President Joseph R. Biden
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Re: Request for Executive Clemency
Dear President Biden:
We write to express Human Rights Watch’s deep concern regarding the continued use of the death penalty in the United States and to respectfully urge you to take significant action by commuting the sentences of those currently on federal death row.
Human Rights Watch is an independent, nongovernmental organization that monitors and reports on human rights abuses by states and non-state actors in over 100 countries around the world. We have been working to promote respect for human rights for more than four decades.
Human Rights Watch opposes the death penalty in all cases because it is an attack on human dignity, uniquely cruel in its finality, and inevitably marked by discrimination, arbitrariness, and error.[1] Indeed, racial discrimination and the death penalty are inextricably linked in the United States.[2] As an organization that has done extensive work in the US on human rights abuses related to the criminal legal system and racial injustice, we find the federal death penalty of particular concern.
The imposition of the death penalty contradicts the evolving international consensus against its use. To date, some 100 countries have abolished or introduced a moratorium on the death penalty, either in law or in practice, citing moral, legal, and practical concerns.[3]
The right to life and the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment are established in the Universal Declaration of Human Rights, which the United States helped to draft, and in the Convention Against Torture.[4] The International Covenant on Civil and Political Rights (ICCPR), which the US has ratified with reservations, establishes that no one shall be arbitrarily deprived of their life and lays out the right of anyone sentenced to death to seek pardon or commutation of their sentence.[5] Although the ICCPR permits the use of the death penalty for only the most heinous crimes, the Second Optional Protocol of the ICCPR, which the US has not adopted, declares that “abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights” and commits nations to ending capital punishment.[6] The United Nations Office of the High Commissioner for Human Rights has also stated that the use of the death penalty is not consistent with the right to life and the right to live free from torture or cruel, inhuman, or degrading treatment or punishment.[7]
The death penalty has long been a subject of intense debate, and with growing evidence highlighting its inherent flaws, it is essential to reconsider its place in the US criminal legal system. Numerous studies have consistently established that the death penalty does not deter crime[8] or make communities safer. Research indicates that states with capital punishment do not experience lower crime rates compared to those without it.[9] Capital punishment does not address the root causes of societal violence, such as systemic inequality and insufficient investments in place-based solutions.[10]
Furthermore, the existence of the death penalty can lead to wrongful convictions. The risk of wrongful executions is a profound and troubling reality, with at least 200 people wrongly convicted, sentenced to death, and exonerated since 1973.[11] Research estimates that at least 4 percent of those sentenced to death in the US are innocent.[12] Factors such as inadequate legal representation, flawed evidence, racial bias, and unreliable witness testimonies can lead to grave miscarriages of justice.[13] Once an execution is carried out, there is no possibility of rectifying such errors, making the stakes of capital punishment extraordinarily high. This irreversible nature of the death penalty underscores the critical need for ending the death penalty. As long as there are individuals on federal death row, there remains a risk of executing an innocent person. These injustices not only undermine the credibility of the US legal system but also amount to serious violations of human rights.
