Excerpted from Extrajudicial, summary or arbitrary executions. Report by the Special Rapporteur, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution 1995/73. United Nations Economic and Social Council, Commission on Human Rights, 25 January 1996. E/CN.4/1996/4.

     507. The Special Rapporteur continued to receive numerous reports indicating that the practice of capital punishment in the United States of America does not conform to a number of safeguards and guarantees contained in international instruments relating to the rights of those facing the death penalty. In many of the cases, it was alleged that defendants did not benefit fully from their right to an adequate defence. A number of cases concerned death sentences relating to offences committed by defendants who were said to be mentally retarded.
     508. The Special Rapporteur, in comparison with recent years, sent an increased number of urgent appeals to the Government of the United States of America, concerning death sentences imposed in the following states: Alabama (3), Arizona (1), Arkansas (1), Florida (2), Georgia (2), Illinois (2), Indiana (1), Missouri (5), North Carolina (1), Oklahoma (2), Pennsylvania (2), Texas (4) and Virginia (1).
     509. In 1995, the Special Rapporteur also received reports about the reinstatement of the death penalty in the state of New York. It had been brought to his attention that on 7 March 1995, the Governor of New York signed a death penalty bill into law, which came into force on 1 September 1995. The law reportedly provides for the death penalty for several categories of murder including intentional murder committed during violent crimes, serial and "contract" killings, the murder of judges, police officers and prison guards who are on duty, and murders involving torture.

Allegations transmitted

     510. The Special Rapporteur sent 27 urgent appeals to the Government of the United States in which he urged the authorities to ensure full respect for the rights of 26 persons facing the death penalty:
     (a) The following persons were said to have been sentenced to death despite their serious mental retardation: Mario Márquez (5 January 1995); Roosevelt Pollard, whose attorneys failed to carry out an adequate investigation into his mental state and unstable background (5 January 1995); Maurice Andrews, whose mental retardation was not referred to by his attorney during his trial (2 March 1995); Willie Clisby (25 April 1995); Varnall Weeks (2 May 1995); Girvies Davis (4 May 1995); Larry Lonchar (21 June 1995); Luis Mata, who was reportedly defended by attorneys who were inexperienced with capital cases during the appeals procedures (7 July 1995); Robert Brecheen (31 July 1995); Barry Fairchild, who was reported to be beaten by the police, and bitten by a police dog during police custody and concerning whose conviction doubts have reportedly been raised about the evidence upon which the conviction was based (14 August 1995); Frederic Jermyn (6 September 1995); Anthony Joe Larette, who was also reported to have been represented by an unexperienced lawyer (10 November 1995);
     (b) The following persons were said to have been sentenced to death after trial in which their right to an adequate defence had allegedly not been fully ensured: Alan Jeffrey Bannister (2 December 1994); Kermit Smith (6 January 1995); Calvin Burdine (20 January 1995); Robert T. Sidebottom (7 November 1995);
     (c) The following persons were said to have been sentenced to death despite strong indications casting doubt on their guilt: Gregory Resnover (2 December 1994); Jesse Jacobs (22 December 1994); Nicholas Ingram (30 March 1995); Larry Griffin (24 May 1995); Joseph Spaziano (9 June 1995); Dennis Waldon Stockton (15 September 1995);
     (d) The following persons were said to be sentenced to death after a trial which was allegedly marked by racial bias: Hernando Williams (14 February 1995); Mumia Abu-Jamal, who was also reportedly defended by an allegedly inadequate counsel who was unwilling to assist in the case and who was hindered in his work due to lack of time and financial restraints. The evidence in his case was allegedly based on contradictory statements of unreliable witnesses (19 July 1995); Thomas Joe Miller-El, whose health was allegedly very bad during the trial as he was reportedly suffering from the effects of being shot by police during his arrest. He was furthermore reported to be drifting in and out of consciousness during the trial due to the fact that his medication was stopped at the judge's request (2 October 1995);
     (e) Thomas Grasso was said to have been sentenced to death without resorting to his right to lodge any legal or clemency appeals, and was reported to have consistently expressed the will to be executed (28 February 1995);
     (f) Raleigh Porter was reportedly sentenced to death after the presiding judge overruled a unanimous recommendation of the jury to life imprisonment (14 March 1995).

