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JULY 1994

Article 6 - Right to Life

Right to Life, Freedom from Arbitrary Deprivation.  
This right is protected by the federal and state 
constitutions and law.  The Fifth Amendment to the 
U.S. Constitution provides that "no person shall . . 
. be deprived of life, liberty, or property, without 
due process of law."  The Fourteenth Amendment 
provides that "no State shall . . . deprive any 
person of life, liberty, or property, without due 
process of law."  These provisions incorporate the 
constitutional recognition of every human's inherent 
right to life and the doctrine that this right shall 
be protected by law.  The Fifth and Fourteenth 
Amendments also make unconstitutional the state-
engineered disappearance of individuals. 

The value of human life is further protected by the 
criminal codes of the U.S. Government, the 50 
states, the several U.S. territories, and other 
constituent jurisdictions which all criminalize the 
arbitrary and unjustified deprivation of life.  Each 
jurisdiction has statutes that penalize murder and 
impose the most severe criminal penalties for 
homicide that is accompanied by specific aggravating 

The federal statutes protecting life and penalizing 
the deprivation of life with sentences of either 
capital punishment or life imprisonment include the 

--    first degree murder (18 U.S.C.   1111);

--    killing a witness (18 U.S.C.   1512(a));

--    assassination of the President, President-
elect, Vice-President, or one of a limited group of 
other persons under the statute (18 U.S.C.   1751);

--    murder by any person engaged in a continuing 
criminal drug enterprise or the murder of a law 
enforcement official during the commission of a drug 
felony (21 U.S.C.   848(e));

--    willful destruction of an aircraft or motor 
vehicle with the intent to endanger the safety of 
any person on board, which has resulted in the death 
of any person (18 U.S.C.   34); 

--    willfully derailing, disabling, exploding, or 
causing a train wreck, that results in death (18 
U.S.C.   1992);

--    offenses involving the transportation of 
explosive material with the knowledge that it will 
be used to kill, injure or intimidate (18 U.S.C.   

--    destruction of U.S. Government property by 
fire or through the use of explosives that results 
in death (18 U.S.C.   844(f)); 

--    the mailing of injurious articles with intent 
to kill or injure and that results in death (18 
U.S.C.   1716); 

--    genocide (18 U.S.C.   1091(b)), which includes 
killing, seriously wounding, or inflicting other 
specified types of destruction upon members of a 
national, ethnic, racial, or religious group with 
the specific intent to destroy that group completely 
or in substantial part; 

--    terrorism (18 U.S.C.   2331), which consists 
of killing a U.S. national outside the United 
States, or while outside the United States, 
attempting to kill or engaging in a conspiracy to 
kill a U.S. national; the statute requires a written 
certification by a high ranking official of the 
Department of Justice "that, in the judgment of the 
certifying official, such offense was intended to 
coerce, intimidate, or retaliate against a 
government or a civilian population" (18 U.S.C.   

--    conspiracy to cause the death of another (18 
U.S.C.   1117);

--    killing or attempting to kill an 
"internationally protected person" (18 U.S.C.   
1116), including but not limited to heads of state 
and foreign ministers and accompanying members of 
their families if in a country other than their own; 
and representatives, officers, agents, and employees 
of the United States or a foreign government, or 
international organization, entitled under 
international law to protection.  The alleged 
offender must be present within the United States.  
His or her nationality is irrelevant;  

--    treason, under a statute that provides that 
"[w]hoever, owing allegiance to the United States, 
levies war against them or adheres to their enemies, 
giving them aid and comfort within the United States 
or elsewhere" (18 U.S.C.   2381);

--    espionage (18 U.S.C.   794); and

--    air piracy where death results (49 U.S.C.   
1472(i), (n)).

The Uniform Code of Military Justice also proscribes 
capital punishment for certain offenses.  10 U.S.C. 
   801 et seq.

The U.S. Code also proscribes attempted murder, 
which is punishable by a term of 20 years' 
imprisonment (18 U.S.C.   1113), and manslaughter, 
defined as the unlawful killing of a human being 
without malice (18 U.S.C.   1112).  Voluntary 
manslaughter is a killing that occurs during a 
sudden quarrel or in the heat of passion; 
involuntary manslaughter occurs during the 
commission of an unlawful act not amounting to a 
felony, a lawful act in an unlawful manner, or a 
lawful act that, without due caution and 
circumspection, might produce death.

