No. 94-99003

IN THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT

_________________________________________________________________

RONALD A. SMITH,

Petitioner/Appellant,

v.

MICHAEL MAHONEY, Montana State Prison

Respondent/Appellee. __________________________________________________________________

On Appeal From the Judgment of the United States District Court for the District of Montana

Honorable Charles C. Lovell, Presiding D.C. No. CV-86-198-M-CCL

__________________________________________________________________

BRIEF AMICUS CURIAE OF THE CANADIAN CIVIL LIBERTIES

ASSOCIATION AND PROF. WILLIAM A. SCHABAS IN SUPPORT OF THE PETITION FOR REHEARING

AND REHEARING EN BANC __________________________________________________________________

Gregory J. Kuykendall (Bar No. 012508) Kuykendall & Associates 531 South Convent Avenue Tucson, AZ 85701-2612 Telephone: (520)792-8033 Facsimile: (520) 792-0113

Attorney for Amici Curiae

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................ iii STATEMENT OF INTEREST .............................................................................. 1 SUMMARY OF ARGUMENT ............................................................................. 2 ARGUMENT ........................................................................................................ 5

A. INTERNATIONAL LAW AND PRACTICE INFORM THE INTERPRETATION OF THE EIGHTH AMENDMENT ........................... 5

B. PROLONGED DEATH ROW DETENTION CAN CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT................................................. 7

i. American Jurisprudence and Scholarship have long-recognized the debilitating impact of prolonged and harsh death row confinement .......... 7 ii. Jurisdictions with comparable legal traditions recognize that excessively prolonged death row confinement is impermissibly cruel ....................... 10

iii. Authoritative interpretations of binding human rights provisions ban cruel forms of death row confinement ................................................. 13

iv. Capital punishment is not justified where penological goals have already been achieved ......................................................................... 15

v. Adjudication of Eighth Amendment claims requires a balancing of relevant factors ....................................................................................... 16

CONCLUSION ................................................................................................... 18

iii

TABLE OF AUTHORITIES

Federal Cases Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................. 5 Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000)..................................................... 9 Furman v. Georgia, 408 U.S. 238 (1972)............................................................... 8 Gregg v. Georgia, 428 U.S. 153 (1976) ............................................................... 15 Lawrence v. Texas, 539 U.S. 558 (2003)................................................................ 6 Maria v. McElroy, 68 F. Supp. 2d 206 (E.D.N.Y. 1999)...................................... 13 Miller ex rel. Jones v. Stewart, 231 F. 3d 1248 (9th Cir. 2000) .............................. 9 Nken v. Holder, 129 S. Ct. 1749 (2009) ................................................................. 7 Roper v. Simmons, 543 U. S. 551 (2005).........................................................6, 7, 8 Smith v. Mahoney, No. 94-99003 (9th Cir. Mar. 5, 2010) ...................................... 3 Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990).............................................. 3 Thompson v. Oklahoma, 487 U.S. 815 (1988)........................................................ 6 Trop v. Dulles, 356 U.S. 86 (1958) ........................................................................ 5 United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir. 2000)............................ 13 Wilkerson v. Utah, 99 U.S. 130 (1878) .................................................................. 5

State Cases People v. Anderson, 493 P.2d 880 (Cal. 1972)....................................................... 7 People v. Simms, 736 N.E.2d 1092 (Ill. 2000)...................................................... 16

iv

State v. Carpenter, 69 S.W. 3d 568 (Tenn. 2001)................................................. 13 State v. Smith, 863 P.2d 1000, 1009 (Mont. 1993) ................................................. 3 State v. Smith, 931 P.2d 1272, 1275 (Mont. 1996) ................................................. 3

International Cases Francis v. Jamaica, Communication No. 606/1994 (25 July 1995), U.N. Doc.

