Academic journal article Washington and Lee Law Review

The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition

Academic journal article Washington and Lee Law Review

The Death Penalty and Mental Illness in International Human Rights Law: Toward Abolition

Article excerpt

Table of Contents

I. Introduction.............................................1470

II. A Brief Review of U.S. Supreme Court Jurisprudence on the Death Penalty and Mental Illness..............................................1473

III. The Death Penalty in International Human Rights Law and Practice: Toward Abolition.................1477

IV. Some Methodological Challenges in Documentation of Mental Illness and Death Penalty Issues in International Law..................................1481

V. The Evolving Jurisprudence on the Death Penalty and Mental Illness Under International Human Rights Law.........................................1485

A. Support for a Ban on Execution of Persons with Any Mental Impairment.......................................1489

B. Support for a Ban on Execution of Persons with Severe Mental Impairment......................1494

VI. Conclusion..............................................1498

I. Introduction

This symposium primarily focuses on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration. Prior to the conference, my only acquaintance with the Giarratano case was the decision in Murray v. Giarratano1-the U.S. Supreme Court decision holding that the Sixth Amendment right to appointed counsel does not extend to the post-conviction stages of death penalty litigation.2 The symposium provided a much broader perspective on the saga of Joe Giarratano, whose own legal skills parallel those of the many lawyers involved in his representation. My particular panel was one focused on mental illness and the death penalty, which, as other panelists made evident, was deeply implicated in the Giarratano case as well. My participation in the panel, however, was intended to offer a broader perspective on the issue, indeed the only international law perspective on the array of issues discussed during the symposium. This Article addresses the question of what international human rights law has to say about the death penalty in general, as well as the evolving views of the international community as to how mental illness may, or should, bar the imposition and carrying out of the death penalty.

Issues about mental illness and the death penalty remain unresolved at the constitutional level in the United States, despite a number of U.S. Supreme Court decisions addressing the topic, as will be addressed below.3 It is conservatively estimated that some five to ten percent of all inmates on death row suffer from some form of mental illness.4 In a book published in 2014, I predicted that the next issue to be addressed by the U.S. Supreme Court-in its gradual chipping away at the death penalty in the United States-would be whether mental illness, other than insanity, should bar the imposition of capital punishment under the Eighth Amendment to the Constitution.5 I am not alone in this prediction.6 Despite the death of Justice Antonin Scalia, and the apparent impasse as to the Senate review and confirmation of his successor, I continue to believe that the Court will soon take up this important question.

The Court again addressed the contentious issue of lethal injection as a method of execution in its 2015 decision Glossip v. Gross7-a decision more noteworthy for its dissents than its majority opinion. In a far-reaching and exhaustive analysis, Justice Breyer, joined by Justice Ginsburg, concluded that "the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'"8 That opinion coincides with the arc of justice in the international community where the law, standards, and practice bend strongly toward abolition.9 This Article will broadly examine the question of how international human rights law looks at the death penalty generally, as well as the context of those who are mentally ill on death row. …

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