Communications received

     511. The Government of the United States of America provided the Special Rapporteur with a reply to the urgent appeal sent to the Government on 2 December 1994, concerning the case of the execution of Gregory Resnover. The Government informed the Special Rapporteur that under United States law, a defendant may be sentenced to death in accordance with strict procedural safeguards, designed to ensure that his or her rights are not violated. In the reply, the Government stated that Mr. Resnover had lied about his involvement in the shooting in order to protect his brother, and that he had never recanted his statement delivered under oath, that he fired his weapon at police officers, and that he had been able to fully exercise his right to appeal in both state and federal courts. The Government furthermore provided the Special Rapporteur with a description of the legal safeguards provided to defendants in the United States in criminal cases, and in particular those specific to death penalty cases (6 June 1995).
     512. The Government also provided a reply briefly referring to the 10 most recent inquiries sent by the Special Rapporteur since June 1995, providing the Special Rapporteur with a short summary of general information on United States standards and practices in capital punishment cases. The Government informed the Special Rapporteur that his request would be sent to the Attorneys-General of the states concerned, and recommended that the state authorities provide a more detailed response.

Follow-up

     513. As in 1994, the Special Rapporteur sent a letter to the Government expressing his appreciation for the detailed information provided by the authorities with regard to legal safeguards for those facing the death penalty. The Special Rapporteur, however, reiterated his preoccupation as expressed in earlier communications about a number of questions relating to the legislation and practice concerning capital punishment in the United States of America. The Special Rapporteur reminded the Government of the United States of the far-reaching limitations and restrictions imposed by international law on the use of the death penalty. In this context he referred particularly to the comments and recommendations of the Human Rights Committee, which were made upon consideration of the first periodic report of the United States of America, under article 40 of the International Covenant on Civil and Political Rights (CCPR/C/79/Add.50). The Special Rapporteur furthermore subscribed to recommendations, relating to the right to life made by the Committee that the State party should review its recommendations, declarations and understandings with respect to the Covenant with a view to withdrawing them and that the State party should revise the federal and state legislation with a view to restricting the number of offences carrying the death penalty to the most serious crimes. The Special Rapporteur was very concerned about the reinstatement of the death penalty in New York. The Special Rapporteur was also deeply concerned about reports alleging that in spite of the provision contained in the bill relating to the exemption of pregnant women and mentally incompetent and mentally retarded persons from execution, according to the new bill, mentally-ill persons can be executed if they commit a murder while in prison. The follow-up letter also contained a list of urgent appeals that were sent to the Government of the United States since 25 November 1994, and to which as of that date no reply had been received.

Observations

     514. The Special Rapporteur thanks the Government for the replies provided, including the information concerning the application of the death penalty in the United States. He hopes to receive a substantive reply to each of the individual cases in due course. The Special Rapporteur welcomes the fact that in 1995 he did not receive reports about death sentences imposed for offences committed when the defendants were below 18 years of age. He remains deeply concerned, however, that in spite of the guarantees laid down in federal and state legislation, many of the death sentences continue to be handed down after trials which fall short of international guarantees for a fair trial. Particularly disturbing are reports concerning the application of capital punishment on mentally retarded or mentally-ill persons. The Special Rapporteur is also deeply concerned about the number of reports indicating that defendants did not have adequate defence during the trials and appeals procedures. The Special Rapporteur finds this a very grave violation of the right to a fair trial, particularly in capital punishment cases.
     515. Moreover, the Special Rapporteur is deeply concerned about reports he received in 1995 concerning cases which were allegedly blatantly tainted by racial bias on the part of the judges or the prosecution, which reportedly has resulted in an arbitrary removal of members of the jury in some cases. Another issue of concern to the Special Rapporteur is that in some states an appeal procedure after conviction in capital cases is not mandatory. In practice, this is a disadvantage for those without adequate legal counsel, which in practice means poorer people who are not familiar with the procedures. The Special Rapporteur therefore urges the Government to take legislative measures in order to ensure that appeals in all capital cases are mandatory.
     516. Finally, the Special Rapporteur finds the reports about the reintroduction of the death penalty in New York most disturbing. He reiterates the desirability of the abolition of the death penalty, repeatedly expressed by the Human Rights Committee, in particular upon consideration of the first periodic report of the United States of America.
     517. The Special Rapporteur pointed out in his letter to the authorities that his concerns expressed in 1993 and 1994 persisted, and inquired whether the Government could consider inviting him to carry out a visit to the United States of America to discuss the issue of capital punishment with authorities, both at the federal and at the state level, as well as with interested organizations and individuals. At the time the present report was finalized no reply to this request had been received from the Government.