CCPR/C/54/D/606/1994 (1995)........................................................................ 14 G.B. v. Bulgaria, application no. 42346/98 (Judgment of 11 March 2004)........... 16 Guerra v. Baptiste [1996] 1 AC 397 .................................................................... 10 Higgs and Mitchell v. Minister of National Security (Bahamas) [1999] UKPC 55 ..................................................................................................................... 11 Öcalan v. Turkey, application no. 46221/99, (Grand Chamber judgment of 12

May, 2005) ....................................................................................................... 10 Pratt and Morgan v. The Attorney General of Jamaica [1994] 2 AC 1................ 10 Soering v. United Kingdom, (Judgment of 7 July 1989) Series A No. 161 ........... 10

Foreign Supreme Court Cases Attorney General v Susan Kigula & 417 Ors (Constitutional Appeal No. 03 of

2006) [2009] UGSC 6 (21 January 2009) (Uganda).......................................... 12 Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383 (India)........................... 11 United States v. Burns, 2001 SCC 7 (Canada) ..................................................... 12 Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348 (India)....................... 11

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Other Authorities Amnesty International, USA (Montana): Death penalty: David Thomas Dawson,

AI Index: AMR 51/119/2006 (19 July 2006) ...................................................... 2 Amy Smith, Not "Waiving" But Drowning: The Anatomy of Death Row Syndrome

and Volunteering for Execution, 17 B.U. PUB. INT. L.J. 237 (2008)..................... 9 Concluding observations of the Committee against Torture: Zambia, UN Doc.

CAT/C/ZMB/CO/2 (26 May 2008) .................................................................. 14 Concluding observations of the Human Rights Committee: United States of

America (3 Oct. 1995), UN Doc. CCPR/C/79/Add.50...................................... 14 Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution

Constitute Cruel and Unusual Punishment?, 29 SETON HALL L. REV. 147 (1998)................................................................................................................. 8

Human Rights Committee General Comment 20, para. 6 (Forty-fourth session,

1992), U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994) ............................................ 13 Jessica Feldman, A Death Row Incarceration Calculus: When Prolonged Death

Row Imprisonment Becomes Unconstitutional, 40 SANTA CLARA L. REV. 187 (1999)................................................................................................................. 8

Mark D. Cunningham & Mark P. Vigen, Death Row Inmate Characteristics,

Adjustment, and Confinement: A Critical Review of the Literature, 20 BEHAV. SCI. & L. 191 (2002) ........................................................................................... 9

Michael P. Connolly, Better Never Than Late: Prolonged Stays On Death Row

Violate the Eighth Amendment, 23 NEW ENG. J. CRIM. & CIV. CONFINEMENT 101 (1997) .......................................................................................................... 8

P. Hudson, Does the death row phenomenon violate a prisoner's human rights

under international law?, 11 European Journal of International Law 833 (2000)................................................................................................................. 9

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES

(1987) § 111, comment h.................................................................................. 13

vi

Ryan S. Hedges, Note, Justices Blind: How The Rehnquist Court's Refusal To

Hear a Claim for Inordinate Delay of Execution Undermines Its Death Penalty Jurisprudence, 74 S. CAL. L. REV. 577 (2001).................................................... 8

Saby Ghoshray, Tracing the Moral Contours of the Evolving Standards of

Decency: The Supreme Court's Capital Jurisprudence Post-Roper, 45 J. CATH. LEG. STUD. 561 (2007) ....................................................................................... 8

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STATEMENT OF INTEREST1

Canada’s only national civil liberties organization, the Canadian Civil

Liberties Association (CCLA) was founded in 1964 to promote respect for and

observance of fundamental human rights and civil liberties and to defend and

foster the recognition of those rights and liberties. One of the CCLA’s core

mandates is to ensure that these safeguards are respected, particularly as they relate

to Canadians. To advance this mandate, the CCLA has been involved on many

occasions in litigation regarding state conduct that threatens to expose Canadians

to cruel and unusual punishment. In the course of defending this essential freedom,

the CCLA relies on domestic, comparative and international legal norms. In the

present appeal, the question of whether excessively prolonged death row

confinement can amount to cruel and unusual punishment fits squarely within the

CCLA’s interests.