Often, death sentences are carried out in a discriminatory manner, and they are primarily inflicted on the most marginalized—people living in poverty, people with psychosocial disabilities, and communities of color.[14] These disparities underscore serious concerns about fairness and equality under the law, which are core principles of international human rights law.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994, “resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations.”[15] Despite the United States’ legal commitment to this objective, the Committee on the Elimination of Racial Discrimination (CERD) has repeatedly highlighted areas in which the US fails to meet its obligations under the convention.[16] The CERD noted in 2001 “a disturbing correlation between race, both of the victim and the defendant, and the imposition of the death penalty, particularly in states like Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas.”[17] The committee's 2022 observations expressed notable continued concern over the United States’ use of the death penalty and urged “taking concrete steps towards completely abolishing the death penalty.”[18]
What is more, the history of the death penalty in the United States is deeply rooted in racism and the legacies of slavery. Racial disparities are evident in the federal death row population; twenty-two of the forty people, or 55 percent, currently on federal death row are people of color, including fifteen Black men, six Latine men, and one Asian man.[19] Black adults comprise 14 percent of our nation’s population[20], but they account for 38 percent of the people currently under a federal death sentence, which does not correlate with murder rates. Seventy-two percent of the 541 defendants whose cases were authorized for federal capital prosecution were people of color; 49 percent were Black.[21] Some Black men, as well as other people of color, on federal death row were convicted and sentenced by all-white juries.[22] These capital juries are created through the process of death qualification[23] and often generate significant issues, such as a biased and less diverse jury pool that is more likely to lean toward conviction and the imposition of the death penalty. [24] By excluding those who are opposed to capital punishment, all-white or nearly all-white juries are often constituted through a selection process that undermines a defendant’s right to a fair trial.[25]
Furthermore, the financial burdens associated with capital punishment are substantial. The costs of lengthy trials, extensive appeals, and incarceration on death row are ultimately borne by taxpayers.[26] Policies focused on restorative justice and front-end community investment, such as increasing access to resources like housing, employment, and healthcare, could more effectively enhance public safety and address societal violence.
During your election campaign in 2020, your platform included a pledge to “work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example.”[27] Furthermore, your criminal justice platform stated that those convicted of the most egregious federal crimes “should instead serve life sentences without probation or parole.”[28] As the United States grapples with issues of systemic inequality and social justice, commuting the federal death row would echo your administration’s stated commitment to human rights.
While we applaud the Justice Department’s institution of a moratorium on federal executions, we also acknowledge this is a temporary measure that can be swiftly reversed, as we saw during the federal execution spree conducted by the administration of former President Donald Trump in 2020 and 2021. Your executive power allows you to demolish the federal execution chamber in Terre Haute, direct the Justice Department not to pursue the death penalty in pending and future cases, promote federal legislation abolishing the death penalty, and commute the death sentences of the 40 prisoners currently on federal death row.
By commuting the sentences of those on federal death row, you will be acting in line with global leaders, emphasizing social rehabilitation[29] and fostering a more rights-respecting system for all. Commuting the sentences of these 40 individuals is consistent with recent bipartisan efforts[30] to address the injustice of the flawed federal death penalty system, while also recognizing the seriousness of the harm they caused. Human Rights Watch respectfully requests the Biden administration to make a decision that complies with international human rights laws and standards, aligns with his campaign promises, and furthers human dignity.
We urge your administration to uphold human rights and racial justice and take a principled stand against capital punishment.
We appreciate your consideration of this important matter and are available for further discussion.
Sincerely,
Tanya Greene
Director, US Program
Human Rights Watch
[1] “US: An Attack on Human Dignity,” Human Rights Watch news release, October 10, 2011, https://www.hrw.org/news/2011/10/10/us-attack-human-dignity.
[2] Death Penalty Information Center, “Race, Human Rights, and the U.S. Death Penalty,” undated, https://deathpenaltyinfo.org/policy-issues/human-rights/race-human-rights-and-the-u-s-death-penalty (accessed August 28, 2024).
[3] Death Penalty Information Center, “Abolitionist and Retention Countries,” last modified July 4, 2023, https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries (accessed August 26, 2024).
4 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art 3 and 5; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987. The United States has ratified the Convention Against Torture with certain reservations.
[5] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States in 1992, art 6.
[6] Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, adopted December 15, 1989, G.A. Res. 44/128, annex, 44 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/44/49 (1989), entered into force July 11, 1991. The United States has not ratified the Second Optional Protocol.
[7] United Nations Human Rights Office of the High Commissioner, “Death Penalty Incompatible with Right to Life,” January 31, 2024, https://www.ohchr.org/en/stories/2024/01/death-penalty-incompatible-right-life (accessed August 26, 2024).
