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Internal Communication Clearance Form HAUT-COMMISSARIAT AUX DROITS DE L’HOMME • OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND Mandates of the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment REFERENCE: UA USA 4/2017 3 April 2017 Dear Mr. Allegra, We have the honour to address you in our capacity as Special Rapporteur on extrajudicial, summary or arbitrary executions; and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, pursuant to Human Rights Council resolutions 26/12 and 25/13. In this connection, we would like to bring to the attention of your Government information we have received concerning the alleged planned executions with lethal injection of midazolam of eight men, during a period of ten days, in the State of Arkansas, United States of America (USA). The use of lethal injections in the USA was the subject of two previous communications. Case USA 13/2016 of 3 November 2016 (by the Special Rapporteur on extrajudicial, summary or arbitrary executions and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment) in which serious concern was raised over the drug cocktail used in the State of Alabama which may cause severe physical and mental suffering of the condemned before death. We regret that no response has been received to date from your Government. Case USA 15/2016 of 23 November 2016 (by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment) addresses the recent case law of the United States Supreme Court regarding the permissibility of the death penalty through lethal injection. We are grateful for your Government’s reply to this communication received on 5 January 2017 and take note of your response regarding the Supreme Court ruling on Glossip v. Gross concerning the use of midazolam. According to the additional information received: The State of Arkansas has scheduled the execution by lethal injection of Mr. Don Davis and Mr. Bruce Ward on 17 April 2017; Mr. Ledell Lee and Mr. Stacey Johnson on 20 April 2017; Mr. Marcel Williams and Mr. Jack Harold Jones on 24 April 2017; and Mr. Jason McGehee and Mr. Kenneth Williams on 27 April 2017. The eight men had been convicted of murder between 1989 and 1999. The use of midazolam in lethal injections The State of Arkansas three-drug execution protocol includes the sedative drug midazolam for lethal injections. The State’s current supply of eight doses of midazolam will expire at the end of April 2017. It is reported that the schedule of executions has been hurried in an attempt to use the State’s supply before its expiry date. No State has successfully executed two prisoners on the same day using midazolam. The drug has been broadly criticized for failing to prevent persons from suffering pain associated with the administration of lethal injections. The States of Alabama, Oklahoma, Arizona, and Ohio have used the drug in executions that were prolonged and/or painful. For example, in April 2014, the drug was used in a three-drug protocol in the execution of Mr. Clayton Lockett. After being injected with midazolam, he was declared unconscious but ten minutes later, began mumbling and writhing, and some witnesses even described him having a seizure. Some 40 minutes after the injection, Mr. Lockett died of a heart attack. Similar signs of pain were present during the execution of Mr. Ronald Smith in December 2016 in the State of Alabama. It was reported that Mr. Smith heaved and gasped for breath for nearly 15 minutes. Lastly, in Arizona the drug was used in the extensively prolonged two hour execution of Mr. Joseph R. Wood III in July 2014. This has led the State of Arizona to stop using midazolam in lethal injections. Fair trial guarantees Reports indicate that at least two of the persons at risk of execution were denied adequate legal assistance during their trials. Case of Mr. Marcel Williams Mr. Marcel Williams was sentenced to death for allegedly abducting, raping and killing a woman in 1994. Mr. Williams’ background of extremely severe physical and psychological abuse as a child and young adult, and of poverty, was known to the trial lawyers, who failed to present this information to the court as mitigating evidence. In 2007, after the death sentence had been upheld in the state courts, a federal judge ruled that the performance of the trial lawyers had been constitutionally inadequate because of their failure to present this mitigating evidence. The District Court judge concluded that had the jurors heard such mitigating evidence, it was likely that they would have sentenced Mr. Williams to life imprisonment rather than death. The state appealed this decision and, in 2009, a three-judge panel of the Court of Appeals for the Eighth Circuit reversed the District Court’s ruling on procedural grounds. The Court of Appeals for the Eighth Circuit disregarded the mitigating evidence and upheld the death sentence. In 2010, the Supreme Court declined to take the case, following the dissent of two Justices, who argued that the opinion of the Court of Appeals for the Eighth Circuit came “at an unacceptable cost to the interests of justice”. 2 Case of Mr. Don Davis Growing up, Mr. Don Davis had attention deficit hyperactivity disorder (ADHD), was abandoned by his parents, and had begun abusing alcohol and drugs by the age of 12. In March 1992, Mr. Davis was sentenced to death for the alleged murder of a woman committed during a burglary in 1990. The trial judge ordered an assessment by a psychiatrist, who concluded that Mr. Davis’ attention deficit hyperactivity disorder (ADHD) could have contributed to the commission of the alleged offense. The judge ordered further evaluation at the state hospital, which concluded that he was competent to stand trial. The defence lawyer requested funds to hire an independent psychiatric examiner. However, the judge refused to authorize the funds. The defence therefore presented the psychiatrist who had conducted the original court-ordered assessment, and who only testified about the problems faced by people with ADHD combined with unstable upbringings and substance abuse. On appeal, the state courts denied the claim that the trial judge was wrong to have denied the independent psychiatric assistance requested by the defence. In 2005, a three- judge panel of the Court of Appeals for the Eighth Circuit upheld the death sentence, by two votes to one. The dissenting judge noted that the examination conducted by the original psychiatrist was far from satisfying the requirements of a full and thorough examination, as he had not conducted even the most rudimentary psychological testing, conducted no additional interviews, and was not provided an opportunity to review relevant medial, educational and psychological records from Mr. Davis’s past. We express serious concern at the planned execution of the death penalty against Messrs. Bruce Ward, Kenneth Williams, Jack Harold Jones, Jason McGehee, Stacey Johnson, Don Davis, Marcel Williams and Ledell Lee. The use of midazolam lethal injections which has been previously associated with prolonged and painful deaths, may amount to cruel, inhuman or degrading treatment or punishment or even torture. We are further concerned at the allegations that executions have been rushed and scheduled successively because of the need to use the drug before its expiry date. The intended use of this drug in eight successive executions raises additional concerns regarding the increased risk of mishandle when several executions are scheduled in a short period of time. We express further grave concern at information that in at least two cases, those of Messrs. Marcel Williams and Don Davis, the death penalty may have been imposed following judicial proceedings that appear not to have fulfilled the most stringent guarantees of fair trial and due process, particularly in connection to access to adequate legal representation. Without making any judgment as to the accuracy of the information made available to us, the above allegations appear to be in contravention of the right of every individual not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, as set out in article 7 of the International Covenant for Civil and Political 3 Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the United States is a party. We would like to remind your Government that the CAT prohibits the intentional infliction of severe pain or suffering for purposes of punishment and calls on States to take effective measures to prevent any torture. We would further like to recall that the Human Rights Committee, in its general comment No. 20 (CCPR/C/21/Add.3) has stressed that countries that choose to retain the death penalty must apply it in a manner that “causes the least possible physical and mental suffering.” We also wish to draw your Government’s attention to article 5 of the United Nations Safeguards Protecting the Rights of those Facing the Death Penalty, which provides that where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering. The above allegations also appear to be in contravention of the rights to life and to liberty and security of person, as set forth in article 3 of the Universal Declaration of Human Rights and articles 6 and 9 of the ICCPR. In its general comment No. 35 (CCPR/C/GC/35), the Human Rights Committee stated that the right to security of person protects individuals against intentional infliction of bodily or mental injury of person, and that officials of States parties violate the right to personal security when they unjustifiably inflict bodily injury (para.
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