William A. Schabas is a Professor of Law and Director of the Irish Centre

for Human Rights at the National University of Ireland (Galway). Prof. Schabas

was also the consultant who prepared the United Nations Secretary-General’s five-

year global survey of capital punishment for the period 2004-2008. He has written

extensively on the death penalty under international law and on the ‘death row

1 Pursuant to 9th Cir. Rule 29-2, both parties have consented to the filing of this brief.

2

phenomenon.’2 His interest in these topics includes promoting the application of

relevant international legal standards by the domestic courts in individual death

penalty cases.

SUMMARY OF ARGUMENT

Ronald Allen Smith is the only Canadian currently awaiting execution in the

United States. He was first sentenced to death in March 1983 and since then has

spent over 27 years incarcerated on death row under harsh and debilitating

conditions.3 The State of Montana bears significant responsibility for the length of

this imprisonment as a result of its procedural and constitutional failings in Mr.

Smith’s case. In 1990, this Court held that “Smith was denied due process by the

failure of the [trial] court to appoint a defense psychiatrist to assist him in

2 These many publications include: THE ABOLITION OF THE DEATH PENALTY IN

INTERNATIONAL LAW (Cambridge University Press, 3rd ed. 2003); THE DEATH

PENALTY AS CRUEL TREATMENT AND TORTURE (Northeastern University Press, 1996); and Universal Norms and International Tribunals: The Case of Cruel Treatment and the Death Row Phenomenon, in TRILATERAL PERSPECTIVES ON

INTERNATIONAL LEGAL ISSUES: FROM THEORY INTO PRACTICE, (Thomas J. Schoenbaum, Junji Nakagawa & Linda Reif, eds., 1998). 3 Montana death row inmates “spend most of their lives alone in their cells. The exercise area to which they have access for five hours a week is reportedly an enclosed cage surrounded by concrete walls”. Amnesty International, USA (Montana): Death penalty: David Thomas Dawson, AI Index: AMR 51/119/2006 (19 July 2006). All three Montana executions since their resumption in 1995 have been of “volunteers” who abandoned their appeals and asked to be put to death; two other death row inmates have committed suicide. Id.

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preparation for his sentencing hearing.” Smith v. McCormick, 914 F.2d 1153, 1170

(9th Cir. 1990). Subsequently, the Montana Supreme Court again reversed Mr.

Smith’s sentence and remanded him for resentencing because “the District Court

erred by failing to order a current presentence investigation and report.” State v.

Smith, 863 P.2d 1000, 1009 (Mont. 1993).

Mr. Smith’s appeal raises important questions about the compatibility of

prolonged death row detentions and the Eighth Amendment, which prohibits cruel

and unusual punishment. Since his direct appeal in 1996, Mr. Smith has

consistently argued that “his right to be free from cruel and unusual punishment

[has been] violated [by] the amount of time he has spent on death row and the

number of sentencing hearings held in this case.” State v. Smith, 931 P.2d 1272,

1275 (Mont. 1996). This argument has grown more forceful with time and, as

Judge Fletcher noted in her dissenting opinion, there are no procedural barriers that

prevent the Court from assessing it in this appeal.4 Indeed, after considering Mr.

Smith’s cruel and unusual punishment claim, Judge Fletcher found that “executing

Smith would not advance the purposes underlying the death penalty, and thus

would violate the Eighth Amendment.”5

4 See Smith v. Mahoney, No. 94-99003, slip op. at 3496-97 (9th Cir. Mar. 5, 2010). 5 Id. at 3498.

4

Amici curiae file this brief in support of the petitioner’s motion for panel

reconsideration and en banc review of the majority judgment. Amici submit that

unduly protracted death row incarceration can amount to cruel and unusual

punishment contrary to the Eighth Amendment, particularly where the state bears

some responsibility for the inordinate length of the confinement. In this particular

case, the appropriate remedy is to commute the death sentence and replace it with a

non-capital sentence that acknowledges the punishment already meted out to the

offender.

