Public amnesty international UNITED STATES OF AMERICA A lethal ideology More state killing on Human Rights Day as 900th execution looms

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An Amnesty International poster from the bodies, not independent and impartial early 1990s depicted a number of former courts – with no right of appeal to any or current leaders, each with a hand in the court. air. Adolf Hitler, Joseph Stalin, Mao On 9 December last year, Zedong, Idi Amin, and Saddam Hussein President George W. Bush issued a were among those pictured. So too was the proclamation, declaring 10 December then US President, George Bush. The 2002 to be Human Rights Day and that caption read: “All those in favour of the week as Human Rights Week. “As a penalty, raise your hand”. Nation”, the President proclaimed, “we A decade later, the presidential steadfastly oppose the forces of cruelty, hand is still raised as the USA approaches injustice, and tyranny”.1 In the five days its 900th execution since resuming judicial from 9 to 13 December 2002, the USA killing in 1977. On 900 occasions, a killed seven people in its execution human being will have been led from his chambers. 2 They had been selected for or her cell and hanged, shot, gassed, death under a system marked by electrocuted or poisoned to death. Kept arbitrariness, discrimination and error. under the of execution for years, The presidential proclamation these prisoners, together with their failed to mention that 10 December each families, had to endure the cycle of fear, year is international Human Rights Day. It hope and despair inherent to capital marks the adoption in 1948 of the punishment. More than three and a half Universal Declaration of Human Rights, thousand men and women are being kept with its vision of a world free from state under such a death threat today in the killing and cruelty. It is one of the success United States. Now, by presidential order, stories of the human rights movement that there is also the prospect of executions of the years since 1948 have seen steady selected foreign nationals following trials progress towards worldwide eradication of by military commissions – executive the death penalty. Today, 112 countries

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are abolitionist in law or practice. The instructed by the Warden, the IV team will vast majority of the world’s executions insert two intravenous catheters into each year now take place in a handful of appropriate veins in the inmate’s arms, one countries, the USA among them. to deliver the lethal agents and the other to serve as a back-up in the event of injection This year, on the Universal failure into the primary catheter.”6 And so Declaration’s 55th anniversary, the USA is on. set to execute two more people. This is in addition to the two men scheduled to be After a night of heavy drinking in put to death either side of Human Rights 1993, 20-year-old Johnny Martinez robbed Day, on 9 and 11 December.3 a Texas grocery shop, stabbing the shop assistant in the process. Within half an On 14 January 2003, President hour of the Martinez had Bush, whose five-year governorship of telephoned the police from a nearby motel, Texas saw 152 executions in that state and and told them of the . When the whose presidency has seen the first federal police arrived, Martinez surrendered executions in the USA since 1963, issued without resistance. The arresting officer another proclamation, promising that the described him as “very cooperative” and United States will “continue to build a “concerned about what happened”. At the culture that respects life”.4 On the same police station, Johnny Martinez confessed day, the USA carried out its first execution to the stabbing. He assisted the police in of the year, and has carried out over 60 their search for the murder weapon. The more since then, including the federal interrogating officer described Martinez as execution of a former soldier with a claim “very upset” and “remorseful”. At the of Gulf War Syndrome who was denied sentencing phase of his subsequent trial, clemency by President Bush.5 Johnny Martinez expressed his remorse Premeditated and an inability to explain why he had There is no killing more premeditated than committed this act of violence. He had no the death penalty. Just how calculated this history of violence and no criminal killing is, is illustrated by the execution convictions. He was sentenced to death protocols for the death penalty states. On and in May 2002 was put to death by “Execution Day” in Colorado, for example, lethal injection. “the inmate will be offered the opportunity Some of those on were to shower and dress in clean clothes one intoxicated at the time of the . and one-half hours prior to the scheduled Some were mentally ill. Many came from execution time. Following the shower, the backgrounds of exposure to abuse and inmate will be dressed in green uniform violence from an early age. Eddie pants, a green button-up front shirt, socks, Crawford is scheduled for execution in and shoes. Thirty minutes prior to the Georgia on 10 December 2003, Human scheduled execution time, the strap down Rights Day, for the murder of his niece. team will remove the inmate from the He is a Vietnam veteran, who, according holding cell and strap the inmate to the to his appeal lawyers, returned from that execution bed. Twenty minutes prior to the war as an alcoholic suffering from post- scheduled execution time or when traumatic stress disorder.

