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International Human Rights Law in U.S. Courts: Research Problem #2

Terry

Problem

Terry was convicted of rape and murder and sentenced to death, and he is currently on Missouri’s death row awaiting execution.  The State of Missouri is preparing to carry out Terry’s sentence by lethal injection in the next few days, using an unidentified drug manufactured and compounded by unidentified entities using unidentified ingredients and whose properties have not been independently tested and verified.  Terry and his court-appointed defense attorney Martha know that other states have recently carried out executions under similar circumstances in which the deaths were considerably drawn out and in which the inmates appeared to be experiencing considerable pain.

Consequently, both Terry and Martha are concerned that the drug Missouri intends to use will not render Terry’s death quick and painless, and Martha is preparing to file a motion for a stay of execution with a federal district court arguing that Missouri’s use of the drug under these circumstances would violate the U.S. Constitution, particularly the 8th amendment’s prohibition against cruel and unusual punishment.  However, Martha is aware that over the past year several Missouri death row inmates have brought similar motions and that all have been denied.  Since you are a former law school classmate of Martha’s, she has asked for your help in preparing Terry’s motion.

What arguments will you add to Terry’s motion to make it more persuasive?

Research Strategy

Although you graduated from law school over ago year ago, you believe you still have a pretty good grasp of the 8th amendment, but you do not really know what you can contribute to Terry’s motion.  Nevertheless, since the news media provided substantial coverage of the previous stay of execution motions filed in Missouri, you figure you can identify the inmates involved and take a look at the arguments used to support their motions.  Through a basic Google web search for the terms “Missouri death row” and “stay of execution”, you are able to learn that Missouri death row inmates Allen Nicklasson, Herbert Smulls, Michael Taylor, and William Rousan all filed stay of execution motions that were ultimately denied.  Further, you learn from these articles that each of these motions relied in part on the type of argument Martha is contemplating.  Though any successful argument in support of Terry’s motion will certainly have to be grounded in the 8th amendment, it is obvious that something more than the current line of argument will be needed to persuade a court to rule in Terry’s favor.  Your suspicions are confirmed by the federal district court opinion denying Allen Nicklasson’s motion, which you found by searching his name in Google Scholar’s case law database.  You are beginning to feel that Terry’s motion might be pointless, but you do not want to let Martha down, so you start brainstorming ideas for persuasive arguments to use in support of Terry’s 8th amendment arguments.

Recalling past instances in which you have heard death penalty opponents refer to capital punishment as a human rights violation, you decide this is a promising approach, and you consult this research guide.  Since lethal injection has been in the news so much lately, you assume U.S. human rights organizations have had a lot to say about the issue.  You decide to start with the resources under the “Current Awareness Tool” tab of this research guide, and you access the ACLU – Human Rights Program website, quickly finding a link to a webpage discussing the ALCU’s perspective on the death penalty.  Moreover, on this same webpage you notice a link to a blog post entitled U.N. Human Rights Chief: Stop Lethal Injection in U.S.

The blog post states that the U.N. High Commissioner for Human Rights has suggested that a recent botched lethal injection execution in Oklahoma might violate the 8th amendment and that it might also “amount to cruel, inhuman and degrading treatment according to international human rights law.”  The blog goes on to quote the U.N. statement:

"The UN Human Rights Committee and the Committee against Torture have both previously called on the United States to review its  execution methods in order to prevent severe pain and suffering.  Most recently, in March 2014, the Human Rights Committee recommended the US ensure that lethal drugs used for executions originate from legal, regulated sources, and are approved by the US Food and Drug Administration (FDA).”

Since these seem like the kinds of statements that would be useful for supporting Terry’s motion, you try to get a better understanding of what these statements mean by exploring the “Introduction” to the research guide.

There you learn that the U.S. has ratified the International Covenant on Civil and Political Rights (CCPR) and the Convention against Torture (CAT), but that these treaties are non-self-executing meaning “these treaties do not give rise directly to individually enforceable rights in U.S. courts.”  Nevertheless, you read further and find that international human rights law is used as a significant source of persuasive authority in federal and state courts, and that advocates cite a wide variety of sources in arguing for courts to interpret U.S. laws in a manner that protects the universal rights and freedoms embodied international human rights law.  Further, using “The Core International Human Rights Instruments and Their Monitoring Bodies” link found under the “Sources of International Human Rights Law” tab of this research guide, you learn that the Human Rights Committee (HRC) and the Committee against Torture, referred to in the blog post, are the U.N. bodies that monitor U.S. compliance with the CCPR and the CAT, respectively.  Moreover, you are able to locate both the HRC statement and the Committee against Torture statement referenced in the blog post.

Believing you are likely to find more support of this type, your next task is to use the resources in this research guide to identify death penalty and other cases in which international human rights law has been used as persuasive authority in support of successful 8th amendment claims.  You can then identify which sources of international human rights law were cited as persuasive authority in those cases and then use the same and/or similar sources to bolster the 8th amendment arguments in Terry's motion.