P.O. Box 5675, Berkeley, CA 94705 USA
The Death Row Phenomenon is a Violation of the Limitations Placed on Capital Punishment Under
International Human Rights Law.
Human Rights Council
4 th Session
Agenda Item: Special Procedures/ Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions/ Special Rapporteur on Torture
Contact Information:
Elisabeth Hanowsky, Frank C. Newman Intern lizhanowsky@gmail.com
Representing Human Rights Advocates through
University of San Francisco School of Law’s
International Human Rights Clinic
Professor Connie de la Vega
Tel: 001 415 422 69 61
1

I.
Introduction
The use of capital punishment (or the death penalty) continues. The law of sixty-nine countries allows for the punishment.
1
In 2005, at least 2,148 people were executed.
2
In that same year, 5,186 were reported to have received a death sentence.
3
As in previous years, most of these executions took place in only a few countries – ninety-four percent of the executions conducted in 2005 were in China, Iran, Saudi Arabia and the
United States.
4
For want of proper reporting from many countries, the total number of those awaiting execution is difficult to access. However, the number has been estimated at between 19,474 and 24,546 people.
5
The United Nations has expressed concern over the use of capital punishment and Human Rights
Advocates supports the work of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions.
Although capital punishment has not yet been declared a violation of international law, the Commission on
Human Rights has called upon retentionist countries to abolish the punishment.
6 The Commission on Human
Rights also “expressed conviction that the abolition of the death penalty contributes to the progressive development of human rights.” 7
It also affirmed that retentionist countries must strictly observe the relevant procedural safeguards and limitations to the punishment when applying the penalty.
8
Per the International
Covenant on Civil and Political Rights (ICCPR) Article 6, the imposition of the death penalty is allowed, but must be imposed only for the most serious crimes and without arbitrariness. Article 7 of the ICCPR prevents the imposition of the death penalty when it would involve torture. Article 10 requires humane treatment while
1 Amnesty International, Facts and Figures on the Death Penalty, February 23, 2007 at http://web.amnesty.org/pages/deathpenaltyfacts-eng.
2 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng.
3 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng.
4 Amnesty International Report 2006 at http://web.amnesty.org/report2006/key_issue-5-eng.
5 Amnesty International, Facts and Figures on the Death Penalty, February 23, 2007 at http://web.amnesty.org/pages/deathpenaltyfacts-eng (quoting numbers from human rights researcher Mark Warren).
6 U.N. Human Rights Commission resolution 2005/59 of 20 April 2005, resolution 2004/67 of 21 April 2004, and resolution
2003/67 of 24 April 2003; see also International Covenant of Civil and Political Rights, Article 6; The Second Optional Protocol to the International Covenant on Civil and Political Rights.
7 U.N. Human Rights Commission resolution 2005/59 of 20 April 2005, resolution 2004/67 of 21 April 2004, and resolution
2003/67 of 24 April 2003.
8 U.N. Commission on Human Rights resolution 2005/59 of 20 April 2005.
2

in custody. Article 14 defines legal procedural safeguards to the imposition of the punishment. Additional safeguards -- initially adopted by the United Nations Economic and Social Council and later endorsed by the
United Nations General Assembly and Commission on Human Rights -- include restrictions on the number of offenses for which the punishment is imposed, increases in public capital punishment information, prevention of the sentence on those with mental illness, and that the punishment be executed with as little suffering as possible.
9
However, the Commission has noted that much still needs to be done in the implementation of these safeguards.
10
Human Rights Advocates is concerned that the safeguards and limitations to the use of capital punishment as announced in the ICCPR and resolutions of the Commission on Human Rights are not being abided by. Specifically, the onset of the “death row phenomenon” or “death row syndrome” in prisoners under the sentence of death violates ICCPR Articles 6, 7, 10 and 14, in addition to other safeguards adopted by the Commission.
II.
The Death Row Phenomenon Defined
The “death row phenomenon” or “death row syndrome” is a combination of circumstances found on death row
11
that produce severe mental trauma and physical deterioration in prisoners under those sentences.
12
This phenomenon is a result of the harsh conditions experienced on death row, the length of time that they are experienced, and the anxiety of awaiting one’s own execution.