Other crimes, such as arson and kidnapping, carry 
severe penalties that are augmented when they 
jeopardize human life and even more severe penalties 
when a death results.  For example, arson carries a 
federal penalty of five years' imprisonment, but an 
arson that places a life in jeopardy is punishable 
by 20 years' imprisonment.  See 18 U.S.C.   81.  
Similarly, the penalties for assaults are increased 
from three years to 10 years imprisonment when the 
assault is committed by the use of a deadly or 
dangerous weapon.  The punishment for certain 
serious drug offenses also is enhanced when the 
offender uses a firearm.  18 U.S.C.   924(c)(1). 

Every state also criminalizes deliberate acts that 
result in death or serious threat to life.  However, 
offenses may vary in detail from state to state.  
State criminal laws concerning murder, manslaughter, 
and conspiracy are essentially similar to the 
federal law; the most severe punishments are 
allocated to the acts committed with the most 
particular intent to cause death.  At present, the 
statutes of 37 states provide the death penalty for 
murder and, in a few of these states, for other 
offenses, almost all for offenses resulting in 

The issue of race and the death penalty is discussed 
under Article 2; death-row conditions are discussed 
under Article 7.  

Official Use of Force.  The protection of the right 
to life is also implicated in statutes regulating 
the official use of force.  Prison guards, sheriffs, 
police, and other state officials who abuse their 
power through excessive use of force may be punished 
under 18 U.S.C.    241 and 242, discussed under 
Article 2.  Where law enforcement officials are 
involved in using excessive force, individually or 
in a conspiracy, victims are protected with respect 
to the rights secured by the Fourth, Eighth, and 
Fourteenth Amendments to the United States 
Constitution.  Which amendment is involved depends 
upon the status of the victim as an arrestee (Fourth 
Amendment), a pretrial detainee (Fourteenth 
Amendment), or a convicted prisoner (Eighth 
Amendment).  Graham v. Connor, 490 U.S. 386 (1989).

Death Penalty.  The sanction of capital punishment 
continues to be the subject of strongly held and 
publicly debated views in the United States.  The 
majority of citizens through their freely elected 
officials have chosen to retain the death penalty 
for the most serious crimes, a policy which appears 
to represent the majority sentiment of the country.  
In addition, federal law provides for capital 
punishment for certain very serious federal crimes.  
Capital punishment is only carried out under laws in 
effect at the time of the offense and after 
exhaustive appeals.  The U.S. Supreme Court has held 
that the Eighth Amendment to the U.S. Constitution 
(which proscribes cruel and unusual punishment) does 
not prohibit capital punishment.  Gregg v. Georgia, 
428 U.S. 153 (1976) (plurality opinion).  However, 
the death penalty is available for only the most 
egregious crimes and, because of its severity, 
warrants unique treatment that other criminal 
sentences do not require.  

First, it cannot be imposed even for serious crimes 
-- such as rape, kidnapping, or robbery -- unless 
they result in the death of the victim.  Coker v. 
Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 
U.S. 782, 797 (1982); Eberheart v. Georgia, 433 U.S. 
917 (1977); Hooks v. Georgia, 433 U.S. 917 (1977).  
Moreover, it is not enough for imposition of capital 
punishment that the crime resulted in death; the 
crime must also have attendant aggravating 
circumstances.  In other words, restrictions on 
imposition of the death penalty are tied to a 
constitutional requirement that the punishment not 
be disproportionate to the personal culpability of 
the wrongdoer, Tison v. Arizona, 481 U.S. 137, 149 
(1987), and the severity of the offense, Coker v. 
Georgia, 433 U.S. 584, 592 (1977) (death penalty is 
disproportionate punishment for crime of rape). 

Thus, offenses set forth in several federal statutes 
(e.g., first degree murder) that were enacted before 
1968, the date of the decision in United States v. 
Jackson, 390 U.S. 570, in theory carry a death 
penalty, but because the crimes are not narrowed 
sufficiently by statutorily required aggravating 
circumstances, the death penalty in fact may not be 
imposed for those crimes.

As noted elsewhere, the ex post facto clause of the 
Constitution bars the retroactive increase in 
penalties available in criminal cases.  In 
operation, it thus forbids the government from 
imposing a death penalty on an offender for a crime 
that, at the time of its commission, was not subject 
to capital punishment.

