown throughout history.  Through transnational seminars and conferences, legal dialogues between our judges and judges from around the world are increasingly common.  From the cases observed here, the international views our courts referenced were not contrary to our values.  In fact, our courts aligned with foreign views which brings up the idea that there is an international consensus against certain penal practices.  Foreign law and international law, are still very persuasive laws.

It is time for the United States to re-examine our capital punishment policies with the international community’s views as a persuasive source.  Even though our nation has shifted in the same direction as these abolitionist countries, the United States is in the minority where capital punishment is acceptable.  Our nation joins a small group of countries who are regularly seen as one of the biggest human right violators, such as North Korea, Saudi Arabia, Iraq, China, Iran, and Egypt.  Our capital punishment policy has been nothing but a failed project on criminal deterrence and its continued use is an international embarrassment.  When our officials criticize other nations that have terrible human rights records, those countries deflect our criticisms and point out our archaic retentionist policies.[14]  As a result, it would be in our nation’s best interest to re-examine the death penalty, with the international view as a persuasive source, and to persuade the Arkansas governor to halt the execution of these eight individuals, in light of the evolving standards of decency.

 

[1] http://www.upi.com/Top_News/US/2017/03/03/Death-penalty-opponents-outraged-at-Arkansas-assembly-line-of-executions/4681488566121/

[2] https://www.amnesty.org/en/what-we-do/death-penalty/

[3] http://www.nytimes.com/1995/06/07/world/south-africa-s-supreme-court-abolishes-death-penalty.html

[4] http://www.csc-scc.gc.ca/text/pblct/rht-drt/08-eng.shtml

[5] Thompson v. Oklahoma, 487 U.S. 815, 830 (1988).

[6] Id.

[7] Id.

[8] Id. at 831.

[9] Roper v. Simmons, 543 U.S. 551 (2005).

[10] Id. at 575

[11] Id. at 577.

[12] Atkins v. Virginia, 536 U.S. 304 (2002).

[13] Id. at 316.

[14] www.nytimes.com/2001/06/10/world/veteran-us-envoys-seek-end-to-executions-of-retarded.html.


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Thinking Out Loud: Injustice to Imdad Ali, Paranoid Schizophrenic

Margie Beltran

“[W]hen a mad man is executed, [it would] be a miserable spectacle, both against law, and of extreme humanity and cruelty, and can be of no example to others.”

Sir Edward Coke[i]

Pre-Emption: Courts have recognized the execution of a person with a mental illness causing the person unable to determine right from wrong and not understand the repercussions of their actions is an unfair punishment since the early 1600s.[ii]

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Imdad Ali’s wife, Safia Bono, holds a picture of her husband on death row in central Pakistan to spread awareness of unjust execution of the mentally ill. Photo Credit: Asghar Ali; Souce: AP (http://www.news.com.au/lifestyle/real-life/news-life/man-declared-insane-has-execution-halted-in-the-race-for-his-life/news-story/778891a7e5361c43df77145eb75dc5c4).

 

Imdad Ali, convicted in a 2001 murder case in Pakistan for killing a religious teacher, was slated to be punished via death penalty on September 20, 2016.[iii]  Nearly a decade and a half following the conviction, 50 year-old Ali, diagnosed by Pakistani prison officials with paranoid schizophrenia in 2012, faced execution despite the agreement Pakistan made to protect those with disabilities.[iv]  Pakistan has now been in direct violation with their previous UN agreement.

About two decades ago, Ali’s family and friends watched as his mental processing began to deteriorate.[v]  Ali became withdrawn, often found talking to himself, or to inanimate objects.[vi]  His wife, Safia Bano, tried desperately to have mental health professionals or hospitals treat Ali, but the price for mental health made access to care nearly impossible.[vii]  Before long, Ali’s illness took the wheel and he fatally shot a man.  Seeing the desperation and struggle of Ali and his family, many of his neighbors at the time of the shooting have offered to testify that Ali was a victim of his crippling schizophrenia.[viii]

 

Justice Project Pakistan Executive Director, Sarah Belal, fights for Imdad Ali’s justice, “Executing Imdad will exemplify Pakistan’s failure to abide by its international legal commitments [under the Convention on the Rights of Persons with Disabilities] that forbid the death penalty for persons suffering from mental disabilities.  Knowing what [Pakistan does] about his condition would make his hanging a most serious crime.”[ix]  In 2011, ten years after Ali’s conviction, Pakistan ratified the Convention on the Rights of Persons with Disabilities.[x]  Upon ratification, they agreed to uphold the rights of individuals with disabilities.[xi]

On the day of his scheduled execution, the Pakistani court granted a one-week reprieve to investigate the case and potentially change their mind.[xii]  The week following, on September 27, the Supreme Court of Pakistan dismissed any further halts on the execution.[xiii]  Now, Ali is slated to be executed as early as October 4, 2016.[xiv]

The justification?