[8] Death Penalty Information Center, “Deterrence,” undated, https://deathpenaltyinfo.org/policy-issues/deterrence (accessed October 22, 2024).
[9] Death Penalty Information Center, “Murder Rate of Death Penalty States Compared to Non-Death Penalty States,” undated, https://deathpenaltyinfo.org/facts-and-research/murder-rates/murder-rate-of-death-penalty-states-compared-to-non-death-penalty-states (accessed October 25, 2024).
[10] Community Safety Agenda, “About the Community Safety Working Group,” undated, https://communitysafety.us/about-us/ (accessed October 24, 2024).
[11] Death Penalty Information Center, “Innocence,” undated, https://deathpenaltyinfo.org/policy-issues/innocence (accessed October 24, 2024).
[12] Gross, S. R., O'Brien, B., Hu, C., & Kennedy, E. H., May 20, 2014, “Rate of false conviction of criminal defendants who are sentenced to death,” Proceedings of the National Academy of Sciences of the United States of America, 111(20), 7230–7235, accessed October 25, 2024, https://doi.org/10.1073/pnas.1306417111.
[13] Death Penalty Information Center, “DPIC Special Report: The Innocence Epidemic,” last modified February 18, 2021, https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-special-reports/dpic-special-report-the-innocence-epidemic (accessed October 24, 2024).
[14] The Committee on the Elimination of Racial Discrimination, which provides authoritative interpretations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), concluded that the United States has disproportionately arrested, charged, and sentenced people of color, and should work to eliminate the death penalty as a possible sentence. See Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Tenth to Twelfth Reports of the United States of America, September 21, 2022, CERD/C/USA/CO/10-12, https://documents.un.org/doc/undoc/gen/g22/495/96/pdf/g2249596.pdf (accessed August 26, 2024), ratified by the United States in 1994. See also Death Penalty Information Center, “Race, Human Rights, and the U.S. Death Penalty,” undated, https://deathpenaltyinfo.org/policy-issues/human-rights/race-human-rights-and-the-u-s-death-penalty (accessed August 26, 2024); United Nations Human Rights Office of the High Commissioner, Death Penalty Disproportionately Affects the Poor, UN Rights Experts Warn, press release, October 6, 2017, https://www.ohchr.org/en/press-releases/2017/10/death-penalty-disproportionately-affects-poor-un-rights-experts-warn#:~:text=%E2%80%9CIf%20you%20are%20poor%2C%20the,from%20lower% 20socio%2Deconomic%20groups (accessed August 26, 2024); Frank R. Baumgartner and Betsy Neill, “Does the Death Penalty Target People Who Are Mentally Ill? We Checked.,” Washington Post, April 3, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/03/does-the-death-penalty-target-people-who-are-mentally-ill-we-checked/ (accessed August 26, 2024).
[15] International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the US in 1994, para 10; United Nations Human Rights Office of the High Commissioner, “International Convention on the Elimination of All Forms of Racial Discrimination: 50 Years of Fighting Racism,” https://www.ohchr.org/en/treaty-bodies/cerd/international-convention-elimination-all-forms-racial-discrimination-50-years-fighting-racism (accessed August 26, 2024)
[16]Committee on the Elimination of Racial Discrimination, “Concluding Observations on the Combined Tenth to Twelfth Reports of the United States of America” September 21, 2022, https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhspzOl9Yw TXeABruAM8pBAK1xYN2wdGpGmJxT4qZ%2B%2Fzhl9s68flbQK27IwmDC1j6l212QsTq%2B%2FgbOEik44QlDlYZdvGiNLspvbKJ1mADJtn5a1Ojg9FFaST8zoSlBL%2FEgHQ%3D%3D (accessed August 26, 2024); Committee on the Elimination of Racial Discrimination, “Concluding Observations on the Combined Seventh to Ninth Periodic Reports of the United States of America” September 25, 2014, CERD/C/USA/CO/7-9, https://2009-2017.state.gov/documents/organization/235644.pdf (accessed August 26, 2024).