Amici ground their submission on the considerable international and

comparative authority that supports the proposition that prolonged death row

detentions can amount to cruel and unusual punishment. These sources, which

have grown substantially in recent years, inform the analysis of the Eighth

Amendment issue in this case and should have been considered in the majority

judgment in this appeal. They were not. As such, amici respectfully submit that the

petition for review should be granted, and that the determination of the Eighth

Amendment issue in this case must be made in light of the relevant international

and comparative law.

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ARGUMENT

A. INTERNATIONAL LAW AND PRACTICE INFORM THE

INTERPRETATION OF THE EIGHTH AMENDMENT The Eighth Amendment prohibits the state from imposing cruel and unusual

punishment. Whether a particular punishment rises to the level of “cruel and

unusual” must be determined in light of the purpose of the Amendment. As the

Supreme Court of the United States has stated, “[t]he basic concept underlying the

Eighth Amendment is nothing less than the dignity of man.” Trop v. Dulles, 356

U.S. 86, 100 (1958). This concept is not static, but changes over time. In each case,

the interpretation of the Amendment must be informed by the “evolving standards

of decency that mark the progress of a maturing society.” Id. at 101.

In recent years, the Supreme Court of the United States has frequently

considered the laws, norms and practices of other common law jurisdictions in

determining contemporary Eighth Amendment standards.6 For example, when

6 See, e.g., Trop, 356 U.S. at 102 (virtual unanimity among “civilized nations of the world” that statelessness is not to be imposed as a punishment); Coker v. Georgia, 433 U.S. 584, 596, n.10 (1977) (“climate of international opinion” reinforces a conclusion regarding evolving standards of decency); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (execution of mentally retarded offenders “overwhelmingly disapproved” within the international community); see also Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878) (citing foreign law and practice in determining that execution by firing squad did not violate the Eighth Amendment).

6

considering whether the execution of minors amounts to cruel and unusual

punishment, the Court stated that:

In the 56 years that have passed since the United Kingdom abolished the juvenile death penalty, the weight of authority against it there, and in the international community, has become well established... It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.”

Roper v. Simmons, 543 U. S. 551, 577-578 (2005).

The U.S. Supreme Court has also increasingly looked to international human

rights law when determining Eighth Amendment claims. See, e.g., Thompson v.

Oklahoma, 487 U.S. 815, 830 n.34 (1988) (citing human rights treaties in Eighth

Amendment decision on the execution of juvenile offenders); Roper, 543 U. S. at

575 (citing human rights conventions in deciding that execution of juvenile

offenders violates the Eighth Amendment); cf. Lawrence v. Texas, 539 U.S. 558,

576 (2003) (citing decisions of the European Court of Human Rights in analysis of

Due Process Clause requirements, as a reflection of the “values we share with a

wider civilization”). These sources have included human rights treaties such as the

International Covenant on Civil and Political Rights (“ICCPR”) and encompass the

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“Convention Against Torture”), both of which have been ratified by

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the United States.7 Like the Eighth Amendment, these instruments protect rights

that “derive from the inherent dignity of the human person,”8 making them

particularly relevant to a “cruel and unusual” punishment analysis.

B. PROLONGED DEATH ROW DETENTION CAN CONSTITUTE

CRUEL AND UNUSUAL PUNISHMENT

i. American Jurisprudence and Scholarship have long-recognized the

debilitating impact of prolonged and harsh death row confinement

The notion that a lengthy incarceration on death row can have a debilitating

impact on the mental and physical state of an offender is not new to American

courts. Indeed, in 1972 the Supreme Court of California stated that:

The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.