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Meanwhile, the state practices its Galveston, about 200 kilometres from the killing procedures, further highlighting death chamber in Huntsville, as his just how premeditated this legalized scheduled execution time approached. The murder is. New Mexico’s “tie-down team Texas authorities, including then Governor practice session”, for example, includes George Bush, saw no reason to wait, and the following steps: “1. The condemned in contrast to his 1987 murder trial, when inmate shall be escorted from the holding the state had denied his lawyers the funds cell into the execution chamber. 2. The to conduct a full assessment of Long’s condemned inmate shall be ordered to lay mental impairment, it spared no expense to down on his/her back on the table. 3. The have him killed. He was flown by condemned inmate shall be strapped to the aeroplane to Huntsville, accompanied by a table as follows: (a) The condemned full medical team to ensure his safe arrival. inmate’s ankles and wrists shall be As he was given the lethal injection, David buckled down simultaneously. (b) The Long “snorted and began gurgling. A strap across the chest and below the knees blackish-brown liquid spouted from his shall be placed on the inmate. The strap nose and mouth and dribbled to the floor”. across the stomach and above the knees This was the charcoal solution that had shall be placed on the inmate.”7 been used to detoxify his body, only hours before it would be injected with lethal As it wields the ultimate power chemicals.9 over individuals, the state may need to cater for the possibility of a stay of In Florida on 20 June 2000, after execution. In New Jersey, the procedures Governor Jeb Bush denied clemency, state that: “in the event that such a stay is seriously mentally ill prisoner Thomas granted during the execution process and Provenzano was strapped to a gurney and the condemned has not expired, the had the lethal injection needles inserted in Superintendent shall immediately order his arms. Eleven minutes before he was the team physicians to intercede. due to be killed, a federal court issued a Witnesses shall be removed from the area. stay of execution. The needles were The team physicians shall immediately withdrawn and he was taken back to his initiate life saving medical techniques to cell. A few hours later, the court lifted revive the condemned. When indications the stay, without comment, and Thomas of life are present, the condemned shall, as Provenzano was put through the same soon as practical, be transported to the St. procedure again. This time he was killed. Francis Medical Center Emergency Room Mentally ill prisoner Jay Scott was for further treatment as necessary”.8 On an hour from execution in Ohio on 17 paper, such a scenario borders on the April 2001, with clemency already denied surreal. The reality, of course, involves by Governor Bob Taft, when the state actual human beings. Supreme Court issued a stay. The stay David Long, a Texas inmate with was lifted and the execution was reset for a long history of mental illness, attempted 15 May. This time, minutes before the by drug overdose two days before killing was due to be carried out a federal his scheduled execution in 1999. He was court intervened. Catheters had already still in intensive care in hospital in been put in Jay Scott’s arms in preparation

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for the lethal injection. Again, the stay was demagoguery aimed at escalating lifted. Jay Scott was executed on 14 June. executions has become more pervasive… Many of those seizing the anti-crime Delma Banks, African American, mantle not only advocate capital was sentenced to death by an all-white punishment, but also seek to out-do each jury who heard evidence from witnesses other in expanding the death penalty to who have since recanted their testimony. new crimes, cutting appeals, and A federal judge has referred to Banks’ trial withdrawing the resources critical to lawyer’s performance as “dismal”. 10 defending those on death row.”12 Banks has had 15 execution dates in the nearly 24 years that he has been on death Although the demagoguery has row in Texas. The most recent of these been tempered in recent times as public execution dates was 12 March 2003, when concern about the reliability of capital the US Supreme Court stepped in an convictions and the fairness of sentencing issued a stay of execution about 10 has increased, the “tough on crime” minutes before it was due to be carried out. politics of the death penalty can still rear Earlier the Texas Board of Pardons and its ugly head. A recent Republican Party Paroles had refused to consider clemency, leaflet in Virginia denounced a saying that the lawyer had missed the Democratic candidate’s opposition to the deadline for filing the clemency petition. execution of offenders who were under 18 A Texas newspaper suggested: “That kind years old at the time of the crime, an of mind-set – that deadlines and almost exclusively US practice that technicalities matter more than legitimate violates an unequivocal principle of claims of innocence or wrongful international law. 13 In the case which convictions – undermines public sparked this, domestic considerations were confidence in the entire Texas justice seen to trump the USA’s international system.”11 obligations when Attorney General John Ashcroft, at a press conference, announced Politically motivated his order to transfer the suspect, John Lee In the USA the death penalty has been Malvo, from federal custody to the highly politicized, with support for Virginia authorities because it was executions generally seen as a prerequisite “imperative” that the death penalty be an for political office, whether at option.14 Under federal and international prosecutorial, gubernatorial or presidential law the teenaged defendant could not have level. The 1992 execution of Ricky Ray faced execution. He is now on trial for his Rector, a severely brain damaged prisoner, life in Virginia. has often been cited as a case in point. In abolitionist Minnesota on 2 Breaking off from presidential December 2002, Governor Tim Pawlenty, campaigning, Arkansas governor Bill reacting angrily to an unresolved violent Clinton flew back from New Hampshire to crime, called for reinstatement of the death oversee Rector’s killing. In its 1996 report penalty in his state. His move led some to Killing for Votes, the Death Penalty accuse him of playing politics with the Information Center wrote: “Although the death penalty. One columnist suggested use of death sentences to gain political that “this must be how lynch mobs worked. leverage is certainly not new, the

