A thought on Missouri v. Holland

[Francisco Forrest Martin]

Prof. Neuman's argues that several "assumptions" need to be made for death row phenomenon to be in violation of the U.S.' international legal obligations.  If he means by this that there is no case law on point, he is correct.  However, if he intends "assumptions" to mean "assertions" based on no controlling legal authority, he would be wrong.  There is ample controlling legal authority -- whether characterized as treaty law, customary international law, or jus cogens.

Francisco Forrest Martin
Ariel F. Sallows Professor in Human Rights
University of Saskatchewan College of Law



Discussion list for con law professors <CONLAWPROF at listserv.ucla.edu> wrote:
> For the benefit of constitutional law professors who don't usually followinternational law developments, the suggestion that a prohibition of the
"death row phenomenon" is already enforceable in U.S. courts involves some
rather generous assumptions.  A claim that the U.S. is bound by treaty not
to inflict the "death row phenomenon" requires the disregard of a U.S.
reservation specifically intended to avoid this argument, and even if it
were true that the reservation is invalid (another assumption) it would
require a departure from the usual approach in international law to
invalid reservations.  It is unlikely, I think, that a U.S. court of
appeals would make all the necessary assumptions, particularly if the U.S.
government maintained that some of them are incorrect.
Recognizing that most readers of this list are probably not interested in
the intermediate steps in this reasoning, I won't fill them in.
--Gerry Neuman



On Sun, 30 Jul 2000, Francisco Forrest Martin wrote:

> Prof. Wolf wrote:
>
> "[P]erhaps the US courts should adopt the view of the European Court
> of Human Rights: that "death row syndrome," the adverse affect on inmates awaiting execution for extended periods of time, is itself cruel, inhuman, and degrading treatment or punishment (thus precluding the carrying out of the death penalty).  As previously comments have suggested, the death row syndrome is aggravated for pregnant women."
>
> Prof. Wolf is correct; however, it is not a matter of US courts "adopting" the Eur. Ct. H.R.'s decision in Soering v. United Kingdom. The Soering decision is effectively controlling US law because it reflects customary international law (and jus cogens). A US district court in Fernandez v. Wilkinson already has held that the European Convention on Human Rights reflects customary international law. (And, there appears to be no contrary authority.)  Moreover, the UN Human Rights Committee in Kindler v. Canada in dictum held that death row phenomenon also violated the right against inhuman treatment.  Accordingly, there probably is also a treaty law obligation under the ICCPR for the US to not expose inmates to death row phenomenon.
>
> Capital defendants could successfully raise both treaty (whether self-executing or not), international customary law, and jus cogens defenses to defeat any prosecutorial motions seeking the death penalty if it is likely that death row phenomenon will occur.  Furthermore, a death row inmate could successfully raise such international law claims in a habeas.
>
> Francisco Forrest Martin
> Ariel F. Sallows Professor in Human Rights
> University of Saskatchewan College of Law
>