The 2010 Universal Periodic Review and Methods of Execution in the US

National Report: Baze v. Rees

There was no discussion of methods of execution or the lethal injection by the US government in its 2010 National Report, despite the important case of Baze v. Rees being decided by SCOTUS in 2008. Baze was a 7-2 decision in favour of Kentucky’s lethal injection, which was a three-drug protocol using sodium thiopental, pancuronium bromide, and potassium chloride.221 _{The petitioners in the case were not challenging the drugs used in the lethal}

injection – they accepted that the drugs in and of themselves would not be a violation of their

Eighth Amendment rights222 _{– instead they argued that the protocol itself was unconstitutional}

‘because of the risk that the protocol’s terms might not be properly followed, resulting in significant pain’.223

The majority opinion, delivered by Chief Justice Roberts, found that the petitioners had not shown that Kentucky’s ‘lethal injection protocol creates a demonstrated risk of severe pain’ or that the risk of severe pain ‘is substantial when compared to the known and available alternatives’.224 _{Furthermore, the Court found that ‘[t]he risks of maladministration [the}

petitioners] suggested – such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel – cannot remotely be characterized as “objectively

intolerable”’.225 _{The Court noted that ‘[s]ome risk of pain is inherent in any method of execution}

– no matter how humane – if only from the prospect of error in following the required procedure’.226

219 _{Yellin (n 210) 682.}

220 _{See, Deborah Denno, ‘Lethal Injection Chaos Post-Baze’ (2014) 102 Geo L J 1331.} 221 _{Baze v Rees 553 US 35, 44 (2008).} 222 _{Ibid 41.} 223 _Ibid. 224 _{Ibid 61.} 225 _{Ibid 62.} 226 _{Ibid 47.}

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During the interactive dialogue, the US noted that ‘[r]ecently, [SCOTUS] has narrowed the class of individuals that can be executed, the types of crimes subject to the penalty, and the

manner by which the punishment is administered so that it is not cruel and unusual’.227 _Yet,

as shown by the decision in Baze, there had been no decisions from SCOTUS limiting the ‘manner’ or method of execution.

Compilation Report and Stakeholder Reports

Despite the silence in the National Report, the Compilation Report cited CAT, which had recommended that the US ‘should carefully review its execution methods, in particular lethal injection, in order to prevent severe pain and suffering’.228 _{AHR’s individual Stakeholder}

submission similarly noted that ‘[d]eath by lethal injection can result in severe and excruciating

pain violating human rights obligations related to torture and cruel and unusual punishment’.229

AHR also acknowledged the decision in Baze, and cited the execution of Romell Broom in Ohio in 2009, wherein ‘officials spent over two hours attempting to locate a suitable vein to use for the lethal injection before finally postponing his execution’.230 _{AHR provided a}

recommendation on this issue in its individual submission that, due to the ‘potential pain and torture inflicted during lethal injection procedures, and the execution of innocent individuals, [the US] and [US] [S]tates should immediately abolish the death penalty and commute all

death sentences to a life imprisonment term’.231 _{This adds to the argument in this thesis that}

Stakeholders providing advance questions would assist the UPR in facilitating the abolition of

the death penalty in the US.232 _{Although recommendations on abolishing the death penalty}

have had no measurable impact on the US,233 _{given that there were no recommendations}

made and no discussion within the main reports, an advance question on methods of execution from AHR would have illuminated this as an issue to the member states.

Furthermore, the IACHR, in its submitted report on the cases of Medellín, Cardenas, and García, noted that the petitioners asserted that the ‘lethal injection as currently practiced in Texas fails to comport with the requirements that a method of execution cause “the least possible physical and mental suffering”’.234 _{This assertion indicated that Texas could be in}

227 _{Report of the Working Group 2010 (n 39) para 55.}

228 _{UNHRC, ‘Compilation of UN Information – United States of America’ (12 August 2010) UN Doc A/HRC/WG6/9/USA/2 para 25}

[hereinafter referred to as ‘Compilation Report 2010’].

229 _{Advocates for Human Rights, ‘United States Universal Periodic Review Stakeholder Report’ (2010)}

<www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx> para 6 accessed 24 August 2018.

230 _Ibid. 231 _{Ibid para 7.} 232 _{See, chapter 7.2.1.}

233 _{See, chapter 3.2.3.1; UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of}

America Addendum’ (8 March 2011) UN Doc A/HRC/16/11/Add1 para 9 [hereinafter referred to as ‘Report of the Working Group Addendum 2010’]; UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of America Addendum 1’ (14 September 2015) A/HRC/30/12/Add1 para 10 [hereinafter referred to as ‘Report of the Working Group Addendum 1 2015’]. See, also, Appendix.

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contravention of Article 7 ICCPR. However, although both AHR and the IACHR had raised methods of execution in their individual submissions, this was not included in the main Stakeholder Report.

Advance Questions and Recommendations

The lack of discussion within the Stakeholder Report may have contributed to the absence of advance questions or recommendations regarding methods of execution in 2010. There were also other relevant factors including that, prior to the 2010 UPR, botched executions were

rare, and so there was a lack of media attention alerting the key UPR actors to this issue.235

However, this thesis argues that this provides a striking example of where fundamental changes must be made to the UPR in order for it to function effectively as a human rights mechanism generally, and also to hold the US to account in terms of its international obligations, whilst gathering evidence to facilitate the abolition of the death penalty in the US. First, the content of the individual submissions must be cogent in order for the OHCHR to

include it in the final report.236 _{Second, the OHCHR must provide transparency regarding how}

it compiles the Stakeholder Report, perhaps through a briefing note on its website.237 _Third,

Stakeholders should consider submitting thematic reports, as an attempt to ensure that

important points, such as methods of execution, are not overlooked.238