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A strong leader, reacting to anger, would for lethal injection is that this method, like work up the crowd, then, en masse, there any other, cannot rid the death penalty of would be a rush to the nearest tree… [The its cruelty. The death penalty is not just governor] was trying to create public the act of execution, but the death sentence policy with a jerk of the knee”. 15 The itself. If holding a gun against someone’s state’s Attorney General suggested that head in an interrogation room is torture, “we should not be engaged in sideshows, why is holding a person for years under and we should not be engaged in the threat of the lethal injection needle politics… We’re going to focus on [the considered acceptable? What about the victim] today. I don’t think it’s appropriate condemned inmate’s family? Is their to be grandstanding.”16 suffering to be considered the “collateral damage” of this state killing? A form of state violence Moreover, lethal injections do not The Oxford Dictionary defines “violent guarantee quick, efficient executions. On death” as death “resulting from external numerous occasions, an execution team force or from poison”. Nevertheless, in the has had to engage in a prolonged search USA lethal injection has been promoted as for a suitable vein in which to insert the a “humane” way to kill condemned needle. Jose Martinez High was kept on prisoners. In fact, the driving force behind death row in Georgia for almost a quarter the advent of injection in some states as of a century before being executed in their favoured method of killing has been November 2001. The execution team spent to protect the death penalty from 39 minutes trying to find a vein, before constitutional challenges to the more abandoning their efforts. Eventually one visually grotesque forms of execution, catheter was inserted in his neck and such as electricity or lethal gas. Governor another in his hand. In other cases, a Mike Johanns of Nebraska, for example, surgical procedure known as “cutdown” has been urging his state legislature to has had to be performed before the adopt lethal injection to pre-empt legal execution can proceed. Bennie Demps, challenges to the electric chair. He executed in Florida 2000, complained that recently wrote: “If the citizens of he had been “butchered” and in a lot of Nebraska want to continue to have an pain while the execution team tried to find enforceable death penalty statute, then a vein. Alabama death row inmate David state lawmakers must act in the 2004 Nelson is challenging the state’s plan to session. It might be the last opportunity to kill him on the grounds that his collapsed do so before one or more persons found veins would require the state to carry out guilty of first-degree murder avoid capital painful surgery before lethally injecting punishment because of our reliance on the him. electric chair.” 17 Under international standards, a politician should be In many states, lethal injections promoting abolition of the death penalty, are carried out using a combination of not finding ways to entrench it. three chemicals: sodium thiopental (Pentothal), pancuronium bromide What Governor Johanns and (Pavulon), and potassium chloride. There others sidestep in their enthusiastic support is evidence that the pancuronium bromide,

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a derivative of curare which paralyses the prohibiting the use of pancuronium muscles but does not affect the brain or bromide in the of cats and nerves, may mask the condemned dogs.20 The state has executed more than prisoner’s suffering during the execution. 310 human beings using this chemical. A person injected with this chemical The American Medical cannot move or speak. When lawyers in Association’s Code of Ethics prohibits Tennessee challenged the state’s use of doctors from participating in executions. this drug, they presented as a witness a There are reportedly no standards for the woman who had undergone surgery during training of these non-medical personnel which the anaesthetic was not effective. who carry out Texas executions, She testified that she was able to hear, increasing the potential for botched perceive and feel everything that was executions. A recent appeal raised in the going on in her surgery, but was unable to Texas courts points to a law which will move or speak because of an injection of come into force on 1 January 2005, and pancuronium bromide. She has described which “would make the lethal injection the experience as “worse than death”.18 process, if performed on animals, illegal, The judge hearing the challenge to because of the lack of training for the execution by lethal injection noted that personnel involved, and the lack of “the focus of the dispute is whether there safeguards.”21 is a reasonable likelihood that the Defending Tennessee’s position Pentothal will not take effect such that the against the appeal brought against its prisoner feels the full affects of the lethal injection process, the state argued Pavulon and the sodium chloride and, that its ban on pancuronium bromide in pet because of the Pavulon, it is unknown to euthanasia does not apply to the those witnessing the execution that the condemned prisoner because he is not a prisoner is being subjected to such torture. “non-livestock animal”. Under state law Sodium chloride is extremely painful. the latter means “a pet normally Pavulon… is psychologically horrific”. 19 maintained in or near the household or The judge decided that the chance of such households of its owner or owners, other a torturous outcome during an execution domesticated animal, previously captured by lethal injection was remote enough to wildlife, an exotic animal, or any other pet, be constitutionally permissible. However, including but not limited to, pet rabbits, a the claim that a “chemical veil” is masking pet chick, duck, or pot bellied pig”. Abu- the reality of the lethal injection process, Ali Abdur’Rahman, the death row prisoner making executions more palatable to at the centre of the case has responded: society, will continue to be raised in the “They’re saying I’m less than an courts. animal”. 22 The state continues to pursue The use of pancuronium bromide his execution despite the fact that eight of for pet euthanasia is not acceptable under the original trial jurors have signed American Veterinary Medical Association affidavits making it clear that they no guidelines, and its use has been banned in longer have confidence in their sentencing several states. On 1 September 2003, a verdict because exculpatory and mitigating new law came into force in Texas evidence was kept from them at the trial.23