13 Other associated factors that contribute to
9 United Nations Economic and Social Council resolutions 1984/50 of 25 May 1984, 1985/33 of 29 May 1985, 1989/64 of 24 May
1989, 1990/29 of 24 May 1990, 1990/51 of 24 July 1990 and 1996/15 of 23 July 1996 as cited by the United Nations General
Assembly resolution 39/118 of 14 Dec 1984 and Commission on Human Rights resolution 2005/59 of 20 April 2005 and resolution
2004/67 of 21 April 2004.
10 U.N. Commission on Human Rights resolution 2005/59 of 20 April 2005 at para.4.
11 Death row is the prison that houses inmates sentenced to death.
12 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No.
4, 833, 833.
13 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law, EJIL (2000) Vol. 11 No.
4, 833, 834-36.
3

the mental trauma include a cramped environment of deprivation, arbitrary rules, harassment, and isolation from others.
14
Numerous scholars have documented this severe mental trauma, a result of the stress associated with death sentences.
15
One study found, “[t]he observable result of mental suffering inflicted on the condemned prisoner is destruction of spirit, undermining of sanity, and mental trauma…” 16
Specific manifestations include: an overwhelming sense of fear and helplessness, mental incompetence, fluctuating moods, recurrent depression, mental slowness, confusion, forgetfulness, lethargy, listlessness, drowsiness, symptoms of senility
(in the forms of rambling correspondence, misplacing objects within a small cell, and expressing disconnected thoughts), self-mutilation, and insanity.
17
The conditions of confinement also appear to aggravate existing mental disorders.
18
Jurists have also noted the debilitating mental affects of sentencing a person to death. A United States court (California) stated the process of carrying out a verdict of death is frequently so degrading to the human
14 Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature,”
20 B EHAVIORAL S CIENCES AND THE L AW 191, 204 (Jan-Mar 2002).
15 Some of the scholars who have written about death row phenomenon include Schabas, Execution Delayed, Execution Denied, 5
C RIM .
L.
F ORUM 180 (1994); Lambrix, The Isolation of Death Row, in F ACING THE D EATH P ENALTY 198 (M. Radelet ed. 1989);
Mello, Facing Death Alone, 37 A MER .
L.
R EV . 513, 552 & n.251 (1988) (same) (citing studies); Stafer, Symposium On Death
Penalty Issues: Volunteering for Execution, 74 J.
C RIM .
L. 860, 861 & n.10 (1983) (citing studies); Holland, Death Row
Conditions: Progression Towards Constitutional Protections, 19 A KRON L.
R EV . 293 (1985); Johnson, Under Sentence of Death:
The Psychology of Death Row Confinement, 5 L AW & P SYCHOLOGY R EVIEW }141, 157-60 (1979); Hussain & Tozman, Psychiatry on Death Row, 39 J.
C LINICAL P SYCHIATRY 183 (1979); West, Psychiatric Reflections on the Death Penalty, 45 A MER .
J.
O RTHOPSYCHIATRY 689, 694-95 (1975); Gallemore & Parton, Inmate Responses to Lengthy Death Row Confinement, 129 A MER .
J.
P SYCHIATRY 167 (1972); Bluestone & McGahee, Reaction to Extreme Stress: Impending Death By Execution, 119 A MER .
J.
P SYCHIATRY 393 (1962); Note, Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 I OWA L.
R EV .
814, 830 (1972); G. Gottlieb, Testing The Death Penalty, 34 S.
C AL .
L.
R EV . 268, 272 & n.15 (1961); A. Camus, Reflections on the
Guillotine, in R ESISTANCE , R EBELLION & D EATH 205 (1966).
16 Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, I OWA L AW R EVIEW , 57 IOWA L. REV. 814, 829
(1972).
17 S. Blank, Killing Time: The Process of Waiving Appeal The Michael Ross Death Penalty Cases, J OURNAL OF L AW AND S OCIAL
P OLICY 14 JLPOLY 735, 749; Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A
Critical Review of the Literature,” 20 B EHAVIORAL S CIENCES AND THE L AW 191, 204 (Jan-Mar 2002), citing Johnson, “Under
Sentence of Death: The Psychology of Death Row Confinement,” 5 L AW AND P SYCHOLOGY 141-192 (1979); Strafer, Volunteering
For Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J. CRIM. L. & CRIMINOLOGY 860,
872 (1983); The Death Penalty Cases, 56 CALIF. L. REV. 1268, 1342 (1968); Mental Suffering Under Sentence of Death: A Cruel and Unusual Punishment, 57 IOWA L. REV. 814, 829 (1972).