People v. Anderson, 493 P.2d 880, 894 (Cal. 1972). Similar observations were

made by a U.S. Supreme Court justice, who noted that:

7 The ICCPR was ratified by the United States June 8, 1992; the Convention Against Torture was ratified by the United States on Oct. 21, 1994. See, e.g., Roper, 543 U. S. at 623 (referencing the ICCPR); Nken v. Holder, 129 S. Ct. 1749, 1754 (2009) (referencing the Convention against Torture). 8 The Preambles to both the ICCPR and the Convention Against Torture use this language.

8

mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.

Furman v. Georgia, 408 U.S. 238, 288-289 (1972) (Brennan, J., concurring). This

view is further reflected in an ever-growing body of American scholarship that

addresses the constitutional implications of the severe mental trauma that

frequently results from living under a sentence of death for a prolonged period of

time.9

As two prominent observers have noted in discussing what has been referred

to as the “death row phenomenon”:

death row conditions nationally are characterized by ‘rigid security, isolation, limited movement, and austere conditions.’ Not surprisingly, there is evidence that these bleak confinement conditions impact the psychological adjustment of death row inmates – most of whom spend many years in this status.

9 Some of the many scholars who have written recently about the death row phenomenon in an Eighth Amendment context include: Michael P. Connolly, Better Never Than Late: Prolonged Stays On Death Row Violate the Eighth Amendment, 23 NEW ENG. J. CRIM. & CIV . CONFINEMENT 101 (1997); Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 SETON HALL L. REV. 147 (1998); Jessica Feldman, A Death Row Incarceration Calculus: When Prolonged Death Row Imprisonment Becomes Unconstitutional, 40 SANTA CLARA L. REV. 187 (1999); Ryan S. Hedges, Note, Justices Blind: How The Rehnquist Court's Refusal To Hear a Claim for Inordinate Delay of Execution Undermines Its Death Penalty Jurisprudence, 74 S. CAL. L. REV. 577 (2001); Saby Ghoshray, Tracing the Moral Contours of the Evolving Standards of Decency: The Supreme Court's Capital Jurisprudence Post-Roper, 45 J. CATH. LEG. STUD. 561, 612 (2007).

9

Mark D. Cunningham & Mark P. Vigen, Death Row Inmate Characteristics,

Adjustment, and Confinement: A Critical Review of the Literature, 20 BEHAV.

SCI. & L. 191, 204 (2002) (internal citations omitted).10 While the duration of

death row confinement is undoubtedly a significant factor in the potential cruelty

analysis, contemporary perceptions of the ‘death row phenomenon’ have thus

now evolved to recognize that it consists of interlocking physical and

psychological components that go beyond purely temporal considerations.11

10 See also Miller ex rel. Jones v. Stewart, 231 F. 3d 1248, 1252 (9th Cir. 2000) (citing expert opinion that “it is well accepted that conditions such as those present in the [death row] where Miller is housed can cause psychological decompensation to the point that individuals may become incompetent”); Comer v. Stewart, 215 F.3d 910, 916 (9th Cir. 2000) (“we and other courts have recognized that prison conditions remarkably similar to Mr. Comer's descriptions of his current [death row] confinement can adversely affect a person's mental health”). 11 See, e.g., Amy Smith, Not "Waiving" But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution, 17 B.U. PUB. INT. L.J. 237, 239 (2008) (defining the death row phenomenon as comprising “a temporal component (amount of time between sentencing and execution); a physical component (the conditions in which a condemned inmate is held); and an experiential component (the meaning of living under sentence of death)”); P. Hudson, Does the death row phenomenon violate a prisoner's human rights under international law?, 11 European Journal of International Law 833, 836-37 (2000) (determining that “delay alone is insufficient to form the death row phenomenon” and that “[o]nly when the excessive delay converges with harsh conditions can a human rights violation arise”).

10

ii. Jurisdictions with comparable legal traditions recognize that excessively prolonged death row confinement is impermissibly cruel

The European Court of Human Rights (“ECHR”) has acknowledged the

cruel and unusual nature of prolonged death row detentions for over two decades.