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Meanwhile, those who consider federal judge noted that because “innocent execution by lethal injection to be a non- people are sentenced to death with violent activity should be asked whether materially greater frequency than was they would characterize as non-violent the previously supposed” and because action of a private citizen who captured a “convincing proof of their innocence often fellow human being, promised to murder does not emerge until long after their that captive at some time in the future, and convictions, it is “fully foreseeable that in after a few years, strapped him or her enforcing the death penalty, a meaningful down and killed them by injecting poison number of innocent people will be into their veins. What if the offender executed who otherwise would eventually became a serial killer, killing a captive be able to prove their innocence.” The once a week, resulting in hundreds and judge described the state’s pursuit of the hundreds of captives murdered over the death penalty as “tantamount to course of a decade? In the USA, such a foreseeable, state-sponsored murder of crime would be punishable by the death innocent human beings”.25 When history penalty. reveals that people have been executed during this period for crimes they did not Inescapable risk of error commit, today’s politicians will not be On 9 December 2003, Human Rights Day able to claim that they were not warned. eve, anti-death penalty activists were due Some proponents of the death to hold a vigil outside Delaware County penalty believe that its flaws can be fixed. courthouse in Pennsylvania in anticipation Governor Mitt Romney of Massachusetts, of the formal exoneration of Nicholas for example, wants to reintroduce capital Yarris. He has spent more than 20 years on punishment to this abolitionist state. He the state’s death row. His conviction and believes that advances in forensic science death sentence were overturned in can make failsafe judicial killing possible, September on the basis of DNA tests that “just as science can be used to free the supporting his innocence claim. The innocent, it can be used to identify the activists were expecting the local District guilty”.26 It is important not to be blinded Attorney to announce the dropping of by science, which has its limits. Post- charges against Nicholas Yarris. conviction DNA testing, for example, has If released, Nicholas Yarris would played a substantial part in only around become the 112th death row inmate to be one in 10 of the cases of prisoners released freed from death row on the grounds of from death row in the USA. Science is innocence since 1973, and the 10th this also subject to human error. In March year. 24 Each spent years on death row 2003, for example, an independent audit of with the state pursuing their execution. the Houston Police Department (HPD) Others have gone to their despite Crime Laboratory revealed serious defects serious doubts about their guilt. in the lab’s DNA analysis section, The death penalty carries the including poorly trained staff relying on potential for irrevocable error, and its outdated scientific techniques. The report proponents must accept this ever-present found that the lab was “not designed to risk or reject the punishment. In 2002, a minimize contamination”, and that “on

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one occasion the roof leaked such that 2003, Patrick Kennedy was sentenced to items of evidence came in contact with the death in Louisiana for the rape of his eight water”. 27 The DNA section was shut year old stepdaughter. He became the first down, and hundreds of criminal cases prisoner in a quarter of a century in the opened for review. In a number of cases, USA to be sent to a state’s death row for a discrepancies between new tests and the crime not involving a murder. original HPD analysis emerged. One man, Just as science cannot guarantee Josiah Sutton, was released from prison that an innocent person will not be after the DNA test used to convict him sentenced to death, neither can it cure was shown to have been wrong, and a arbitrariness. In the USA, only a tiny retest exonerated him.28 percentage of result in execution. It was a tireless legal team, not A token number of prisoners are put to science, which obtained Joseph Amrine’s death – in effect sacrificed – to satisfy freedom in 2003 in the face of a Missouri popular demand. The selection process to state apparatus which continued to try to determine who will die is tainted not only take him to the execution chamber even by error, but also by arbitrariness and after the evidence used to convict him 17 discrimination. Is the USA reserving the years earlier had fallen apart.29 It was luck, death penalty for the “worst of the worst” not science, which prevented Anthony crimes and offenders as it claims? If so, Porter from being executed in 1998 in why are children and the mentally Illinois for a crime he did not commit. He impaired still sentenced to death? Perhaps was released after 17 years on death row it is because they, the poor and the after university students happened to take inadequately represented are easy targets his case as part of a project and then for the state’s power. uncovered his innocence. The Kevin Zimmerman was sentenced Commission on to death in 1990. He stabbed Gilbert subsequently set up by the Illinois Hooks to death during a drunken argument governor to look into the failures of the after Hooks had stabbed him first. system concluded, after two years of study, Zimmerman was initially charged with that “no system, given human nature and murder, not capital murder. He was frailties, could ever be devised or appointed a succession of lawyers who all constructed that would work perfectly and withdrew from the case for various guarantee absolutely that no innocent reasons, having done little or no work on person is ever again sentenced to death”.30 the case. Unfairness rife After a year, Zimmerman wrote In November 2003 in Washington State, letters to the prosecutor and court, in effect Gary Ridgway confessed to killing 48 daring them to charge him with capital women. By pleading guilty, he avoided the murder. In his letters he falsely claimed death penalty. In the same month, Patrick involvement in other crimes, and claimed Murphy became the sixth person to be that he had robbed Hooks. Murder during sentenced to death for a single murder, the the course of a robbery is a capital offence, killing of Texas police officer Aubrey unlike plain murder. The state took him at Hawkins in December 2000. In October his word, and he was recharged, this time

