Conditions and Circumstances of Living on Death Row-Violative of Individual Rights and Fundamental Freedoms?: Divergent Trends of Judicial Review in Evaluating the "Death Row Phenomenon"

Article excerpt



Since being condemned to death, my days have been spent dealing with the guilt of having been convicted of taking the lives of two human beings, confronting the very real possibility of my own violent death, and coping with the anger, resentment, frustration, helplessness, and grief of having five friends taken from my side to be ritualistically exterminated. These have been nine long years of fighting to maintain my sanity, of growing, and of holding onto a sense of humanity in an environment maintained specifically for the purpose of bombarding the senses with hopelessness.1

The movement to abolish capital punishment has grown steadily in recent years.2 International and regional instruments have placed immediate restrictions on its use and have set long term goals for its absolute abrogation.3 In contrast, retentionist states rely on established penological theories to justify the death penalty.4 State practice reveals a polarization of conflicting ideologies.5 The United States, China, and various Muslim and third-world countries still employ the death penalty.6 On the other hand, portions of Western, Central, and Eastern Europe have abolished either partially or fully this form of punishment.7

Attention to major issues-deterrence, retribution, cruelty, irreversibility, and judicial error-has given way to a variety of peripheral issues.8 These include "[t]he desire to avoid torture in the implementation of any penalty-raising the questions as to what extent either death or life sentences are tantamount to torture, and, further, of how to define torture."9 Critics of death row specifically point to its poor living conditions as treatment that violates basic human rights.10 Indeed, Giarratano's poignant description of life as an inmate sentenced to death reveals the adverse physical, mental, and psychological effects to which an individual on death row is subjected.11

In Soering v. United Kingdom,12 the European Court of Human Rights (European Court) examined the deplorable conditions of life on death row and their detrimental effects on inmates.13 The court found that the "death row phenomenon" abridged certain human rights and fundamental freedoms.14

What mode of judicial review did the European Court use? Do the standards and findings of Soering reflect an emerging jurisprudential attitude that the conditions on death row violate certain individual rights? Would a death row inmate in a position like that of Giarratano prevail on a similar legal theory in the United States? This Article confronts these issues. To begin, it surveys various international and regional instruments to provide a backdrop for understanding the European Court's mode of analysis. Next, the Article investigates the doctrinal basis for Soering by exploring the development of European judicial review in cases of conduct and treatment contrary to fundamental rights. Subsequent sections analyze Soeing in greater detail and examine the judgments of both the European Commission of Human Rights (European Commission or Commission) and the European Court. The Article then compares the judicial review employed in Soering to that employed in Eighth Amendment challenges to death row conditions in the United States. The Article concludes that although similarities exist in the standards employed, divergent applications of judicial review have yielded varying results.


A. Historical Background

The United Nations has established a comprehensive set of instruments for the protection of human rights.15 This corpus of laws articulates various standards on the use of capital punishment. Under the Universal Declaration of Human Rights (Universal Declaration),16 the General Assembly sought to promote "universal respect for and observance of human rights and fundamental freedoms. …


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.