The death penalty cannot be carried out unless 
imposed in a judgment issued by a competent court 
and subject to appellate review.  Of the 36 states 
with capital punishment statutes at the end of 1991, 
34 provided for an automatic review of each death 
sentence and 31 provided also for automatic review 
of the conviction.  Those that do not mandate 
automatic review authorize review when the defendant 
wishes to appeal.  The fact that a state appellate 
court reviews each death sentence to determine 
whether it is proportionate to other sentences 
imposed for similar crimes reduces the likelihood 
that the death penalty will be inflicted arbitrarily 
and capriciously so as to constitute cruel and 
unusual punishment.  Gregg v. Georgia, 428 U.S. 153 
(1976).  Typically the review is undertaken 
regardless of the defendant's wishes and is 
conducted by the state's highest appellate court.  
In the states not providing automatic review, the 
defendant can appeal the sentence, the conviction, 
or both.  If an appellate court vacates either the 
sentence or the conviction, it may remand the case 
to the trial court for additional proceedings or for 
retrial.  As a result of resentencing or retrial, it 
is possible for the death sentence to be reimposed.

Finally, the U.S. Supreme Court has found that where 
a sentencing jury may impose capital punishment, the 
jury must be informed if the defendant is parole 
ineligible, in other words where a life prison 
sentence could not result in parole.  Simmons v. 
South Carolina, 114 S.Ct. 2187 (1994) (plurality).

Right to Seek Pardon or Commutation.  Under the U.S. 
system, no state may prohibit acts of executive 
clemency, including amnesty, pardon, and commutation 
of sentence.  Gregg v. Georgia, 428 U.S. 153, 199 
(1976).  Indeed, in a recent Supreme Court decision, 
Herrera v. Collins, 113 S. Ct. 853 (1993), the Court 
recognized the availability of executive clemency 
for persons facing the death penalty whose 
convictions have been affirmed, whose collateral 
appeal rights have been exercised and exhausted, and 
who thereafter present a newly-articulated claim of 
factual innocence.  

Genocide.  The United States is a party to the 
Genocide Convention, and has fully implemented its 
obligations under that Convention.  The United 
States Code makes genocide a federal criminal 
offense punishable by life imprisonment.  The 
implementing statute, 18 U.S.C.   1091(b), defines 
genocide to include killing, seriously wounding, or 
inflicting other specified types of destruction upon 
members of a national, ethnic, racial, or religious 
group with the specific intent to destroy that group 
completely or in substantial part.

U.S. Reservation.  The application of the death 
penalty to those who commit capital offenses at ages 
16 and 17 continues to be subject to an open debate 
in the United States.  In the United States the 
death penalty may be imposed on wrongdoers who were 
16 or 17 years of age at the time of the offense.  
The Supreme Court ruled that it is unconstitutional 
to impose a death penalty upon a person who was 15 
years of age when he committed the offense (Thompson 
v. Oklahoma, 487 U.S. 815 (1988) (plurality 
opinion)), but it has approved under the Eighth 
Amendment the imposition of a death penalty on a 
wrongdoer who was 16 years of age at the time of the 
murder (Stanford v. Kentucky, 492 U.S. 361 (1989)).  
Four of the nine Justices dissented in the latter 
case, contending that execution of an offender under 
18 years of age is disproportionate and 
unconstitutional.  Id. at  403.  A more recent 
Supreme Court decision addressing the issue noted 
that of 36 states whose laws permitted capital 
punishment at the time of the decision, 12 declined 
to impose it on persons 17 years of age or younger, 
and 15 declined to impose it on 16-year-olds.  
Stanford v. Kentucky, 492 U.S. 361 (1989).

Because approximately half the states have adopted 
legislation permitting juveniles aged 16 and older 
to be prosecuted as adults when they commit the most 
egregious offenses, and because the Supreme Court 
has upheld the constitutionality of such laws, the 
United States took the following reservation to the 

     The United States reserves the right, subject 
to its Constitutional constraints, to impose capital 
punishment on any person (other than a pregnant 
woman) duly convicted under existing or future laws 
permitting the imposition of capital punishment, 
including such punishment for crimes committed by 
persons below eighteen years of age.
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