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with capital murder. A doctor who drunken brawls with strangers. Since the recently reviewed the case has stated in an trial, his fifth wife has testified about his affidavit that the claims in Zimmerman’s violence and drinking, and another wife letters were “patently absurd” and that the has confirmed his violent nature. On one records indicate that at the time he wrote occasion he allegedly beat his pregnant them he was “psychotic”, “potentially wife so severely that she miscarried. Such suicidal and required suicide prevention evidence presented to the jury could have measures”. supported the self-defence claim and countered the prosecution’s depiction of The court presented Kevin the victim as non-violent. Zimmerman with a list of lawyers from which to select the one who would Kevin Zimmerman is scheduled to represent him at trial. The list contained be executed on 10 December 2003, only names, no other information about Human Rights Day. the attorneys. Kevin Zimmerman objected, A system gone mad but complied with the order of the court. The lawyer he chose was appointed to the In a death penalty appeal in 1997, Judge case. She had no experience in capital Gerald Heaney of the US Court of Appeals cases and had never represented anyone for the Eighth Circuit wrote: “At every charged with murder. She chose co- stage, I believe the decision on who shall counsel who had no capital case live and who shall die for his crime turns experience. less on the nature of the offence and the incorrigibility of the offender and more on Kevin Zimmerman suffers brain inappropriate and indefensible damage stemming from a serious bicycle considerations: the political and personal accident when he was 11 years old, which inclinations of prosecutors; the required his having a plate put in his head. defendant’s wealth, race, and intellect; the The accident led to a marked change in his race and economic status of the victim; the personality and behaviour. His defence quality of the defendant’s counsel; and the lawyers failed to investigate his resources allocated to defence lawyers. background however, and did not present Put simply, this country’s unprincipled the numerous relatives and neighbours death penalty selection process is who could have testified to this at the trial. inconsistent with fundamental principles The lawyers failed to have Zimmerman of due process.”31 evaluated for his mental competency to stand trial even though there was evidence Six years later, the prisoner on that he might not be able to assist in his whose appeal Judge Heaney was ruling own defence. They failed to present expert was still facing execution. The condemned psychiatric evidence to support the claim prisoner, Charles Singleton, suffers from of self-defence or to present as mitigation serious mental illness which, without evidence against the death penalty. treatment may rise to the level of insanity. The execution of the insane is The defence also did not unconstitutional in the USA, but in 2003, investigate Gilbert Hooks’ record of the US Court of Appeals for the Eighth violence, including wife-beating and Circuit ruled that he could be forcibly

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medicated even if that made him convicted of crimes involving whites, even competent for execution. In a breathtaking though whites and blacks are the victims understatement, the majority opinion held of murder in almost equal numbers. Race that “eligibility for execution is the only of murder victim has consistently been unwanted consequence of the medication”. shown to be a factor in capital sentencing in the USA.33 Judge Heaney, joined by three other dissenters wrote that “to execute a Charles Singleton is one of four man who is severely deranged without men facing execution on 6 January 2004.34 treatment, and arguably incompetent when Undermining the rule of law treated, is the pinnacle of what [US Supreme Court] Justice [Thurgood) A landmark study released in June 2000 Marshall called ‘the barbarity of exacting concluded that the most common flaws in mindless vengeance’.”32 the USA’s error-prone capital justice system are “1) egregiously incompetent At the sentencing phase of Charles defense lawyers who didn’t even look for - Singleton’s trial, no witnesses were called and demonstrably missed - important on his behalf, despite their availability to evidence that the defendant was innocent testify about his difficult childhood and or did not deserve to die; and 2) police or intoxication at the time of the crime. His prosecutors who did discover that kind of lawyer’s entire closing argument was: evidence but suppressed it, again keeping “Ladies and gentlemen, it’s been a long it from the jury.”35 trial. You’ve sat and listened to the evidence and you’ve made your decision. I Taking issue with Illinois don’t believe any one of you would like to prosecutors, state Supreme Court Justice take a man's life and I think you will do Philip Rarick wrote in a recent opinion: what’s proper. I know you are people of “Misconduct on the part of prosecutors conviction, and if it is required then that's cannot be allowed to continue unchecked. what you'll do. If you don't think it's To call it “error” is to mischaracterize it, required, you will not. I know that none of as it represents nothing less than an you will make this decision lightly. I have attempt to subvert a defendant’s absolutely nothing to say to you in regard fundamental right to a fair trial.” 36 A to it. I do not envy you having to make the North Carolina newspaper recently decision. And I trust that you would published a series of articles on deliberate now and reach what you feel is prosecutorial misconduct in the state’s proper in this case.” The jury voted for capital cases. In addition to the case of death. Alan Gell who had his conviction and death sentence overturned in December Charles Singleton, an African 2002 because prosecutors had withheld American man, was tried in front of an all- exculpatory evidence, “prosecutorial white jury for the murder of a white misconduct has undone at least four other woman. At least one in five of the 300 North Carolina death row sentences in African Americans executed in the USA recent years, and several similar cases are since 1977 were tried in front of all-white grinding their way through the appeals juries. Eighty per cent of the more than process. In these cases where judges 880 people put to death since 1977 were

