Index of "1994 International Covenant on Civil and Political Rights"
Index of "Treaties and Legal Issues" ||
Electronic Research Collections Index ||
U.S. REPORT UNDER THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS
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
-- 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
-- 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
-- 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.
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
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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