In 1989, the ECHR held that where a “condemned prisoner has to endure for many

years the conditions on death row and the anguish and mounting tension of living

in the ever-present shadow of death,” his extradition would violate prohibitions

against “inhuman or degrading treatment or punishment”. Soering v. United

Kingdom, (Judgment of 7 July 1989) Series A No. 161, at ¶¶ 106, 92. See also

Öcalan v. Turkey, application no. 46221/99, (Grand Chamber judgment of 12 May,

2005), at ¶¶ 174-175 (imposition of a death sentence following a trial incompatible

with the “strict standards of fairness required in cases involving a capital sentence.

. . .amounted to inhuman treatment”).

This view has been shared by various domestic courts in other common law

jurisdictions. In the United Kingdom, a line of cases from the Judicial Committee

of the Privy Council (“JCPC”) acknowledges that where there are significant

delays between a death sentence and execution “there will be strong grounds for

believing that the delay is such as to constitute ‘inhuman or degrading

punishment’.” Pratt and Morgan v. The Attorney General of Jamaica [1994] 2 AC

1, at 33; see also Guerra v. Baptiste [1996] 1 AC 397, at 16 (death row

confinement for as little as four years and ten months amounted to “cruel and

11

unusual punishment” where the delay was attributable to the State). The JCPC has

also held that “execution after excessive delay [i]s an inhuman punishment because

it add[s] to the penalty of death the additional torture of a long period of alternating

hope and despair.” Higgs and Mitchell v. Minister of National Security (Bahamas)

[1999] UKPC 55 at ¶40.

High courts in other common law jurisdictions have reached similar

conclusions. The Supreme Court of India has found that:

the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death.

Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, 359-60; see also Smt.

Treveniben v. State of Gujarat [1989] 1 S.C.J. 383, 410 (if there is “inordinate

delay in execution, the condemned prisoner is entitled to come to the court

requesting to examine whether it is just and fair to allow the sentence of death to

be executed”).

In Uganda, the Supreme Court recently declared excessive delay in the

disposition of death penalty cases to be unconstitutional. In its decision the Court

discussed the ‘death row phenomenon’ at length, recognized its validity and found

that it was incompatible with constitutional safeguards against cruel, inhuman and

12

degrading treatment. When combined with the “inordinate delay” between the

imposition and carrying out of the sentence, the Court found that the inhumane

conditions of confinement allowed for the onset of “death row syndrome,” so that a

wait of “beyond three years after a condemned prisoner’s sentence was confirmed.

. . would tend towards unreasonable delay.” Attorney General v Susan Kigula &

417 Ors (Constitutional Appeal No. 03 of 2006) [2009] UGSC 6 (21 January

2009), at 47-49 and 57.

In Canada, the Supreme Court of Canada has held in the extradition context

that:

“[t]here is now. . . a widening acceptance amongst those closely associated with the administration of justice in retentionist states that the finality of the death penalty, combined with the determination of the criminal justice system to satisfy itself fully that the conviction is not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma.”

United States v. Burns, 2001 SCC 7, ¶122. In the Canadian Supreme Court’s view,

this phenomenon was a “relevant consideration” in determining whether

extradition to face the death penalty is consistent with the “principles of

fundamental justice.” Id. ¶¶ 123-124. Relying in part on this factor, the Court held

that it would be unconstitutional to permit the defendants’ extradition absent

assurances that the United States would not seek the death penalty.