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ordered new trials, prosecutors broke the evidence that the prosecutor had used the law by withholding evidence helpful to defendant’s homosexuality against him at defendants, such as witness statements or his trial as part of its successful bid to deals cut with jailhouse informants. The obtain a death sentence.38 At Jay Wesley prosecutors have received no significant Neill’s Oklahoma trial the prosecutor did punishment.”37 much the same thing. Arguing for execution, the prosecutor told the jury: “I A compelling claim of want you to think briefly about the man prosecutorial misconduct may not be you’re sitting in judgment on and enough to prevent an execution, determining what the appropriate undermining confidence that the state is punishment should be... I’d like to go serious about upholding the rule of law. through some things that to me depict the James Willie Brown was executed in true person, what kind of person he is. He Georgia on 4 November 2003. He had a is a homosexual. The person you’re sitting long history of mental illness, including in judgment on - disregard Jay Neill. repeated diagnoses of schizophrenia. You’re deciding life or death on a person Indeed, his trial for murder was delayed that’s a vowed [sic] homosexual... But for six years on the grounds of mental these are areas you consider whenever you incompetence. Despite the substantial determine the type of person you’re sitting evidence of his illness – over the years in judgment on...The individual’s more than 25 mental health experts homosexual.” The jury returned a death employed by the state had found James verdict. The death sentence survived the Brown to be mentally ill – the prosecution appeal process, although one federal judge contended at his 1990 trial that he was argued that “the prosecutor’s blatant faking his condition. homophobic hatemongering at sentencing To bolster the state’s theory that has no place in the courtrooms of a the defendant was malingering, the civilized society”. Jay Neill was executed prosecution presented a former inmate, two days after Human Rights Day last year. Anita Tucker, who said that James Brown This year, Bobby Hines is had confided in her that he was faking his scheduled for execution in Texas on 11 illness. Anita Tucker later recanted that December, the day after Human Rights testimony, and testified that her earlier Day. His lawyers are challenging his testimony was part of a deal with the execution on the grounds of evidence that prosecution in exchange for her early he has mental retardation. In June 2002, release on her own criminal charges. At the US Supreme Court prohibited the Brown’s clemency hearing on 31 October execution of people with mental 2003, a renowned expert on schizophrenia retardation. The decision, Atkins v Virginia, testified that James Willie Brown had this left it up to individual states as to how to mental illness. Anita Tucker told the board comply with the decision. In its most that she had lied at the trial. Clemency was recent legislative session earlier this year, denied and the execution went ahead. the Texas legislature failed to amend Eddie Hartman was executed in Texas law to reflect the Atkins decision. North Carolina on 3 October 2003 despite

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The state judiciary has not clarified the about his traumatic life. He was tried for issue either. the murder of Hai Hong Nguyen. Hai Nguyen and Hung Le fled their native Since the Atkins decision in June Vietnam and later met in 1985 in a refugee 2002, Texas prosecutors have shown little camp in Thailand before immigrating to inclination to take a progressive attitude the USA. Hung Le’s lawyers had done towards the ruling. For example, in the almost no investigation into his current case of Walter Bell, a long-time background or preparation of the death row inmate who has a strong claim mitigation witnesses. As a result, the of mental retardation, the local prosecution mitigation testimony was brief, and did not is challenging his claim despite having not include any expert evidence about the disputed it at the original trial (at a time possible impact of Hung Le’s past on his when the execution of people with mental conduct. A juror from the trial later stated retardation was constitutional). In a recent that a Vietnamese woman who was on the editorial, the Austin-American Statesman jury had not wanted to impose a death said of the case: “In short, the Jefferson sentence, and had unsuccessfully tried to County prosecutors are hell-bent on persuade the other jurors that Hung Le’s executing Bell; the truth about his mental actions may have been affected by his state is irrelevant and the requirements of cultural and personal background. Since the law are something to be evaded… the trial, a Vietnamese psychologist has Bell’s case also is indicative of the failure concluded that, as a result of his life of the Legislature this year to rewrite state experiences, Hung Le was suffering from law to reflect the Supreme Court’s ruling, post-traumatic stress disorder at the time and the failure of the executive branch, of the crime. Hung Le was 16 years old including the governor, to review the when he fled Vietnam. He witnessed, and inmates on death row to see which ones was subjected to, violence and deprivation should not be there because of mental in the refugee camps. retardation.”39 Meanwhile, Hung Le’s prosecutor The regularity with which made inflammatory remarks at the trial. prosecutors have used questionable tactics For example, arguing for execution he to pursue death sentences flatly contradicts asked the jury “do you really think that President Bush’s oft-made assertion that justice would be done if this man goes to “America will always stand firm for the prison, gets three meals a day and a clean non-negotiable demands of human dignity bed every night and regular visits from his and the rule of law.” 40 He repeated this in family while Hai Nguyen lays cold in his a statement to mark World Refugee Day grave?” He also misstated the law as it on 20 June 2002, which he said was “also related to mitigating evidence: in response a time to be reminded of the terrible to the mitigating factors presented, circumstances that drive people from their including regarding the defendant’s good homelands in search of freedom and character and the absence of any criminal safety.” 41 record, the prosecutor wrongly suggested The jurors who sentenced former that the jurors need not consider any Vietnamese refugee Hung Thanh Le to evidence “about whether [Hung Le had] death in Oklahoma in 1995 knew little

