University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 2019 Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment John Bessler University of Baltimore School of Law, [email protected] Follow this and additional works at: https://scholarworks.law.ubalt.edu/all_fac Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation John Bessler, Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment, 11 Northeastern University Law Review 1 (2019). Available at: https://scholarworks.law.ubalt.edu/all_fac/1080 This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 1 Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment By John D. Bessler* * Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Visiting Scholar/Research Fellow, Human Rights Center, University of Minnesota Law School (Spring 2018); Of Counsel, Berens & Miller, P.A., Minneapolis, Minnesota. 2 Bessler Table of Contents I. Introduction ...................................................................................3 II. The Illegality and Torturous Nature of Threats of Death ....... 14 A. Existing Legal Protections Against Death Threats Against Individuals.................................................................................... 14 B. Death Threats, Persecution, and the U.S. Constitution’s Eighth Amendment ..................................................................... 18 C. The Torturous and Coercive Nature of Threats of Death 33 III. The Nature of Capital Prosecutions .........................................35 A. Threats of Death in Penal Systems ....................................35 B. Capital Charges, Death Sentences, and Execution Protocols ..................................................................................... 43 IV. The Torturous Nature of State-Sanctioned Killing ................ 49 A. Mental vs. Physical Pain or Sufering ................................ 49 B. The Torturous Efects of Death Sentences and Executions ......................................................................................................56 C. The Importance of Human Dignity ..................................... 60 D. The Coercive Nature (and Distorting Efects) of Death Threats ........................................................................................ 64 E. Death Row, “Mock” Executions, and Threats to Life or Bodily Integrity ............................................................................67 V. Taking Psychological Torture Seriously ................................... 70 A. Death Threats as a Form of Psychological Torture ........... 70 B. The Definition of Psychological Torture ..............................72 C. The Torturous Nature of Non-Lethal Acts .......................... 80 D. The “Lawful Sanctions” Issue ...............................................88 VI. Conclusion................................................................................... 94 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 3 I. Introduction The modern defnition of torture makes clear that torture can be either physical or psychological in nature.1 The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in 19872 and which the U.S. ratifed in 1994, defnes torture in just those terms.3 In particular, that convention defnes torture as “any act by which severe pain or sufering, whether physical or mental, is intentionally inficted on a person” for a prohibited purpose, such as to obtain a confession or to punish.4 The Inter-American Convention to Prevent and Punish Torture likewise defnes torture “to be any act intentionally 1 The Oxford English Dictionary (1971) defnes torture as “severe or excruciating pain or sufering (of body or mind).” Accord David Luban, Torture, Power, and Law 116 (2014); WMA Declaration of Tokyo, World Med. Ass’n (Mar. 22, 2017), https://www.wma.net/policies-post/wma- declaration-of-tokyo-guidelines-for-physicians-concerning-torture-and- other-cruel-inhuman-or-degrading-treatment-or-punishment-in-relation-to- -detention-and-imprisonment/ (“For the purpose of this Declaration, torture is defned as the deliberate, systematic or wanton infiction of physical or mental sufering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.”). The World Medical Association’s Declaration of Tokyo was originally adopted by the 29th World Medical Assembly in Tokyo, Japan, in October 1975. Id.; see also Bonita Meyersfeld, Domestic Violence and International Law 78 (2010) (“The traditional defnition of torture contains four elements: severe pain and sufering, whether mental or physical; intent; purpose; and state involvement.”). 2 A total of 163 countries are parties to the convention. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, https:// treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV- 9&chapter=4&lang=en (listing parties). 3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S 113 [hereinafter “Convention Against Torture” or “CAT”]; Jennifer K. Elsea et al., The Treatment of Prisoners: Legal, Moral or Criminal? 211 (Ralph D. McPhee ed., 2006) (noting that the U.S. “signed CAT on April 18, 1988, and ratifed the Convention on October 21, 1994, subject to certain declarations, reservations, and understandings”). 4 CAT, supra note 3, at art. 1. Cf. Rome Statute of the International Criminal Court art. 7(2)(e), July 17, 1998 (“‘Torture’ means the intentional infiction of severe pain or sufering, whether physical or mental, upon a person in the custody or under the control the accused; except that torture shall not include pain or sufering arising only from, inherent in or incidental to, lawful sanctions.”); David Weissbrodt & Cheryl Heilman, Defning Torture and Cruel, Inhuman, and Degrading Treatment, 29 L. & Ineq. 343 (2011) (discussing the defnition of torture). 4 Bessler performed whereby physical or mental pain or sufering is inficted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.”5 Death threats, because of their unlawful and invidious nature6 and their potentially coercive efects, normally have signifcant, adverse legal consequences.7 They may result in the evidentiary exclusion of confessions obtained through such means,8 amount to persecution,9 or lead to civil liability, whether for intentional 5 Organization of American States, Inter-American Convention to Prevent and Punish Torture art. 2, Dec. 9, 1985, O.A.S.T.S. No. 67. “Torture,” that convention continues, “shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.” Id. As that convention further provides: “The concept of torture shall not include physical or mental pain or sufering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.” Id. 6 See Lacey v. Allstate Indemnity Co., No. 2:12-cv-02051-SGC, 2015 WL 875379, at *7 n.7 (N.D. Ala. Mar. 2, 2015) (“‘barbaric means’ included death threats toward the plaintif and his children”). 7 1 Encyclopedia of Death and the Human Experience 553 (Clifton D. Bryant & Dennis L. Peck eds., 2009) (“In general, a death threat is not protected speech if there is intent to follow through with the threat. Other factors are considered in determining an unlawful death threat, such as the context in which the threat occurred and whether the target is fearful of serious harm. The means by which an illegal death threat can be communicated include speech, telecommunications, mail, e-mail, and the Internet.”). 8 See United States v. Jenkins, 938 F.2d 934, 937 (9th Cir. 1991) (“the beatings and death threats alone were sufcient to make the initial confession coerced”); id. at 940 (“the implicit threat of a repetition of the beatings and the fear that the police might make good on their twice-promised death threat were sufcient to render Jenkins’s 2:00 a.m. confession coerced”); Browner v. State, 765 S.E.2d 348, 352 (Ga. 2014) (“Physical or mental torture is the type of fear of injury that prevents a confession from being admissible . .”); David H. Kaye et al., The New Wigmore: A Treatise on Evidence, Expert Evidence § 8.8.3(5)(ii) (2d ed. 2018) (“A credible death threat is an enormous risk factor for confessions in general— when this factor