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iii. Authoritative interpretations of binding human rights provisions ban cruel forms of death row confinement

The ICCPR and the Convention Against Torture, both of which have been

ratified by the United States, also recognize the cruelty of lengthy death row

confinement and support the conclusion that such treatment offends the Eighth

Amendment. Article 7 of the ICCPR provides that “[n]o one shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment.”12 The

interpretation of this treaty falls within the mandate of the United Nations Human

Rights Committee (UNHRC), which American courts have recognized should be

given deference for purposes of ICCPR interpretation.13

In the context of capital punishment, the UNHRC has declared that Article 7

of the ICCPR requires that, “[w]hen the death penalty is applied. . . it must be

carried out in such a way as to cause the least possible physical and mental

12 Although the United States ratified the ICCPR on the understanding that its terms are not self-executing, it is nonetheless “under an international obligation to adjust its laws and institutions as may be necessary to give effect to the agreement.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED

STATES (1987) § 111, comment h. 13 See, e.g., United States v. Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir. 2000) (rejecting double jeopardy claim under the ICCPR based on Human Rights Committee rulings); Maria v. McElroy, 68 F. Supp. 2d 206, 232 (E.D.N.Y. 1999) (“The Human Rights Committee’s General Comments and decisions in individual cases are recognized as a major source for interpretation of the ICCPR”); cf. State v. Carpenter, 69 S.W. 3d 568, 578 (Tenn. 2001) (recognizing that the ICCPR is a “properly ratified treaty” that is “the supreme law of the land”).

14

suffering.” Human Rights Committee General Comment 20, para. 6 (Forty-fourth

session, 1992), U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994). The Committee has

further determined that prolonged incarceration on death row may constitute a

violation of Article 7, “bearing in mind the imputability of delays in the

administration of justice on the State party, the specific conditions of imprisonment

in the particular penitentiary and their psychological impact on the person

concerned.” Francis v. Jamaica, Communication No. 606/1994 (25 July 1995),

U.N. Doc. CCPR/C/54/D/606/1994 (1995), para. 9.1. Indeed, the Committee has

expressly raised its concerns over the “long stay on death row” in the United States

“which, in specific instances, may amount to a breach of Article 7 of the

Covenant.” Concluding observations of the Human Rights Committee: United

States of America (3 Oct. 1995), UN Doc. CCPR/C/79/Add.50, para. 281.

Similar conclusions have been reached by the United Nations Committee

Against Torture, which has found that prolonged death row confinement can

amount to cruel, inhuman or degrading treatment, where conditions, such as

overcrowding, compound the mental anguish associated with an “excessive length

of time on death row.”14 The Committee has further recommended that, where

such circumstances exist, “the State party should ensure that its legislation

14 Concluding observations of the Committee against Torture: Zambia, UN Doc. CAT/C/ZMB/CO/2 (26 May 2008), ¶ 19.

15

provides for the possibility of the commutation of a death sentence where there

have been delays in its implementation.”15

iv. Capital punishment is not justified where penological goals have

already been achieved

The Supreme Court of the United States has held that capital punishment

does not uniformly violate the Eighth Amendment because it advances the

objectives of deterrence and retribution. Gregg v. Georgia, 428 U.S. 153, 183

(1976). In reaching this conclusion, however, the Court noted that punishment will

violate the Eighth Amendment where it is “so totally without penological

justification that it results in the gratuitous infliction of suffering.” Id.

Amici submit that there is no deterrent or retributive justification for

imposing a death penalty on someone who has already been subject to substantial

punitive sanctions in the form of a prolonged period of detention on death row. As

stated by the Chief Justice of the Supreme Court of Illinois:

Beyond a certain number of years and a certain number of failed attempts by the State to secure a constitutionally valid sentence of death, the litigation becomes a form of torture in and of itself. . . . Retribution and deterrence, the two principal social purposes of capital punishment, carry less and less force. . . . Eventually, ‘an execution may well cease to serve the legitimate penological purposes that otherwise provide a necessary justification for the death penalty.’