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been a good guy in the past or anything A question of human dignity like that”. The prosecutor referred to facts Supporting abolition of the death penalty that were not in evidence. For example, is not to excuse or condone violent crime. with no evidence to back him up, he The suffering caused to murder victims suggested that Hung Le may have and their families is immeasurable and the murdered before: “All we know about his state should find ways both to fight crime past is what he has told us...It’s kind of and to support the victims of crime. hard to believe that the man who has done Perpetuating the cycle of violence and what he has done never has done it before undermining respect for life is not the way in his life”. The prosecutor repeatedly to do it, in Amnesty International’s dehumanized Hung Le. He stated that “this opinion. man may be a small man in stature but he’s cold as an icicle. The state submits Some argue that certain crimes he’s without compassion or feelings”. The demand the ultimate penalty, and allow prosecutor told the jury that allowing the society to show its absolute condemnation defendant to live in prison “doesn’t even of those crimes – although as most come close to being justice… and you can executions pass largely unnoticed in the only do justice in this case by bringing in a US mainstream, society’s mood would verdict of death”. appear to be one of desensitized apathy about the killing done in its name. Oklahoma County prosecutors have repeatedly been criticized by state Perhaps retribution was in the and federal appeal courts.42 In Hung Le’s minds of Arizona prosecutors when they case, a federal judge wrote in November obtained a death sentence against Frank 2002 that “…at some point the repeated Roque on 9 October 2003 after he was violation of ethical responsibility threatens convicted of killing an Indian immigrant the violation of our justice system”. on 15 September 2001 in revenge for the Impunity reigns, however. Despite finding attacks against the World Trade Center that the prosecution’s arguments were and the Pentagon four days earlier. Frank “improper” and “irrelevant”, the appeal Roque’s defence at the trial was that he courts allowed Hung Le’s death sentence had been mentally impaired at the time of to stand. He is scheduled to be executed the crime. After the trial, one of the jurors in Oklahoma on 6 January 2004. said: “We were deciding if his life experiences outweighed his disrespect for Hung Le has a hearing before the human life that day. I think he had state clemency board on 9 December 2003, problems, he had issues. I don’t think they the day before Human Rights Day. The were serious enough [to warrant a life last time Oklahoma executed a former sentence].” 44 If the death sentence is Vietnamese refugee was on Human Rights upheld on appeal, Frank Roque will be Day in 1998. There was evidence that killed in the state’s own act of retaliation. Huan Anh Nguyen was insane at the time Will this not undermine, rather than affirm, of his execution and that his execution was the value of human life? The killing of therefore unconstitutional.43 Frank Roque will undoubtedly be a calculated killing.

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Twelve of the 50 states in the Nations Commission on Human Rights USA are abolitionist. One of them is has expressed its conviction that “abolition Minnesota which abolished the death of the death penalty contributes to the penalty in 1911, five years after its last enhancement of human dignity and to the execution, a botched hanging which took progressive development of human rights”. the prisoner nearly 15 minutes to die. The “The United States will champion recent call by Governor Tim Pawlenty for aspirations for human dignity” according the resumption of executions has caused to its National Security Strategy published something of a stir in the state. Republican in September 2002, a month when seven Senator Tom Neuville was one of those people died in US execution chambers. In who took issue with the governor. He said his State of the Union Address delivered that reintroduction of the death penalty in on 29 January 2002, President Bush Minnesota would “affect us as a culture. It asserted that “America will always stand would make us more coarse and less firm for the non-negotiable demands of respectful of life. Philosophically, it human dignity”. Two more men were put damages us.”45 to death on that day. For his State of the Amnesty International would add Union Address on 28 January 2003, the that the death penalty is also costly – to the President said: “Our founders dedicated public purse, as well as in social and this country to the cause of human dignity, psychological terms, and to the the rights of every person, and the international reputation of the USA; it has possibilities of every life.” Alva Curry no special deterrent effect; it carries the was executed a few hours later, the first of risk of irrevocable error; it tends to be three men to be executed in three days in applied discriminatorily on grounds of the President’s home state of Texas. race and class; it prolongs the suffering of The death penalty is gradually the murder victim’s family; and it extends being consigned to what President Bush that suffering to the loved ones of the has referred to as “history’s unmarked condemned prisoner. It is a symptom of a grave of discarded lies”. 46 The lie culture of violence, not a solution to it. perpetuated by the death penalty is that it On 30 November, the Fourth offers a constructive solution to crime. It Global Summit of the Nobel Peace Prize does not. It is a lethal ideology and an Laureates culminated with a common affront to human dignity. statement by the laureates which among All those in favour of the death other things stated that “the death penalty penalty, raise your hand… It is time for is a particularly cruel and unusual the presidential hand to be lowered. punishment that should be abolished.” In resolution after resolution, the United