Judges claimed, due to the vast numbers of prisoners diagnosed with mental illness, it is unreasonable to remove Ali’s sentence because this would set a precedent of letting anyone with a mental health disorder be free of their sentences.[xv]

So, the Supreme Court of Pakistan, knowing full well that both Pakistani law and International law, has ruled that because there are so many prisoners with mental health afflictions that it would lead to the release of all prisoners with mental illnesses on death row.  The court made a slippery slope argument to justify their law-breaking sentencing.

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The Supreme Court of Pakistan.  Photo Credit: http://www.baaghi.tv/supreme-court-of-pakistan-press-release/

Ali’s illness is what caused the homicide, not Ali.  Yes, a man was murdered.  He will live only as a memory and that is devastating.  However, the court’s argument is only exacerbating the underlying stigmatism and prejudice against those suffering from mental health problems.

The theory behind criminal punishment is to rehabilitate those who have committed crimes by having them reflect on their wrongs and reshape them into productive members of society.  In Ali’s case, like many others suffering from hallucinations and delusions, he cannot physically reflect on what he has done because he did not have the capacity to decipher right from wrong.  Physically speaking, Ali committed a heinous crime, but a person is not themselves when suffering from paranoid schizophrenia.

The Court’s ruling is unlawful and unjust.  Aside from complete disregard of the Pakistani, he judges are stripping an entire minority population in Pakistan from their human rights.  Ali should be provided mental health care not put to death, as should his fellow prisoners on death row suffering from mental illness.  These prisoners are already prisoners of their own minds.

“Imagine if you suddenly learned that the people, the places, the moments most important to you were not gone, not dead, but worse, had never been.  What kind of hell would that be?”

 – A Beautiful Mind, 2001 (film)

Margery Beltran is a third year law student at the University of Baltimore School of Law (Candidate for J.D., May 2017).  She holds a Bachelor of Science in Family Science with a minor in Psychology from Towson University.  Her interests include mental health and disability law and international alternative dispute resolution. Margie currently serves as the Volume V Comments Editor for the University of Baltimore’s Journal of International Law. She participated in the 2016 Summer Abroad Program at the University of Aberdeen School of Law in Aberdeen, Scotland.  She is currently an intern in Washington D.C. for the U.S. Department of Health and Human Services, Alternative Dispute Resolution Division.

[i] A Digest of the Criminal Law of England, as altered by the Recent Statutes for the Consolidation and Improvement of it: Volume II by Edward E. Deacon (1831). (Sir Edward Coke was an English barrister and later, a judge in the early 1600s).

[ii] Id.

[iii] https://www.thestar.com/news/world/2016/09/18/pakistan-faces-call-to-spare-mentally-ill-man-on-death-row.html

[iv] http://www.voanews.com/a/pakistan-set-to-execute-mentally-unfit-man/3514427.html

[v] http://www.ibtimes.co.uk/death-row-pakistan-schizophrenic-prisoner-waits-hangmans-noose-1582998

[vi] Id.

[vii] Id.

[viii] Id.

[ix] http://www.independent.co.uk/news/world/asia/pakistan-execute-mentally-ill-man-islamabad-imdad-ali-justice-project-pakistan-a7313496.html

[x] http://www.un.org/disabilities/documents/gadocs/a_67_281.doc

[xi] http://www.un.org/disabilities/documents/gadocs/a_67_281.doc

[xii] http://tribune.com.pk/story/1189913/appeal-dismissed-top-court-upholds-death-penalty-mentally-ill-man/

[xiii] http://www.cbsnews.com/news/pakistan-court-upholds-death-penalty-for-mentally-ill-man-imdad-ali/

[xiv] Id.

[xv] http://www.ibtimes.co.uk/pakistans-highest-court-dismisses-final-appeal-case-mentally-ill-death-row-prisoner-1583608