[17] CERD, Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, A/56/18, August 14, 2001, https://law.arizona.edu/sites/default/files/Concluding%20Observations%20of%20CERD%20United%20States%20of%20America.pdf (accessed October 24, 2024), paras. 380-407.
[18] CERD, Concluding Observations on the Combined Tenth to Twelfth Reports of the United States of America, September 21, 2022, para 28(d).
[19] Death Penalty Information Center, “List of Federal Death Row Prisoners,” undated, https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/list-of-federal-death-row-prisoners (accessed August 26, 2024).
[20] Mohamad Moslimani et al., “Facts About the U.S. Black Population,” Pew Research Center, January 18, 2024, https://www.pewresearch.org/social-trends/fact-sheet/facts-about-the-us-black-population/ (accessed October 22, 2024).
[21] Federal Death Penalty Resource Counsel, Declaration of Matthew Rubenstein Regarding the Geographic Location of Federal Cases, the Frequency of Authorizations, Death Sentences and Executions and the Race and Gender of Defendants and Victims, June 2024, https://fdprc.capdefnet.org/sites/cdn_fdprc/files/Assets/public/project_declarations/race__gender/declaration_location_and_frequency_of_capital_prosecutions_and_racegender_of_defendants_and_victims_rubenstein_june_2024_0.pdf (accessed October 22, 2024).
[22] Associated Press, “Death Penalty Cases Show History of Racial Disparity, Report Finds,” Los Angeles Times, September 15, 2020, https://www.latimes.com/world-nation/story/2020-09-14/report-death-penalty-cases-show-history-of-racial-disparity (accessed October 24, 2024).
[23] Death qualification is a specific process that occurs in capital cases in which jurors are screened during jury selection to exclude from the jury anyone who would under no circumstances consider a penalty of death.
[24] Stephen Bright, “Struck from A Jury for Being Black? It Still Happens All Too Often” The Washington Post, February 14, 2024, https://www.latimes.com/world-nation/story/2020-09-14/report-death-penalty-cases-show-history-of-racial-disparity (accessed October 24, 2024).
[25] Death Penalty Information Center, “The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides,” June 4, 1998, https://deathpenaltyinfo.org/facts-and-research/dpic-reports/in-depth/the-death-penalty-in-black-and-white-who-lives-who-dies-who-decides (accessed October 30, 2024).
[26] Death Penalty Information Center, Records Disclose Taxpayers Picked Up a Nearly Million Dollar Price Tag for Each Federal Execution, last modified September 25, 2024, https://deathpenaltyinfo.org/records-disclose-taxpayers-picked-up-a-nearly-million-dollar-price-tag-for-each-federal-execution (accessed October 22, 2024).
[27] Death Penalty Information Center, “As Biden Administration Mulls Federal Death-Penalty Policy, Study Finds U.S. Support for Capital Punishment at Lowest Point Since 1960s,” last modified June 11, 2024, https://deathpenaltyinfo.org/as-biden-administration-mulls-federal-death-penalty-policy-study-finds-u-s-support-for-capital-punishment-at-lowest-point-since-1960s (accessed September 4, 2024).
[28] Dakin Andone, “Biden Campaigned on Abolishing the Federal Death Penalty. But 2 Years In, Advocates See An ‘Inconsistent’ Message,” CNN, January 22, 2023, https://www.cnn.com/2023/01/22/politics/joe-biden-federal-death-penalty-abolition/index.html (accessed September 4, 2024).
[29] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992.
[30] Death Penalty Information Center, “Ohio General Assembly Resumes Bipartisan Efforts to Abolish the Death Penalty,” last modified September 25, 2024, https://deathpenaltyinfo.org/ohio-general-assembly-resumes-bipartisan-efforts-to-abolish-the-death-penalty (accessed October 24, 2024).