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1 Human Rights Day, Bill of Rights Day, and Human Rights Week, 2002. By the President of the United States of America. A Proclamation, 9 December 2002. 2 Linroy Bottoson (Florida), Desmond Carter (North Carolina), Jerry McCracken (Oklahoma), James Collier (Texas), Jessie Williams (Mississippi), Jay Neill (Oklahoma), Anthony Johnson (Alabama). 3 Billy Vickers (9 December, Texas); Eddie Crawford (10 December, Georgia); Kevin Zimmerman (10 December, Texas), Bobby Hines (11 December, Texas). 4 National Sanctity of Life Day, 2003. A proclamation, 14 January 2003. 5 USA: Another planned killing by the US Government - The imminent federal execution of Louis Jones, AMR 51/020/2003, 18 February 2003, http://web.amnesty.org/library/Index/ENGAMR510202003 6 Colorado Department of Corrections. http://www.doc.state.co.us/DeathRow/DeathRow.htm 7 When legislatures delegate death: The troubling paradox behind state uses of electrocution and lethal injection and what it says about us. Deborah W. Denno, Ohio State Law Journal, Vol 63. No. 1. 2002. 8 Id. 9 USA: Failing the future – Death penalty developments, March 1998 – March 2000. AI Index: AMR 51/03/2000, April 2000, page 13. http://web.amnesty.org/library/Index/ENGAMR510032000 10 See http://web.amnesty.org/library/Index/ENGAMR510302003 11 Hope for a fair trial lies in hands of high court. Austin-American Statesman, 12 March 2003. 12 Killing for Votes: The Dangers of Politicizing the Death Penalty Process. Death Penalty Information Center, Washington DC, October 1996. 13 Virginia GOP uses sniper trial against candidate. Washington Times, 20 October 2003. 14 Remarks of Attorney General John Ashcroft, Press Conference, 7 November 2002. 15 Pawlenty's rush to judgment. Doug Grow, Minneapolis Star Tribune, 3 December 2003. 16 Sjodin case spurs Pawlenty to push for death penalty. Star Tribune, 3 December 2003. 17 Urgency increases to change death penalty. By Governor Mike Johanns. Grand Island Independent, 19 October 2003. 18 Critics say execution drug may hide suffering. New York Times, 7 October 2003. 19 Abdur’Rahman v Sundquist. Memorandum and Order. In the Chancery Court for the State of Tennessee Twentieth Judicial District, Davidson County, Part III. 2 June 2003. 20 Texas Health and Safety Code, Sec. 821.052(a). 21 Ex Parte Kevin Lee Zimmerman. Successive application for a post-conviction writ of habeas corpus. December 2003. According to this appeal brief, Texas Health and Safety Code Sec. 821.055(a) specifies that “[a] person may not euthanize an animal in the custody of an animal shelter unless the person has successfully completed, not more than three years before the date the person euthanizes the animal, a training course in the proper methods and techniques for euthanizing animals. The law specifies the specific components of the training, including pharmacology, proper administration and storage of the euthanasia solutions, the federal and state law regulating the storage and accountability of euthanasia solutions, euthanasia technician stress management, proper restraint and handling of an animal during euthanasia, and the procedures for administering authorized chemicals.” 22 Id. 23 See USA: Not in the jury’s name: The imminent execution of Abu-Ali Abdur’Rahman, June 2003. http://web.amnesty.org/library/Index/ENGAMR510752003 24 see Death Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?scid=6&did=110 25 USA v Quinones, US District Court, Southern District of New York, S3 00 Cr. 761. 1 July 2002. 26 Romney takes scientific approach to death penalty. Governor’s news release, 23 September 2003. 27 Auditors find problems with HPD’s crime lab. Houston Chronicle, 15 March 2003.

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28 Crime lab scandal leaves prosecutor feeling betrayed. Houston Chronicle, 16 March 2003. 29 See Joseph Amrine: Facing execution on tainted testimony (AMR 51/085/2002, June 2002) and One more reason to end the death penalty (AMR 51/060/2003, 30 April 2003). 30 Report of the Governor’s Commission on Capital Punishment, April 2002. 31 Singleton v Norris, US Court of Appeals for the Eighth Circuit, 1997, Judge Heaney concurring. 32 Singleton v Norris, US Court of Appeals for the Eighth Circuit, 2003, Judge Heaney dissenting, quoting Justice Marshall in Ford v Wainwright (1986). 33 See USA: Death by discrimination: The continuing role of race in capital cases, April 2003 http://web.amnesty.org/library/Index/ENGAMR510462003 34 Charles Singleton (Arkansas); Hung Thanh Le (Oklahoma); Ynobe Matthews (Texas); Karl Roberts (Arkansas). 35 A Broken System: Error Rates in Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan and Valerie West, Columbia Law School. 36 People v Johnson, 17 October 2003. 37 Cheating prosecutors ruin lives, go unpunished. News Observer, 2 November 2003. 38 See Amnesty International EXTRA 42/03, AMR 51/123/2003, 18 September 2003. http://web.amnesty.org/library/Index/ENGAMR511232003 39 Texas must fix uneven application of death penalty. Austin-American Statesman, 25 November 2003. 40 See for example, State of the Union Address, 29 January 2002; National Security Strategy of the USA, September 2002; The Rights and Aspirations of the Peoples of the Middle East, White House, 5 June 2003. 41 Statement by the President, White House News Release, 20 June 2002. 42 USA: Old habits die hard: The death penalty in Oklahoma, AMR 51/055/2001, April 2001, http://web.amnesty.org/library/Index/ENGAMR510552001 43 Failing the future, op. cit. page 58. http://web.amnesty.org/library/Index/ENGAMR510032000 44 Killer of Sikh sentenced to death – Jurors dismiss Roque’s claim of mental illness in post-9/11 shooting spree. Arizona Republic, 10 October 2003. 45 Sjodin case spurs Pawlenty to push for death penalty. Star Tribune, 3 December 2003. 46 “We have seen their kind before. They are the heirs of all the murderous ideologies of the 20th century. By sacrificing human life to serve their radical visions – by abandoning every value except the will to power – they follow in the path of fascism, and Nazism, and totalitarianism. And they will follow that path all the way, to where it ends: in history’s unmarked grave of discarded lies”. President George W. Bush, Address to a joint session of Congress and the American people, 20 September 2001, quoted in the National Strategy for Combating Terrorism, February 2003.

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