Another Failed Execution: The United States’ Strained Relationship with the Right to Life

by | Mar 4, 2024

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About Ben Holda

Ben Holda is a grassroots civil rights organiser, and a J.D. candidate at New York University School of Law, where he is pursuing international human rights law.

At 73 years of age, Thomas Creech is Idaho’s longest-serving death row inmate. He entered prison in 1974 and was slated to face execution on 28 February this year. As often happens with executions in the United States, the procedure was far from seamless: Creech’s executioner searched his arms and legs for a vein into which they could deliver the injection, making ten attempts before giving up entirely, leaving the state to “consider next steps.” This latest botched execution underscores the stark contrast between the United States’ utilisation of the death penalty and international consensus on the content of the right to life.

The Death Penalty as a Human Rights Issue

Article 6 of the International Covenant for Civil and Political Rights (ICCPR) compels ratifying states to respect the right to life. However, at the time of the ICCPR’s drafting, the death penalty was in force in a substantial number of UN member states, thus requiring the inclusion of Article 6, paragraphs 2, 4, 5, and 6, which permit states to use capital punishment as a legal penalty in limited circumstances.

In the years since, the death penalty has largely fallen out of favour. At the time of the ICCPR’s adoption in 1966, only 12 countries had abolished the death penalty for all crimes and circumstances. By the end of 2022, 112 states had achieved total abolition—including nearly all western democracies. Accounting for nations that have achieved abolition in practice, 142 – or over 70 percent of the world’s countries – no longer utilise the death penalty.

The US is Increasingly Isolated in this Practice

In 1992, the United States ratified the ICCPR with an “unprecedented” number of reservations. One goal of these reservations was to preserve the death penalty for any person convicted under a law imposing capital punishment, including those under eighteen years of age. The United States also reserved the ability to decide domestically what constitutes cruel, inhuman, or degrading treatment under Article 7 of the ICCPR, without regard to the conclusions of the international community.

This provoked objections from several other ratifying countries, which argued that the sweeping reservations nullified the fundamental normative intent of treaty. These objections did not gain purchase, and the United States remains a party to the treaty today, with all its reservations intact.

The United States against International Consensus

UN experts note that it is almost impossible for a state to practically impose the death penalty while honoring its commitments to the right to life and the prohibition on degrading treatment. Though the United States has insulated itself from accountability, its use of the death penalty arguably falls afoul of international consensus on these commitments.

General Comment 36 to Articles 6 and 7 of the ICCPR notes that “[imposition of the death penalty] based on discrimination in law or in fact is … arbitrary in nature,” and therefore violates the ICCPR. Within the United States, the American Bar Association has routinely recognised that the death penalty is imposed along strong racial, gendered, and class biases, and has called for a moratorium until such inequities may be examined and resolved.

The General Comment also decries executions using untested lethal drugs as a violation of the ICCPR’s Article 7. The United States has admitted to the inhumane use of untested lethal drugs. Further, General Comment 36 also calls for states to prevent undue stress for death row inmates, particularly those made vulnerable by old age.

Thomas Creech is 73 years of age. He is 50 years into a life sentence that was meant to culminate in an execution—utilising lethal drugs only because Idaho has yet to build its facility for execution by firing squad. After Creech was strapped to the table and prepared for the procedure, faced with imminent death, the executioner proved incapable of the task before them, and he was returned to his cell. The undue stress imposed by this situation cannot be overstated.

If the United States intends to be taken seriously in the realm of civil and political rights, it must, amongst other critical issues, contend with the grave rights violations that characterise its use of the death penalty.

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