18 Cunningham and Vigen, “Death Row Inmate Characteristics, Adjustment, and Confinement: A Critical Review of the Literature,”
20 B EHAVIORAL S CIENCES AND THE L AW 19, 206 (Jan-Mar 2002).
4

spirit as to constitute “psychological torture.” 19
In India, commenting on a prisoner that had been on death row for many years, a judge noted, “[he] must be now, be more of a vegetable than a person and hanging a vegetable is not the death penalty.” 20
III.
The Mental Trauma Known as the Death Row Phenomenon Has Been Recognized by Courts of Law
Numerous international and domestic courts have recognized the death row phenomenon as possibly amounting to torture or cruel punishment. The European Court of Human Rights has found that the onset of the death row phenomenon can be a violation of Article III of the European Convention on Human Rights.
21
In Soering , the court recognized the existence of the death row phenomenon and found that the factors of the conditions on death row, the length of time spent there, and the effects of the death sentence on an individual prisoner could constitute a violation of “inhumane or degrading treatment or punishment” under Article III of the Convention. As a result, the Court unanimously declined to extradite a prisoner to the United States where he would face a death sentence. In a later case, the same court reaffirmed this view, finding that Article
III could be breached by a long delay in execution, harsh conditions, and a constant anxiety of one’s own death.
22
The United Nations Human Rights Committee has also recognized the existence of the death row phenomenon as a possible breach of Article 7 of the ICCPR.
23 The Committee also noted the factors of a long delay, harsh conditions and the impact the sentence has on the prisoner.
24
Other courts have also recognized the death row phenomenon as a violation of punishment. In Pratt and Morgan Redux , the Judicial Committee of the Privy Council recognized the existence of the death row
19 People v. Anderson , 6 cal 3d 628, 649 (1971); see also Soering v. United Kingdom , 161 Eur. Ct. H.R. at 102 (1989).
20 Rahendra Prasad v. State of Uttar Pradesh 3 SCR 78, 130 (1979).
21 Soering v. United Kingdom , 161 Eur. Ct. H.R. at 154 (1989).
22 Çinar v. Turkey , 79A DR 5 (1994) (reported in French version only).
23 Pratt and Morgan v Jamaica nos 210/1986 and 225/1987, UN doc A/44/40/ 222 (1989) [declining to find a violation in the particular case, but noting that under an individualized determination of each case, the result could be different]; Kindler v Canada
Redux (No. 470/1991) UN Doc. CCPR/C/48/D/470/1991 (1992) [recognized the death row phenomenon but declining to find a delay]; Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995) [violation found based on delay in addition to other factors].
24 Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995).
5

phenomenon and found a violation of inhuman punishment because of a fourteen-year delay in sentence and execution.
25 In Kindler v. Canada , the Supreme Court of Canada recognized the existence of the death row phenomenon.
26
Although no violation of the Canadian Charter was found in this circumstance, the court found the phenomenon could be a violation when applied to other facts.
27
The Supreme Court of Zimbabwe, in Catholic Commission v. Attorney General , found that the prolonged delays and harsh conditions of incarceration violated the prohibition against cruel and unusual treatment.
28
Also, appellate courts in India, when determining whether to quash a sentence of death, take into account the length of time spent on death row because of the “dehumanizing character of the delay.” 29
The death row phenomenon factors of long sentences on death row, harsh conditions, and effects of the sentence on the prisoner noted by the United Nations Human Rights Committee, the European Court of
Human Rights, and the Judicial Committee of the Privy Council, among others, continue to exist and to exist with increasing severity. Each of these factors is discussed in turn below. a.
Inmates spend extreme lengths of time on death row
In some countries, prisoners wait for more than a decade to be executed. For death-sentenced prisoners in the United States in 2005, the average time spent on death row was twelve years and three months.
30
In the state of California, which has the largest death row in the United States, some inmates have awaited their execution for more than twenty years.
31 In one case, an inmate has waited, through no fault of
25 Pratt v. The Attorney General for Jamaica , Privy Council Appeal No. 10, 22 (1993). This case was also appealed to the Inter-
American Commission and Court of Human Rights, and the United Nations Human Rights Committee. In all the cases, a violation was found by the reviewing court. However, the Human Rights Committee based the reasons for a violation on particularly cruel actions of officials failing to notify the prisoners that their death sentences were stayed until 45 minutes before the scheduled execution.
26 Kindler v Canada (Minister of Justice), 2 S.C.R. 779 (Can.) (1991), this case was later brought before the United Nations Human
Rights Committee as Kindler v Canada Redux .