15 Id.

16

People v. Simms, 736 N.E.2d 1092, 1143 (Ill. 2000) (Harrison, C.J.,

dissenting)(internal citation omitted).

v. Adjudication of Eighth Amendment claims requires a balancing of relevant factors

The aforementioned domestic and international jurisprudence clearly

demonstrates that protracted death row incarceration can constitute cruel, inhuman

or degrading treatment, contrary to the well-established norms of both other

common law jurisdictions and international human rights law. Whether a particular

offender’s treatment rises to this level is a determination that must be made on a

case by case basis. There is no one factor that is determinative in this analysis;

rather a series of factors must be considered to assess whether the confinement

exceeds permissible bounds. As the ECHR has noted:

In all circumstances, where the death penalty is imposed, the personal circumstances of the condemned person, the conditions of detention awaiting execution and the length of detention prior to execution are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription. . . .When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant.

G.B. v. Bulgaria, application no. 42346/98 (Judgment of 11 March 2004) ¶ 73

(internal citations omitted).

This analysis requires balancing the length of the detention, the conditions of

confinement, the psychological impact of the delay on the offender, and the

17

reasons for the prolonged incarceration. The longer the detention, the harsher the

conditions of confinement, and the greater the impact on the offender’s mental

state, the more punitive a particular confinement will be. This is particularly true

where the State bears some responsibility for the delay, as a result of factors such

as procedural failings, ineffectiveness of appointed counsel, delays in processing

records, cumbersome policies and procedures, and absences of clarity in the

applicable laws. Where this analysis confirms that the State has exacted significant

punishment on a particular offender through inordinately prolonged incarceration

on death row, it would be inappropriate to subject them to the further extreme

punishment of carrying out a death sentence.

Mr. Smith has already endured 27 years of imprisonment on death row

awaiting execution under highly restrictive and harsh conditions of confinement.

The duration of his incarceration has been, in large part, a result of the extensive

litigation required to address the failings of the State in his case. Mr. Smith’s

experience has been extraordinarily punitive and has allowed the State to achieve

the same valid penological goals of retribution and deterrence that it would have

through his execution. To execute him at this point would be to punish him twice

for the same crime, an outcome that would be more severe than his original death

sentence. Such action would be neither just nor constitutional, as it would not

advance any legitimate deterrent or retributive purpose of the State.

18

CONCLUSION

Amici respectfully submit that this Court should grant Mr. Smith’s petition

for rehearing and rehearing en banc. Amici further submit that determination of

the Eighth Amendment issue in this case must be made in light of the relevant

international and comparative law, which indicates that Mr. Smith’s experience

during his twenty-seven years on death row would render his subsequent execution

unlawful.

Dated: March 26, 2010

Respectfully submitted,

/s/ Gregory J. Kuykendall

GREGORY J. KUYKENDALL Counsel for Amici Curiae

19

CERTIFICATE OF COMPLIANCE

WITH F.R.A.P. RULES 32(a)(5), (6) AND (7), AND WITH

CIRCUIT RULES 29-2 and 32-4

I certify that this brief is timely filed in accordance with Circuit Rule 29-2. I further certify, pursuant to F.R.A.P. 32(a)(5), (6) and (7) and Circuit Rule

32-4, that the amicus brief is proportionally spaced, has a type face of 14 points, and contains 4,199 words.

DATED: March 26, 2010

/s/ Gregory J. Kuykendall

GREGORY J. KUYKENDALL Counsel for Amici Curiae,

20

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on this date.

I certify that I have been advised by the attorneys Gregory A. Jackson and

Don Vernay for Petitioner that they are not registered CM/ECF users,

subsequently, I certify that they have been served by first class mail at the

following addresses:

Gregory A. Jackson JACKSON LAW FIRM P.C. 320 11th Avenue Helena, MT 59601 Don Vernay 1604 Golf Course Road SE Rio Rancho, NM 87124

I further certify that I have been advised by the office of the clerk that

counsel for Respondent are registered CM/ECF users, consequently I certify that

service will be accomplished by the appellate CM/ECF system.

DATED: March 26, 2010

/s/ Gregory J. Kuykendall

GREGORY J. KUYKENDALL Counsel for Amici Curiae