Country Report for the United States of America, 1993

from the United Nations Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions

     619. The Special Rapporteur continued to receive numerous reports indicating that the practice of capital punishment in the United States of America did not conform to a number of safeguards and guarantees contained in international instruments relating to the rights of those facing the death penalty. In most cases, it was alleged that defendants did not benefit fully from their right to an adequate defence. A number of cases concerned death sentences imposed for offences committed when the defendants were below 18 years of age, or where they were said to be mentally retarded.

Communications sent

     620. The Special Rapporteur sent urgent appeals to the Government of the United States in which he urged the authorities to ensure full respect for the rights of the following 13 persons facing the death penalty, including 4 minors:
     (a) The following persons were said to have been sentenced to death after being convicted for crimes they had committed before they were 18; Gary Graham (21 May 1993 and 29 July 1993); Frederick Lashley (7 July 1993); Ruben Cantu (29 July 1993);
     (b) The following persons were said to have been sentenced to death despite their serious mental retardation: Robert Sawyer (4 March 1993); Bobby Shaw (21 May 1993); John Selvage (28 May 1993); Chuck Lee Mathenia (3 June 1993); Curtis Harris (11 June 1993); Wayne Bates (12 November 1993);
     (c) The following person was said to have been sentenced to death after trials in which his right to an adequate defence had allegedly not been fully ensured: James Dean Clark (7 April 1993);
     (d) The following persons were said to have been sentenced to death despite strong indications casting doubt on their guilt: Leonel Herrera (27 April 1993); Walter J. Blair (1 July 1993); and Robert Nelson Drew (11 October 1993).
     621. The Special Rapporteur also addressed an urgent appeal to the Government of the United States after he received information according to which the United States Coast Guard had begun the summary forcible repatriation of Haitian migrants intercepted at sea, without any screening or hearing, and thus without distinguishing between refugees fleeing persecution in Haiti and other emigrants. In view of persistent allegations concerning numerous extrajudicial, summary or arbitrary executions in a climate of total impunity in Haiti and a resolution by the Inter-American Commission on Human Rights made public on 17 March 1993, according to which Haitians who were returned to Haiti by the United States authorities very frequently suffered persecution at the hands of Haitian authorities, the Special Rapporteur urged the United States authorities to refrain from forcibly returning Haitian nationals in all cases where their lives and physical integrity would be in danger (4 May 1993).

Communications received

     622. The Government of the United States provided the Special Rapporteur with a reply concerning the urgent appeal on behalf of Leonel Herrera (10 June 1993), as well as John Selvage, Gary Graham, Chuck Lee Mathenia, Bobby Shaw, James Dean Clark, Frederick Lashley, Ruben Cantu and Walter Blair (22 September 1993). The Government also forwarded replies concerning a number of urgent appeals in death penalty cases transmitted by the Special Rapporteur in 1992 (see E/CN.4/1993/46, paras. 625-631), as well as the case of the extradition to El Salvador of César Vielman Joya Martínez (see E/CN.4/1993/46, para. 632).
     623. In its reply to urgent appeals transmitted in 1992, the Government of the United States provided the Special Rapporteur with detailed information about United States law concerning the death penalty. In particular, it was stated that both State and federal law fully ensured fair trial guarantees and the right to appeal against convictions. In addition to those guarantees, applicable in all criminal cases, additional protections were provided in capital cases. These include the obligation of States to provide a bifurcated process, by which the determination of guilt is separated from the sentencing process. Death sentences are automatically appealable to the State's highest court.
     624. As regards death sentences imposed on juvenile offenders, the Government of the United States informed the Special Rapporteur that, when ratifying the International Covenant on Civil and Political Rights in 1992, the United States Senate had made an explicit reservation concerning application of capital punishment to those under the age of 18, noting that the United States Supreme Court had held that it was not unconstitutional to execute a defendant who was 16 or 17 years old at the time of the offence. However, the Government stated that a penalty of death was extremely rare in cases involving juveniles, and available only when the court had determined to try the defendants as adults.
     625. The United States had expressly accepted the obligation not to execute pregnant women in its instrument of ratification, and United States courts had held that the death penalty may not be imposed upon insane persons (8 February 1993).
     626. As concerns the cases transmitted in 1993, the Government of the United States informed the Special Rapporteur that the defendants were given the possibility fully to exercise their right to appeal against their convictions and sentences, both in State and federal courts. They were able to raise, for judicial review, allegations concerning procedural inadequacies or lack of fairness during their trials. They were also able to apply for a stay of execution or commutation of their death sentences (10 June 1993 and 22 September 1993).
     627. With regard to the extradition of César Joya Vielman Martínez, the Government of the United States informed the Special Rapporteur that written assurances had been received from the highest levels of the Government of El Salvador that it would provide Mr. Joya Martínez appropriate protection during his incarceration and trial and permit access to him by both the International Committee of the Red Cross (ICRC) and the United Nations Observer Mission in El Salvador (ONUSAL).

Follow-up

     628. The Special Rapporteur transmitted the contents of the replies received from the Government of the United States to the sources of the allegations for their observations. The sources responded with detailed comments. Information was received from the source of the allegation that the following persons on whose behalf urgent appeals had been sent were executed: James Dean Clark, on 14 April 1993; Walter J. Blair, on 21 July 1993; Frederick Lashley, on 28 July 1993; Ruben Cantu, on 24 August 1993.
     629. The Special Rapporteur sent a letter to the Government of the United States in which he expressed appreciation for the detailed information provided by the authorities with regard to legal safeguards for those facing the death penalty. However, he remains concerned that these safeguards do not fully conform to the standards set forth by the pertinent international instruments. The Special Rapporteur conveyed to the authorities his preoccupation with shortcomings affecting the right to adequate time and facilities for defence which, in practice, also very much influence the right to appeal; racial discrimination in the application of capital punishment; and low standards for the qualification of a defendant as mentally competent.
     630. The Special Rapporteur is particularly concerned at the continuing imposition and execution of death sentences in the case of juvenile offenders, in clear contravention of the International Covenant on Civil and Political Rights and a number of other pertinent international instruments. The Special Rapporteur feels that the fact that the United States has made a reservation concerning this clause of article 6 of the Covenant indicates that United States legislation in this area falls short of international standards. In addition, the United States Supreme Court's recent ruling whereby a defendant's youth does not in itself constitute a mitigating factor for the jury when deciding about capital punishment is most disturbing, as is the fact that, in Texas, a September 1991 statute enabling the jury in capital cases to consider youth as a mitigating factor is not retroactively applicable to juvenile offenders who committed their crimes before that date.
     631. The Special Rapporteur also pointed out that, in a federative structure, the obligation to ensure full respect for the safeguards and guarantees protecting the right to life apply to all components of the State.
     632. The Special Rapporteur calls upon the Government of the United States to make its legislation and practice conform to the safeguards and guarantees set forth in pertinent international instruments. He has notified the authorities that he would be entirely available for any assistance he might offer in this regard.

Observations

     633. The Special Rapporteur highly appreciates the willingness to cooperate shown by the authorities of the United States of America in providing information. He hopes that the dialogue initiated, particularly in relation to the death penalty, will be continued in the interest of better protection of the right to life.
     634. The Special Rapporteur refers to chapter VI of the present report, which contains an analysis of the safeguards and guarantees that must be respected by national legislation and practice in order to conform to the standards embodied in the pertinent international instruments.