27 Kindler v Canada (Minister of Justice), 2 S.C.R. 779 (Can.) (1991).
28 Catholic Commission v. Attorney General (Zimbabwe), 2 Z.L.R. 306, (1993).
29 Vatheeswaran v. State of Tamil Nadu , 25 S.C.R. 348, 353 (1983).
30 United States Bureau of Justice, Statistics Bulletin Capital Punishment, 2005 published Dec. 2006 (revised Jan. 1, 2007) at http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf.
31 California Department of Corrections and Rehabilitation Division of Adult Operations, Death Row Tracking System, available at: http://www.corr.ca.gov/ReportsResearch/docs/Summary.pdf.
6

his own , for fifteen years for his first appeal to be heard, at one point without counsel at all.
32
In Nigeria, prisoners have an average twenty-year stay on death row.
33 More than one-third of Japanese death row prisoners have spent more than ten years awaiting execution, and in one reported case, a prisoner had spent more than 38 years.
34
In 2005, Amnesty International reported a Yemen case of a prisoner sentenced in 1996 that was still awaiting execution.
35
In sum, long delays, often decades long, are common on death rows across the world.
Some bodies have found that this extreme delay alone (irrespective of prison conditions and anxiety over the sentence) is enough to produce the death row phenomenon and thus violate the prohibition on torture or cruel, inhuman and degrading punishment. The Judicial Committee of the Privy Council has held that delay alone in the implementation of a death sentence can warrant a finding of the death row phenomenon – and that a delay of 14 years was enough alone to constitute a violation of cruel punishment.
36
Moreover, the
Privy Council found that a time of four years and ten months under the sentence of death, when a result of factors outside of the prisoner’s control, also constituted the death row phenomenon.
37
However, the Human Rights Committee has declined to find that delay alone is enough to warrant a finding of the death row phenomenon and a violation based on torture or cruel punishment.
38
While the
Committee has found a period of seven years on death row is a cause for concern, no violation of Article 7 of the ICCPR existed without evidence of the other factors.
39 The Committee in these cases has expressed concern that prisoner’s themselves are to blame for the delays and that hasty executions may result. As
32 See, Petition P 120-07 by Human Rights Advocates and fos*ters to the Inter-American Commission on Human Rights [it is expected that the inmate will wait another ten years for his appeals to finish, allowing for time on death row to exceed 25 years].
33 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston - Mission to Nigeria of 7 Jan.
2006 at E/cn.4/2006/53/add.4; Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston of 8 March 2006 at E/cn.4/2006/53.
34 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng, see case of Hakamada Iwao.
35 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng.
36 Pratt v. The Attorney General for Jamaica , Privy Council Appeal No. 10, 22 (1993).
37 Guerra v. Baptiste (1996) AC 397, (1995) 3 WLR 891, (1995) a All ER 583.
38 Johnson v. Jamaica , (No. 588/1994), UN Doc. CCPR/C/56/D/588/1994 (1996).
39 U.N. Human Rights Committee Comm. No. 600/1994 of 21 Oct. 1994 at CCPR/C/57/D/600/1994.
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detailed below, these concerns are inapplicable in the cases of extreme delay as the prisoners are often not at fault for the delay and cases of extreme delay do not interfere with prohibitions against undue haste. In cases that would put a prisoner at risk of undue haste, HRA in no way advocates for the removal of these protections.
The delays in execution are generally not the fault of the prisoners themselves, but rather the fault of the state. The Privy Council has noted that often the delays experienced are not a result of the prisoners’ actions, but are a result of the failure of the judicial system.
40 Many judicial systems draw out proceedings for interminable amounts of time. One United States judge has criticized the delay caused by the appeals process in that “the process has become unacceptably cruel to defendants …who spend long years under the sentence of death while the judicial system conducts seemingly interminable proceedings which remind many observers of a cruelly whimsical cat toying with a mouse.” 41
Disturbingly, death row inmates are waiving their appeals, choosing execution in order to avoid this extreme delay. Between 1976 and 2003, ten percent of those executed in the United States were volunteers.
42
Another problematic area is that of legal representation. For example, it is noted that adequate representation may be a factor in these delays -- the Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions noted in a 1998 report that 170 California (United States) death row inmates with appeals still left had NO legal counsel.
43 In fact, it takes five years for appellate counsel to even be appointed to a California death row inmate. Moreover, appointed counsel may not be properly trained to handle a death case, a cause of many legal errors at the trial stage.
