Grenville Cross says the four allies should demand that Biden fixes justice system that subjects people to cruelty
On June 27, 2022, Amnesty International (USA) issued its report on capital punishment, entitled The Power of Example: Whither the Biden Death Penalty Promise. It explains how, since the 1970s, the US has portrayed itself as an exemplar of human rights, while contributing to systemic abuses by advocating for, allowing, or otherwise furthering the use of the death penalty in America. It notes that, despite this, there have, “over the decades, been too many throwaway statements made by US officials claiming exemplary US leadership on human rights.” While posing as a global human rights champion, the US has carried out over 1,500 executions over the last 50 years.
Although the International Covenant on Civil and Political Rights (ICCPR) does not prohibit capital punishment (Art 6), it provides that no one “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Art 7). These sentiments, while worthy, have been hypocritically weaponized by the Five Eyes Alliance, and its five members are never happier than when lecturing others about the “rules-based international order”. One problem they face, however, is that, whereas four of them, Australia, Canada, New Zealand and the United Kingdom, have abolished capital punishment, the US — their leader — refuses to do so.
Since the US Supreme Court ruled that capital punishment was constitutionally permissible in 1976 (reversing its earlier judgment of 1972), there have been 1,558 executions, at both federal and state levels. As of July 2021, the death penalty was being used by the federal government and 27 states, while it had been abolished in 23 states and the District of Columbia. The most recent states to have abolished it are Virginia (2021), Colorado (2020), and New Hampshire (2019).
Although state-level executions have declined in recent years, the federal government under ex-president Donald Trump put more prisoners to death than at any time since 1976. Whereas his administration executed 10 prisoners in 2020 and another three in January 2021 (his last month in office), the federal government had only previously executed three prisoners since 1976. This prompted Justin Mazzola, the deputy research director of Amnesty International (USA), to call the executions “a stark reminder of the horror show that is capital justice in the US.”
The current US Attorney General, Merrick Garland, has ordered a suspension of federal executions while the Department of Justice reviews its policies and procedures, although this does not affect those at state-level.
READ MORE: Full text: Record of human rights violations in US in 2019
On Aug 25, 2022, for example, the state of Oklahoma executed James Coddington, for the murder of a friend who refused to give him money to buy drugs. It has also announced plans to carry out the death sentences of 25 people over the next two years, which is concerning, not least because Amnesty International (USA) says the death penalty is being used “against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities.”
On Nov 29, 2022, moreover, the state of Missouri executed Kevin Johnson, a convicted murderer, by lethal injection, despite there being what the American Council of Civil Liberties (ACLU) calls “evidence of pervasive bias in his prosecution”. The execution proceeded even though a case prosecutor had filed a motion to vacate Johnson’s conviction on the basis that race had been a decisive and unconstitutional factor throughout the prosecution, including the decision to seek the death penalty. His own lawyer, Shawn Nolan, described the death sentence as “the product of blatant racism.”
In consequence, Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said the “prosecutor’s conclusions about Mr Johnson’s case are consistent with decades of research showing the death penalty is a racist punishment, where a black person charged with the death of a white victim is far more likely to be sentenced to death,” and America’s Five Eyes partners have hopefully paid heed. She then added “Missouri officials have a duty to uphold the Constitution, and our Constitution bars racial discrimination.”
According to the Death Penalty Information Center (DPIC), a nonprofit organization that provides information on capital punishment issues, there are currently about 2,500 prisoners awaiting execution in the US, of whom 41 percent are black, 14 percent are Latinx, 42 percent are white, with 3 percent coming from other minority groups. As regards the conditions in which they are held, the DPIC says “many death row inmates suffer from mental illness, and the isolation on death row often exacerbates their condition.”
Another great concern is the DPIC’s revelation that “the time between sentencing and execution in the US has lengthened from a few years to decades.” Thus, for example, on May 12, 2022, Clarence Dixon, 66, was executed in Arizona after spending 14 years on death row for a 1978 murder. Many jurists in the US and elsewhere have concluded that this prolonged isolation amounts to cruel and unusual punishment, akin to torture, as proscribed by the ICCPR, to which the US is a party.
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Thus, when the Judicial Committee of the UK’s Privy Council considered this very issue on Nov 2, 1993, Lord Griffiths said “there is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years”. This was because “we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time” (Pratt and Morgan vs Att.Gen. of Jamaica).
Since, therefore, the US is routinely executing prisoners who have been on death row for many years, its violation of the ICCPR should be called out by everyone who truly values a rules-based order, particularly its Five Eyes partners. However, although normally so eloquent about defending human rights elsewhere, those four partners have now strangely lost their tongues, presumably out of fear of offending “Big Brother.”
All, however, is not yet lost. Once the Five Eyes partners have read the DPIC’s annual report for 2022, issued on Dec 16, they will have another chance to show their concerns, even if it means upsetting the US president, Joe Biden. The report makes grim reading, and the DPIC says that 2022 could be called “the Year of the Botched Execution”. Whereas 18 executions were carried out, seven of the 20 execution attempts, or 35 percent, were “visibly problematic”, and this was as a result of “executioner incompetence, failures to follow protocols, or defects in the protocols themselves”.
In Alabama, for example, on July 28, it took three hours to set an intravenous line for the execution by lethal injection of Joe James, a convicted murderer. Although this was the longest botched lethal injection execution in US history, there has been not so much as a squeak of concern, let alone protest, from the four valiant Five Eyes proponents of the “rules-based international order”.
What, however, might concern Anthony Albanese (Australia), Justin Trudeau (Canada), Jacinda Ardern (New Zealand) and Rishi Sunak (UK), even more, is the DPIC’s shocking revelation that at least 13 of those executed in 2022 suffered from one or more of the following impairments: serious mental illness (eight); brain injury, developmental brain damage, or an IQ in the intellectually disabled range (five); chronic serious childhood trauma, neglect, and/or abuse (12). Three prisoners, moreover, were executed for crimes they committed in their teens, something most places consider abhorrent.
Quite clearly, therefore, instead of obsessing endlessly about the plight of US proxies on trial for grave crimes in Hong Kong, or waxing lyrical about imaginary human rights abuses in the Chinese mainland, these Five Eyes partners should be demanding that the US puts its own house in order. Biden obviously needs to fix a criminal justice system that is not only broken but also subjecting people, albeit guilty of grave crimes, to what the ICCPR calls “cruel, inhuman or degrading treatment or punishment”. If he does not do so, his partners must, in good conscience, distance themselves from an ally whose legal arrangements have manifestly made a mockery of what they preach.
If, however, the four partners simply turn away, they will, yet again, be exposed for the hypocrites that they are. After all, they have form for this, and, during the insurrection of 2019-20 in Hong Kong, the Five Eyes Alliance shamelessly whitewashed the excesses of the black-clad fanatics who were trying to destroy the “one country, two systems” policy, and its instinct now will also be to ignore the abuses arising within the US criminal justice system. If, despite the clearest evidence of human rights violations, America’s partners do nothing, it will be proof positive that their vaunted “rules-based international order” is simply a vacuous catchphrase, in which even they do not believe.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.