44
40 Guerra v. Baptiste (1996) AC 397; (1995) 3 WLR 891; (1995) a All ER 583.
41 Richard C. Dieter, International Perspectives on the Death Penalty: A Costly Isolation for the U.S
., October 1999 at www.deathpenaltyinfo.org/article.php?scid=45&did=536.
42 S. Blank, Killing Time: The Process of Waiving Appeal The Michael Ross Death Penalty Cases, J OURNAL OF L AW AND S OCIAL
P OLICY 14 JLPOLY 735, 737.
43 Report of the Special Rappateur on Extrajudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3.
44 Truskett, The Death Penalty, International Law, and Human Rights, T ULSA J OURNAL OF C OMPARATIVE AND I NTERNATIONAL L AW
11 TLSJCIL 557, 577-78 (2004).
8

A prisoner also should not be faulted for taking advantage of the legitimate appeals offered by the state when the prisoner is fighting to save his or her own life. While it is true that the inmate may be pushing the appeal process, such a struggle to remain alive is part of human nature. A country that facilitates this struggle directly causes the delay and must be held accountable for the actions.
45
The Judicial Committee of the Privy
Council supports this view: “If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not the prisoner who takes advantage of it.” 46 The European Court of Human Rights has gone even further. The
Court took the position that even if the delay was the result of the inmate’s actions they were not to be blamed for pursuing life as the fact remained that they were pursuing life under death row conditions with mounting tension over their own death.
47
Lastly, recognition of extreme delay would likely not result in executions that are incompatible with other due process requirements. Recalling the recent undue haste in the execution of Saddam Hussein, it is important to note that reductions in extreme delay do not result in hasty executions, and that the two limitations can be read compatibly. The death row phenomenon does not encompass all delays, only those extreme in length. Strict adherence to procedure should be no excuse for such delays, and legal procedures should be completed in reasonable amounts of time. Reasonable amounts of time, though, are not being found in states that impose death sentences. Prisoners are waiting decades, lifetimes to be executed.
Moreover, these lengths of delay are more than exceptional cases -- they are averages. i.
The long delays found in the implementation of death sentences are also a violation of Article 14 of the ICCPR
The long delays in sentence and execution are also a violation of being tried without undue delay.
Article 14(3)(c) of the ICCPR reads, “In the determination of any criminal charge against him, everyone shall
45 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law , EJIL (2000) Vol. 11
No. 4, 833, 835.
46 Pratt v. The Attorney General for Jamaica , Privy Council Appeal No. 10, 22 (1993).
47 Soering v. United Kingdom , 161 Eur. Ct. H.R. at 106 (1989).
9

be entitled to the following minimum guarantees, in full equity: (c) to be tried without undue delay.” States that impose death sentences must assure that the sentences conform to the procedural requirements of Article
14.
48
In addition, when capital punishment is at issue, Article 14’s procedural requirements are strictly imposed.
49
The United Nations Human Rights Committee has found that a 45-month delay while waiting for an appeal on a sentence of death violated the right to be tried without undue delay.
50
Thus, the imposition of sentences under the threat of death that are extreme in length, often decades, violate these prisoner’s due process rights to be tried without undue delay under Article 14. b.
Physical conditions of death rows are mentally and physically demanding
Not only do inmates spend enormous amounts of time anticipating their own execution, they do so in deplorable conditions. Death row has been characterized as a living hell. Under these conditions, prisoners’ mental and physical states deteriorate rapidly. Generally, prisoners are denied many basic human comforts
(which are described henceforth).
51 Prisoners are confined to small cells for up to 23 hours per day.
52 Death row conditions around the world also include the following: inmates are denied hobbies or meaningful ways to entertain themselves, lights are on at all times (including during sleep), temperature extremes, inadequate nutrition and sanitation, lack of exercise, cells may be so constricting that prisoners cannot stand in them, contact with the outside world (including family and counsel) is infrequent or not allowed, and solitary confinement is common and especially debilitating. One scientific study showed that after a few days in solitary, prisoners’ brain waves shift to a pattern of “stupor and delirium.” 53
Another study found that
48 U.N. Human Rights Commission resolution 2005/59 of 20 April 2005 at para.7, resolution 2004/67 of 21 April 2004 at para.4(e).
49 U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003 and Report of the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Ms. Janhangir of 9 Jan. 2002 at E/CN.4/2002/74 at para 96.
50 Pratt and Morgan v. Jamaica , (Nos. 210/1986 and 225/1987), UN Doc A/44/40 222 (1989).
51 See generally Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng; Amnesty International
Annual Report 2006 at http://web.amnesty.org/report2006/index-eng.
52 Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Rights Under International Law , EJIL (2000) Vol. 11
No. 4, 833, 836.
53 Time Magazine “The Paradox of Supermax” 5 February 2007 at 52-53.
10

complete sensory deprivation causes states of hallucination in as little as 48 hours.
54
A scholar has characterized solitary confinement as a form of “no-touch torture” that, “sends prisoners in one of two directions: catatonia or rage.” 55
In the United States, prisoners are moved into solitary for months , and not merely days, prior to their execution date.
56
Combinations of these physical conditions are found in death rows worldwide. Japanese death row inmates are prohibited from speaking to other prisoners, allowed only infrequent and supervised visits from their families and attorneys, prohibited from having hobbies or televisions, sleep under bright lights without the ability to cover their faces, are subject to temperature extremes, and receive inadequate nutrition.
57
In
Uzbekistan
58
, prisoners are regularly beaten and denied outdoor exercise.
59
In China, physical beatings and sleep and food deprivation occur
60
; those arrested and tried for crimes punishable by death are kept in chains from the moment of arrest until the time of execution.
61
In Mongolia, prisoners are subject to overcrowding, temperature extremes, inadequate nutrition, and isolation.
62
It should be noted that the harsh conditions currently employed on death rows worldwide may themselves constitute violations of Articles 6 (the right to life), 7 (prohibition against torture or cruel, inhuman and degrading treatment or punishment) and 10 (right to humane treatment when deprived of liberty) of the ICCPR. The United Nations Human Rights Committee has already expressed concern over the living conditions of inmates on death row in terms of visits and correspondence, cell size, food, exercise, extreme temperatures, lack of ventilation, insects, and lack of time outside of cells as violations of Articles 7 and 10 of
54 Time Magazine “The Paradox of Supermax” 5 February 2007 at 52-53.
55 Time Magazine “The Paradox of Supermax” 5 February 2007 at 52-53 (quoting Alfred W. McCoy, A Question of Torture ).
56 Amnesty International, United States of America: Killing Hope – The Imminent Execution of Sean Sellers Dec. 1, 1998 at http://web.amnesty.org/library/Index/ENGAMR511081998.
57 Wallace, Japanese Death Row an ‘Affront to Human Decency ,’ S
UNDAY I NDEPENDENT , 12 March 2006 and Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng.
58 HRA commends the action of Uzbekistan, by Presidential Decree, to abolish the death penalty starting 1 January 2008.
59 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng.
60 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng.
61 Amnesty International People’s Republic of China Executed “According to law – The Death Penalty in China Doc. 17/003/2004 at http://web.amnesty.org/library/index/engasa170032004.
62 Amnesty International Annual Report 2006 at http://web.amnesty.org/report2006/index-eng.
11

the ICCPR.
63
In June 2005, the UN Special Rapporteur on torture declared that above-mentioned conditions on Mongolia’s death row may be so poor as to alone amount to cruel treatment.
64 c.
Death sentences, execution procedures and the resulting effects on a condemned prisoner
A death row prisoner faces these extreme lengths of time in deplorable conditions with an unimaginable anxiety over their own imminent death. In countries that employ the death penalty, this anxiety is always over the heads of death-sentenced prisoners.
65
The anxiety created from awaiting one’s own execution is compounded by additional circumstances surrounding the executions, including lack of notice as to the date and time of the execution, public executions, and mistakes in administering the penalty. These circumstances all increase the mental trauma of death row as they instill further confusion, humiliation and fear in the inmates.
Death row inmates, their families, and their attorneys may be denied advance notice of the time and date of the execution in violation of basic human rights. These practices are inhuman and degrading and undermine the procedural safeguards surrounding the right to life.
66
In Japan
67
, Uzbekistan
68
and Iran
69
, prisoners and their families are denied advance notice of time and place of execution. In Saudi Arabia, not only are prisoners denied advance notice of their execution, some are unaware they are subject to the punishment.
70
In extreme cases, prisoners have learned of their impending executions only moments before dying, and families have been informed only later, sometimes by coincidence rather than design. Inmates, as
63 Concluding Observations of the Human Rights Committee: Japan, UN Document CCPR/CO/79/Add. 102, 19 Nov. 1998, para 21;
Concluding Observations of the Human Rights Committee: Uzbekistan, UN Doc. CCPR/CO/71/UZB, 26 Apr. 2001, para 10;
Safarmo Kurbanova v. Tajikistan , Views of the Human Rights Committee, Communication No. 1096/2002, UN Doc.
CCPR/C/79/D/1096/2002, 12 Nov. 2003.
64 2006 Commission on Human Rights Mission to Mongolia at E/CN.4/2006/6/Add.4
on 20 December 2005.
65 Çinar v. Turkey , 79A DR 5 (1994) (reported in French version only).
66 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston - Transparency and the
Imposition of the Death Penalty (para. 32) of 24 March 2006 at E/CN.4/2006/53/Add.3.
67 Amnesty International Annual Report 2006 at http://web.amnesty.org/report2006/index-eng and Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston - Transparency and the Imposition of the Death Penalty of 24
March 2006 at E/CN.4/2006/53/Add.3, para.32.
68 Amnesty International Annual Report 2006 at http://web.amnesty.org/report2006/index-eng.
69 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston - Transparency and the
Imposition of the Death Penalty of 24 March 2006 at E/CN.4/2006/53/Add.3, para.32.
70 Amnesty International Annual Report 2006 at http://web.amnesty.org/report2006/index-eng.
12

a result, wait in constant, unrelenting fear, not knowing which is their day to die. In an interview, Masao
Akohari, a former death row inmate in Japan who later was released after a re-trial failed to find him guilty, reports that he was wrongly picked for execution one morning.
71
After the guards had put him back in his cell, he heard them go into his neighbor’s cell. The experience left him unable to speak for years. Thus, the lack of notice compounds the anxiety of death.
Public executions also humiliate prisoners and are incompatible with human dignity.
72
In China,
Japan, the Democratic People’s Republic of Korea (north), Uzbekistan, and Saudi Arabia, public executions occur.
73
One report noted that, in China, prisoners are paraded in an open truck through busy streets to the execution ground, with a placard bearing their name crossed out in red strung around their neck.
74
Errors during the administration of the execution itself also increase the anxiety of death row prisoners in that the death itself may be painful. In the United States, during one recent execution alleged to be improperly done, an inmate continued to move and retain consciousness for more than 24 minutes (as opposed to most executions which last 15 minutes total, with the inmate loosing conscious after three).
75
In sum, lack of notice, public executions, and errors in the execution itself increase the already enormous anxiety of death, and contribute to the mental trauma identified as the death row phenomenon.
IV.
The Death Row Phenomenon Violates International Human Rights Law
The severe psychological torture known as the death row phenomenon violates the International
Covenant on Civil and Political Rights Articles 6, 7, and 10, as well as other safeguards affirmed by Human
Rights Committee.
71 Wallace, Japanese Death Row an ‘Affront to Human Decency ,’ S
UNDAY I NDEPENDENT , 12 March 2006.
72 Concluding Observations of the Human Rights Committee: Democratic People’s Republic of Korea, UN Doc.
CCPR/CO/72/PRK, 27 Aug. 2001.
73 Amnesty International Annual Report 2005 at http://web.amnesty.org/report2005/index-eng.
74 Amnesty International People’s Republic of China Executed “according to law – The Death Penalty in China Doc. 17/003/2004 at http://web.amnesty.org/library/index/engasa170032004.
75 Lethal Injection Comes Under Fire in Florida and California Dec. 15, 2006 at http://www.msnbc.msn.com/id/16227702/.
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a.
The death row phenomenon is a violation of the right to life
Article 6 of the ICCPR reads, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life.” The United Nations Human Rights Committee stated, “The right to life is the supreme right, because without it, no other rights can be enjoyed”.
76
When applying the death penalty to the right to life, “scrupulous” attention must be paid to the principles affected by such a penalty.
77
Inappropriateness and injustice are basic to the arbitrary taking of a life.
78
Because death row inmates are subjected to severe mental torture their right to life has been violated. This psychological torture violates this supreme right. As the right is interpreted broadly, it must be construed to prevent the imposition of extreme psychological torture while awaiting one’s punishment. b.
The death row phenomenon is a violation of the prohibition against torture
Article 7 of the ICCPR reads, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Torture need not follow physical punishment, it can result from psychological punishment as well.
79
Prolonged incarceration under the conditions on death row has devastating psychological affects on death row prisoners. The severe and undue psychological breakdown experienced by those sentenced to death is tantamount to torture. This torture and cruel punishment is a violation of Article 7. c.
The death row phenomenon is a violation of humane treatment while in custody
Under Article 10 of the ICCPR, every prisoner has the right to humane treatment while in custody.
The psychological trauma experienced by death row prisoners violates that prisoner’s right to be humanely treated.
76 Report of the Special Rappateur on Extraudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3., para. 11 and 18.
77 Report of the Special Rappateur on Extraudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3., para. 11 and 18.
78 Report of the Special Rappateur on Extraudicial, Summary, or Arbitrary Executions of 22 Jan. 1998 at E/CN.4/1998/68/Add.3., para. 11 and 18.
79 Convention Against Torture, Art. 1(1).
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d.
The death row phenomenon violates other relevant safeguards endorsed by the United
Nations
International law does not allow for the execution of a person suffering from diminished mental capacity. The United Nations has asked all states that still maintain the death penalty “Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person.” 80
Under resolution 1989/64 of the Economic and Social Council (endorsed by General Assembly resolution 39/118 and affirmed by the Human Rights Committee resolution 2005/59), states are called to eliminate the death penalty for persons suffering from mental handicap or extremely limited mental capacity.
81 Moreover, these safeguards guaranteeing protection of the rights of those facing the death penalty stipulate that the death penalty shall not be carried out on persons who have become insane.
82
In light of these guidelines and international standards, the Special Rapporteur will act when, “Persons suffering from mental illness or handicap or those with extremely limited mental competence face the death penalty.” 83
Because the conditions of being sentenced to death and awaiting one’s own execution severely affect psychological functioning and can even lead to insanity, the execution of one who is a victim of the factors that cause the death row phenomenon violates this prohibition against the execution of one suffering from a mental disorder.
The death row phenomenon also violates a prohibition on excessive suffering. Under resolution
2004/67, “where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering and shall not be carried out in public or in any other degrading manner…” 84 The United Nations
Economic and Social Council has also urged states to keep the suffering of prisoners under the sentence of death at a minimum and to avoid exacerbating the suffering.
85
Through long delays, deplorable conditions, and other circumstances surrounding executions, severe psychological trauma occurs. This trauma increases
80 U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, and resolution 2003/67 of 24 April 2003.
81 Extrajudicial, summary or arbitrary executions - Report of the special rapporteur of 25 Jan. 2000 E/CN.4/2000/3.
82 Extrajudicial, summary or arbitrary executions - Report of the special rapporteur of 25 Jan. 2000 E/CN.4/2000/3.
83 Extrajudicial, summary or arbitrary executions - Report of the Special Rapporteur of 9 Jan. 2002 at E/CN.4/2002/74.
84 U.N. Human Rights Commission resolution 2004/67 of 21 April 2004, para.4( i ).
85 U.N. Economic and Social Council resolution 1996/15 of 22 Feb. 1996.
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suffering of the condemned and violates the requirement that the sentence be carried out with as little suffering as possible.
V.
Recommendations
Extreme delays in the imposition of death sentences, the deplorable conditions on death rows, and the anxiety created by the threat of death and other circumstances surrounding an execution inflict great psychological pressure and trauma on death row inmates. Essentially, inmates are experiencing two sentences – one of death and one of extreme psychological pressure for extreme lengths of time. This pressure results in psychological trauma and breakdown that are a violation of torture and humane treatment, a violation of the right to life, a violation of executing those with mental incapacity, and a violation of limiting the suffering of these prisoners.
Human Rights Advocates asks that the Human Rights Council continue to address the use of the death penalty by encouraging its abolition and by keeping limitations to the death penalty as an agenda item. It also asks that the Special Rapporteurs on Torture and on Extrajudicial, Summary or Arbitrary Executions be encouraged to work together in the implementation of and adherence to the safeguards for the use of the death penalty, and institute a special procedure for which to address violations of these safeguards. The Special
Rapporteurs should also recognize violations of these limitations and safeguards, including the onset of the
“death row phenomenon” as a limit to the implementation of capital punishment.
Moreover, the Council should recognize delay alone may constitute the death row phenomenon. The
Council should come in line with other bodies to offer normative consistency in the application of the death row phenomenon. Irrespective of the physical conditions of death rows and the anxiety the sentence produces, the Council should also recognize that a showing of delay alone can constitute the death row phenomenon and thus a violation of Articles 6, 7 and 10 of the ICCPR.
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